DocketNumber: A12A0153
Judges: Dillard
Filed Date: 5/18/2012
Status: Precedential
Modified Date: 10/18/2024
Ann Royston Dove initially filed a medical-malpractice action on behalf of her deceased mother’s estate against a nursing home operated by Ty Cobb Healthcare Systems, Inc. In Dove v. Ty Cobb Healthcare Systems, Inc.
The relevant facts as summarized in Dove I show that Dove’s 81-year-old mother was admitted to the nursing home in 2000.
In May 2007, Dove filed suit on behalf of her mother’s estate against the nursing home, alleging that the nursing staff had deviated from the professional standard of care in her mother’s treatment and, after amending, that the staff had misrepresented how some of her mother’s injuries occurred.
Subsequently, Dove filed a third amended complaint, in which she reasserted the same facts as her previous complaints. However, she recharacterized her claims as alleging simple negligence on the part of the nursing home staff. The nursing home filed an answer, asserting that to the extent any of Dove’s claims alleged a failure to exercise medical judgment, such claims should be dismissed because they were not supported by an expert affidavit and that any claims previously adjudicated should also be dismissed. On the same day that it filed its answer to Dove’s third amended complaint, the nursing home also filed a motion to dismiss, specifically arguing that all but two of Dove’s simple negligence claims had already been adjudicated by the court’s earlier summary judgment order and the Court of Appeals opinion affirming that order. Thus, the nursing home argued that those claims were precluded by res judicata.
Several weeks later, the trial court held a hearing on the matter, during which Dove stipulated that she was no longer alleging any medical-malpractice claims and that the claims in her third amended complaint, which were based on the same set of facts, were for simple negligence. The nursing home then argued that all of the claims that had been previously adjudicated by the trial court’s summary judgment order were precluded by res judicata regardless of the fact that Dove was now characterizing those claims as simple negligence rather than medical malpractice. The nursing home further argued
At the outset, we note that on appeal, this Court conducts “a de novo review of a trial court’s ruling on a motion to dismiss.”
1. Dove contends that the trial court erred in dismissing all but two of her claims on the ground that those claims were previously adjudicated and, therefore, are precluded by the doctrine of res judicata. We disagree.
It is well established that “[t]he doctrine of res judicata prevents the relitigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.”
In the case sub judice, it is undisputed that there is identity of the parties and a previous adjudication.
2. Dove also contends that the trial court erred in dismissing her two remaining claims on the ground that those claims alleged professional negligence, despite Dove’s characterization of them, but were now no longer supported by an expert affidavit. Specifically, Dove argues that this issue was not properly before the court and that, regardless, her remaining claims constituted simple negligence and did not require the support of an expert affidavit. And because the nursing home did not file a motion to dismiss Dove’s claims for failure to file an expert affidavit, we are constrained to reverse the portion of the trial court’s order dismissing Dove’s two remaining claims that are not precluded by res judicata.
As we have previously held, a plaintiff’s failure to file an expert affidavit, pursuant to OCGA § 9-11-9.1, is a defense that can be waived if a defendant does not assert such a defense by filing a separate motion to dismiss on that ground contemporaneously with its answer.
Judgment affirmed in part and reversed in part, and case remanded in part.
305 Ga. App. 13 (699 SE2d 355) (2010).
Id. at 14.
Id.
Id. at 14-15.
Id. at 15.
Id.
Id.
Id. at 15-16.
Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145,145(682SE2dl65) (2009).
Id. (punctuation omitted).
Sw. Health & Wellness, LLC v. Work, 282 Ga. App. 619, 623 (2) (639 SE2d 570) (2006) (punctuation omitted).
Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1) (463 SE2d 5) (1995) (per curiam).
Id. at 865-66 (1).
Id. at 866 (1).
See Towe v. Connors, 284 Ga. App. 320, 321 (644 SE2d 176) (2007) (“Dismissal based upon the expiration of the statute of limitation is in essence dismissal for failure to state a claim
See QoS Networks, Ltd. v. Warburg, Pincus & Co., 294 Ga. App. 528,532 (1) (b) (669 SE2d 536) (2008) (holding that the question in determining whether an issue has already been decided by another court “is whether both claims arose from the same set of facts,” which can, in turn, be ascertained by examining “the subject-matter and the issues as raised by the pleadings in the two cases.” (punctuation omitted)).
Id.-, see OCGA §9-12-40.
QoS Networks, Ltd., 294 Ga. App. at 532 (1) (b) (punctuation omitted); see CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 397 (2) (469 SE2d 466) (1996).
See QoS Networks, Ltd., 294 Ga. App. at 533 (1) (c).
See Chandler, 299 Ga. App. at 147-48 (2) (holding that defendant’s failure to file a separate motion to dismiss plaintiffs’ complaint for failure to file an expert affidavit contemporaneously with their answer waived defendant’s objection to plaintiffs renewing their complaint).
See Ndlovu v. Pham, 314 Ga. App. 337, 342 (723 SE2d 729) (2012) (“The inadequacy for which the court below dismissed the case is not one identified with specificity in the motion to dismiss, and the dismissal of the case, therefore, was error.” (punctuation omitted)); Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 822 (1) (600 SE2d 778) (2004) (holding that because defendants did not object with specificity to the plaintiff’s affidavit, they were not entitled to a dismissal for failure to state a claim on account of a failure to comply with OCGA § 9-11-9.1).
See Ndlovu, 314 Ga. App. at 341-43 (holding that the trial court erred in dismissing plaintiff’s medical malpractice case based on an inadequate expert affidavit when it did so on grounds not specifically argued in defendants’ motion to dismiss and further holding that plaintiff’s notice of affidavit’s inadequacy could not form a sufficient basis for dismissal); see also Chandler, 299 Ga. App. at 147-48 (2) (holding that trial court erred in dismissing plaintiffs’ complaint because defendants failed to file a separate motion to dismiss based on lack of an expert affidavit with their answer).