Preferred Women's Healthcare, LLC v. Jason A. Sain , 348 Ga. App. 481 ( 2019 )

THIRD DIVISION
GOBEIL, J.,
COOMER and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 28, 2019
In the Court of Appeals of Georgia
A18A1544. PREFERRED WOMEN’S HEALTHCARE, LLC et al.
v. SAIN et al.
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
1
Jason Sain filed this action in his individual capacity and as the representative of
his minor son and his wife’s estate. Other defendants were also named in Sain’s complaint,
but the appealed order did not pertain to them and they are not participating in this appeal.
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 SE2d 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 SE2d 160)
(2014), aff’d, 296 Ga. 870 (770 SE2d 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
2
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.
3
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.
2
Dickerson died in October 2013, so his estate was named as a defendant.
4
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
3
OCGA § 9-3-70 defines an “action for medical malpractice” as “any claim for
damages resulting from the death of or injury to any person arising out of” certain conduct
including “[h]ealth, medical, dental, or surgical service, diagnosis, prescription, treatment,
or care.”
4
OCGA § 9-3-71 (c).
5
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
5
As the Supreme Court of Georgia has explained:
There is a distinct difference between statutes of limitation and statutes
of repose. A statute of limitations normally governs the time within which
legal proceedings must be commenced after the cause of action accrues. A
statute of repose, however, limits the time within which an action may be
brought and is not related to the accrual of any cause of action. . . .
A statute of repose stands as an unyielding barrier to a plaintiff’s right
of action. The statute of repose is absolute; the bar of the statute of limitation
is contingent. The statute of repose destroys the previously existing rights so
that, on the expiration of the statutory period, the cause of action no longer
exists.
(Citations and punctuation omitted.) Wright v. Robinson, 262 Ga. 844, 845 (1) (426 SE2d
870) (1993).
6
When this Court, as with any Georgia court,
consider[s] the meaning of a statute, we must presume that the General
Assembly meant what it said and said what it meant. To that end, we must
afford the statutory text its plain and ordinary meaning, we must view the
statutory text in the context in which it appears, and we must read the
statutory text in its most natural and reasonable way, as an ordinary speaker
of the English language would. . . . Applying these principles, if the statutory
text is clear and unambiguous, we attribute to the statute its plain meaning,
and our search for statutory meaning is at an end.
(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751
SE2d 337) (2013).
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
SE2d 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
7
claims on behalf of the decedent’s estate and the decedent’s minor child. 292 Ga.
App. 477, 480 (1) (b) (664 SE2d 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
7
(Citations and punctuation omitted.) Rooks v. Tenet Healthsystem GB, Inc., 292 Ga.
App. at 479 (1) (a).
8
See Memar v. Styblo, 293 Ga. App. 528, 530 (667 SE2d 388) (2008) (accord).
OCGA § 9-11-17 also provides a remedy for a plaintiff who knows that he or she cannot
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
identify the allegedly responsible party by name. See Larson v. C. W. Matthews
Contracting Co., 182 Ga. App. 356, 357 (1) (356 SE2d 35) (1987) (A plaintiff can name
a “John Doe” defendant and otherwise identify the party and substitute the correct name
later under OCGA § 9-11-17. The substitution of a named defendant for a John Doe
identified in the complaint is not the addition of a party to the pending action and can be
accomplished without leave of court under OCGA § 9-11-21.).
9
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 Rooks9 and Johnson,10 the relation-back statute, OCGA § 9-11-15,
and other statutes pertaining to amended pleadings, patently show that Georgia law
9
292 Ga. App. at 481 (1) (b).
10
We explained that
[i]n affirming the trial court’s ruling in [Johnson], we do not hold that Mrs.
Johnson’s wrongful death claim relates back to the filing of the original
complaint. As we have explained, when Mrs. Johnson filed her amended
complaint, she did not bring an action, i.e., initiate a new or separate lawsuit.
Her wrongful death claim is “saved” (i.e., not barred by the statute of repose)
because she and Mr. Johnson brought a timely medical malpractice action and
because Mrs. Johnson’s wrongful death claim was properly added to that
same pending litigation.
286 Ga. App. at 884, n. 5.
10
has long recognized a qualitative difference between amending a complaint to join
a defendant to a pending suit and other types of amended pleadings. OCGA § 9-11-15
(a) provides in pertinent part:
A party may amend his pleading as a matter of course and without leave
of court at any time before the entry of a pretrial order. Thereafter the
party may amend his pleading only by leave of court or by written
consent of the adverse party. Leave shall be freely given when justice so
requires.[11]
It is well settled, however, that OCGA § 9-11-15 (a) must be read in pari materia with
OCGA § 9-11-21, and our courts have held that leave of court is required whenever
an amended complaint adds a new party defendant. Western Sky Fin., LLC v. State of
Ga., 300 Ga. 340, 357 (3) (a) (793 SE2d 357) (2016).12 In addition, OCGA § 9-11-15
11
See Cartwright v. Fuji Photo Film U.S.A., 312 Ga. App. 890, 896 (3) (a) (720
SE2d 200) (2011) (Under OCGA § 9-11-15, a defendant who is added to a pending action
under OCGA § 9-11-21 “is treated as if he or she were a party to the original action from
its inception[,]” providing that the requirements of OCGA § 9-11-15 (c) are satisfied.)
(citation and punctuation omitted).
12
See also La Mara X, Inc. v. Baden, 340 Ga. App. 592, 594 (1) (798 SE2d 105)
(2017) (“[A]s our appellate courts have held on numerous occasions, when a party seeks
to amend his complaint to add a new party, OCGA § 9-11-15 (a) must be read in pari
materia with OCGA § 9-11-21, which requires a court order to add or drop parties.”).
11
(c) imposes additional requirements for amendment that add a defendant to a pending
action. OCGA § 9-11-15 (c) provides:
Whenever the claim or defense 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, the amendment relates back to the
date of the original pleading. An amendment changing the party against
whom a claim is asserted relates back to the date of the original
pleadings if the foregoing provisions are satisfied, and if within the
period provided by law for commencing the action against him the party
to be brought in by amendment (1) has received such notice of the
institution of the action that he will not be prejudiced in maintaining his
defense on the merits, and (2) knew or should have known that, but for
a mistake concerning the identity of the proper party, the action would
have been brought against him.
To understand why OCGA § 9-11-15 (c) treats an amendment to a complaint
changing the party against whom a claim is asserted differently from other types of
amendments, we look to the fundamental aims of Georgia’s Civil Practice Act
(“CPA”), OCGA § 9-11-1 et seq.13 Generally, the CPA,
13
Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983)
(OCGA § 9-11-15 “provides for liberal amendments and this is consistent with [the
Court’s] holdings that the pleadings are not an end in themselves but only a method to
assist in reaching the merits of the case.”) (citation omitted).
12
advances liberality of pleading. Under OCGA § 9-11-8 (a) (2), an
original complaint, or any other pleading that sets forth a claim for
relief, shall contain “[a] short and plain statement of the claims showing
that the pleader is entitled to relief; and . . . [a] demand for judgment for
the relief to which the pleader deems himself entitled.” Under this
provision, a complaint need only provide fair notice of what the
plaintiff’s claim is and the grounds upon which it rests. Such notice
pleading is the hallmark of and prescribed by the CPA, which abolished
issue pleading.
(Citations and punctuation omitted.) Tenet Healthsystem GB, Inc. v. Thomas, 304 Ga.
86, 89 (816 SE2d 627) (2018).14 Of course, a tort plaintiff does not demand judgment
from all the world but from the persons or entities whom the plaintiff deems
responsible for damages to him from the defendant’s breach of a legal duty.15 It
14
See also Dillingham v. Doctors Clinic, 236 Ga. 302, 303 (223 SE2d 625) (1976)
(“[T]he objective of the CPA is to avoid technicalities and to require only a short and plain
statement of the claim that will give the defendant fair notice of what the claim is and a
general indication of the type of litigation involved; the discovery process bears the burden
of filling in details.”) (citation and punctuation omitted).
15
See OCGA §§ 51-1-1 (“A tort is the unlawful violation of a private legal right
other than a mere breach of contract, express or implied. A tort may also be the violation
of a public duty if, as a result of the violation, some special damage accrues to the
individual.”); 51-1-6 (“When the law requires a person to perform an act for the benefit of
another or to refrain from doing an act which may injure another, although no cause of
action is given in express terms, the injured party may recover for the breach of such legal
duty if he suffers damage thereby.”).
13
follows that the persons or entities to whom a complaint must give notice are those
from whom the plaintiff demands judgment.16 We conclude, therefore, that a
complaint that does not confront a certain party with the plaintiff’s demand for
judgment and the grounds therefore does not commence an action against that
particular defendant.17 The General Assembly enacted OCGA § 9-3-71 in the context
of this concept of what constitutes the commencement of an action against a
particular defendant. “Both logic and the plain language of the statutes lead us to
conclude that the legislature never intended for [the amended pleadings and the
nonjoinder of parties] statutes to overcome the statute of repose.” Wright v. Robinson,
16
See Osprey Cove Real Estate v. Towerview Constr., 343 Ga. App. 436, 437 (808
SE2d 425) (2017) (The “short and plain statement” of claims in a complaint “must include
enough detail to afford the defendant fair notice of the nature of the claim and a fair
opportunity to frame a responsive pleading.”) (citation and punctuation omitted); Gosule
v. Bestco, Inc., 227 Ga. App. 863, 866 (2) (a) (490 SE2d 532) (1997) (“Under the Georgia
Civil Practice Act, pleadings need only give notice of what the adverse party may expect
to meet, rather than to frame issues.”) (citation and punctuation omitted); Wade v. Polytech
Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468) (1991) (“[A] complaint must give notice
sufficient to allow responsive pleading[.]”) (citation omitted).
17
See Tindol v. Boston Housing Auth., 487 NE2d 488, 491 (Mass. 1986)
(Massachusetts Rule 15 (c), based on the corresponding federal rule providing for relation
back of amended pleadings, does not permit the addition of a defendant after the period of
the statute of repose regarding actions arising from improvements to real property had
expired.); James Ferrera & Sons, Inc. v. Samuels, 486 NE2d 58, 60 (Mass. App. Ct. 1985)
(accord).
14
262 Ga. 844, 845-846 (1) (426 SE2d 870) (1993).18 It follows that Sain did not
commence his action for medical malpractice against Arona until he amended his
complaint to identify her as a party defendant, which was more than five years after
her alleged negligence.
Sain contends that his action against Arona is not barred by the statute of
repose, however, arguing that the purposes of the statute of repose were satisfied in
this case. Specifically, he argues that the evidence shows that Arona reviewed the
complaint at the beginning of the litigation, “had unfettered access to her own
records, knew her care for the April 3rd and April 20th visits was implicated from the
18
In Wright v. Robinson, the Supreme Court of Georgia looked to the plain language
of the renewal statute and the statute of repose and the sequence of their adoption. Because
the courts presume that the legislature enacts all statutes with knowledge of the existing
laws, “the provisions of the statute enacted latest in time carry greater weight.” (Citations
omitted.) 262 Ga. at 846 (1). Former OCGA § 9-2-61 (a) (1967) provided that a plaintiff
who dismisses a complaint may under circumstances recommence the case despite the
expiration of the statutory limitation period and that the “renewed case shall stand upon
the same footing as to limitation with the original case.” See Ga. L. 1985, p. 1446, § 1
(amending OCGA § 9-2-61 (a)). OCGA § 9-3-71(b) provides that “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.” “Both logic and the plain language of the
statutes [led the Court] to conclude that the legislature never intended for the dismissal and
renewal statutes to overcome the statute of repose.” 262 Ga. at 846 (1). Therefore, a
medical malpractice plaintiff who voluntarily dismisses his suit may not refile it pursuant
to OCGA § 9-2-61 more than five years after the defendant’s alleged professional
negligence.
15
inception of the lawsuit” and that her failures were incorrectly attributed to
Dickerson, and knew that her role in the decedent’s care was not apparent from the
relevant records.19 But the statute of repose imposes a bright-line rule; courts are not
authorized to permit late filings on a case-by-case determination that the purposes of
the statute are satisfied, which is arguably the case whenever a doctor has actual
knowledge of a patient’s pursuit of a judgment for alleged malpractice and knows
that, but for the plaintiff’s ignorance of the doctor’s involvement in the care at issue,
the plaintiff would have made the doctor a party defendant within the time allowed.20
19
As the Supreme Court of Georgia has explained, the purposes of OCGA § 9-3-71
are to promote the State’s interest in “eliminating stale claims” and its interest in
facilitating insurers’ ability “to adequately assess premiums based on known risks” in
recognition of the fact that “passage of time makes it more difficult to determine the cause
of injury, particularly in diseases where medical science cannot pinpoint the exact cause.”
Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659 (1) (437 SE2d 308) (1993). See
also OCGA § 9-3-73 (f) (Under OCGA § 9-3-73, which provides that the tolling provisions
prescribed in OCGA §§ 9-3-90 – 9-3-99 apply to medical malpractice actions except as
limited in OCGA § 9-3-93,”[t]he findings of the General Assembly . . . include, without
limitation, that a reasonable relationship exists between the provisions, goals, and
classifications of this Code section and the rational, legitimate state objectives of providing
quality health care, assuring the availability of physicians, preventing the curtailment of
medical services, stabilizing insurance and medical costs, preventing stale medical
malpractice claims, and providing for the public safety, health, and welfare as a whole.”).
20
Notwithstanding the bright-line rule that a “statute of repose, unlike a statute of
limitation, may not be tolled for any reason, including fraud, . . . in certain narrow
circumstances, a defendant may be equitably estopped from raising the statute of repose
as a defense.” To make out a claim of equitable estoppel to bar a defendant from asserting
16
Admittedly, Arona did not volunteer to be sued along with PWH and Dickerson’s
estate when she learned of Sain’s claims, but Sain has not identified any legal
authority for abrogating the statute of repose under the circumstances presented
here.21
a statute of repose defense, “the plaintiff must show fraud by offering evidence of a known
failure to reveal negligence.” (Citation, punctuation, and footnotes omitted.) Balotin v.
Simpson, 286 Ga. App. 772, 773 (650 SE2d 253) (2007). “A patient must present evidence
of a known failure to reveal [medical] negligence in order to show fraud[,]” including
evidence that would support an “inference that the defendant doctor had knowledge of
improper conduct on his part or that he tried to cover up such conduct in [some] way.”
(Citation and punctuation omitted.) Hutcherson v. Obstetric & Gynecologic Associates of
Columbus, P.C., 247 Ga. App. 685, 688 (2) (543 SE2d 805) (2000). See also Esener v.
Kinsey, 240 Ga. App. 21, 23 (522 SE2d 522) (1999) (“The statute of repose is not tolled
by fraud, but fraud, instead, gives rise to the doctrine of equitable estoppel, which prevents
the defendant from asserting the defense of the statute of repose, because his or her own
wrongful conduct gave rise to the defense and prevented the plaintiff from exercising
reasonable diligence to learn the nature and cause of the injury attributable to the defendant
and from bringing suit.”).
21
See Craven v. Lowndes County Hosp. Auth., 263 Ga. at 660 (3) (Where nothing
in the record showed that the doctors who reviewed a biopsy and failed to diagnose the
patient’s skin cancer had any knowledge of their negligence, they were not estopped from
asserting the statute of repose offense.); Balotin v. Simpson, 286 Ga. App. at 772-773
(Where plaintiffs filed an amended complaint in their pending malpractice action to add
as a defendant to the action a radiologist who read a CT scan more than five years before
the amendment and who failed to diagnose the patient’s pancreatic tumor, and where no
evidence showed that the radiologist knew that the scan showed a tumor that he failed to
diagnose and withheld the information from the patient and his wife, the doctrine of
equitable estoppel did not apply, and the plaintiffs’ claim was barred by the statute of
repose.), cert. denied October 29, 2007; Hutcherson v. Obstetric & Gynecologic Associates
of Columbus, P.C., 247 Ga. App. at 686-689 (2) (Where the plaintiff knew his wife died
17
Based on the foregoing, we hold that the medical malpractice statute of repose
prevents a plaintiff from amending the complaint in a pending medical malpractice
action to add an individual party defendant more than five years after the alleged
negligence because, at that point, the plaintiff’s cause of action against that particular
defendant no longer exists. Wright v. Robinson, 262 Ga. at 846 (1); Johnson, 286 Ga.
App. at 883. Because Sain’s cause of action against Arona no longer existed after
April 2017, the trial court erred in allowing Sain to amend his complaint to assert
medical malpractice claims against her in June 2017. Macfarlan v. Atlanta
Gastroenterology Associates, Inc., 317 Ga. App. 887, 890-891 (1) (a) (732 SE2d 292)
(2012) (OCGA § 9-3-71 (b) barred a medical malpractice action brought by the
parents of a patient who died from colon cancer approximately nine years after the
defendant gastroenterologist’s allegedly negligent failure to obtain additional
consultation and treatment, including biopsies and a colon resection, after diagnosing
the patient with high-grade dysplaysia; the plaintiff’s unsupported insinuations of
fraud were insufficient to invoke the doctrine of equitable estoppel.).
of a heart attack, the doctor’s attribution of the cause to a heart murmur rather than
cardiomyopathy did not constitute sufficient evidence of fraud to create a jury question on
whether the defendant was equitably estopped from raising the defense of the statute of
repose.).
18
Judgment reversed. Gobeil and Coomer, JJ., concur.
19