When is a Professional Malpractice Affidavit Required in a Georgia Negligence Lawsuit?

By Darl H. Champion Jr.

When is a Professional Malpractice Affidavit Required in a Georgia Negligence Lawsuit?

The law is clear. In Georgia, any complaint alleging professional negligence must be accompanied by an “affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

What is less clear is the application of this requirement in the real world of litigating negligence claims. Many cases that otherwise had merit have been dismissed because the affidavit requirements were not met. The type of negligence at issue, and how it is described in the claims being asserted, requires careful consideration and has important implications for meeting the threshold requirements of asserting a cause of action.

The Differences Between Ordinary Negligence and Professional Negligence

The primary distinction between ordinary negligence and professional negligence is that professional negligence relates to specialized knowledge proven by expert testimony while ordinary negligence is based on common knowledge that the trier of fact will possess on their own.

At the root of professional negligence is an individual’s failure to take the same amount of care as those with specialized knowledge and training. Claims against lawyers, doctors, accountants, architects, and other professionals are common types of professional negligence cases. But even when suing one of these professionals or another professional listed in the statute, the claim could still involve ordinary negligence if the conduct at issue does not involve any specialized knowledge or expertise. For example, in the medical context, an issue that commonly arises is whether a claim involves ordinary or professional negligence when a patient falls while being transported or assisted by a licensed medical professional. The line between these two claims is not always clear, so a careful review of the case law and the pertinent facts is important before filing suit against any licensed professionals listed in O.C.G.A. § 9-11-9.1.

The elements of a cause of action for professional negligence are the same as in any negligence action. A plaintiff must establish:

• Duty
• Breach
• Proximate cause
• Damages

An important difference between a claim of professional negligence versus other negligence claims is that there are procedural requirements that must be met to bring a claim, and expert testimony is needed in order to successfully prosecute or defend the claim.

With regard to the latter issue, in Georgia, there is a rebuttable presumption that professional services are provided with the requisite degree of care, skill, and diligence generally required by the profession. Accordingly, a plaintiff is typically required to present expert testimony to overcome the presumption. Once a plaintiff meets that burden, the burden then shifts to the defendant to respond with similar expert testimony.

In terms of procedural requirements that must be met to bring a professional negligence claim, the primary one is the need to include an expert affidavit when filing a complaint. Specifically, O.C.G.A. § 9-11-9.1 provides that in any action for damages alleging professional malpractice, the plaintiff must file with the complaint an affidavit of an expert competent to testify. The affidavit should set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim. In medical malpractice cases, there are additional requirements regarding the qualifications of the expert witness.

It is common for defense counsel, in a malpractice action, to argue that the plaintiff failed to comply with the requirements of O.C.G.A. § 9-11-9.1 because there is some alleged deficiency with an affidavit that was filed. In some cases, the defense will argue that claims being asserted as ordinary negligence actually involve professional negligence. In such instances, if no affidavit accompanied the complaint, the defense will assert that the complaint should be dismissed. It is important to note that, while a defective affidavit can be remedied through an amendment, the failure to file an affidavit at all cannot be remedied through an amendment to the complaint that adds it.

When is a Professional Malpractice Affidavit Required Under O.C.G.A. § 9-11-9.1?

When determining whether an affidavit is required under O.C.G.A. § 9-11-9.1, courts are required to “look solely to the allegations of the complaint and liberally construe the allegations to state a claim if, within the framework of the complaint, the plaintiff may introduce evidence which will sustain a grant of relief” for a claim that does not require an affidavit. An affidavit is required “only if the allegations of the complaint disclose with certainty” that the plaintiff is pursuing a claim requiring a professional negligence affidavit.

O.C.G.A. § 9-11-9.1’s affidavit requirement only applies to an “action for damages alleging professional malpractice against” three categories of defendants:

1. A professional licensed by the State of Georgia and listed in subsection (g) of this Code Section;
2. A domestic or foreign partnership, corporation, professional corporation, business trust, general partnership, limited partnership, limited liability company, limited liability partnership, association, or any other legal entity alleged to be liable based upon the action or inaction of a professional licensed by the State of Georgia and listed in subsection (g) of this Code section; or
3. Any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (g) of this Code section.

In short, the statute only requires an affidavit when suing a professional directly, or when suing an entity based on the vicarious liability (i.e., one party is held partly responsible for the unlawful actions of a third party) of a professional.

In some cases, a defendant will argue that an affidavit is required even when the underlying claims only allege ordinary negligence, or where no professional is being sued by the plaintiff.

For example, in a premises liability case brought against a property owner alleging ordinary negligence, the property owner may believe that a third-party professional, such as an architect or engineer, is responsible for the defect that gave rise to the damages. The defendant may argue that an affidavit should have been filed with the complaint and move to dismiss the complaint.

To muddy the waters in this type of scenario, the defendant may attempt to argue that the plaintiff has sued them for vicarious liability, which would give rise to an affidavit requirement. But in a case alleging only ordinary negligence against a property owner, no such requirement should be found to exist—at least as to the plaintiff’s claims. This is because, in a premises liability case, the landowner or occupier’s duties are separate from whatever duties a professional owes either to the client, or a third party who may be harmed by the professional’s negligence. When a defendant is sued under a premises liability theory, the liability is based on the owner or occupier’s own negligence in having a dangerous condition on its property of which it had actual or constructive notice.

To the extent that the property owner defendant seeks to bring the third-party professional into the lawsuit through a third-party complaint, the defendant would have the obligation to file an affidavit. The Georgia Supreme Court addressed this distinction in a premises liability case where the defendant-owner sued an architect in a third-party complaint for contribution and indemnity. This scenario is merely one example of how the affidavit requirement becomes fodder for disputes and motion practice in Georgia litigation.

Negligence claims, especially those that involve claims of professional negligence, are often complex and require considerable investments of time, resources, and effort. Seemingly straightforward issues in a negligence case—such as whether an affidavit is required—are not so simple.

Indeed, the line between ordinary negligence and professional negligence is not always clear. And because the consequences of not including an affidavit when required (dismissal of the case) are severe, it’s critical that a personal injury attorney bringing a negligence claim understands not only the professional malpractice affidavit statutory requirements but also (1) how courts have interpreted them and (2) how defense counsel seeks to exploit them.

1. O.C.G.A. Section 9-11-9.1
2. Hailey v. Blalock, 209 Ga. App. 345, 433 S.E.2d 337 (1993)
3. OCGA 24-7-702
4. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 146 (2009)
5. Id.
6. Hous. Auth. of Savannah v. Greene, 259 Ga. 435 (1989)