concurring specially.
I write with respect to the “clear and palpable” cases exception to the rule that “expert testimony is necessary to establish the parameters of acceptable professional conduct, a significant deviation from which would constitute malpractice. [Cits.]” Hughes v. Malone, 146 Ga. App. 341, 345 (247 SE2d 107) (1978).
I agree with the majority and with the opinion in Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988), that OCGA § 9-11-9.1 requires an affidavit of an expert in every case alleging professional malpractice. The statute pointedly states that “[i]n any” such action, the plaintiff “shall be required” to file an affidavit of an expert as a part of the complaint. No exceptions are provided for. Thus, even when the malpractice is clear and palpable, the testimony via affidavit of an expert competent to testify is necessary with the pleading commencing the action, to show that the defendant’s act or failure to act constituted a significant deviation from acceptable, professional conduct.
The “clear and palpable” exception is a rule of evidence, applicable to consideration of summary judgment motions or trial, not a rule of pleading. Hughes, in which the grant of summary judgment was affirmed, illustrates the point by focusing on the expert evidence of record because it was not a “clear and palpable” case. Since an expert affidavit must be filed even in a case where the jury does not need the opinion of an expert to inform it whether the defendant’s act or omission constituted negligence, there is an anomaly in the “clear and palpable” cases. With the pleading commencing the proceeding there must be an affidavit of an expert whose opinion it is that the act or failure to act constitutes negligence, but at trial or in the summary judgment stage negligence may be proved without expert testimony.
It would appear illogical to require a higher degree of proof at the time of commencement of the suit than when it is tried, but either that is the law or the advent of OCGA § 9-11-9.1 eliminated the judicially-created rule that in cases of clear and palpable negligent act or omission, expert opinion evidence is not necessary. Yet, for good reason, we continue to apply it or at least acknowledge its efficacy. See, e.g., Graves v. Jones, 184 Ga. App. 128, 129 (1) (361 SE2d 19) (1987) (summary judgment; “clear and palpable” exception acknowledged but not applicable to circumstances); General Hospitals of Humana v. Bentley, 184 Ga. App. 489, 490 (361 SE2d 718) (1987) (circumstances shown on summary judgment required expert affidavit because alleged professional negligence not “clear and pal*561pable”); Elwell v. Cutler, 185 Ga. App. 423, 425 (364 SE2d 81) (1987) (expert testimony not needed to counter motion for summary judgment where professional negligence was clear and palpable); Khoury Constr. Co. v. Earhart, 191 Ga. App. 562, 563 (2) (382 SE2d 392) (1989) (expert opinion unnecessary at trial because defect “clear and palpable”); Hailey v. Blalock, 209 Ga. App. 345, 348 (3) (433 SE2d 337) (1993) (summary judgment required because physician’s failure was not a “gross error of judgment” or “clear and palpable negligence” so as to survive motion when plaintiff’s counter-affidavit was insufficient to create issue of fact); Pope v. Dept. of Human Resources, 209 Ga. App. 835, 839 (2) (434 SE2d 731) (“Expert testimony is also not required in extreme cases where the error of judgment is gross, and negligence is clear and palpable. [Cit.]”); Bilt Rite of Augusta v. Gardner, 221 Ga. App. 817 (472 SE2d 709) (1996) (summary judgment denied because professional negligence was clear and palpable: “[E]ven in professional negligence cases, evidence of negligence in some cases may be so ‘clear and palpable’ that it may be understood by a jury without expert evidence as to a professional standard of care. [Cits.]”). All of these cases were decided after the effective date of OCGA § 9-11-9.1 (Ga. L. 1987, p. 887, effective July 1, 1987).
Decided February 6, 1998 Reconsideration denied March 25, 1998 Helen C. Hopkinson, pro se. Troutman Sanders, Daniel S. Reinhardt, Lisa L. Spooner, Carmie L. McCurry, for appellees.Inasmuch as this case involves the sufficiency of the pleading and not the proof in a summary judgment or trial context, the latter conundrum need not be addressed. Whether the “clear and palpable” exception must be abandoned is not reached, as the complaint alleging malpractice lacked the expert affidavit required by the legislature in all malpractice cases.