Plaintiff appealed dismissal of their claims against a nursing home and four employees based on failure to comply with O.C.G.A. § 9-11-9.1, which requires the filing of an expert’s affidavit with complaints alleging malpractice. Defendant’s motion was not ruled on immediately and limited discovery was conducted. Seven months later, the motion was renewed. Two of the individual defendants remained unserved and the court dismissed them asserting laches. On appeal, Plaintiffs contended that O.C.G.A. § 9-11-9.1 did not apply because they asserted a claim for ordinary negligence, not professional negligence. The court agreed in part. An expert affidavit is required when the negligence complained of requires professional judgment. The complaint alleged a failure to properly administer medication and a Violation of the Bill of Rights for Residents of Long-Term Care Facilities, O.C.G.A. § 31-8-100 et seq., by failing to properly document complaints of chest pain. The court held that a failure to properly administer medication requires professional judgment and, thus should have been dismissed. However the trial court erred by dismissing claims based on nonprofessional, administrative aspects of documenting care. The court found no error in dismissing two unserved defendants where they remained unserved on March 24, 2005, more than 17 months after the statute of limitations expired.
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