Under Georgia law, a medical malpractice complaint may be filed without an expert affidavit if the statute of limitations is to expire within 10 days and an attorney files an affidavit testifying they were not retained more than 90 days earlier. In a case of first impression, the Georgia Court of Appeals affirmed the denial of a motion to dismiss for failure to file an expert affidavit when an attorney sent a request for medical records 18 months before certifying they had not been retained to file suit.
In Pico v. Brady, the alleged malpractice occurred on August 1, 2014. On December 16, 2014, Plaintiff signed an authorization permitting attorney Chris McClure to obtain medical records from the potential defendant doctor. On the same day, Plaintiff filled out a “New Client Questionnaire” for Mr. McClure in which Plaintiff acknowledged there would be no attorney-client relationship until a “Legal Services Contract” was executed. On July 29, 2016, Plaintiff signed the Legal Services Contract. On August 1, 2016, Mr. McClure filed the lawsuit for Plaintiff. However, Mr. McClure did not file an expert affidavit; rather, he filed an attorney affidavit stating that he had not been retained until July 29, 2016.
Defendants moved to dismiss and attached the medical records authorization and request as well as the “New Client Questionnaire.” The trial court denied the motion and the Court of Appeals affirmed. The Court ruled that, based on the Georgia Rules of Professional Conduct, the client controlled the scope of the attorney-client relationship. Plaintiff in this case had expressly limited the scope of representation in December 2014 to only the collection of the records. Since Plaintiff had not retained Mr. McClure for purposes of filing the lawsuit until July 29, 2016, there was no basis to dismiss the case.
Notably, the subsection of OCGA 9-11-9.1 regarding the filing of an attorney affidavit is silent on whether the attorney is retained for any purpose, including the filing of the lawsuit. Instead, the plain language of the statute reads that the attorney must certify that his or her “law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiff’s claim or claims.”
Pico v. Brady, 2018 Ga. App. LEXIS 293 (2018).