Roberts v. Faust

Pope, Presiding Judge.

On January 29, 1992, plaintiffs Linda and Larry Faust sued defendant Dr. Michael Roberts for medical malpractice and loss of consortium. Plaintiffs did not file an expert’s affidavit contemporaneously with their complaint as required by OCGA § 9-11-9.1 (a). But they did invoke OCGA § 9-11-9.1 (b) by alleging that the statute of limitation for their claims would expire within ten days, and that due to this time constraint an expert’s affidavit could not be prepared. Consequently, plaintiffs automatically received a 45-day filing extension. See OCGA § 9-11-9.1 (b). The trial court granted two additional extensions to plaintiffs, thereby allowing them until May 13, 1992, to file their expert’s affidavit. On that date, plaintiffs filed a facsimile of *788an affidavit from Dr. Burman. Approximately two weeks later they filed Burman’s original affidavit. Thereafter, defendant answered the complaint denying liability and asserted as a defense plaintiffs’ failure to comply with the requirements of OCGA § 9-11-9.1. Defendant then filed a motion to dismiss the complaint. On appeal, he contends that the trial court erred in denying his motion. We disagree and affirm.

Defendant argues that the trial court improperly considered the facsimile of Burman’s affidavit absent some showing that the original was in plaintiffs’ physical possession before they filed the facsimile, and that plaintiffs’ failure to file the original affidavit resulted from a mistake. We find no merit to this argument. Although OCGA § 9-11-9.1 contemplates that an original expert’s affidavit should be filed, when justice so requires, trial courts may consider facsimiles of affidavits that are available during the statutory grace period found in OCGA § 9-11-9.1 (b). Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256, 258 (2) (419 SE2d 36) (1992); see Reid v. Brazil, 193 Ga. App. 1, 2 (2) (387 SE2d 1) (1989).

Contrary to defendant’s assertion otherwise, an original affidavit does not have to be in a plaintiff’s physical possession in order for it to be considered “available” under our holding in Waldroup. Nor do we find in Waldroup or OCGA § 9-11-9.1 (b) any requirement that a plaintiff be able to demonstrate that the failure to file an original affidavit during the statutory grace period resulted from some mistake. Defendant’s reliance on Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994) in support of these arguments is misplaced because Brown clearly is distinguishable from both Waldroup and the case at bar.

Unlike the plaintiffs in Waldroup and this case, the plaintiff in Brown did not invoke the application of OCGA § 9-11-9.1 (b). Thus, when he failed to contemporaneously file an original affidavit with his complaint and subsequently allowed the statute of limitation to expire, he was forced to meet the stringent renewal requirements of OCGA § 9-11-9.1 (f). Under that Code section, the plaintiff in Brown had to demonstrate that an original affidavit was available at the time he filed his complaint and that his failure to file the affidavit was the result of a mistake. Because Brown dealt specifically with the application of OCGA § 9-11-9.1 (f), it is not controlling here. Consequently, we reject defendant’s contention that our holdings in Waldroup and Brown require a reversal of the trial court’s decision in this case.

Moreover, we note that this court recently has held that the existence of a facsimile of an expert’s affidavit establishes the existence and availability of the original affidavit. Sisk v. Patel, 217 Ga. App. 156, 158-159 (456 SE2d 718) (1995). In Sisk, we also held that a plaintiff should be allowed to file “a facsimile of a properly executed affidavit with a complaint in a professional malpractice action so as to *789avoid the running of the statute of limitation. Then the original should be allowed to be filed as a supplemental pleading. . . .” Id. at 159. Therefore, we conclude that the trial court did not err in considering the facsimile of Burman’s affidavit or in allowing plaintiffs to later supplement their complaint with the original affidavit.

We also reject defendant’s argument that the trial court should have granted his motion to dismiss because there are slight variances between the notary’s and affiant’s signatures on the facsimile and their corresponding signatures on the original expert’s affidavit. Defendant did not raise this argument below and thus has waived it for purposes of appeal. Moreover, we note that the content of the facsimile and the original affidavits is identical. The signatures found on the facsimile were clearly made by the same individuals who signed the original affidavit.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur specially.