Thompson v. Long
| Decision Date | 19 September 1991 |
| Docket Number | No. A91A1008,A91A1008 |
| Citation | 201 Ga.App. 480,411 S.E.2d 322 |
| Parties | THOMPSON v. LONG. |
| Court | Georgia Court of Appeals |
McGee & Oxford, Andrew J. Hinton, Jr., Atlanta, for appellant.
Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., Atlanta, for appellee.
In this medical malpractice case, plaintiff Edna T. Thompson appeals the trial court's grant of defendant's motion to dismiss. On July 25, 1988, plaintiff delivered a stillborn child during an emergency Cesarean section operation performed by defendant Crawford W. Long, M.D. On July 25, 1990, the day on which the statute of limitation would expire for any cause of action plaintiff might have against the defendant arising from the stillborn death of her child, plaintiff filed a pro se complaint against defendant alleging professional malpractice. Paragraph 13 of the complaint stated in pertinent part: "An Affidavit specifically setting forth at least one negligent act or omission claimed to exist and the factual basis for such claim is attached hereto and made a part of this petition by reference and is listed as 'Exhibit A.' " Plaintiff, however, failed to attach the described affidavit.
OCGA § 9-11-9.1 mandates that an affidavit of an expert competent to testify about any alleged malpractice accompany a charge of professional malpractice. Except under certain circumstances specifically set forth in the statute, subsection (a) of OCGA § 9-11-9.1 requires that the expert's affidavit be contemporaneously filed with the complaint. It is undisputed that at the time plaintiff filed her complaint, she did not have the requisite affidavit.
On August 24, 1990, defendant filed his answer to the complaint and asserted as a defense that plaintiff had failed to comply with the requirements of OCGA § 9-11-9.1. Seven days later, defendant filed a Plaintiff subsequently obtained counsel to represent her, who filed an amendment to the complaint to omit the sentence from paragraph 13 of the complaint quoted above and substitute in lieu thereof the following: The purpose of that amendment was to bring this case within subsection (b) of OCGA § 9-11-9.1, which provides: Within the 45-day period provided by subsection (b), plaintiff filed a supplement to the complaint attaching the requisite affidavit. In support of her motion to amend her complaint and in opposition to defendant's motion to dismiss, plaintiff filed an affidavit in which she averred that at the time she filed her complaint, she thought she had to allege an affidavit was attached to the complaint, but that she would be able to obtain it and file it afterwards.
motion to dismiss for failure to comply with OCGA § 9-11-9.1.
The trial court granted the defendant's motion to dismiss finding that the protection afforded by OCGA § 9-11-9.1(b) must be specifically invoked by allegation in the complaint. The trial court further found that this case is governed by OCGA § 9-11-9.1(e), which provides that if the plaintiff fails to file the requisite affidavit and the defendant raises that defect in his initial responsive pleading, the plaintiff may not cure the defect by amendment unless the court determines that the plaintiff had the requisite affidavit prior to filing the complaint.
1. Subsection (e) specifically excepts cases governed by subsection (b), as plaintiff contends this one is, from its edicts. The real issue in this case is whether the plaintiff should be allowed to amend her complaint to invoke the protections of subsection (b), although she failed to allege that she was relying on that subsection when she originally filed her complaint. We hold that under the circumstances of this case, the plaintiff can amend her complaint.
It is undisputed that plaintiff filed her cause of action within ten days of the expiration of the applicable statute of limitation for her claim, and therefore, she would clearly be entitled to invoke the protections of OCGA § 9-11-9.1(b) if she had made the proper allegations in her complaint when it was first filed. OCGA § 9-11-8(f) requires that "[a]ll pleadings ... be so construed as to do substantial justice." See Glaser v. Meck, 258 Ga. 468(3), 369 S.E.2d 912 (1988). This court has repeatedly held that the spirit and intent of the Civil Practice Act require that pleadings are to be liberally construed in favor of the pleader. Mills v. Bing, 181 Ga.App. 475, 476, 352 S.E.2d 798 (1987); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga.App. 561, 239 S.E.2d 217 (1977). Pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers. Evans v. City of Atlanta, 189 Ga.App. 566, 567, 377 S.E.2d 31 (1988); see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), Dillingham v. Doctors Clinic, 236 Ga. 302, 223 S.E.2d 625 (1976). As our Supreme Court noted in St. Joseph's Hosp. v. Nease, 259 Ga. 153, 154, 377 S.E.2d 847 (1989), the language of OCGA § 9-11-9.1(b) "shows a clear legislative intent to give a plaintiff extra time to secure an affidavit when the statute of limitation is about to expire."
To require a pro se plaintiff to include certain "magic language" in his complaint, or suffer dismissal, places pleading formalities 2. Defendant further argues that the affidavit filed was not legally sufficient. In its original order granting defendant's motion to dismiss, the trial court found...
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French v. Carter
...of Corrs. v. Baker, 406 Fed.Appx. 416, 422 (11th Cir.2010) ( “Pro se pleadings must be liberally construed....”); Thompson v. Long, 201 Ga.App. 480, 481, 411 S.E.2d 322 (1991) ( pro se pleadings are held to less stringent standards than pleadings that are drafted by lawyers). There is inevi......
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Glisson v. Hospital Authority of Valdosta & Lowndes County
...of an adjudication." White v. State, 213 Ga.App. 429, 430, 445 S.E.2d 309 (1994). Additionally, our decision in Thompson v. Long, 201 Ga.App. 480, 481(1), 411 S.E.2d 322 (1991), permitted amendment to the body of the complaint in order to allow for the pleading of the provisions of OCGA § 9......
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Sisk v. Patel
...to comply with subsection (b) within 45 days of filing, he may have been afforded that privilege. See Thompson v. Long, 201 Ga.App. 480, 481-482(1), 411 S.E.2d 322 (1991). He did not file the original affidavit in court until over nine months after the complaint was filed and after defendan......
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Keefe v. Northside Hosp., Inc.
...407 S.E.2d 135 (1991); Wright v. Crawford Long Hosp., etc., 205 Ga.App. 653, 655(2), 423 S.E.2d 12 (1992); Thompson v. Long, 201 Ga.App. 480, 481(1), 411 S.E.2d 322 (1991). This is not mere verbiage but rather representation of a fact, a fact which is a necessary ingredient for the applicab......