CURLES et al.
PSYCHIATRIC SOLUTIONS, INC. et al. KERN et al.
PSYCHIATRIC SOLUTIONS, INC. et al.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Kern, individually and on behalf of the children of Donna
Kern, and Harriet Curles and Tillie Knight, individually and
on behalf of the children of William Chapman (collectively,
the "Plaintiffs") appeal from the trial court's
order granting the motion to dismiss Plaintiffs' third
amended complaint (the "Third Complaint") filed by
Universal Health Services ("UHS") and Psychiatric
Solutions, Inc.'s ("PSI") (collectively, the
"Corporate Defendants"). Via the Third Complaint,
Plaintiffs brought wrongful death actions alleging ordinary
and medical negligence against the owners, operators, and
employees of a psychiatric treatment facility that treated
and released a patient who later killed two persons.
Plaintiffs argue that the trial court erred by finding (1)
that Counts II and III of the Third Complaint are medical
malpractice claims; (2) that Plaintiffs' claims are
barred by the statute of repose; (3) that the Third Complaint
related back to a renewal complaint filed in this case after
an earlier voluntary dismissal of the action; (4) that the
Corporate Defendants were not equitably estopped from raising
the statute of repose as a defense; and (5) that the
Corporate Defendants should be dismissed from the case
entirely. For reasons explained below, we reverse the trial
court's grant of the motion to dismiss.
motion to dismiss may be granted only where a complaint shows
with certainty that the plaintiff would not be entitled to
relief under any state of facts that could be proven in
support of his or her claim. We review the trial court's
ruling on a motion to dismiss under the de novo standard of
review." Walker Cty. v. Tri-State Crematory,
292 Ga.App. 411, 411 (664 S.E.2d 788) (2008) (citation
omitted). With these principles and standards in mind, we
will turn to the case before us.
case arises from the deaths of Donna Kern and William Chapman
at the hand of Amy Kern. Amy Kern had an extensive mental
health history dating back to 1999, and she suffered from a
series of psychotic breaks which resulted in violent conduct.
Between November 2008 and January 2009, Amy was an
involuntary patient at Focus by the Sea (hereinafter
"Focus"), a private psychiatric facility, on three
separate occasions. Amy's first involuntary committal to
Focus came after she attempted suicide. She remained at Focus
for ten days after that incident, and upon release on
November 17, 2008, she voluntarily sought outpatient
later arrested on December 28, 2008, after she chased her
boyfriend around their home with an axe. As a condition of
her release from custody, she was ordered to return to Focus
for psychiatric treatment. Amy was treated at Focus for seven
days and discharged on January 6, 2009.
days later, on January 13, 2009, Amy was involuntarily
committed to Focus for a third time by emergency room staff
after threatening violence against her boyfriend. Fourteen
days after her commitment, Amy was discharged from Focus on
January 26, 2009. Twelve days after she was discharged from
Focus, Amy killed her grandmother, Donna Kern, and her
aunt's boyfriend, William Chapman.
February 4, 2011, Plaintiffs sued the Corporate Defendants,
HHC, Amy's treatment providers, and a pharmaceutical
company for wrongful death (the "Original
Complaint"). The Original Complaint alleged that the
defendants breached their duty to exercise reasonable care to
control Amy and that the defendants' actions constituted
both medical and ordinary negligence. The Original Complaint
was accompanied by an expert affidavit averring that the
defendants breached the applicable professional standards of
care. The Corporate Defendants filed a motion for summary
judgment that was never ruled upon because Plaintiffs
voluntarily dismissed without prejudice the Corporate
Defendants from the original action on November 6, 2013.
6, 2014, Plaintiffs filed a renewal complaint (the
"Renewal Complaint") raising the same allegations
as were stated in the Original Complaint, again naming the
Corporate Defendants as parties. The Plaintiffs did not
attach an expert affidavit to the Renewal Complaint. Eight
days later, Plaintiffs moved to consolidate the Renewal
Complaint with the Original Complaint, or in the alternative,
amend the Original Complaint to add the Corporate Defendants
back. Although the Corporate Defendants did not agree to
consolidate the renewal action with the original action, the
trial court granted the motion and amended the Original
Complaint to add the Corporate Defendants back to the action.
12, 2015, Plaintiffs filed their second amended complaint,
and the Corporate Defendants moved to dismiss. On March 18,
2016, the trial court held a hearing on the
motion. Plaintiffs then filed the Third Complaint,
and the Corporate Defendants moved to dismiss it. After two
hearings on the motion, the trial court granted the Corporate
Defendants' motion to dismiss the Third Complaint. This
Count II. Plaintiffs contend that the trial court
erred in construing Count II of the Third Complaint as a
medical malpractice claim because the failure to comply with
statutory notification and discharge requirements pursuant to
OCGA §§ 37-3-4, 37-3-24, and 37-3-95 did not
involve the exercise of professional judgment. We agree.
OCGA § 37-3-4 provides in part that:
[a]ny hospital or any physician . . . who acts in good faith
in compliance with the admission and discharge provisions of
this chapter shall be immune from civil or criminal liability
for his or her actions in connection with the admission of a