SECOND DIVISION

MILLER, P. J.,

REESE and BROWN, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

May 23, 2018

In the Court of Appeals of Georgia

A18A0189. CRUZ PICO et al. v. BRADY.

REESE, Judge.

Alisa Brady filed a medical malpractice action against Dr. Christian Cruz Pico

and Georgia Surgicare, LLC (collectively, “the defendants”). The defendants moved

to dismiss the complaint for failure to state a claim on the ground that Brady had

retained an attorney more than 90 days prior to the expiration of the statute of

limitation1

and was subject to the contemporaneous affidavit filing requirement of

OCGA § 9-11-9.1 (a). The trial court denied the motion to dismiss, and we granted

the defendants’ petition for interlocutory review. For the reasons set forth, infra, we

affirm.

1 See OCGA § 9-3-71 (a) (two-year statute of limitation for medical

malpractice actions).
According to the complaint, filed on August 1, 2016, Brady suffered injuries

resulting from a cervical node excision performed by Dr. Cruz Pico on August 1,

2014. Brady attached to the complaint the affidavit of her attorney, Christopher

McClurg. McClurg testified that he had been “retained by [Brady] on July 29, 2016,

for purposes of filing this instant suit[,]” that “[t]he period of limitation [would]

expire within ten days of the date of filing and, [that] because of such time

constraints, an affidavit of an expert could not be prepared.”

The defendants moved to dismiss on the ground that no expert affidavit was

attached to the complaint, as required by OCGA § 9-11-9.1 (a), even though Brady

had retained McClurg as her attorney long before July 29, 2016, as reflected on a

medical authorization form provided to Dr. Cruz Pico to release Brady’s medical

records. The defendants attached the document as an exhibit to the motion. The form,

which appears to have been signed by Brady on December 16, 2014, directed Cruz

Pico to release information to “Plaintiff Attorney,” identified as McClurg, and stated

that the “[p]urpose of [the] disclosure” was “Litigation (this means I am a lawyer and

I represent this person in a lawsuit)[.]”

2

2 See Northlake Med. Center v. Queen, 280 Ga. App. 510, 512 (2) (634 SE2d

486) (2006) (“Under [the federal Health Insurance Portability and AccountabilityAct

of 1996 (“HIPAA”), Pub. L. No. 104-191], a health care provider must obtain the

2
Brady responded to the motion to dismiss and attached a “New Client

Questionnaire,” also dated December 16, 2014, in which she acknowledged that “NO

Attorney-Client relationship exist[ed] between [McClurg] or any other attorney . . .

in this office until such time as a written Legal Services Contract is entered into by

and between the attorney, his or her firm, and the undersigned, and all legal fees,

deposits, and retainers are paid and other documents, files, and information [are]

received in accordance with the Legal Services.” She also attached a “Legal Services

Contract/Invoice,” dated July 29, 2016, that documented her retention of McClurg as

her attorney for a “Med Mal” action.

Brady amended her complaint on September 13, 2016, and attached an expert

affidavit setting forth the defendants’ negligent acts or omissionsthat, in the expert’s

opinion, resulted in Brady’s nerve injuries. After hearing oral argument on the

defendants’ motion to dismiss, the court denied the motion.

consent of a patient before . . . disclosing protected health information. Prior written

authorization is generally required for the disclosure of protected health information

to a third party. A valid authorization must contain [a] description of each purpose of

the requested use or disclosure.”) (footnotes omitted).

3
“A motion to dismiss based upon the lack of [an] expert affidavit is a motion

to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6).”3

We review de novo a trial court’s determination that a pleading fails to

state a claim upon which relief can be granted, construing the pleadings

in the light most favorable to the plaintiff and with any doubts resolved

in the plaintiff’s favor. And the pleadings to be construed include any

exhibits attached to and incorporated into the complaint and the answer.4

With these guiding principles in mind, we turn now to the defendants’specific claim

of error.

The defendants contend that the trial court erred in denying their motion to

dismiss because Brady had retained the advice and assistance of counsel at least 19

months before she filed suit and, therefore, was not entitled to invoke the 45-day

extension of time to file an expert affidavit pursuant to OCGA § 9-11-9.1 (b).

Pretermitting whether the trial court properly considered the medical

authorization form attached to the defendants’ motion to dismiss and the new client

3 Ziglar v. St. Joseph’s/Candler Health System, 341 Ga. App. 371 (800 SE2d

395) (2017) (citation and punctuation omitted).

4 Babalola v. HSBC Bank, USA, 324 Ga. App. 750 (751 SE2d 545) (2013)

(citations and punctuation omitted).

4
questionnaire attached to Brady’s response,5 we conclude that the trial court did not

err in denying the defendants’ motion to dismiss.

In a professional malpractice action, a plaintiff generally must file an expert

affidavit with the complaint.

6 As amended in 2007,

7 OCGA § 9-11-9.1 (b) provides:

The contemporaneous affidavit filing requirement . . . shall not apply to

any case in which the period of limitation will expire or there is a good

faith basis to believe it will expire on any claim stated in the complaint

within ten days of the date of filing the complaint and, because of time

constraints, the plaintiff has alleged that an affidavit of an expert could

not be prepared. In such cases, if the attorney for the plaintiff files with

the complaint an affidavit in which the attorney swears or affirms that

his or her law firm was not retained by the plaintiff more than 90 days

prior to the expiration of the period of limitation on the plaintiff’s claim

5 Compare Trop,Inc. v. City of Brookhaven, 296 Ga. 85, 89 (2) (764 SE2d 398)

(2014) (trial court did not err in considering pleadings only where the items were

attached to either the defendant’s answer or the plaintiff’s own response to the

defendant’s motion to dismiss), with Babalola, 324 Ga. App. at 751, n. 4 (trial court

was precluded from considering exhibits attached to the defendant’s brief in support

of the motion to dismiss).

6

 OCGA § 9-11-9.1 (a).

7 See Ga. L. 2007, p. 216, § 1; see also Peck v. Bishop, 294 Ga. App. 132, 133

(2) (668 SE2d 558) (2008) (“The 2005 amendment eliminated the 45-day grace

period altogether. The current version, effective July 1, 2007, restored the 45-day

extension only when an attorney affidavit was filed, but barred any additional

extension[.]”) (citations omitted).

5
or claims, the plaintiff shall have 45 days after the filing of the

complaint to supplement the pleadings with the affidavit. The trial court

shall not extend such time for any reason without consent of all parties.

If either affidavit is not filed within the periods specified in this Code

section, or it is determined that the law firm of the attorney who filed the

affidavit permitted in lieu of the contemporaneous filing of an expert

affidavit or any attorney who appears on the pleadings was retained by

the plaintiff more than 90 days prior to the expiration of the period of

limitation, the complaint shall be dismissed for failure to state a claim.

8

When an attorney is “retained” for purposes of OCGA § 9-11-9.1 (b) is an issue

of first impression, and, in looking to our sister states, this provision appears to be

unique.9In Georgia, attorneys and clients can generally agree to limit the scope of the

representation. According to Rule 1.2 (a) of the Georgia Rules of Professional

Conduct found in Bar Rule 4-102 (d), “a lawyer shall abide by a client’s decisions

concerning the scope and objectives of representation[.]” Rule 1.2 (c) provides further

8

 (Emphasis supplied.)

9 See, e.g., 735 Ill. Comp. Stat. 5/2-622 (a) (2) (allowing 90 additional days to

file expert affidavit where the the plaintiff’s attorney or pro se plaintiff files an

affidavit with the complaint stating “a statute of limitations would impair the action

and the consultation required could not be obtained before the expiration of the

statute of limitations[ ]”); Minn. Stat. § 145.682 (2), (3) (b) (exception for attorney

affidavit stating that “expert review . . . could not reasonably be obtained before the

action was commenced because of the applicable statute of limitations[ ]”). 

6
that “[a] lawyer may limit the scope and objectives of the representation if the

limitation is reasonable under the circumstances and the client gives informed

consent.”

Under the circumstances presented here, we find no error in the trial court’s

determination that Brady did not retain McClurg as her counsel until July 29, 2016.

The new client questionnaire and medical authorization form indicate that Brady and

McClurg expressly limited the scope and objectives of the initial representation to

obtaining Brady’s medical records from Dr. Cruz Pico. Thus, the record supports a

finding that, at that time, neither Brady nor McClurg had any reasonable basis to

believe that Brady had “retained” McClurg for the purpose of filing the instantsuit.

10

It follows that the defendants’ argument that, in December 2014, “Ms. Brady sought

the counsel of Mr. McClurg regarding the merits of her potential claim against Dr.

10 Compare Richard v. David, 212 Ga. App. 661, 662 (1) (442 SE2d 459)

(1994) (finding no attorney-client relationship, despite the payment of attorney fees

as part of real estate closing costs, where the attorney did not offer and the client did

not seek any legal advice or assistance); with Calhoun v. Tapley, 196 Ga. App. 318,

319-320 (395 SE2d 848) (1990) (summary judgment improper in a legal malpractice

action because there was some evidence that an attorney-client relationship existed

where the attorney assured the client that everything was being done to process her

insurance claim and counsel did not indicate to another attorney that he did not

represent the client).

7
Cruz Pico”

11

 does not conflict with or contradict the trial court’s finding that Brady

did not “retain” McClurg to file this suit until July 2016.12

Consequently, the trial court properly concluded that Brady did not “retain”

counsel more than 90 days prior to the expiration of the period of limitation.

[B]ecause OCGA § 9-11-9.1 constitutes an exception to the general

liberality of pleading allowed under the Civil Practice Act, it is to be

construed in a manner consistent with the liberality of the Act so long

as such a construction does not detract from the purpose of OCGA §

9-11-9.1, which is to reduce the filing of frivolous malpractice suits.

13

Nothing in our reading of the statute detracts from that purpose, and we find no error

in the trial court’s ruling.

Judgment affirmed. Miller, P. J., and Brown, J., concur.

11

 (Emphasis supplied.)

12 Cf. Bell v. Phoebe Putney Health System, 272 Ga. App. 856, 859 (614 SE2d

115) (2005) (concluding that the pleading for an extension under former OCGA § 9-

11-9.1 (b) was not, at the time it was made, contradicted by the record and that any

contradiction could be reconciled satisfactorily).

13 Gala v. Fisher, 296 Ga. 870, 875 (770 SE2d 879) (2015) (citation and

punctuation omitted).

8