To Prevent Use of Renewal Statute, Bring 9.1 Motion With Answer

The Supreme Court held in Openside MRI of Atlanta, LLC v. Chandler that a medical malpractice plaintiff was entitled to continue with her renewal lawsuit against an MRI provider because the defendants had not filed a motion to dismiss pursuant to OCGA 9-11-9.1 with the answer in the first lawsuit.  

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OCGA 9-11-9.1 provides generally that any claim for professional negligence in Georgia must be accompanied by an expert affidavit supporting the claim.  In Openside MRI, the plaintiff filed an action but failed to attach a supporting affidavit.  The defendant answered, but did not file a motion to dismiss for failure to attach the affidavit until more than five months after the answer was filed.  The complaint was dismissed without prejudice prior to a court order on the motion to dismiss.  The claim was then renewed within six months outside of the statute of limitations as permitted by OCGA 9-2-61.  OCGA 9-11-9.1(c) provides: 

If a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 . . . . 

Raising the defense in the answer was not a “motion” sufficient to take advantage of the bar in OCGA 9-11-9.1(c). 

The current version of OCGA 9-11-9.1 does not require a defendant to file a motion to dismiss contemporaneously with the answer (though prior versions of the statute did).  Nonetheless, it is a good idea.  As this case proves, the failure to file such a motion  contemporaneously with the first defensive pleading gives the plaintiff an opportunity for a “do over” by taking advantage of the renewal statute.

1 Response to “To Prevent Use of Renewal Statute, Bring 9.1 Motion With Answer”

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