3. Pleadings And Notice COPY Flashcards
In Georgia, must a corporation be represented by an attorney?
Yes, a corporation must be represented by an attorney.
What must a complaint contain?
A complaint must contain:
1. Facts upon which venue is based
2. A short and plain statement of the claims showing that the plaintiff is entitled to relief
3. A demand for judgment for the requested relief.
What is required for a complaint for medical malpractice seeking $10,000 or less?
A demand for judgment for a sum certain must be included.
What is required for a complaint for medical malpractice seeking more than $10,000?
The complaint must state that the plaintiff ‘demands judgment in excess of $10,000’ with no further amount stated.
What is required for an expert affidavit in medical malpractice cases?
An expert affidavit must accompany any pleading alleging professional malpractice against a licensed professional, entity, or healthcare facility. The expert must be competent to testify.
What must the expert’s affidavit contain?
The affidavit must specify at least one negligent act or omission and its factual basis.
When can the expert affidavit not be filed contemporaneously with the complaint?
The affidavit need not be filed with the complaint if:
* The attorney affirms retention within 90 days before the statute of limitations expires
* The statute of limitations expires within 10 days of filing.
How long does the plaintiff have after filing to supplement with the expert’s affidavit?
The plaintiff has 45 days after filing to supplement with the expert’s affidavit.
When will the defendant be required to answer after the plaintiff supplements with the expert’s affidavit?
The defendant will not be required to answer until 30 days after the affidavit is filed.
What happens if the expert affidavit is not filed with the complaint?
If the affidavit is not filed, the complaint will be dismissed for failure to state a claim, which is on the merits and bars a later case by res judicata.
What is the renewal privilege for medical malpractice action?
If the plaintiff fails to file the affidavit and the defendant moves to dismiss, resulting in dismissal, the plaintiff is entitled to the renewal privilege if:
* The affidavit was available at filing
* The failure was due to a mistake.
What happens if the plaintiff files a defective affidavit?
If the plaintiff files a defective affidavit and the defendant alleges such with specificity in a motion to dismiss filed on or before the close of discovery, the plaintiff’s complaint may be dismissed for failure to state a claim.
Can the plaintiff cure a defective affidavit? How?
The plaintiff can amend the defect within 30 days (or longer with court approval).
Must the plaintiff file a medical authorization form with the complaint?
Yes, a plaintiff must file a medical authorization form contemporaneously with the complaint in any action alleging medical malpractice.
What must the medical authorization form contain?
The authorization must:
* Provide that defendant’s attorney may obtain and disclose protected health information in medical records to facilitate the investigation, evaluation, and defense of the claims raised in plaintiff’s complaint
* Allow defendant’s attorney to discuss plaintiff’s care and treatment with all of plaintiff’s treating physicians.
What are the special pleading rules?
Certain pleadings require additional information to be included:
* Actions for fraud or mistake
* A denial of the performance or occurrence of a condition precedent
* Items of special damages.
What is the timing requirement for a defendant to answer a complaint in Georgia?
An answer must be served within 30 days after service of the summons and complaint upon the defendant.
What is the exception to the timing requirement for answering if the complaint alleges professional malpractice?
If the complaint does not attach the required expert affidavit, the defendant’s time to file an answer is extended until 30 days after the filing of the affidavit.
When must a motion to strike be served?
A motion to strike must be served within 30 days after service of the pleading.