Constitutionality of Georgia’s Affidavit of Merit Statute upheld

On June 28, 2010, the Georgia Supreme Court issued a unanimous opinion upholding the constitutionality of an early Georgia tort reform measure, OCGA 9-11-9.1 (“9.1”). Passed in 1987, 9.1 requires a claimant for professional negligence, including legal malpractice, to file an affidavit of a like expert that opines that the allegedly negligent professional committed at least one act of professional negligence.  The case is being defended by Hawkins Parnell Thackston & Young LLP attorneys Kim M. Jackson and Matthew G. McLaughlin.  The appeal was successfully handled by Kim M. Jackson and HPTY appellate specialist Robert GilbreathKim M. Jackson handled oral argument.         

Justice Benham authored the Walker opinion

In Walker v. Cromartie, Mr. and Mrs. Walker filed a complaint alleging legal malpractice and breach of fiduciary duty against a former attorney.  The trial court granted partial summary judgment as to the legal malpractice claim based upon the Walkers’ failure to file the expert affidavit required by 9.1.  The Walkers challenged the statute on constitutional grounds, asserting that because of their financial indigence, they could not afford to pay an expert to provide the necessary affidavit.  The Walkers asserted that 9.1 violated their right to “access to courts,” equal protection, due process and the right to a jury trial.  The Supreme Court rejected most of the Constitutional challenges based upon a lack of state action.         

Nothing in OCGA 9-11-9.1 imposes a cost or fee for filing or obtaining an expert affidavit.  The “costs” appellants object to are created by private actors, not any state actor.  Since no state actor has exacted the harm of which appellants complain, the statute does not violate the right to due process.         

The Court also disposed of the other constitutional challenges by recognizing the rational basis for the affidavit of merit statute.          

Likewise, the statute does not violate equal protection.  … Here, the statute makes no distinction between any class of citizens since it requires any person or entity that brings an action for professional negligence to file an expert affidavit. Since appellants cannot show any disparate treatment, their equal protection argument cannot be sustained on that basis.         

Poverty alone is not a suspect classification for the purpose of equal protection analysis [] and appellants have failed to set forth a fundamental right they have been denied. When neither a suspect classification nor a fundamental right is at stake, a rational relationship test is applied to determine whether the statute violates equal protection.  That is, the statute must bear a direct relationship to the legitimate legislative purpose. The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice lawsuits being filed against professionals. The requirement of filing an expert affidavit at the time the complaint is filed serves this stated purpose because it requires plaintiffs to find an expert who will attest that at least one act of professional negligence has occurred, thereby reducing the number of frivolous claims filed.  [Citations omitted.]         

Robert Gilbreath assisted with the appellate briefing.

The Walkers also asserted a procedural issue and argued the separation of powers doctrine and the Georgia constitutional prohibition against “special laws” were violated by 9.1.  The Court easily disposed of these issues as well.  The Walkers have filed a motion for reconsideration and threatened to appeal the case to the “highest court in the land.”         

UPDATE:  Walkers motion for reconsideration was denied by Georgia Supreme Court.      

UPDATE:  Walkers filed a notice of intent to petition the United States Supreme Court for cert.     

Affidavit of merit statutes have been passed by legislatures as part of tort reform measures in numerous states.  They take many forms and have different scopes.  For example, some states have affidavit of merit statutes that only apply to medical malpractice claims.  The fact that Georgia’s statute applies to all professionals strengthened its constitutional merit.  Affidavit of merit statutes have been overwhelmingly upheld to state and federal constitutional challenges nationwide.  The appellate courts of two states, Arizona and Oklahoma, had declared unconstitutional narrower affidavit of merit statutes based upon state constitutional provisions that are not contained in Georgia’s constitution.  These rulings were based upon laws that were significantly distinguishable and relied upon state constitutional provisions that have no parallel provision in Georgia law.  Arizona later upheld a redrafted affidavit of merit statute.  The Walkers relied heavily upon these cases, but the Georgia Supreme Court rejected the argument and joined the large majority of state appellate courts in upholding similar affidavit of merit statutes.         

From a practice perspective, nothing has changed.  Claimants are still required to comply with Georgia’s affidavit of merit statute.  While it was surprising that it took 23 years for a constitutional challenge to get to the Georgia Supreme Court, the ruling confirmed this reasonable and valuable provision.

1 Response to “Constitutionality of Georgia’s Affidavit of Merit Statute upheld”

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