¶1concurring specially.
¶2I agree with the holding of the majority that the complaint should not have been dismissed, but this holding can be supported by the application of a well established rule of law and without the necessity of construing the response to a motion to dismiss as an amendment to the complaint.
¶3The present appeal arises from the granting of a motion to dismiss for failure to attach the expert witness affidavit required by OCGA § 9-11-9.1. Although this code section requires that the affidavit shall be filed with the complaint, as originally enacted it provides no specific penalty for failure to comply with this requirement.
¶4As a general rule, a motion to dismiss a complaint should not be granted for procedural or technical irregularities. Tri-City Sanitation v. Action Sanitation Service, 227 Ga. 489 (181 SE2d 377) (1971). OCGA § 9-11-9.1, as originally enacted, does nothing to modify this well established rule of law.
¶5The code section now provides for circumstances under which the trial court is required to dismiss the complaint. The penalty for noncompliance was added by legislative amendment to correct the uncertain situation which has arisen in this and similar cases. Since this situation is now provided for by statute, it is unlikely to reoccur.
¶6I would hold that the trial court erred in granting this motion to dismiss.