Hewett v. Kalish, 442 S.E.2d 233 (Ga. 1994). · Go Syfert
Hewett v. Kalish, 442 S.E.2d 233 (Ga. 1994). Cases Citing This Book View Copy Cite
“ecause expert stated that he was competent to testify and because such conclusions are permissible in pleadings, the trial court erred by dismissing the complaint”
192 citation events (56 in the last 25 years) across 2 distinct courts.
Strongest positive: TIFFANY LEWIS v. EMORY HEALTHCARE, INC. (gactapp, 2026-02-03)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
discussed Cited as authority (quoted) TIFFANY LEWIS v. EMORY HEALTHCARE, INC. (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2026 · signal: see also · quote attribution · 1 verbatim quote · confidence low
ecause expert stated that he was competent to testify and because such conclusions are permissible in pleadings, the trial court erred by dismissing the complaint
discussed Cited as authority (quoted) Stubbs v. Hall
Ga. · 2020 · quote attribution · 1 verbatim quote · confidence low
everyone is presumed to know the law, and the law never favors those who misinterpret it.
discussed Cited as authority (rule) Graham v. Reynolds (2×)
Ga. Ct. App. · 2017 · confidence medium
Hosp. v. Skipper , 235 Ga. App. 534 , 535, 510 S.E.2d 101 (1998), and in ruling on a motion to dismiss based on an allegedly defective affidavit, a court should construe the affidavit "most favorably to the plaintiff and all doubts should be resolved in [the] plaintiff's favor, even if an unfavorable construction of the affidavit may be possible[,] so long as such construction does not detract from [the statutory] purpose...." Hewett , supra, 264 Ga. at 184 (1), 442 S.E.2d 233 (citation omitted). "[F]or a complaint to be subject to dismissal for failure to state a claim, the affidavit must dis…
examined Cited as authority (rule) James A. Graham v. Anthony Reynolds as Personal Representative of the Estate of Lakeither Marie Thomas (3×)
Ga. Ct. App. · 2017 · confidence medium
See OCGA § 9- 11-9.1 (e) (if expert affidavit accompanying professional malpractice claim is defective, complaint is subject to dismissal for failure to state a claim); Hewett v. Kalish, 264 Ga. 183, 184-185 (1) ( 442 SE2d 233 ) (1994) (same).
discussed Cited as authority (rule) Dorian Eugene Fisher v. Vishal C. Gala
Ga. Ct. App. · 2014 · confidence medium
At the relevant time, “[t]he standard for determining an expert’s competence to testify [was] governed by [former] OCGA § 24-9-67.1, and the statute applie[d] to affiants under OCGA § 9-11-9.1.” (Citation, punctuation, and footnote omitted.) 2 See Hewett v. Kalish, 264 Ga. 183, 184 ( 442 SE2d 233 ) (1994) (When an affidavit shows on its face that the affiant is competent to testify under the applicable standard, but a defendant believes that the plaintiff’s expert is in fact incompetent, “the defendant may attempt to resolve this discrepancy at [an evidentiary] hearing under OCGA �…
examined Cited as authority (rule) Houston v. Phoebe Putney Memorial Hospital, Inc. (6×) also: Cited "see"
Ga. Ct. App. · 2009 · confidence medium
Hewett, 264 Ga. at 186 (2) (“[B]ecause [plaintiffs] expert stated that he was competent to testify and *678 because such conclusions are permissible in pleadings, the trial court erred by dismissing the complaint.”) (citation omitted).
discussed Cited as authority (rule) Abramson v. Williams
Ga. Ct. App. · 2006 · confidence medium
We granted the Williamses’ application for an interlocutory appeal. “[A] motion to dismiss for an insufficient affidavit under [OCGA] § 9-11-9.1 is a motion to dismiss for failure to state a claim under [OCGA] § 9-11-12 (b) (6).” Hewett v. Kalish, 264 Ga. 183, 185 (1) ( 442 SE2d 233 ) (1994).
discussed Cited as authority (rule) Hardwick v. Atkins
Ga. Ct. App. · 2006 · confidence medium
Johnson, P. J., and Barnes, J., concur. 1 See Hewett v. Kalish, 264 Ga. 183, 185 (1) ( 442 SE2d 233 ) (1994). 2 See Hendon Properties v. Cinema Dev., 275 Ga. App. 434, 435 ( 620 SE2d 644 ) (2005). 3 See Shirley v. Hosp.
discussed Cited as authority (rule) Vito v. Paley
Ga. Ct. App. · 2004 · confidence medium
Hewett v. Kalish, 264 Ga. 183, 185 (1) ( 442 SE2d 233 ) (1994); see also Freeman v. Pittman, 220 Ga. App. 672, 673 (1) ( 469 SE2d 543 ) (1996) (sufficiency of expert affidavit attacked via motion to dismiss).
discussed Cited as authority (rule) Tucker v. Thomas C. Talley, M.D., P.C.
Ga. Ct. App. · 2004 · confidence medium
Current Subsection (d) became effective on July 1,1997, and was not part of the analysis in cases relied on by Talley and LLC such as Riggins v. Wyatt, 215 Ga. App. 854 ( 452 SE2d 577 ) (1994), Milligan v. Manno, 197 Ga. App. 171 ( 397 SE2d 713 ) (1990), and Chandler v. Koenig, 203 Ga. App. 684 ( 417 SE2d 715 ) (1992). 2 Harris v. Murray, 233 Ga. App. 661, 664 (2) ( 504 SE2d 736 ) (1998). 3 See id. (because defendant acted diligently in raising the defense in the first pleading he filed after discovering evidence causing him to challenge the validity of the affidavit, he satisfied the statutor…
discussed Cited as authority (rule) Waters v. Stewart (2×) also: Cited "see"
Ga. Ct. App. · 2003 · confidence medium
Hewett v. Kalish, 264 Ga. 183, 184 (1) ( 442 SE2d 233 ) (1994).
cited Cited as authority (rule) Department of Transportation v. Dupree
Ga. Ct. App. · 2002 · confidence medium
Hewett v. Kalish, 264 Ga. 183, 184-186 (1) ( 442 SE2d 233 ) (1994); Stubbs v. Ray, 218 Ga. App. 420 -421 (1) ( 461 SE2d 906 ) (1995).
cited Cited as authority (rule) Lennen v. Department of Transportation
Ga. Ct. App. · 1999 · confidence medium
Hewett v. Kalish, 264 Ga. 183, 184 (1) ( 442 SE2d 233 ). *731 Decided August 30, 1999.
cited Cited as authority (rule) Bennett v. Butlin
Ga. Ct. App. · 1999 · confidence medium
Hewett v. Kalish, supra, 264 Ga. at 184-186 (1).
examined Cited as authority (rule) Phoebe Putney Memorial Hospital v. Skipper (11×) also: Cited "see", Cited "see, e.g."
Ga. Ct. App. · 1998 · confidence medium
Harris, supra, 233 Ga.App. at 666 , 504 S.E.2d 736 . [15] As in Hewett, supra, 264 Ga. at 183 , 442 S.E.2d 233 . [16] Porquez, supra. [17] (Citation and punctuation omitted.) Gadd v. Wilson & Co. &c., 262 Ga. 234, 235 , 416 S.E.2d 285 (1992); Hewett, supra, 264 Ga. at 184 , 442 S.E.2d 233 ; Porquez, supra, 268 Ga. at 652, 492 S.E.2d 665 . [18] (Citation and punctuation omitted.) Hewett, supra, 264 Ga. at 186 (2), 442 S.E.2d 233 . [19] Phoebe Putney Mem.
examined Cited as authority (rule) Harris v. Murray (14×) also: Cited "see"
Ga. Ct. App. · 1998 · confidence medium
Hewett v. Kalish, 264 Ga. 183, 184-185 ( 442 SE2d 233 ) (1994); Porquez, 268 Ga. at 651-652.
discussed Cited as authority (rule) Schmidt v. Feldman
Ga. Ct. App. · 1998 · confidence medium
McMurray, P. J, and Eldridge, J., concur. 1 The affidavit states “May 3 or May 6, 1997,” but it is apparent that it refers to 1996. 2 We note that, because the trial court apparently considered Petersen’s affidavit and Bongiomo’s deposition testimony in ruling on the motion to dismiss, it arguably converted the motion to dismiss into a motion for summary judgment, triggering a requirement that plaintiffs “be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56.” OCGA § 9-11-12 (b); Hewett v. Kalish, 264 Ga. 183, 184-185 ( 442…
examined Cited as authority (rule) Sinkfield v. Oh (6×) also: Cited "see"
Ga. Ct. App. · 1997 · confidence medium
Handson v. HCA Health Svcs. of Ga., 264 Ga. 293 ( 443 SE2d 831 ) (1994); Hewett v. Kalish, 264 Ga. 183, 186 (1) ( 422 SE2d 233 ) (1994); Crook v. Funk, 214 Ga. App. 213, 215 (2) ( 447 SE2d 60 ) (1994); Tye v. Wilson, 208 Ga. App. 253, 254-256 ( 430 SE2d 129 ) (1993); Milligan v. Manno, 197 Ga. App. 171 ( 397 SE2d 713 ) (1990); Shaw v. Hosp.
cited Cited as authority (rule) Goring v. Martinez
Ga. Ct. App. · 1996 · confidence medium
Hewett v. Kalish, 264 Ga. 183, 185 (1) ( 442 SE2d 233 ) (1994); Seely v. Loyd H.
examined Cited as authority (rule) S K Hand Tool Corp. v. Lowman (6×) also: Cited "see"
Ga. Ct. App. · 1996 · confidence medium
OCGA § 9-11-9.1 requires that "[i]n any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which ... shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim." (Enacted by Ga. L.1987, p. 887, § 3.) (a) OCGA § 9-11-9.1 is an initial pleading requirement, Hewett v. Kalish, 264 Ga. 183, 184 (1), 442 S.E.2d 233 (1994), which "`applies to any action for professional malpractice by negligent act or omission, sounding in…
discussed Cited as authority (rule) Vitner v. Miller
Ga. Ct. App. · 1996 · confidence medium
Moreover, the Supreme Court has noted that “a Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible. . . .” (Citation and punctuation omitted.) Hewett v. Kalish, 264 Ga. 183, 184 (1) ( 442 SE2d 233 ) (1994).
discussed Cited as authority (rule) Lee v. VISITING NURSE HEALTH SYSTEM OF METROPOLITAN ATLANTA, INC. (2×)
Ga. Ct. App. · 1996 · confidence medium
OCGA § 9-11-9.1 “‘merely imposes an initial pleading requirement on the plaintiff.’ ” (Emphasis in original.) Hewett v. Kalish, 264 Ga. 183, 184 (1) ( 442 SE2d 233 ) (1994).
discussed Cited as authority (rule) Seely v. Loyd H. Johnson Const. Co., Inc. (2×)
Ga. Ct. App. · 1996 · confidence medium
With respect to cross-defendant R & R Plumbing, Inc., it remains my view that the defense of failure to file an OCGA § 9-11-9.1 expert's affidavit can be raised for the first time in a motion under OCGA § 9-11-12(b)(6), under the holding of Hewett v. Kalish, 264 Ga. 183, 184 (1), 185, 442 S.E.2d 233 .
discussed Cited as authority (rule) Sisk v. Patel (2×)
Ga. Ct. App. · 1995 · confidence medium
He argues instead that the purpose of OCGA § 9-11-9.1, to reduce the number of frivolous malpractice suits, see Hewett v. Kalish, 264 Ga. 183, 184 (1), 442 S.E.2d 233 (1994), is not advanced by requiring the original affidavit rather than a facsimile, and that once the expert has rendered his opinion as to the basis of the suit, the purpose of the statute is fulfilled and the affidavit is mere evidence of that fulfillment.
cited Cited as authority (rule) Raskin v. Wallace
Ga. Ct. App. · 1994 · confidence medium
Gadd v. Wilson &c., 262 Ga. 234, 235 ( 416 SE2d 285 ) (1992).” Hewett v. Kalish, 264 Ga. 183, 184 (1) ( 442 SE2d 233 ) (1994).
discussed Cited as authority (rule) Moritz v. Orkin Exterminating Co.
Ga. Ct. App. · 1994 · confidence medium
In Glaser v. Meck, 258 Ga. 468 (2) ( 369 SE2d 912 ), the Supreme Court acknowledged the viability of the procedure used by plaintiffs in the case sub judice, and while that statement may appear to be dicta we must also consider the import of subsequent references to it in such cases as Cheeley v. Henderson, 261 Ga. 498, n. 1 ( 405 SE2d 865 ) (overruled on other grounds, Hewett v. Kalish, 264 Ga. 183, 186 (1) ( 442 SE2d 233 )), and Patterson v. Douglas Women’s Center, P. C., 258 Ga. 803, n. 1 ( 374 SE2d 737 ).
discussed Cited as authority (rule) Handson v. HCA Health Services of Georgia, Inc.
Ga. · 1994 · confidence medium
This is merely an initial pleading requirement, and the complaint will not be subject to dismissal unless the affidavit “ ‘ “disclose [s] with certainty that the plaintiff would not be entitled to relief under any state of provable facts.” ’ [Cit.]” Hewett v. Kalish, 264 Ga. 183, 184 ( 442 SE2d 233 ) (1994).
discussed Cited "see" Zephaniah v. Georgia Clinic, P.C. (2×)
Ga. Ct. App. · 2019 · signal: accord · confidence high
Gobeil and Hodges, JJ., concur. 1 See Dove v. Ty Cobb Healthcare Sys. , 316 Ga. App. 7 , 9, 729 S.E.2d 58 (2012) (noting that in reviewing a trial court's ruling on a motion to dismiss, this Court construes the complaint in the light most favorable to the plaintiff). 2 See OCGA § 9-3-33 ("Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues. ..."); OCGA § 9-3-71 (a) ("Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on…
discussed Cited "see" Fisher v. Gala (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Hewett v. Kalish, 264 Ga. 183, 184 ( 442 SE2d 233 ) (1994) (When an affidavit shows on its face that the affiant is competent to testify under the applicable standard, but a defendant believes that the plaintiff’s expert is in fact incompetent, “the defendant may attempt to resolve this discrepancy at [an evidentiary] hearing under OCGA § 9-11-12 (d).”).
discussed Cited "see" Vaughan v. Wellstar Health System, Inc. (2×)
Ga. Ct. App. · 2010 · signal: see · confidence high
See Houston, supra at 677 (1), citing, inter alia, Hewett v. Kalish, 264 Ga. 183 ( 442 SE2d 233 ) (1994).
discussed Cited "see" Deering v. Keever (2×)
Ga. · 2007 · signal: see · confidence high
See Cheeley v. Henderson, 261 Ga. 498 (3) ( 405 SE2d 865 ) (1991), overruled on other grounds, Hewett v. Kalish, 264 Ga. 183 ( 442 SE2d 233 ) (1994); Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537, 539-540 ( 314 SE2d 903 ) (1984).
discussed Cited "see" MCG Health, Inc. v. Barton (2×)
Ga. Ct. App. · 2007 · signal: see · confidence high
See Hewett v. Kalish, 264 Ga. 183, 185 (1) ( 442 SE2d 233 ) (1994).
discussed Cited "see" Sawyer v. DeKalb Medical Center, Inc. (2×)
Ga. Ct. App. · 1998 · signal: see · confidence high
Ga. L. 1997, pp. 916-917, 919, §§ 1, 2. 8 See Lau’s Corp. v. Haskins, 261 Ga. 491 ( 405 SE2d 474 ) (1991). 9 OCGA § 9-11-9.1 (a). 10 See Carnes v. Carnes, 138 Ga. 1, 6 (3) ( 74 SE 785 ) (1912) (“[i]n order to make an affidavit, there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath”); Schmidt v. Feldman, 230 Ga. App. 500, 501 (1) ( 497 SE2d 23 ) (1998) (same); Crook v. Funk, 214 Ga. App. 213, 214-215 (1) ( 447 SE2d 60 ) (1994) (need only specify factual basis for one act of negligence). 11 256 Ga. …
discussed Cited "see, e.g." Minnix v. Department of Transportation (2×)
Ga. · 2000 · signal: compare · confidence low
Compare OCGA § 43-4-1 et seq., regulating the practice of architecture or the design of buildings with OCGA § 43-23-1 et seq., regulating the practice of landscape architecture or the performance of professional services relating to land use and environmental problems. 27 See notes 17 and 18. 28 Fleming v. State, 271 Ga. 587, 589 ( 523 SE2d 315 ) (1999), citing City of Jesup v. Bennett, 226 Ga. 606, 609 ( 176 SE2d 81 ) (1970). 29 271 Ga. 330, 336 ( 519 SE2d 672 ) (1999). 30 Id. 31 Hewett v. Kalish, 264 Ga. 183 ( 442 SE2d 233 ) (1994), citing Bowen v. Adams, 203 Ga. App. 123 ( 416 SE2d 102 ) …
Retrieving the full opinion text from the archive…
Hewett
v.
Kalish
S94G0201.
Supreme Court of Georgia.
Apr 25, 1994.
442 S.E.2d 233
Rosenzweig, Kam, Jones & MacNabb, Michael G. Kam, Edward H. Kellogg, Jr., for appellant., Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellee.
Sears-Collins.
Cited by 59 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: Supreme Court of Georgia (1)
Sears-Collins, Justice.

The appellant, Linda Hewett, brought this action against the appellee, Stanley Kalish, a podiatrist, alleging negligent treatment of her tarsal tunnel syndrome condition. Hewett filed the affidavit of an orthopedic surgeon with her complaint. The trial court dismissed the complaint on the ground that the affidavit was insufficient to satisfy OCGA § 9-11-9.1. The Court of Appeals affirmed. The Court held that § 9-11-9.1 established an evidentiary standard that had to be satisfied at the pleading stage. It then ruled that because the orthopedist was from a different professional school than Kalish, the orthopedist had to state in the affidavit that the two schools overlapped in their treatment of Hewett’s condition in order to be an expert competent to testify against Kalish. Hewett v. Kalish, 210 Ga. App. 584, 585-586 (436 SE2d 710) (1993). We then granted certiorari to consider this ruling. Although we agree that the overlap test is the proper test to determine whether a plaintiff’s expert from one professional school[*184] is competent to testify against a defendant from a different professional school, we hold that the Court of Appeals erred by evaluating Hewett’s § 9-11-9.1 affidavit pursuant to an evidentiary standard.

1. The Court of Appeals has ruled that § 9-11-9.1 “merely imposes an initial pleading requirement on the plaintiff”; that the sufficiency of the affidavit determines whether a plaintiff’s action is subject to dismissal under OCGA § 9-11-12 (b) (6); and that for a complaint to be subject to dismissal for failure to state a claim, the affidavit must “ ‘disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.’ ” (Emphasis in original.) Bowen v. Adams, 203 Ga. App. 123, 123-124 (416 SE2d 102) (1992). Moreover, relying on Bowen, we have followed these pleading rules, holding that

[a] Section 9-11-9.1 affidavit should be construed most favorably to the plaintiff and all doubts should be resolved in plaintiff’s favor, even if an unfavorable construction of the affidavit may be possible

so long as such construction does not detract from the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits. Gadd v. Wilson &c., 262 Ga. 234, 235 (416 SE2d 285) (1992). Although neither Bowen nor Gadd dealt with the competency prong of § 9-11-9.1 (Bowen dealt with whether the affidavit adequately set forth a negligent act and Gadd dealt with whether the affidavit adequately attributed the negligent act in question to the defendant), we can discern no reason why a stricter evidentiary requirement should obtain with regard to competency. Moreover, because § 9-11-9.1 merely imposes a pleading requirement, the rule that pleadings may contain conclusions, see Ledford v. Meyer, 249 Ga. 407, 408-409 (290 SE2d 908) (1982), would apply equally to a § 9-11-9.1 affidavit as to any other pleading.

Significantly, the application of pleading rules to the competency determination will not defeat the purpose of § 9-11-9.1 of reducing the number of frivolous malpractice suits being filed. Gadd, 262 Ga. at 235. First, if a plaintiff’s complaint would not be subject to dismissal after the application of pleading rules, then there is a reasonable likelihood that the complaint is not frivolous. Second, if a defendant believes that the application of pleading rules would not lead to the conclusion that the plaintiff’s expert is incompetent to testify but the defendant nevertheless believes that the plaintiff’s expert is in fact incompetent, the defendant may attempt to resolve this discrepancy at a hearing under OCGA § 9-11-12 (d). [1] The procedure would be as[*185] follows: The defendant must raise his or her 12 (b) (6) defense by motion or in his or her answer, § 9-11-12 (b), and then apply for the necessary hearing under § 9-11-12 (d), see Prudential Timber &c. Co. v. Collins, 144 Ga. App. 849, 851 (2) (a) (243 SE2d 80) (1978). At that hearing, the defendant may present evidence that the defendant contends shows that the plaintiff’s expert is not in fact competent to testify, see OCGA § 9-11-43; Sherwood Mem. Park v. Bryan, 142 Ga. App. 664 (236 SE2d 903) (1977). By presenting matters outside the pleadings, the 12 (d) hearing must be treated as one for summary judgment. OCGA § 9-11-12 (b); Blasingame v. Blasingame, 249 Ga. 791, 792 (294 SE2d 519) (1982). Accordingly, summary judgment rules of notice must be met, see Gregory, Georgia Civil Practice, § 3-6 (j) (1990), and the plaintiff “shall be given reasonable opportunity to present all material made pertinent to such a motion by Code Section 9-11-56,” § 9-11-12 (b). If the defendant pierces the plaintiff’s pleading affidavit on the issue of competency by offering evidence that the defendant’s professional school and the plaintiff’s school do not overlap with regard to the method of treatment in question, and the plaintiff offers no further evidence that his or her expert is competent to testify, the trial court would be authorized to grant summary judgment to the defendant.

We find nothing in § 9-11-9.1 that precludes a resolution of competency pursuant to the foregoing procedures. As a motion to dismiss for an insufficient affidavit under § 9-11-9.1 is a motion to dismiss for failure to state a claim under § 9-11-12 (b) (6), Bowen, 203 Ga. App. at 123; Hewett, 210 Ga. App. at 585, and as § 9-11-9.1 does not provide that § 9-11-12 is inapplicable, such a hearing is a permissible method by which to challenge the sufficiency of an affidavit. Although it could be contended that § 9-11-9.1 (e) precludes a plaintiff from offering evidence at a 12 (d) hearing to establish his or her expert’s competency, a close inspection of § 9-11-9.1 (e) reveals that it presents no such impediment. That section provides that “[e]xcept as allowed under subsection (b) of this Code section, if a plaintiff fails to file an affidavit as required by this Code section,” the complaint is subject to dismissal and cannot be cured by amendment under OCGA § 9-11-15 “unless . . . the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.” By referencing subsection (b), which sets forth one exception when a plaintiff need not file an expert affidavit[*186] with the complaint, and by providing that the complaint can be amended if the plaintiff had the affidavit before filing the complaint but by mistake failed to file it, subsection (e) is only designed to preclude amendment under § 9-11-15 when the plaintiff completely fails to file an affidavit. See Kneip v. Southern Engineering, 260 Ga. 409 (395 SE2d 809) (1990), in which we stated that § 9-11-9.1 (e) applies to “a complaint alleging professional malpractice filed without an affidavit.” (Emphasis supplied.) Kneip at 411 (4). Section 9-11-9.1 (e) thus does not preclude a plaintiff from presenting evidence of his or her expert’s competency at a 12 (d) hearing when that expert’s affidavit was initially filed with the complaint. To the extent Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991), is in conflict with this interpretation of § 9-11-9.1 (e), it is overruled.

For these reasons, we find that the Court of Appeals erred by holding that § 9-11-9.1 establishes an evidentiary standard regarding the affiant’s competency that must be proven at the pleading stage. Hewett, 210 Ga. App. at 585-586. See also Milligan v. Manno, 197 Ga. App. 171, 172 (397 SE2d 713) (1990). Moreover, because Hewett’s complaint was dismissed at the pleading stage, the Court of Appeals should have applied the pleading rules set forth in Bowen, 203 Ga. App. at 123-124, and Gadd, 262 Ga. at 235, in evaluating the sufficiency of Hewett’s affidavit.

2. We wifi now apply those pleading rules. First, because Hewett’s expert stated that he was competent to testify and because such conclusions are permissible in pleadings, Ledford, 249 Ga. at 408-409, the trial court erred by dismissing the complaint, and the Court of Appeals erred by affirming that dismissal. Moreover, in conjunction with statutory law regarding podiatrists and orthopedists, the pleading rule that a complaint may not be dismissed for an insufficient affidavit unless the affidavit “ ‘disclose[s] with certainty that the plaintiff would not be entitled to relief under any state of provable facts,’ ” Bowen, 203 Ga. App. at 123, leads to the same conclusion. A podiatrist practices medicine of the foot, see OCGA § 43-35-1 (2), and the only reason a podiatrist does not hold a full medical license under OCGA § 43-34-20 (3) is that the practice of medicine is not limited to any one area of the body, Shaw v. Hosp. Auth., 507 F2d 625 (5th Cir. 1975). Moreover, orthopedists, just as podiatrists, are licensed to practice medicine of the foot. OCGA § 43-34-20 (3). In fact, orthopedists and podiatrists may render the same medical treatment to the foot except that the podiatrist may not perform amputations. See § 43-35-1 (2); Sandford v. Howard, 161 Ga. App. 495, 496 (288 SE2d 739) (1982); Op. Atty. Gen. No. 71-199. Because in many factual situations an orthopedist and a podiatrist will overlap in their medical treatment of the foot, rendering an orthopedist competent to testify against the podiatrist, and because Hewett’s complaint does not dis[*187] close with certainty that such is not the case here, Bowen, 203 Ga. App. 123-124, Hewett’s complaint should not have been dismissed.

Decided April 25, 1994 — Reconsideration denied May 16, 1994. Rosenzweig, Kam, Jones & MacNabb, Michael G. Kam, Edward H. Kellogg, Jr., for appellant. Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, for appellee.

For the foregoing reasons, we reverse the judgment of the Court of Appeals.

Judgment reversed.

All the Justices concur.
1

Section 9-11-12 (d) provides that

[*185] [t]he defenses specifically enumerated in paragraphs (1) through (7) of subsection (b) of this Code section, whether made in a pleading or by motion, and the motion for judgment mentioned in subsection (c) of this Code section shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination thereof be deferred until the trial.