dissenting.
I respectfully dissent from Division 2 of the majority as I believe that the existence in the record of the properly notarized affidavit containing the elements of negligence against Dr. Caldwell as required, saves the Allens’ complaint from the unforgiving jaws of OCGA § 9-11-9.1 (e). It is important to recognize that the parties are now in the same positions as when the original complaint was filed. The renewed action merely sought to add new defendants which have since been dismissed. I agree with the majority that the affidavit attached to the renewed complaint, being without a valid jurat, was not an affidavit within the meaning of OCGA § 9-11-9.1.1 also agree with the majority that by filing the new affidavit with the renewed complaint the Allens were not exclusively relying on the original affidavit even though it was incorporated into the renewed action. However, there is no requirement for such exclusive reliance on the part of a plaintiff. It is enough that a proper affidavit is in the record informing Dr. Caldwell of the negligent acts or omissions alleged on his part. The very purpose of OCGA § 9-11-9.1 was met by Dr. Flax’s review of the medical records and determination of negligent acts.
Dr. Flax executed an affidavit containing a valid jurat on June 11, 1993, that was filed with the Allens’ original complaint. In paragraph 4 of their renewed complaint, the Allens incorporated by reference all of their pleadings from their former action. Dr. Flax’s first affidavit set forth allegations of negligence specifically against Dr. Caldwell. Although I recognize that Dr. Flax’s affidavits are not identical, the differences relate to the additional defendants added in the Allens’ renewed action and not to the allegations of negligence against Dr. Caldwell. The affidavit filed in the original action and incorporated by reference in the renewed action sufficiently meets the requirements and purpose of OCGA § 9-11-9.1. Plaintiff’s reliance statement in paragraph 13 of their renewed complaint in no way negates the existence of the proper affidavit incorporated by reference in paragraph 4.
In Sisk v. Patel, 217 Ga. App. 156, 159-160 (456 SE2d 718) (1995), a majority of this Court agreed that “the history of OCGA § 9-11-9.1 in the appellate courts has shown beyond a reasonable doubt that it is only with great difficulty made workable in the practical *57arena of litigation, and has largely failed to achieve its purpose of reducing frivolous litigation. Rather, it has created an added layer of motions regarding the sufficiency of affidavits preceding the motions for summary judgment on the merits. Rather than continuing to interpret and reconcile subsection after subsection added to the statute by the legislature in attempts to fix what is fundamentally broken, the better approach is to construe pleadings liberally to do substantial justice in accordance with OCGA § 9-11-8 (f).”
Decided March 11, 1996 Reconsideration denied March 29, 1996 Stefano A. Didio, for appellants. Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen R. Chance, for appellee.In Bell v. Figueredo, 190 Ga. App. 163, 164 (378 SE2d 475) (1989), rev’d on other grounds, 259 Ga. 321 (381 SE2d 29) (1989), this Court determined that a lawsuit renewed under OCGA § 9-2-61 is an action de novo, and therefore, all procedural prerequisites such as “filing of a new complaint and perfection of service must be met anew.” However, in the present case as it relates to Dr. Caldwell, the statutory requirements of OCGA § 9-11-9.1 are met anew by the renewed complaint’s reference to and incorporation of the previously filed affidavit. Furthermore, statutory prerequisites designed to limit frivolous medical malpractice actions hardly compare to the due process protections surrounding filing and service of complaints addressed in Bell, supra.
Based on the foregoing, I would find that the trial court erred in dismissing the Allens’ complaint.
I am authorized to state that Presiding Judge McMurray and Presiding Judge Pope join in this dissent.