Court: Court of Appeals of Georgia; May 9, 2012; Georgia; State Appellate Court
Bernie Schofill filed a medical malpractice lawsuit against Phoebe Putney Health Systems, Inc. on October 22, 2010, claiming injuries from a nurse's negligent intramuscular injection. He submitted an affidavit from registered nurse Jeinnie Avera, who stated that the nurse breached the standard of care by improperly administering the injection. Schofill later amended his complaint to include Avera's curriculum vitae, which he had initially omitted. The defendant moved to dismiss the case, arguing that Avera's affidavit did not comply with OCGA § 9-11-9.1 and OCGA § 24-9-67.1(c), asserting Avera lacked sufficient professional knowledge relevant to the case.
After a hearing on the motion to dismiss, Schofill submitted an amended affidavit from Avera on May 2, 2011. The defendant subsequently moved to strike this amended affidavit as untimely. Schofill contended that the trial court had discretion under OCGA § 9-11-9.1(e) to consider the amended affidavit despite it being filed more than 30 days after the motion to dismiss. On May 17, 2011, the trial court dismissed Schofill's complaint, ruling that the initial affidavit was insufficient under OCGA § 24-9-67.1 and that the amended affidavit could not be accepted due to its late filing without a request for an extension based on excusable neglect.
Schofill's motion for reconsideration was denied, and he appealed, arguing that the trial court incorrectly interpreted OCGA § 9-11-9.1(e) by not exercising its discretion to accept the amended affidavit. He maintains that the statute allows for such discretion without requiring a showing of excusable neglect for late filings.
In interpreting statutes, the intent of the legislature must be diligently sought, presuming that the General Assembly articulates its intentions clearly. A specific statute takes precedence over a general one unless stated otherwise. The Supreme Court has affirmed that plaintiffs have a broad right to amend defective affidavits in professional malpractice cases. Specifically, OCGA 9-11-9.1(e) pertains to responses or amended affidavits linked to motions to dismiss based on defects, while OCGA 9-11-6(b) is a general statute regarding time extensions. The court has discretion under OCGA 9-11-9.1(e) to allow amendments to defective affidavits, and it can consider late-filed documents. The trial court erred in denying an amended affidavit without a motion for excusable neglect, necessitating a vacate and remand for the court to reconsider exercising its discretion fairly. Schofill contended that the trial court's stance excluded relevant evidence, but this issue is not addressed since the case is being remanded. The judgment is vacated, and the case is remanded for further proceedings. Schofill did not contest the sufficiency of his initial affidavit, and the existing statutes allow for extensions either by stipulation or court order for excusable neglect. The previous case cited by the defendant does not alter this conclusion, as the discretion issue was not previously considered.
