Change in malpractice from September 3, 2014
On Friday, March 27, 2015, the Georgia Supreme Court issued its decision in Gala v. Fisher, an appeal involving the issue of whether a plaintiff in a malpractice lawsuit can cure a defective expert affidavit by filing the affidavit of a new expert.
In a relatively brief opinion, the Georgia Supreme Court affirmed the holding of the Georgia Court of Appeals confirming that a plaintiff asserting a malpractice claim can replace a defective affidavit with an affidavit from a different expert. Justice Hines, writing for the Court, noted that the cure provision of O.C.G.A. § 9-11-9.1(e) does not contain a express limitation on how a plaintiff can cure a defect and a liberal reading of the cure provision is consistent with the general liberality of pleadings under the
Georgia Civil Practice Act and does not detract from the purpose of the statute.
In theory, this ruling allows plaintiffs to have the proverbial “second bite of the apple,” since they can file a lawsuit with a defective affidavit and, if challenged, find a new or additional expert to support their claims. In reality, however, the decision does not change the qualifications of an expert necessary to support a malpractice claim and a plaintiff must still find an expert meeting the statutory requirements or face dismissal of his claims.