concurring specially.
I concur in the judgment because I am compelled to do so due to the whole court decision in Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995). However, a facsimile is not the equivalent of an affidavit, else why is it necessary to file the original affidavit after a facsimile is filed? In addition, the document initially filed in this case was not a facsimile of the affidavit subsequently filed after the twice-extended time had expired; the signatures differed.1
By deciding that a timely filed facsimile fulfills the requirements of OCGA § 9-11-9.1 (b), the court avoids the applicability of subsection (e). That subsection, which accommodates inadvertent human error, permits late filing which is “the result of a mistake.” See St. Joseph’s Hosp. v. Nease, 259 Ga. 153 (377 SE2d 847) (1989); cf. Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991); Brown v. Middle Ga. Hosp., 211 Ga. App. 884 (440 SE2d 687) (1994). Plaintiffs show no such mistake here. They simply did not have the affidavit until about May 28, when they filed it. What they then filed was dated May 13, the last day of the extended time period. There is no explanation in the record why the plaintiffs could not obtain, for filing by May 13, 1992, or court extension, the affidavit of a physician to support their claim of negligence on January 30-31, 1990. Although their original counsel died sometime after filing the complaint, new counsel did not obtain any further extension to supplement the pleadings with the affidavit, after obtaining the first and second extensions with the consent of opposing counsel.
*790Decided July 11, 1995 Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, for appellant. Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, Jerry W. Brimberry, Jr., for appellees.“[T]he legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.” Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963). This is our obligation even though OCGA § 9-11-9.1 is a tight and relatively inflexible control of the procedure for bringing malpractice actions to court. It is detailed and precise, yielding little discretion to trial judges to accommodate peculiar circumstances such as the use of faxed documents.
I am authorized to state that Judge Ruffin joins in this special concurrence.
From the copy we have, it almost looks as though the affiant’s signature on the original document, of which the facsimile is a copy, was affixed by rubber stamp.