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Winfrey v. Total Health Clinic Corporation6/4/2002
In this medical malpractice action, Nina J. Winfrey appeals the trial court's dismissal of her case against Total Health Clinic Corporation, Lee Wilkes, M. D., and Gary Richter, M. D., contending that the trial court erred by: (1) failing to hold a hearing, absent request, on her motion for an extension of time to file an expert affidavit pursuant to OCGA § 9-11-9.1 (b) and (2) with regard to Total Health and Richter only, dismissing her case for her failure to file an expert affidavit as a defense, contending that Total Health and Richter had waived their right to assert such failure. For the reasons set forth below, we affirm.
The record shows that Winfrey originally filed suit against the defendants on July 25, 2000, alleging medical malpractice for failure to diagnose pancreatic cancer as of July 29, 1998. In her complaint, Winfrey properly stated that her action was being filed within ten days of the statute of limitation, triggering an automatic statutory provision giving her an additional forty-five days in which to file her expert's affidavit pursuant to OCGA § 9-11-9.1 (b). See Cabey v. DeKalb Med. Center.
Total Health and Richter answered the complaint on August 24, 2000, and, both defendants requested in their original answer that Winfrey's suit be dismissed for failure to file an expert's affidavit. No separate motions to dismiss, however, were filed at that time. Wilkes answered the complaint on September 11, 2000, and he contemporaneously filed a motion to dismiss Winfrey's claim for failure to file an expert affidavit. On September 8, 2000, the final day of her additional 45-day statutory period, Winfrey filed a motion for extension of time in which to file her expert affidavit.
On September 15, 2000, Total Health and Richter filed a joint motion to dismiss Winfrey's case for failure to file an expert affidavit. Finally, on December 21, 2000, the trial court denied Winfrey's motion for an extension of time to file an affidavit and dismissed her case with prejudice.
1. Winfrey contends that the trial court erred by failing to hold a hearing prior to denying her motion for an extension of time to file an expert affidavit. We disagree.
[Winfrey] never requested a hearing on her motion for an extension of time. Uniform Superior Court Rule 6.3 provides that "(u)nless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict." It was therefore not error for the trial court to decide [Winfrey's] motion for an extension of time without holding a hearing. Cabey, supra at 314 (2).
Moreover, we have reviewed the evidence of record, and we cannot say that the trial court abused its discretion in determining that Winfrey had failed to show good cause for any further extension of time to file an expert affidavit.
2. Winfrey contends that, even if a hearing on her motion for an extension of time was not required, the trial court erred in dismissing her case against Total Health and Richter because they waived their right to the defense that she failed to file an expert's affidavit. Again, we disagree.
OCGA § 9-11-9.1 (b) provides:
The contemporaneous filing requirement of subsection (a) of this Code section 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 and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be pre
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