SISKA v. MCNEIL, Et Al. , 346 Ga. App. 429 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 20, 2018
In the Court of Appeals of Georgia
A18A0530. SISKA v. MCNEIL et al. DO-018
DOYLE, Presiding Judge.
This appeal arises from an allegation of medical malpractice made by Dawn
Siska against Dr. John McNeil, Jr., and Northside Anesthesia Consultants (“the
defendants”). Siska originally filed a pro se complaint but subsequently retained
counsel; in the meantime, the defendants moved to dismiss, arguing that Siska failed
to file the necessary expert affidavit with her complaint. Although Siska filed an
amended complaint, the trial court granted the motion to dismiss, and this appeal
followed.1
1
Siska originally filed her appeal in the Supreme Court of Georgia based on
her constitutional challenges to OCGA § 9-11-9.1 (b). The Supreme Court transferred
the case to this Court, explaining that Siska failed to raise or obtain a ruling by the
trial court on the constitutional issues.
Siska argues on appeal that the trial court erred by granting the motion to
dismiss because (1) OCGA § 9-11-9.1 (b) is unconstitutional, and (2) she timely
amended her complaint to comply with OCGA § 9-11-9.1 (b). For the reasons that
follow, we reverse.
The record shows that Siska filed her pro se complaint on December 29, 2016,
which was the last day to file a medical malpractice action based on the events at
issue, which she alleged occurred on December 29, 2014.2 It is undisputed that Siska
failed to attach an expert affidavit to her first complaint, and she did not attach an
affidavit pursuant to OCGA § 9-11-9.1 (b) stating that because of time constraints she
could not prepare an expert affidavit and needed to invoke the 45 day extension.
On February 6, 2017, counsel for Siska filed an entry of appearance and his
own affidavit, averring that Siska retained him on January 25, 2017, that “she filed
the [c]omplaint pro se on December 29, 201[6], just prior to the Statute of
Limitation[],” that she was unaware of the “immediate need for filing an expert
witness affidavit simultaneously with the [c]omplaint,” and that the attorney had
located an expert to review the file. On February 7, 2017, the defendants filed an
2
See OCGA § 9-3-71 (a) (“an action for medical malpractice shall be brought
within two years after the date on which an injury or death arising from a negligent
or wrongful act or omission occurred”).
2
answer and motion to dismiss the complaint for failure to file an expert affidavit. On
February 9, 2017, within 45 days of the filing of the complaint, counsel for Siska filed
an amended complaint with an expert affidavit attached. On February 20, 2017, Siska
filed a response to the defendants’ motion to dismiss, which had been filed in
between the filing of her attorney’s affidavit and the amended complaint.3 This
response detailed why the extension in OCGA 9-11-9.1 (b) should apply. The trial
court held a hearing on the motion to dismiss on May 18, 2017. On May 19, 2017,
Siska filed a second amended complaint in which she alleged that (1) the expert
affidavit was not filed with the complaint because she was proceeding pro se, the
failure to include the affidavit was based on good faith as required by OCGA § 9-11-
9.1 (b), and the second amended complaint was filed to satisfy the requirements of
that section.
After a hearing, a transcript of which does not appear in the record on appeal,
the trial court entered an order dismissing the complaint.
3
The trial court’s order states that on March 8, 2017, Siska’s attorney filed
Siska’s affidavit, but no such affidavit appears in the record. The trial court’s order
characterizes this affidavit as stating that Siska spoke to many attorneys over the
months leading up to the expiration of the statute of limitation, but ultimately filed
a pro se affidavit on the day of expiration and that she retained her attorney on
January 25, 2017.
3
“A motion to dismiss based upon the lack of an expert affidavit is a motion to
dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). On appeal, this
Court reviews the denial of a motion to dismiss de novo[, construing] the pleadings
in the light most favorable to the plaintiff with any doubts resolved in her favor.”4
1. As explained in the Supreme Court’s transfer order to this Court, Siska failed
to raise and obtain a ruling on the constitutional issues in the trial court. Accordingly,
the arguments raised in her first and second enumerations of error present nothing for
this Court to review.5
2. Siska also argues that the trial court erred by granting the motion to dismiss
because her pro-se complaint was filed within 10 days of the expiration of the statute
of limitation, which in conjunction with the filing of her amended and second
amended complaints, including her expert affidavit filed within 45 days of the
complaint, her affidavit, and her attorneys affidavit, triggered application of the 45-
day grace period for filing an expert affidavit under OCGA § 9-11-9.1 (b).
4
(Footnote and punctuation omitted). Comprehensive Pain Mgmt. v. Blakely,
312 Ga. App. 721 (719 SE2d 579) (2011), quoting Estate of Shannon v. Ahmed, 304
Ga. App. 380 (696 SE2d 408) (2010).
5
See, e.g., Glisson v. Hosp. Auth. of Valdosta, 224 Ga. App. 649, 655 (2) (481
SE2d 612) (1997) (addressing previous statute). See also GHG, Inc. v. Bryan, 275 Ga.
336, 337 (3) (566 SE2d 662) (2002).
4
Pursuant to OCGA § 9-11-9.1 (a), along with any professional malpractice
complaint, a plaintiff must contemporaneously file an expert affidavit supporting her
claim or claims.6 Under OCGA § 9-11-9.1 (b), however, a plaintiff has a 45-day grace
period in which to file an expert affidavit if (1) the complaint is filed within 10 days
of the expiration of the statute of limitation; and (2) the plaintiff’s attorney files an
affidavit stating that an expert affidavit was not filed contemporaneously with the
complaint because the plaintiff retained the attorney fewer than 90 days prior to the
expiration of the limitation period.
It is undisputed that plaintiff filed her cause of action within ten
days of the expiration of the applicable statute of limitation for her
claim, and therefore, she would clearly be entitled to invoke the
protections of OCGA § 9-11-9.1 (b) if she had made the proper
allegations in her complaint when it was first filed. OCGA § 9-11-8 (f)
requires that “all pleadings be so construed as to do substantial justice.”
This Court has repeatedly held that the spirit and intent of the Civil
Practice Act require that pleadings are to be liberally construed in favor
of the pleader. Pro se pleadings are held to less stringent standards than
pleadings that are drafted by lawyers. As our Supreme Court noted in
Saint Joseph’s Hosp. v. Nease,7 the language of OCGA § 9-11-9.1 (b)
6
See Ga. Dermatology Clinic v. Nesmith, 254 Ga. App. 121, 122-123 (561
SE2d 459) (2002).
7
259 Ga. 153, 154 (377 SE2d 847) (1989).
5
shows a clear legislative intent to give a plaintiff extra time to secure an
affidavit when the statute of limitation is about to expire.8
In this case, Siska failed to file an expert affidavit with her pro-se complaint,
nor did she file a personal affidavit averring that she qualified for application of
OCGA § 9-11-9.1 (b). Nevertheless, the trial court erred by dismissing the complaint
on the basis that Siska failed to fall within the exception of OCGA § 9-11-9.1 (b).
First, Siska filed the pro-se complaint within ten days of the expiration of the
statute of limitation. Second, although she did not aver in the complaint the language
of OCGA § 9-11-9.1 (b), within 45 days of the filing of the complaint and expiration
of the statute of limitation, Siska’s attorney filed a first amended complaint with the
required expert affidavit. He also filed an affidavit stating that Siska retained him on
January 25, 2017, that she filed the complaint pro se “just prior to the statute of
limitation[ expiration],” that she was unaware of the need to file an affidavit
contemporaneously, and that he had “located [an expert, who] was reviewing the
file.” And finally, Siska’s second amended complaint, which related back to the date
8
(Citations and punctuation omitted.) Thompson v. Long, 201 Ga. App. 480,
481-482 (1) (411 SE2d 322) (1991) (addressing previous version of statute).
6
of the original pleading pursuant to OCGA § 9-11-15, included language that
explicitly tracked the language of OCGA § 9-11-9.1 (b).9
The trial court relied upon and the defendants point to Comprehensive Pain
Mgmt. v. Blakely,10 for the proposition that it was necessary for Siska to specifically
recite the provision of OCGA § 9-11-9.1 (b) in order to trigger the provision;
however, the facts in Blakely are not applicable here because that case involved a
defective expert affidavit under OCGA § 9-11-9.1 (e).11 Instead, as this Court
explained in Thompson v. Long,12 this Court liberally construes pro se filings, and
there is no magic language that must be used to invoke the 45-day grace period. Here,
the combination of Siska’s pro-se, timely complaint, followed by Siska’s attorney’s
affidavit explaining that the complaint was filed within 10 days of the expiration of
9
See Thompson, 201 Ga. App. at 481-482. See also Glisson, 224 Ga. App. at
652-654 (1).
10
Blakley, 312 Ga. App. at 723.
11
See id. at 721. This Court noted that the plaintiff in Blakely failed to meet the
requirements of OCGA § 9-11-9.1 (b) because her attorney never filed an affidavit
under that section averring that the attorney was retained within 90 days of the
expiration of the statute of limitations, nor did the plaintiff amend her complaint to
include the language of subsection (b). See id. at 724-723.
12
Thompson, 201 Ga. App. at 482 (1).
7
the statute, that he was hired after that time (and not 91 days or more prior to the
expiration of the statute), and that he was in the process of obtaining an expert
affidavit, which was attached to the first amended complaint also filed within the 45-
day grace period, were sufficient to invoke the protection afforded by OCGA § 9-11-
9.1 (b).
That Siska also may have been unaware of the necessity of filing any affidavits
or that her attorney initially failed to quote the language of OCGA § 9-11-9.1 (b) are
not sufficient reasons to grant the motion to dismiss because the “defendant[s were]
in no worse position than if the plaintiff had understood the language of OCGA §
9-11-9.1 and originally inserted the language required by subsection (b) of that statute
in the complaint.”13
Judgment reversed. Dillard, C. J., and Mercier, J., concur.
13
See id. See also Glisson, 224 Ga. App. at 652-654 (2) (addressing prior
version of the statute). Compare with Blakely, 312 Ga. App. at 722-723 (holding that
the plaintiff’s law firm failed to file an affidavit stating that “it was not retained by
the plaintiff more than 90 days prior to the expiration of the period of limitation on
the plaintiff’s claim, so as to extend the time for filing the affidavit by 45 days after
the filing of the complaint”).
8