Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LLC v. Sain

Court of Appeals of Georgia, Third Division

January 28, 2019

PREFERRED WOMEN'S HEALTHCARE, LLC et al.
v.
SAIN et al.

          GOBEIL, J., COOMER and HODGES, JJ.

          HODGES, JUDGE.

         Jason Sain brought this medical malpractice wrongful death action in the State Court of Gwinnett County against Preferred Women's Healthcare, LLC ("PWH") and the representative of the estate of Byron Dickerson, M.D., a physician at the practice who provided medical care to Sain's wife, Debbie Sain, during her pregnancy in 2012.[1] After a hearing, the trial court granted Sain's motion to amend the complaint to add another PWH physician, Audrey Arona, M.D., as a party defendant. This Court granted the application for interlocutory appeal filed by Arona and PWH to consider the appellants' argument that the amendment to the complaint constituted the bringing of an action and that, because Sain filed his motion to amend more than five years after Arona's alleged negligence, the amendment was barred by Georgia's medical malpractice statute of repose. For the reasons explained below, we reverse.

         Under OCGA § 9-11-21, a party may be dropped or added to a pending civil action at any stage of the action "by order of the court on motion of any party or of its own initiative and on such terms as are just." Generally, a trial court's decision as to whether a party to a pending lawsuit should be permitted to add a party to the suit "lies in the court's sound discretion and will be overturned on appeal only upon a showing of abuse of that discretion." (Citation and punctuation omitted.) Rasheed v. Klopp Enterprises, 276 Ga.App. 91, 92 (1) (622 S.E.2d 442) (2005). As explained below, this case presents the threshold question of whether the medical malpractice statute of repose prevents the trial court from exercising its discretion under OCGA § 9-11-21 when, as in this case, a plaintiff seeks to amend the complaint in his pending medical malpractice action to add a party defendant more than five years after that particular defendant's alleged professional negligence. Our review of this legal question is de novo. Fisher v. Gala, 325 Ga.App. 800, 802 (754 S.E.2d 160) (2014), aff'd, 296 Ga. 870 (770 S.E.2d 879) (2015).

         The following facts are undisputed unless otherwise noted. In early 2012, the decedent, Debbie Sain, began receiving medical care at PWH, which included prenatal care after she became pregnant. During PWH visits on April 3, 10, and 20, 2012, sonograms were performed. Each of those sonograms showed no right ovary and showed a large complex mass on the decedent's right adnexa (the structure adjoining the uterus that holds the uterus in place). Discovery of the mass was not disclosed to the decedent or Sain or included as an issue to be addressed in the "OB Problem List" in PWH's medical records.

         On November 20, 2012, the decedent went into labor. The PWH physician on call was Mary Long, M.D., who delivered the decedent's baby by C-section the next morning. Six weeks after giving birth, the decedent had abdominal pain and went to the Gwinnett Medical Center ER. After a scan of the decedent's abdomen revealed a large right adnexal mass and a large amount of free fluid in her abdomen, the ER physician called Dickerson, and Dickerson admitted the decedent for exploratory surgery. During surgery, Dickerson discovered that the mass identified early in the decedent's pregnancy had ruptured, releasing over 500 mL of its contents into her abdominal cavity. Pathology identified the mass as a squamous cell carcinoma of the right ovary. Subsequent imaging and surgery revealed that the malignancy had spread from the original site to other structures in the decedent's pelvis and abdomen. In December 2013, the decedent died as a result of her metastatic cancer.

         In July 2014, Sain filed a wrongful death action against PWH, Dickerson's estate, [2] Long (the PWH doctor who performed the decedent's c-section), and other defendants, alleging that the failure to diagnose and treat the adnexal mass during the decedent's prenatal and peripartum care caused her death. The verified complaint alleged that, on April 3, 2012, the decedent sought medical care at PWH, with Dickerson "being assigned to provide obstetrical medical care during the pregnancy." The complaint alleged that ultrasounds taken at PWH identified a mass in the right adnexa without a right ovary being observed and that such findings were never communicated to the decedent or her husband.

         In February 2017, Sain's counsel deposed the PWH sonographer who performed the April 2012 ultrasounds; she testified that she believed that a "squiggly line" on ultrasound reports was Arona's handwritten initial "A." According to Sain, this is when he first learned that, in addition to Dickerson's care at PWH, Arona had ordered and reviewed two of the April 2012 ultrasounds. In May 2017, the plaintiffs deposed Arona, who confirmed that she saw the decedent for two of her three office visits in April 2012, ordered ultrasounds during those visits, reviewed the sonographer's report, and saw the mass.

         In June 2017, Sain filed a motion to amend his complaint to add Arona as a party defendant. Arona and the other defendants objected, arguing that the medical malpractice statute of repose barred such an amendment more than five years after Arona's alleged negligence in April 2012. The trial court determined that the amendment related back to the timely-filed complaint and granted the motion allowing the amendment.

         The appellants contend that the medical malpractice statute of repose absolutely prevents a plaintiff from amending the complaint in his pending medical malpractice action to add an individual party defendant more than five years after the alleged malpractice.[3] This is a question of first impression in Georgia. OCGA § 9-3-71 (b), by which the General Assembly "intended to create a five-year statute of ultimate repose and abrogation" for medical malpractice actions, [4] provides:

Notwithstanding subsection (a) of this Code section[, which creates a two-year statute of limitation for medical malpractice actions], in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.[5]

         Thus, the distinct question before us is whether amending a complaint in a pending medical malpractice action to add a party defendant constitutes "bringing" a medical malpractice action for purposes of the statute of repose.[6]

         For civil actions generally, the Civil Practice Act provides: "A civil action is commenced by filing a complaint with the court." OCGA § 9-11-3 (a). Likewise, the medical malpractice statute of repose is concerned with when an action is commenced, that is, when the plaintiff initiates legal proceedings to recover damages. See Wesley Chapel Foot & Ankle Center v. Johnson, 286 Ga.App. 881, 883-884 (650 S.E.2d 387) (2007) (OCGA § 9-3-71 (b) "bars a plaintiff from initiating legal proceedings for damages arising out of any act of medical malpractice more than five years after the date on which the allegedly negligent diagnosis or care occurred.") (citation omitted), cert. denied, October 29, 2007.

         Although we have not yet considered whether amending the complaint in a pending medical malpractice action to add a party defendant constitutes bringing a medical malpractice action for the purposes of the statute of repose, we have considered a related question: whether amending the complaint in a pending medical malpractice complaint to substitute a party plaintiff for the one who originally initiated legal proceedings constitutes bringing a medical malpractice action. In Rooks v. Tenet Healthsystem GB, Inc., the sister of a decedent filed a complaint within five years of alleged medical malpractice, asserting a claim for wrongful death, purportedly as the representative of the decedent's surviving spouse; she also asserted claims on behalf of the decedent's estate and the decedent's minor child. 292 Ga.App. 477, 480 (1) (b) (664 S.E.2d 861) (2008), cert. denied October 27, 2008. More than five years after the alleged professional negligence, the sister moved to amend the complaint to substitute the decedent's surviving spouse as the wrongful death plaintiff. Id. at 481 (1) (b). This Court reasoned that "the Civil Practice Act encourages liberality of pleading"[7] and, in OCGA § 9-11-17 (a), provides a remedy when an action is not prosecuted in the name of the real party in interest: objection by the defendant followed by reasonably prompt "ratification of commencement of the action by, or joinder or substitution of, the real party in interest[.]" We held that filing an amendment to substitute the real party in interest for the original plaintiff within a reasonable time of an objection did not constitute bringing an action under OCGA § 9-3-71 (b). Rooks, 292 Ga.App. at 480-481 (1) (b). Because a malpractice action including the claim for wrongful death was commenced in that case within the time allowed by the medical malpractice statute of repose, the amendment was not barred by the statute of repose. Id.[8]

         We have also considered whether amending the complaint in a pending medical malpractice action to add a claim arising out of the alleged professional negligence more than five years after the conduct at issue constitutes bringing an action for purposes of the statute of repose. In Johnson, an injured patient and his wife commenced a medical malpractice action within two years after allegedly negligent medical treatment. 286 Ga.App. 882. While the action was pending, the patient died. Id. More than five years after the allegedly negligent medical treatment, the patient's wife filed an amended complaint, asserting a new claim for wrongful death arising out of the same alleged medical malpractice. Id. This Court agreed with the trial court's determination that the statute of repose did not bar the amendment adding the wrongful death claim. Id. at 883-886. As we explained, when the plaintiff filed her amended complaint to add a wrongful death claim, she did not bring an action, i.e., initiate a new or separate lawsuit. Id. Rather, she amended the pending medical malpractice action to add a new claim arising from the same alleged negligence against the same defendants. Id. at 885.

         The appellants contend that Rooks and Johnson do not support the trial court's ruling in this case. Specifically, they argue that, even if neither an amendment to substitute a new plaintiff for a malpractice claim in the pending action, nor an amendment to add a new malpractice claim against a defendant against whom a malpractice claim was pending, constitutes bringing an action, an amendment to a complaint to add a party defendant does constitute the bringing of an action for purposes of the statute of repose. Although we expressly did not rely on the "relation back" doctrine in Rooks[9] and Johnson, [10] the relation-back statute, OCGA ยง 9-11-15, and other statutes pertaining to amended pleadings, patently show that Georgia law has ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.