concurring specially.
I concur in the holding that the complaint filed pursuant to OCGA § 9-11-9.1 (b) may be amended under OCGA § 9-11-15 to include the statutorily required allegation which excuses contemporaneous filing of the affidavit, at least where the amendment is filed prior to the filing of a motion to dismiss the complaint on the ground of the defect.
I do so with several caveats. First, it is questionable whether this issue has been preserved for appellate review. Appellant enumerates as error the trial court’s grant of appellees’ motion to dismiss. She argues that interpreting subsection (b) so as to require “magic language” to comply with the substance of the statute violates her constitutional rights. Nowhere in her brief does she raise any issue concerning the amendment to her complaint.
Second, the statement in Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996), which the majority considers obiter dictum, was very pertinent procedurally to that case. No effort had been made to amend the complaint in the trial court to add the requisite allegation, which conclusively establishes a necessary fact, before the trial court granted defendant’s motion to dismiss the complaint for this reason. Thus it was too late to consider amendment; the case would not be remanded to allow this to be done. The clause in the last paragraph of Keefe with respect to cure by amendment was not meant to preclude timely amendment to the complaint so as to include the required allegation explaining the absence of a contemporaneously filed affidavit. The Court referenced Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995), as a case to be compared. There this Court allowed the original affidavit to be added by amendment which was attempted by motion made after dismissal, but a facsimile had been filed with the complaint.
*656Decided February 14, 1997 O. Wayne Ellerbee, for appellant. Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, for appellees.The decision in this case comports with the principle repeated in Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992), that “since § 9-11-9.1 establishes an exception to the general liberality of pleading permitted under the Civil Practice Act, ... it should be construed in a manner consistent with the liberality of the Civil Practice Act where such construction does not detract from the purpose of § 9-11-9.1 to reduce the number of frivolous malpractice suits being filed.” (Citations and punctuation omitted.)
I am authorized to state that Judge Ruffin joins in this special concurrence.