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Scott v. Martin

The trial court erred in granting the plaintiff's motion for an extension of time in which to file his expert affidavit in a medical malpractice action, since the current version of O.C.G.A. § 9-11-9.1 eliminates the 45-day grace period for filing an expert affidavit if the complaint if filed within 10 days of the expiration of the applicable statute of limitation.

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Appellee John Chris Martin filed this medical malpractice action against appellants James W. Scott, M. D. and Georgia Sports Medicine and Orthopedic Clinic, P. C. the “Georgia Clinic” without attaching an expert affidavit to his complaint. Relying upon the former version of OCGA § 9-11-9.1 b, Martin moved for an extension of time to file an expert affidavit. The trial court granted the motion to extend, appellants obtained a certificate of immediate review, and we granted the application for interlocutory appeal. For the reasons discussed below, we reverse. The record reflects that on January 26, 2003, Martin was involved in a motor vehicle collision near Valdosta. As a result of the collision, Martin sustained a right proximal humerus fracture and a right tibial plateau fracture. On January 30, 2003, Dr. Scott, an orthopedic surgeon employed by the Georgia Clinic, performed a closed reduction, percutaneous pinning of Martin’s right proximal humerus. Martin contends that Dr. Scott negligently performed the procedure and negligently ordered him to undergo “aggressive physical therapy.”

Before Martin commenced this lawsuit, the parties entered into settlement negotiations. In a letter dated January 13, 2005, Dr. Scott wrote to Martin: “I give permission to extend the statute of limitations . . . for an additional thirty days in order to give us adequate time to resolve this issue.” All parties agree that as a result of this agreement, the statute of limitations on Martin’s medical malpractice claims was extended to March 1, 2005.

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