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Seay v. Valdosta Kidney Clinic, LLC

Court of Appeals of Georgia, First Division

January 3, 2020

SEAY et al.
v.
VALDOSTA KIDNEY CLINIC, LLC et al. TOTAL RENAL CARE, INC. et al
v.
SEAY et al.

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

          MERCIER, JUDGE

         Following John Seay's death on July 23, 2014, Seay's estate and his surviving children (collectively, "the plaintiffs") sued multiple medical providers for wrongful death and other claims.[1] The defendants moved for summary judgment on the wrongful death claim, arguing that the plaintiffs lacked standing to recover. In a single order, the trial court granted judgment to "the Doctor and nurses"[2] on the wrongful death claim, but denied summary judgment on the claim to defendants that it referred to as the "technical providers."[3]

         In Case No. A19A1992, the plaintiffs appeal from the portion of the trial court's order that entered judgment against them on the wrongful death claim. The technical providers who were denied judgment on the wrongful death claim cross-appeal in Case No. A19A1993.[4] For reasons that follow, we reverse in part and vacate in part the trial court's ruling in Case No. A19A1992, and we dismiss as moot the appeal in Case No. A19A1993.

         The record shows that Seay was transported to a hospital emergency room by ambulance on July 20, 2014, after he began to bleed from the area where he received weekly dialysis treatments. He was admitted to the intensive care unit and died three days later. On July 22, 2016, the plaintiffs sued several of Seay's medical providers for wrongful death and other claims. Although Seay was married at the time of his death, his widow initially elected not to participate in the lawsuit.

         Noting the widow's absence from the suit, the defendants moved for summary judgment on the wrongful death claim, arguing that the claim could not proceed without her as a plaintiff. On July 24, 2018, well after the two-year limitation period governing the plaintiffs' claims ended, see OCGA § 9-3-33, the plaintiffs filed a motion to add or substitute Seay's widow as a plaintiff. In December 2018, the widow also moved to intervene in the litigation. The trial court rejected these efforts, concluding that the attempts to add the widow as a party "came long after the statute of limitations had expired," and the widow was "not entitled to have her case relate back to the time of [the complaint's] initial filing." The trial court further found that the wrongful death claim "was not filed by the appropriate party." It thus entered judgment on that claim for "the Doctor and nurses," but (without further explanation) allowed the claim to proceed against the technical providers. These appeals followed.

         Case No. A19A1992

         1. The plaintiffs argue that the trial court erred in denying their motion to add Seay's widow as a plaintiff in the wrongful death action. We agree.

         Generally, "[t]he surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the [death] of the spouse or parent the full value of the life of the decedent, as shown by the evidence." OCGA § 51-4-2 (a). Where a decedent has no surviving spouse or child, a surviving parent may bring suit. OCGA §§ 19-7-1 (c) (2), 51-4-4. And when "there is no person entitled to bring an action for wrongful death of a decedent," the administrator or executor of the decedent's estate may bring the claim. OCGA § 51-4-5 (a). In a typical case, therefore, a spouse has exclusive standing to bring a claim for the wrongful death of the decedent; if the decedent is unmarried, the decedent's children may recover, followed by the decedent's parents and (if the decedent has no surviving spouse, children, or parents) his or her estate. See OCGA §§ 19-7-1 (c) (2), 51-4-2 (a), 51-4-4, 51-4-5 (a).

         Seay's widow was alive when the plaintiffs filed the wrongful death complaint, creating an issue as to standing. See OCGA § 51-4-2 (a); King v. Goodwin, 277 Ga.App. 188, 189-190 (626 S.E.2d 165) (2006) (affirming grant of summary judgment to defendant on wrongful death claim where the estate (the only party plaintiff) lacked standing to sue). The plaintiffs attempted to resolve this issue by moving to add or substitute her as a party plaintiff pursuant to OCGA § 9-11-21, which provides that "[p]arties may be dropped or added by order of the court on motion of any party. . . at any stage of the action and on such terms as are just." The trial court, however, denied the motion, noting that the statute of limitation on the wrongful death claim had "long" expired by the time the plaintiffs tried to add the widow as a party.

         A trial court exercises its discretion in deciding whether to add a party to a lawsuit under OCGA § 9-11-21, and we will not reverse that decision absent an abuse of discretion. See Rasheed v. Klopp Enterprises, 276 Ga.App. 91, 92 (1) (622 S.E.2d 442) (2005). But in reaching its decision, the trial court must construe OCGA § 9-11-21 in conjunction with OCGA § 9-11-15 (c), which allows an amendment adding a party to relate back to the filing of the original complaint "[w]henever the claim . . . asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading[.]" See Rasheed, supra; Morris v. Chewning, 201 Ga.App. 658, 659 (411 S.E.2d 891) (1991). If a litigant meets the relation-back requirements in OCGA § 9-11-15 (c), a trial court abuses its discretion by refusing to add a party on statute of limitation grounds. See Rasheed, supra; Morris, supra at 660.

         Interpreting OCGA § 9-11-15 (c), we have held that an amendment adding a plaintiff to a lawsuit after expiration of the limitation period relates back to the original complaint when: (1) the amendment arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original complaint; (2) an identity of interests exists between the old and new parties such that relation back will not prejudice the defendant; and (3) no prejudicial, unexcused delay or laches has occurred. See Morris, supra at 659. Mere delay in filing a motion to amend "is not enough to warrant the denial of such a motion." Id. Thus, "[w]hile laches and unexcused delay may bar a proposed amendment, the mere fact that an amendment is offered late in the case is not enough to bar it if the other party is not prejudiced." Id. (punctuation omitted).

         The plaintiffs' motion to add Seay's widow to the wrongful death litigation met these relation-back requirements. The proposed amendment would not have altered the substance of the wrongful death claim or changed the underlying circumstances set forth in the original complaint. It simply sought to incorporate the widow as a necessary party to the wrongful death action. Under these circumstances, the widow's claim "clearly arose out of the same occurrence as that alleged in the original complaint - i.e., the death of Seay as a proximate result of the alleged negligence of [the defendants]." Morris, supra at 659. Moreover, an identity of interests exists between the plaintiffs and Seay's widow. The children and the estate would have been wrongful death claimants in other circumstances. See OCGA §§ 51-4-2 (a), 51-4-5 (a). And a surviving spouse who brings a wrongful death action under OCGA § 51-4-2 (a) "acts both as an individual and as a representative of any children of the deceased." Emory Univ. v. Dorsey, 207 Ga.App. 808, 809 (2) (429 S.E.2d 307) (1993); see also OCGA § 51-4-2 (d) (1) (amounts recovered by spouse in wrongful death action "shall be equally divided, share and share alike, among the surviving spouse and the children per capita").

         Finally, there is no evidence of prejudice to the defendants or dilatory tactics by the plaintiffs. The original complaint was filed within the applicable statute of limitation, and the plaintiffs admitted in their motion to add Seay's widow that she initially did not want to participate in the lawsuit, but later changed her mind. We recognize that the statute of limitation expired on the wrongful death claim approximately two years before the plaintiffs moved to amend the complaint by adding the widow as a party. Again, however, "[m]ere delay in seeking leave to amend [was] not a sufficient reason" for denying the plaintiffs' motion. Morris, supra at 660. Furthermore, the loss of a statute of limitation defense is not the type of prejudice necessary to foreclose such amendment. See Rasheed, supra at 94 (1) ("[P]rejudice, for purposes of OCGA ยง 9-11-15 (c), does not include the relation back of an amendment to before the expiration of the ...


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