GEORGIA DERMATOLOGY CLINIC, P.A. d/b/a GEORGIA DERMATOLOGY AND SKIN CANCER CENTER AND ORLANDO GILBERT RODMAN, M.D., Appellants,

v.

DEBY DIANNE NESMITH, Individually and as parent of COREY BATEMAN, deceased, and as personal representative of the Estate of COREY BATEMAN, deceased, Appellees,

CASE NO. A01A2445

Underlying this Interlocutory appeal is a wrongful death action brought by Deby Diane Nesmith (hereinafter "Ms. Nesmith"), arising from the death by suicide of her son on March 28, 1998. She filed her original Complaint on March 27, 2000 - one day prior to the expiration of the statute of limitations. (R-11). The Complaint alleged, among other things, causes of action sounding in medical negligence against appellant Dr. Orlando Gilbert Rodman (hereinafter "Dr. Rodman") and the Georgia Dermatology Clinic, P.A. (hereinafter "Georgia Dermatology"). Invoking the provisions of O.C.G.A. 9-11-9.1, Ms. Nesmith stated that the allegations of medical negligence against the appellants were being filed "within ten days of the expiration of the statute of limitations, and as such an affidavit of a qualified expert could not be prepared for simultaneous filing with the Complaint. Pursuant to O.C.G.A. § 9-11-9.1, plaintiff will file in this case an affidavit from a qualified expert within forty-five (45) days of the filing of this suit." (R-16).

Together with their Answer, Dr. Rodman and Georgia Dermatology each filed a Motion to Dismiss the Complaint. (R-45, R-61). The Motions to Dismiss alleged that the Complaint was, as a matter of law, incorrect in its assertion that the expert affidavit could not be filed contemporaneously. Dr. Rodman and Georgia Dermatology then urged that if the court did not find, as a matter of law, that the affidavit could have been filed together with the Complaint, that Dr. Rodman and Georgia Dermatology should be granted permission to conduct discovery to determine the veracity of the allegation that the expert affidavit could not be filed contemporaneously with the Complaint.

On May 4, 2000, within the 45 day period, Ms. Nesmith filed and served her Amended Complaint, together with the expert affidavit required by O.C.G.A. 9-11-9.1. (R-67).

On April 3, 2001, the trial court denied the appellants' motions to dismiss. (R-194).

Dr. Rodman and Georgia Dermatology made application for Interlocutory Appeal, which was granted by this Court on May 11, 2001.

PART II: ARGUMENT AND CITATION OF AUTHORITIES

THE TRIAL COURT DID NOT ERR IN DENYING APPELLANTS' MOTIONS TO DISMISS

A. Summary of the Argument

O.C.G.A. § 9-11-9.1(b) grants to a plaintiff who files a professional negligence complaint within 10 days of the expiration of the statute of limitations, and who alleges in the complaint that because of such time constraints the expert affidavit could not be prepared, a 45 day extension in which to file the required expert affidavit. The case law applying this statute is uniform in holding that if these two requirements are met, and the affidavit is filed within 45 days, the extension is automatic and is not subject to challenge.

This notwithstanding, appellants seek for this Court to rewrite the statute to impose a requirement that plaintiffs establish "good cause" in order to utilize the 45 day extension, and to allow discovery on efforts made to obtain the required expert affidavit, in order to support a possible challenge to a plaintiff's utilization of the 45 day extension. If the legislature had intended to impose a "good cause" requirement for invoking the initial 45 day extension, as it did for subsequent extensions, it would have done so. It did not. This Court has uniformly rejected, and should continue to reject, attempts to judicially create such a requirement.

By affirming the trial court's ruling, this Court will provide certainty to the bench and bar in connection with application of the 45 day extension, will apply O.C.G.A. § 9-11-9.1(b) in accord with the legislature's intent, and will avoid creating needless layers of discovery motions concerning issues associated with the timing of, and circumstances surrounding, obtaining the expert affidavit.

B. O.C.G.A. § 9-11-9.1

O.C.G.A. 9-11-9.1 provides, in pertinent part:

(a) In any action for damages alleging professional malpractice against a professional licensed by the State of Georgia . . . the plaintiff shall be required to file with the complaint 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.

(b) The contemporaneous filing requirement of subsection (a) of this Code section 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 and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleading with an affidavit. The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires . . . .

C. The Legislature Intended That a Plaintiff Be Given Extra Time to Secure an Affidavit

In Labovitz v. Hopkinson, 271 Ga. 330, 519 S.E.2d 672 (1999), the Georgia Supreme Court specifically considered the intent of the legislature in enacting O.C.G.A. § 9-11-9.1. The court stated "that the legislative intent was to enact a statute which sought to reduce the number of frivolous professional malpractice actions by placing a procedural hurdle before those plaintiffs who sought damages for professional negligence." Labovitz, 271 Ga. at 336 (Emphasis in original). The court also noted that "[t]he preamble to the initial legislation contains the means by which the General Assembly sought to accomplish its goal: 'To provide that in any case in which professional malpractice is alleged an affidavit of an expert competent to testify setting forth the particulars of the claim shall be filed with the complaint.'" Id. citing Ga.L.1987, p.887. (Emphasis in original).

The legislative purpose, however, was not to put unnecessary obstacles in the path of legitimate claims, but rather "to reduce the number of frivolous malpractice suits filed." Gadd v. Wilson & Co., 262 Ga. 234, 235, 416 S.E.2d 285 (1992) citing 0-1 Doctors Memorial Holding Co. v. Moore, 190 Ga. App. 286, 378 S.E.2d 708 (1989). In St. Joseph's Hosp. v. Nease, 259 Ga. 153, 377 S.E.2d 847 (1989), the Georgia Supreme Court also specifically noted that "[t]he language of [O.C.G.A. § 9-11-9.1(b)] shows a clear legislative intent to give a plaintiff extra time to secure an affidavit when the statute of limitations is about to expire." Id. at 155. See also, Thompson v. Long, 201 Ga. App. 480, 411 S.E.2d 322 (1991).

D. The Appellee Complied With O.C.G.A. 9-11-9.1

"Under O.C.G.A. §9-11-9.1(b), a plaintiff is automatically entitled to a 45-day extension of time to file the expert affidavit where (1) the statute of limitations is about to expire and (2) the plaintiff alleges the affidavit could not be obtained for that reason. . . ." Peterson v. Columbus Medical Center Foundation, 243 Ga. App. 749,751, 243 S.E.2d 749 (2000).

The parties to this matter do not dispute that Ms. Nesmith complied with the requirements of O.C.G.A. § 9-11-9.1(b) in that she filed her complaint within ten days of the expiration of the statute of limitations, and that the complaint included an allegation that the expert affidavit could not be filed contemporaneously with the complaint because of the time constraints imposed by the statute. The appellants also do not contest that Ms. Nesmith filed an affidavit conforming to the requirements of O.C.G.A. 9-11-9.1 within the 45-day period.

E. Binding Precedent Establishes That the 45 Day Extension Is Automatic Upon Compliance With the Terms of O.C.G.A. § 9-11-9.1(b) and is Not Subject to Challenge.

In Works v. Aupont, 219 Ga. App. 577, 465 S.E.2d 717 (1995) this Court examined a situation where the trial court granted summary judgment in a medical malpractice claim because the trial court rejected plaintiff's allegation that "time constraints" prevented compliance with the contemporaneous filing requirements of O.C.G.A. §9-11-9.1. On appeal, this Court reversed

because O.C.G.A. § 9-11-9.1(b) unambiguously provides for an automatic 45-day extension for filing the requisite affidavit 'to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared.' O.C.G.A. § 9-11-9.1(b). See Dixon v. Barnes, 214 Ga. App. 7, 8 (1), 446 S.E.2d 774. If these two conditions are met, it does not matter whether the trial court believes or disbelieves a plaintiff's allegation that 'time constraints' prevented compliance with the contemporaneous filing requirement of O.C.G.A. § 9-11-9.1(a). The plaintiff is given 45 extra days to come up with the necessary affidavit. It is not until after expiration of this 45-day period that subsection (b) provides for a hearing to determine whether good cause exists for any further delay. Piedmont Hosp. v. Draper, 205 Ga. App. 160, 161 (1), 421 S.E.2d 543 (1992).

Id. at 578. (Emphasis in original).

This Court reached the same conclusion in Keefe v. Northside Hospital, 219 Ga. App. 875, 467 S.E.2d 9 (1996). In a unanimous opinion authored by Judge Beasley, this Court confirmed that when these two conditions are met a plaintiff has "an automatic right to supplement the complaint with a supporting affidavit within 45 days after the filing of the complaint. . . ." Id. Keefe goes on to hold that the automatic 45 day extension

is not subject to challenge, if the affidavit is actually filed within the 45 day period. Works v. Aupont, 219 Ga. App. 577, 465 S.E.2d 717 (1995), held that "the trial court [has] no discretion in questioning plaintiffs' excuse for noncompliance with O.C.G.A. § 9-11-9.1 (a)." Id. at 578, 465 S.E.2d 717. The representation of fact, which is made by the attorney who signs the pleading is conclusively presumed to be true.

Keefe, 219 Ga. App. at 876, 467 S.E.2d at 9.

The appellants' attempts to minimize the precedential value of Works and Keefe are unavailing. As quoted above, the court in Keefe describes the holding in Works to be that "the trial court has no discretion in questioning plaintiffs' excuse for noncompliance with O.C.G.A. § 9-11-9.1." Keefe, 219 Ga. App. at 876, 467 S.E.2d at 10. While Works may be physical precedent, it is persuasive in its reasoning. Moreover, the unanimous holding in Keefe that the allegations giving rise to the 45 day extension are not subject to challenge is binding precedent, and not mere obiter dictum. See Rule 33(a), Rules of the Court of Appeals of the State of Georgia ("A judgment which is fully concurred in by all judges of the Division is a binding precedent."); South Georgia Med. Center v. Washington, 269 Ga. 366, 367, 497 S.E.2d 793, 795 (1998)("An adjudication on any point within the issues presented by the case cannot be considered a dictum and this rule applies as to all pertinent questions, although only incidentally involved, which are presented and decided in the regular course of the consideration of the case, and lead up to the final conclusion, and to any statement in the opinion as to a matter on which the decision is predicated." [citations omitted]). Keefe, therefore, demands that the trial court's Order be affirmed.

F. Basic Rules of Statutory Construction Establish That the Initial 45 Day Extension Is Not Subject to Challenge

This Court's holdings in Works and Keefe are wholly in accord with the legislature's intent to grant a plaintiff extra time to secure an affidavit when the statute of limitations is about to expire, and are consistent with basic rules of statutory construction. "It is the duty of the courts, to put such a construction upon statutes, if possible, as to uphold them and carry them into effect." Lamons v. Yarborough, 206 Ga. 50, 58, 55 S.E.2d 551 (1949), quoting Winter v. Jones, 10 Ga. 190 (1851).

O.C.G.A. § 9-11-9.1(b) specifically provides that a plaintiff who complies with the two requirements discussed above shall have 45 days to supplement by filing an affidavit. There is no requirement in the statute that a plaintiff show "good cause" to utilize the initial 45 day extension. O.C.G.A. § 9-11-9.1(b) does, however, go on to address a situation where good cause must be established, namely, where a plaintiff seeks a further extension. In that circumstance, the statute expressly provides that "[t]he trial court may, on motion, after hearing and for good cause, further extend the period for filing the affidavit as it determines justice requires." O.C.G.A. § 9-11-9.1(b). (Emphasis added).

Under the fundamental principle of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another), the initial 45 day extension granted in O.C.G.A. § 9-11-9.1(b) must not be construed to include a "good cause" requirement because the legislature did not include such a requirement in the portion of subsection (b) which addresses the initial 45-day extension, but did explicitly include such a "good cause" requirement when subsequent extensions are sought. See e.g., TRW, Inc. v. Andrews, 2001 WL 140192 (U.S. 2001); In re Copelan, 250 Ga. App. 856, 553 S.E.2d 278 (2001); Department of Human Resources v. Hutchinson, 217 Ga. App. 70, 456 S.E.2d 642 (1995). If the legislature had intended for a plaintiff to be required to show good cause in order to utilize the initial 45 day extension, it would have so provided. It did not.

THE TRIAL COURT DID NOT ERR IN PROHIBITING DISCOVERY

A. Inquiry into Whether There is "Good Cause" for Invoking the 45 Day Automatic Extension is Prohibited

Appellants next seek authorization to conduct discovery to determine the circumstances surrounding the plaintiff's need to invoke the 45 day extension. The only rationale for seeking such discovery is to mount a challenge to the plaintiff's ability to utilize the 45 day extension. As discussed above, because it is well settled that the extension is automatic and not subject to challenge, appellant's attempts to conduct "limited discovery" must be rejected.

There is absolutely no indication that the Georgia legislature intended that a plaintiff invoking the automatic extension provision of O.C.G.A. § 9-11-9.1(b) be subject to a discovery fishing expedition concerning the presence, the absence or the quantification of the need for invoking the initial 45 day extension. Indeed, Works, supra, and Keefe, supra, flatly reject such attempts.

The provisions of O.C.G.A. § 9-11-9.1 were intended to be procedural and, as such, they are not a part of plaintiff's prima facie case. Glisson v. Hospital Authority of Valdosta, 224 Ga. App. 649, 481 S.E.2d 612 (1997). O.C.G.A. § 9-11-26 provides that the scope of discovery is limited to that which is "relevant to the subject matter involved in the pending action" or is "reasonably calculated to lead to the discovery of admissible evidence." The date lawyers were retained, medical records obtained or experts consulted are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence at trial. As a result, appellant's attempts at discovery were denied properly.

Opening to discovery the nature and substance of efforts made to comply with the procedural requirements of obtaining an expert affidavit is problematic for other reasons. The inquiries will undoubtedly tread on the fundamental protections afforded by the attorney/client privilege and the attorney/work product doctrine. To permit such inquiry begins a journey down the road of what plaintiff's counsel did or did not do to obtain an affidavit, whom they consulted, what was said and what was done, and may ultimately compel counsel to become a witness on his or her client's behalf.⁽¹⁾ And what purpose would such discovery serve? - nothing more than to support a rejected and legally meaningless argument that the plaintiff might have been able to file the affidavit contemporaneously with the Complaint. If allowed here, this "limited discovery" would be attempted in every case in which the 45 day extension is utilized.

Permitting "limited discovery" will also result in an additional layer of needless motion practice as the trial and appellate courts attempt to resolve the inevitable motions to compel and/or motions for protective order which will result. See Sisk v. Patel, 217 Ga. App. 156, 160, 456 S.E.2d 718 (1995) (noting that rather than reducing frivolous litigation, O.C.G.A. § 9-11-9.1 "has created an added layer of motions regarding the sufficiency of affidavits" and that "the better approach is to construe pleadings liberally to do substantial justice in accordance with O.C.G.A. § 9-11-8(f)."). Additional motion practice attempting to define the scope of such "limited discovery" would not further the legislature's intent to eliminate meritless malpractice actions. The purpose of O.C.G.A. § 9-11-9.1 was to reduce frivolous lawsuits, not create a morass of procedural obstacles which delay resolution of the underlying case and deny the parties the just, speedy and inexpensive determination of every action. O.C.G.A. § 9-11-1.

For each of these reasons the trial court's April 3, 2001 Order should be affirmed in its entirety.

This ____ day of November, 2001.

Respectfully submitted,

/s/ Brent J. Kaplan

1. This inquiry might then subject plaintiff's counsel to potential tactical disqualification motions under Rule 3.7 of the Georgia Rules of Professional Conduct.