CRUZ PICO et al.
MILLER, P. J., REESE and BROWN, JJ.
Brady filed a medical malpractice action against Dr.
Christian Cruz Pico and Georgia Surgicare, LLC (collectively,
"the defendants"). The defendants moved to dismiss
the complaint for failure to state a claim on the ground that
Brady had retained an attorney more than 90 days prior to the
expiration of the statute of limitation and was subject
to the contemporaneous affidavit filing requirement of OCGA
§ 9-11-9.1 (a). The trial court denied the motion to
dismiss, and we granted the defendants' petition for
interlocutory review. For the reasons set forth, infra, we
to the complaint, filed on August 1, 2016, Brady suffered
injuries resulting from a cervical node excision performed by
Dr. Cruz Pico on August 1, 2014. Brady attached to the
complaint the affidavit of her attorney, Christopher McClurg.
McClurg testified that he had been "retained by [Brady]
on July 29, 2016, for purposes of filing this instant suit[,
]" that "[t]he period of limitation [would] expire
within ten days of the date of filing and, [that] because of
such time constraints, an affidavit of an expert could not be
defendants moved to dismiss on the ground that no expert
affidavit was attached to the complaint, as required by OCGA
§ 9-11-9.1 (a), even though Brady had retained McClurg
as her attorney long before July 29, 2016, as reflected on a
medical authorization form provided to Dr. Cruz Pico to
release Brady's medical records. The defendants attached
the document as an exhibit to the motion. The form, which
appears to have been signed by Brady on December 16, 2014,
directed Cruz Pico to release information to "Plaintiff
Attorney, " identified as McClurg, and stated that the
"[p]urpose of [the] disclosure" was
"Litigation (this means I am a lawyer and I represent
this person in a lawsuit)[.]"
responded to the motion to dismiss and attached a "New
Client Questionnaire, " also dated December 16, 2014, in
which she acknowledged that "NO Attorney-Client
relationship exist[ed] between [McClurg] or any other
attorney . . . in this office until such time as a written
Legal Services Contract is entered into by and between the
attorney, his or her firm, and the undersigned, and all legal
fees, deposits, and retainers are paid and other documents,
files, and information [are] received in accordance with the
Legal Services." She also attached a "Legal
Services Contract/Invoice, " dated July 29, 2016, that
documented her retention of McClurg as her attorney for a
"Med Mal" action.
amended her complaint on September 13, 2016, and attached an
expert affidavit setting forth the defendants' negligent
acts or omissions that, in the expert's opinion, resulted
in Brady's nerve injuries. After hearing oral argument on
the defendants' motion to dismiss, the court denied the
motion to dismiss based upon the lack of [an] expert
affidavit is a motion to dismiss for failure to state a claim
under OCGA § 9-11-12 (b) (6)."
We review de novo a trial court's determination that a
pleading fails to state a claim upon which relief can be
granted, construing the pleadings in the light most favorable
to the plaintiff and with any doubts resolved in the
plaintiff's favor. And the pleadings to be construed
include any exhibits attached to and incorporated into the
complaint and the answer.
these guiding principles in mind, we turn now to the
defendants' specific claim of error.
defendants contend that the trial court erred in denying
their motion to dismiss because Brady had retained the advice
and assistance of counsel at least 19 months before she filed
suit and, therefore, was not entitled to invoke the 45-day
extension of time to file an expert affidavit pursuant to
OCGA § 9-11-9.1 (b).
whether the trial court properly considered the medical
authorization form attached to the defendants' motion to
dismiss and the new client questionnaire attached to
Brady's response,  we conclude that the trial court did not
err in denying the defendants' motion to dismiss.
professional malpractice action, a plaintiff generally must
file an expert affidavit with the complaint. As amended in
2007,  OCGA § 9-11-9.1 (b) provides:
The contemporaneous affidavit filing requirement . . . shall
not apply to any case in which the period of limitation will
expire or there is a good faith basis to believe it will
expire on any claim stated in the complaint within ten days
of the date of filing the complaint and, because of time
constraints, the plaintiff has alleged that an affidavit of
an expert could not be prepared. In such cases, if the
attorney for the plaintiff files with the complaint an
affidavit in which the attorney swears or affirms that his or
her law firm was not retained by the plaintiff more than 90
days prior to the expiration of the period of limitation on
the plaintiff's claim or claims, the plaintiff shall have
45 days after the filing of the complaint to supplement the
pleadings with the affidavit. The trial court shall not
extend such time for any reason without consent of all
parties. If either affidavit is not filed within the
periods specified in this Code section, or it is
determined that the law firm of the attorney who filed the
affidavit permitted in lieu of ...