concurring specially.
I agree with the dissent as a general matter. The legislature expressly provided in subsection (b) a single exception to the “contemporaneous filing requirement” and in subsection (c) the practical procedural device of a delay in order to accommodate the defendant. Since it has made contemporaneous filing a clear and unambiguous requirement, unquestionably governing the time when an affidavit has to be filed in this specific type of case, the fiction of relation back cannot be invoked by plaintiffs to defeat it. The legislature provided a mechanism for precluding frivolous professional malpractice actions by requiring some proof by plaintiff at the very outset.
In the instant case an inadvertent omission occurred a few months after the effective date of the new procedural statute. The additional requirement went into effect between the filings of the first two suits and the instant suit. All parties had the affidavit as it was part of the same action which had been brought earlier and thus predated the filing of the instant suit. This is not a case where an action was filed, an alert defendant moved to dismiss because of the lack of an affidavit, calling plaintiff’s bluff so to speak, and the plaintiff then scrambled around to get one.
Under the particular facts of this case, and applying both proce*242dural rules to achieve their intent in the spirit of OCGA § 9-11-1, I agree to affirm. This is a case which calls for the application of the word “just” as it appears in the statement that the legislatively prescribed CPA “shall be construed to secure the just, speedy, and inexpensive determination of every action.” See also OCGA § 9-11-8 (f), which was called upon by the Supreme Court to rescue the defective complaint in Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988). The incompleteness of the complaint in that case was never even rectified, and yet it was not held to be a nullity.
Carley, Judge,dissenting.
In the present case, appellees’ complaints, as originally filed, were not in compliance with subsection (a) of OCGA § 9-11-9.1, which requires the contemporaneous filing of the affidavit of an expert. The provisions of subsection (b) of that statute, which provide for a limited exception to this contemporaneous filing requirement, are inapplicable. The majority opinion holds that reliance upon OCGA § 9-11-15 is nevertheless a viable alternative to compliance with OCGA § 9-11-9.1 and that, as the result of the amendment of appellees’ complaints pursuant to that provision so as to add the requisite affidavit of an expert, appellants’ motions to dismiss were properly denied. In my opinion, OCGA § 9-11-15 is not available to appellees and the trial court erred in denying appellants’ motion to dismiss. Therefore, I must respectfully dissent.
The legislative intent of OCGA § 9-11-9.1 is clear. The statute provides for specific pleading rules which are applicable to a complaint alleging professional malpractice. It is likewise clear that the legislature intended that there be mandatory compliance by a plaintiff with those specific pleading rules. Unless the limited exception of subsection (b) of OCGA § 9-11-9.1 is otherwise applicable, subsection (a) of the statute provides that “the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify. . . .” (Emphasis supplied.) It is true that, as worded, OCGA § 9-11-9.1 does not explicitly foreclose a plaintiff’s reliance upon the general provisions of OCGA § 9-11-15 so as to amend his complaint to add the requisite affidavit of an expert. In my opinion, however, the mere enactment of OCGA § 9-11-9.1, as a specific mandatory pleading rule applicable to complaints alleging professional malpractice, serves, in and of itself, as an implicit bar to a plaintiff’s successful reliance upon the general provisions of OCGA § 9-11-15 so as to satisfy the requirement for the filing of the affidavit of an expert. “In view of [the] specific rules relating to . . . actions [for professional malpractice], [I] think it necessarily follows that the general rule permitting amendment as a matter of course and without leave of court before the entry of a pretrial order, as stated in [OCGA § 9-11-15], *243has no application in respect to [an] . . . action [for professional malpractice], if the proposed amendment is one which would [not be consistent with the import of the specific rules].” Murphy v. Hope, 229 Ga. 836, 838 (1) (195 SE2d 24) (1972).
To sanction a plaintiff’s subsequent reliance upon the general provisions of OCGA § 9-11-15 as a means of rectifying his original failure to file the requisite affidavit of an expert would certainly not be consistent with the import of the specific pleading rules mandated by OCGA § 9-11-9.1. There would be no legal incentive whatsoever for a plaintiff to comply with the specific mandatory pleading rules of OCGA § 9-11-9.1, since he could subsequently invoke the general provisions of OCGA § 9-11-15. Thus, contrary to the controlling legislative intent, the effect of the majority’s opinion is to give a plaintiff discretion as to whether he will comply with the mandatory provisions of OCGA § 9-11-9.1. In my opinion, appellants were not authorized to rely upon the general provisions of OCGA § 9-11-15 and the efficacy of their attempts to amend their complaints to add the requisite affidavit of an expert must be judged by the specific mandatory pleading rules of OCGA § 9-11-9.1. Judged by those specific mandatory pleading rules, appellees’ amendments were not authorized and were totally ineffective.
While I agree with the majority that the Supreme Court’s opinion in Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988) provides guidance in our resolution of the issue in this case, I believe that Glaser supports the analysis and statutory construction advanced in this opinion rather than that presented by the majority. The issue in Glaser was the effect of a defendant’s failure to raise as a defense in his original answer the plaintiff’s non-compliance with the specific pleading rules of OCGA § 9-11-9.1. In holding that the defense was waived by and thus not available to the defendant in that case, the Supreme Court stated: “Had the failure to comply with new OCGA § 9-11-9.1 been brought to the [plaintiff’s] attention at the time the [defendant] filed responsive pleadings, [the plaintiff] could have dismissed the pending action, and filed a renewed action. ...” (Emphasis supplied.) Glaser v. Meek, supra (2). Thus, the Supreme Court has indicated that dismissal and refiling of the complaint, not its amendment, is the appropriate method by which a plaintiff may rectify his non-compliance with OCGA § 9-11-9.1. Accordingly, appellees’ original non-compliance with the specific mandatory pleading rules of OCGA § 9-11-9.1 cannot be cured by their subsequent invocation of the general pleading rules of OCGA § 9-11-15.
Since the amendment of appellees’ complaints was not authorized under OCGA § 9-11-15, I must respectfully dissent to the affirmance of the denial of appellants’ motions to dismiss. “The purported pleading[s] in the instant case[s] [do] not meet the statutory stan*244dards for a complaint as set forth in [OCGA § 9-11-9.1]; therefore, the denial of the motion[s] to dismiss was error.” Yeargin v. Burleson, 132 Ga. App. 652, 653 (4) (209 SE2d 99) (1974).
Decided October 17, 1988 — Rehearings denied November 14, 1988 Bouhan, Williams & Levy, Wiley A. Wasden III, for appellant (case no. 76952). Thomas A. Withers, for appellant (case no. 76953). Joseph B. Bergen, Frederick S. Bergen, for appellees.I share the special concurrence’s concern with the result of the application of the statute in this case in view of the fact that, in the prior suit, an appropriate affidavit had been submitted. However, this Court neither makes laws nor establishes the policy underlying their enactment. It is our duty to construe a relevant statute and to apply that construction to the case before us. If the proper construction of a statute demands a particular result, to vary that result in a manner not authorized by the statute as so construed would, in my opinion, be a violation of our obligation to “secure ... [a] just. . . determination of every action.” (Emphasis supplied.) OCGA § 9-11-1.
I am authorized to state that Chief Judge Birdsong, Presiding Judge McMurray and Judge Sognier join in this dissent.