Defective Expert Affidavit in Georgia Can Be Cured by Substituting Another Expert’s Affidavit

The expert affidavit law, O.C.G.A. § 9-11-9.1, which was originally enacted in 1987, supposedly to reduce litigation by weeding out frivolous lawsuits, is still spawning litigation nearly 30 years later. What if the plaintiff’s expert is deemed not competent to testify in a medical malpractice case under the stringent requirements of O.C.G.A. § 24-7-702(c)(2) because he had not been in active practice for at least three of the preceding five years, although he was a Board certified neurosurgeon? The Supreme Court faced this question in Gala v. Fisher, 2015 Ga. LEXIS 198 (3/27/15), and held that in a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, O.C.G.A. § 9-11-9.1(e) permits the plaintiff to cure that defect by filing an amended complaint with the affidavit of a second, competent expert, within 30 days of service of the motion alleging that the affidavit is defective.