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Pico v. Brady

Court of Appeals of Georgia, Second Division

May 23, 2018

CRUZ PICO et al.
v.
BRADY

          MILLER, P. J., REESE and BROWN, JJ.

          REESE, JUDGE.

         Alisa 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[1] 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 affirm.

         According 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 prepared."

         The 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)[.]"[2]

         Brady 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.

         Brady 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.

         "A 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)."[3]

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.[4]

         With these guiding principles in mind, we turn now to the defendants' specific claim of error.

         The 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).

         Pretermitting 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, [5] we conclude that the trial court did not err in denying the defendants' motion to dismiss.

         In a professional malpractice action, a plaintiff generally must file an expert affidavit with the complaint.[6] As amended in 2007, [7] 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 ...

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