The statute would be constitutional, even under the analysis of the dissent, if the affidavit requirement were limited to the medical profession. Yet, the legislature has declined invitations in 1989, 1990, and 1991 to amend the statute to limit the affidavit requirement to the medical profession. See Southern Engineering, 260 Ga. at 411 ("should the legislature determine that our decisions interpret the statute more broadly than it intended, it may rewrite the statute"); Precision Planning v. Wall, 193 Ga. App. 331, 332 ( 387 S.E.2d 610) (1989) (Benham, J., concurring specially); see also Gillis v. Goodgame, 199 Ga. App. 413, 416 ( 404 S.E.2d 815) (1991), rev'd on other grounds, Gillis, 262 Ga. at 117. To conclude that the caption gives inadequate notice because the professional affidavit requirement is located between provisions on medical malpractice and health care providers is to place in jeopardy a major portion of the bills that the legislature passes.
DaimlerChrysler, 281 Ga. at 273-274, quoting Polito v. Holland, 258 Ga. 54, 55 ( 365 SE2d 273) (1988). See Kneip v. Southern Engineering Co., 260 Ga. 409, 410-411 ( 395 SE2d 809) (1990); Precision Planning v. Wall, 193 Ga. App. 331, 332 ( 387 SE2d 610) (1989). requirement of submitting an expert's affidavit [under OCGA ยง 9-11-9.
This Court has held that OCGA ยง 9-11-9.1 is procedural in nature, conveying no vested rights, and can be applied retroactively. Kneip v. Southern Engineering, 260 Ga. 409, 410-411 (4) ( 395 S.E.2d 809) (1990); Blackmon v. Thompson, 195 Ga. App. 589 ( 394 S.E.2d 795) (1990); Precision Planning v. Wall, 193 Ga. App. 331 ( 387 S.E.2d 610) (1989). As a procedural law, notwithstanding the legislative attempt to make the application prospective only, the reenactment has retroactive application.
1 led both the courts and commentators to declare that the statute had failed to achieve its intended purpose of reducing professional malpractice litigation.Lutz v. Foran, 262 Ga. at 823, n. 4, citing Kneip v. Southern Engineering Co., 260 Ga. 411, Precision Planning v. Wall, 193 Ga. App. 331, 332 ( 387 S.E.2d 610) (1989) (Benham, J. concurring specially); Gillis v. Goodgame, 199 GA. App. 413, 416 ( 404 S.E.2d 815) (1991), rev'd on other grounds,Gillis, 262 Ga. at 117.Johnson v. Brueckner, 216 Ga. App. 52, 53-54 ( 453 S.E.2d 76) (1995) ("We are not empowered to amend the lawful acts of the legislature.
1 apply only prospectively. See Kneip v. Southern Eng'g Co., 260 Ga. 409, 410-411 ( 395 S.E.2d 809) (1990); Precision Planning v. Wall, 193 Ga. App. 331, 332 ( 387 S.E.2d 610) (1989).Polito v. Holland, 258 Ga. 54, 55 ( 365 S.E.2d 273) (1988).
4. Central contends dismissal of its action under OCGA ยง 9-11-9.1 (e) for failure to file an expert's affidavit is inappropriate because that subsection was not effective and the law regarding the applicability of the statute to claims for engineering malpractice was not clear, until after the time of the filing of its claims against Southern. For the reasons expressed in Precision Planning v. Wall, 193 Ga. App. 331 ( 387 S.E.2d 610) (1989), we reject Central's arguments that OCGA ยง 9-11-9.1 (e) is not subject to retroactive application.
This Court has held that O.C.G.A. ยง 9-11-9.1 is procedural in nature, conveying no vested rights, and can be applied retroactively. Kneip v. Southern Engineering, 260 Ga. 409, 410-411 (4) ( 395 S.E.2d 809) (1990); Blackmon v. Thompson, 195 Ga. App. 589 ( 394 S.E.2d 795) (1990); Precision Planning, Inc. v. Wall, 193 Ga. App. 331 ( 387 S.E.2d 610) (1989). As a procedural law, notwithstanding the legislative attempt to make the application prospective only, the reenactment has retroactive application.
Ga. L. 1987, p. 887, sec. 3. It has been applied to the legal profession, Barr v. Johnson, 189 Ga. App. 136 ( 375 S.E.2d 51) (1988); Padgett v. Crawford, 189 Ga. App. 568 ( 376 S.E.2d 724) (1988), and Frazier v. Merritt, 190 Ga. App. 832 ( 380 S.E.2d 495) (1989); the engineering profession, Precision Planning v. Wall, 193 Ga. App. 331 ( 387 S.E.2d 610) (1989), and Kneip v. Southern Engineering Co., 260 Ga. 409 ( 395 S.E.2d 809) (1990); and the architectural profession, Housing Auth. of Savannah v. Gilpin Bazemore/Architects c., 191 Ga. App. 400 ( 381 S.E.2d 550), affirmed sub nom, Housing Auth. of Savannah v. Greene, supra. There is no case alleging malpractice which holds that the affidavit requirement does not apply to a given profession.
In the preamble to Ga. L. 1987, p. 887, the Legislature stated that the intended purpose of the Act creating OCGA ยง 9-11-9.1 was to require plaintiffs to "set forth the particulars of the claim." Accordingly, the statute has been construed as having the purpose of preventing frivolous or unsustainable malpractice actions. Precision Planning v. Wall, 193 Ga. App. 331, 332 ( 387 S.E.2d 610) (1989); Housing Auth. of Savannah v. Greene, 259 Ga. 435, 439 ( 383 S.E.2d 867) (1989), quoting 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) ( 378 S.E.2d 708) (1989). "The filing requirement of subsection 9-11-9.1 (a) protects professionals from having to defend lawsuits unless they are supported by an expert competent to testify . . . . Under the statute, failure to obtain [an] affidavit might be a fatal defect.
This statute is not limited to medical malpractice claims, but is applicable, even retroactively, to suits against persons and corporations engaged in many professions, including that of engineering. Housing Auth. of Savannah v. Greene, 259 Ga. 435 (1) ( 383 S.E.2d 867) (1989), aff'g Housing Auth. of Savannah v. Gilpin Bazemore/Architects c., 191 Ga. App. 400 ( 381 S.E.2d 550) (1989); Southern Engineering Co. v. Central Ga. Elec. c. Corp., 193 Ga. App. 878 (1) ( 389 S.E.2d 380) (1989); Precision Planning v. Wall, 193 Ga. App. 331 ( 387 S.E.2d 610) (1989). The statute does not define an "action for damages alleging professional malpractice. . . ."