Georgia Law Review, Vol. 31, No. 4 (Summer 1997), pp. 1031-1091

Abstract

Section 9-11-9.1 of the Georgia Code might be the state's most notorious procedural statute. Enacted in 1987 to protect professionals against the harm done by groundless malpractice litigation, the statute provides that a professional malpractice claim ordinarily must be accompanied by an affidavit executed by an expert. In the affidavit, the expert must substantiate the claim by attesting that some act or omission alleged in the claim was a negligent act or omission--a departure from a professional standard of conduct. During the past decade, Georgia's appellate courts have returned again and again to the problem of what section 9-11-9.1 means, generating scores of decisions on who qualifies as a professional, what constitutes malpractice, who may serve as an expert, what counts as an adequate affidavit, what must be done to claim the benefit of the statute's grace period, and what happens when a party fails in one way or another to satisfy the affidavit requirement. The judicial preoccupation with section 9-11-9.1 has yielded a complex and in some respects counterintuitive body of procedural doctrine that must be mastered by anyone who brings, defends, or judges a professional malpractice claim in the state. This Article offers a tenth anniversary critique of section 9-11-9.1, of the case law that hs grown up around it, and of the 1997 legislation that revises it. Part II discusses the scope of the affidavit requirement, making the case that the courts and now the legislature have rejected the most straightforward, principled approach to the applicability of the requirement. Part III turns to the elements of the requirement, emphasizing the difficulties that can plague any scheme that employs legal formality to accomplish a policy objective. Part IV highlights the problems that have arisen under the grace period provision of section 9-11-9.1, and criticizes the legislature's solution to one of these problems. Part V takes up the critical issue of noncompliance, arguing that more needs to be done to ensure that potentially meritorious professional malpractice claims are not unjustly dismissed with prejudice under section 9-11-9.1 for pleading mistakes. The Article concludes in Part VI with a discussion of the option of repealing the statute and with the suggested text of a further revision.

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