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Lathan v. Hospital Authority of Charlton County

Court of Appeals of Georgia, First Division

August 16, 2017

LATHAN
v.
HOSPITAL AUTHORITY OF CHARLTON COUNTY.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          BARNES, PRESIDING JUDGE.

         Faleshia C. Lathan, as the surviving spouse and personal representative of the estate of Robert Lathan, Jr., brought this medical malpractice and wrongful death suit against the Hospital Authority of Charlton County d/b/a Charlton Memorial Hospital (the "Hospital Authority") and several other defendants, contending that the suit was a valid renewal of a prior suit that had been voluntarily dismissed. The Hospital Authority sought dismissal of the plaintiff's wrongful death and loss of consortium claims, arguing that the statute of limitation had expired on those claims, and that the present suit was not a valid renewal action because service had not been properly perfected on the Hospital Authority in the prior suit before its voluntary dismissal. The trial court agreed with the Hospital Authority and dismissed the plaintiff's wrongful death and loss of consortium claims with prejudice. The trial court thereafter entered final judgment in favor of the Hospital Authority on those claims and subsequently denied the plaintiff's motion for reconsideration and motion to amend her complaint. This appeal by the plaintiff followed.

         The central question in this appeal is whether service of process was properly perfected on the Hospital Authority in the prior wrongful death suit brought by the plaintiff, rendering the present suit a valid renewal action. Resolution of that question turns on whether the Hospital Authority is the type of corporation that can be served under OCGA § 9-11-4 (e) (1) (A) of the Georgia Civil Practice Act ("Rule 4"), which authorizes service on the president, other officer, managing agent, or registered agent of a "corporation incorporated . . . under the laws of this state" or substitute service on the Secretary of State if those methods of service are unsuccessful. For the reasons discussed more fully below, we answer that question in the negative and affirm the trial court.

         This case arose out of the care and treatment that Mr. Lathan ("the decedent") received at Charlton Memorial Hospital on February 3, 2013. As alleged in the complaint, on the afternoon of the day in question, the decedent arrived in the emergency department at Charlton Memorial Hospital with complaints of sharp epigastric pain. Dr. Ayodele A. Ayedun, an emergency medicine physician, examined the decedent, diagnosed him with gastritis, and discharged him from the hospital. The next evening, the decedent returned to the emergency room at Charlton Memorial Hospital in cardiac arrest. He was transported to another hospital, where he remained an inpatient until his death on February 11, 2013.

         Charlton Memorial Hospital was operated by the Hospital Authority, a "public body corporate and politic" established in 1970 under an ordinance adopted by the Charlton County Board of Commissioners. In August 2013, several months after the decedent's treatment, Charlton Memorial Hospital suspended services and closed its doors.

         On January 20, 2015, the decedent's wife, acting in her capacities as the decedent's surviving spouse and as representative of his estate, commenced a medical malpractice and wrongful death suit against several defendants, including Dr. Ayedun and the Hospital Authority (the "original suit"). The plaintiff also asserted a loss of consortium claim in her capacity as the surviving spouse of the decedent. Among other allegations, the complaint in the original suit alleged that the decedent had been misdiagnosed with gastritis in the hospital emergency room on February 3, 2013, proximately resulting in the decedent suffering catastrophic cardiac injuries and death.

         The day after filing the original suit, the plaintiff sought to perfect service on the Hospital Authority by serving John Adams, a member of its board who also served as its legal counsel. The Hospital Authority answered the original suit by special appearance and raised the defense that it had not been properly served with process. The plaintiff thereafter voluntarily dismissed the original suit in July 2015.

         On January 4, 2016, the plaintiff commenced the current suit against Dr. Ayedun and the Hospital Authority for medical malpractice, wrongful death, and loss of consortium (the "current suit").[1] Between the time the original suit was voluntarily dismissed and the current suit was filed, the two-year statute of limitation had expired on the plaintiff's wrongful death and loss of consortium claims brought in her capacity as the decedent's surviving spouse (collectively, "the wrongful death claims"), [2] but not on the pre-death medical malpractice claims brought in her capacity as the representative of the decedent's estate.[3] The plaintiff sought to perfect service on the Hospital Authority in the current suit by again serving its board member and legal representative, Adams. The plaintiff also served the Hospital Authority's former and current chief executive officers ("CEO"), who had not been served in the original suit.

         The Hospital Authority filed a special appearance and answer to the current suit in which it raised several defenses, including a statute-of-limitation defense. The Hospital Authority also filed a motion to dismiss the plaintiff's wrongful death claims on the ground that those claims were barred by the applicable two-year statute of limitation. Specifically, the Hospital Authority noted that the current suit had been filed after the limitation period had expired on the wrongful death claims, and it argued that the current suit could not be treated as a renewal of the original suit because service had not been properly perfected on the Hospital Authority in the original suit before that suit was voluntarily dismissed. In this regard, the Hospital Authority contended that hospital authorities are governmental entities that must be served in accordance with OCGA § 9-11-4 (e) (5) of the Georgia Civil Practice Act, which requires service on the CEO or clerk of a "public body or organization." Because Adams rather than the Hospital Authority's CEO or clerk had been served in the original suit before it was voluntarily dismissed by the plaintiff, the Hospital Authority asserted that the original suit was void, and that, as a result, the current suit could not be treated as a valid renewal action for statute-of-limitation purposes. Accordingly, the Hospital Authority argued that the plaintiff's wrongful death claims asserted in the current suit should be dismissed with prejudice as barred by the statute of limitation.

         Opposing the Hospital Authority's motion to dismiss the wrongful death claims, the plaintiff argued that the current suit was a proper renewal of the timely filed original suit. The plaintiff contended that the Hospital Authority had been properly served before the original suit was voluntarily dismissed, and that, as a result, the original suit was not void and was subject to renewal. In arguing that service was properly perfected on the Hospital Authority in the original suit, the plaintiff maintained that hospital authorities are public corporations formed under Georgia law and thus can be served under OCGA § 9-11-4 (e) (1) (A), which authorizes service on the president, other officer, managing agent, or registered agent of a "corporation incorporated . . . under the laws of this state" or substitute service on the Secretary of State if those methods of service are unsuccessful. According to the plaintiff, Adams was an officer of the Hospital Authority and thus was properly served under OCGA § 9-11-4 (e) (1) (A) in the original suit.

         The trial court agreed with the Hospital Authority, concluding that hospital authorities are public bodies or organizations that must be served in accordance with OCGA § 9-11-4 (e) (5) rather than OCGA § 9-11-4 (e) (1) (A) and dismissing the plaintiff's wrongful death claims with prejudice. Pursuant to OCGA § 9-11-54 (b), [4]the trial court thereafter entered final judgment in favor of the Hospital Authority on the plaintiff's wrongful death claims. The plaintiff's claims against Dr. Ayedun, as well as the plaintiff's pre-death medical malpractice claims brought against the Hospital Authority in her capacity as representative of the decedent's estate, remain pending.

         After the entry of final judgment on the wrongful death claims, the plaintiff filed a motion for reconsideration and to amend the complaint. The plaintiff sought to amend her complaint to reinstate the same wrongful death claims, but under a different legal theory as to why they were not barred by the applicable statute of limitation. The trial court denied the motion for reconsideration and to amend the complaint, leading to this appeal by the plaintiff.

         1. The plaintiff argues that the trial court erred in dismissing with prejudice her wrongful death claims as barred by the two-year statute of limitation because the current suit was a properly filed renewal action of the voluntarily dismissed original suit, such that the wrongful death claims remained viable even though the limitation period had expired in the interim between the current and original suit. We are unpersuaded.

         "As we have held, a properly filed renewal action stands on the same footing as the original action with respect to statutes of limitation, " and, therefore, if the "renewal action is properly filed within six months after dismissal of the original action, it remains viable even though the statute of limitation may have expired." (Citations and punctuation omitted.) Blier v. Greene, 263 Ga.App. 35, 36 (1) (a) (587 S.E.2d 190) (2003). See OCGA ยง 9-2-61 (a). The plaintiff's current suit ...


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