As strides in medical treatments and technologies continue to be made, the life expectancy of Americans continues to rise. However, notwithstanding the benefits associated with increased life expectancy, many of those of advanced age will need living assistance of some variety at some point, including hospice care in the later stages of life. Unfortunately, allegations associated with the mistreatment of this vulnerable population are not uncommon, and courts in our state often find themselves tasked with the unenviable job of addressing liability for injuries to our elderly population. Indeed, in a recent decision, Carter v. VistaCARE, LLC, the Court of Appeals addressed a pair of trial court orders dismissing claims of fraud, negligence, and battery against a local hospice care provider.
This litigation was initially brought by a resident of the hospice facility operated by the defendant in this case. During the course of litigation, the plaintiff died, and her estate was substituted as plaintiff in the action. Following the substitution of litigating party, the estate voluntarily dismissed the action. About six months later, the estate filed a new complaint asserting claims for fraud, negligence, and battery. In relevant part, the new complaint alleged that the decedent’s primary care physician had ordered that she be given home health care services but that the defendant took it upon itself to place the decedent in hospice care, even though the decedent did not qualify for such services. The estate claimed that the provision of hospice services, including the administration of morphine, caused damage to the decedent’s health and ultimately resulted in her hospitalization. The defendant moved to dismiss, which the trial court granted with respect to the claims of battery and negligence claims but denied with respect to the fraud claim. The defendant later moved for summary judgment on the remaining fraud claim, and in a subsequent order the trial court granted the motion for summary judgment on that claim. Following dismissal of the fraud claim, the estate brought the instant appeal, arguing that the trial court erred in dismissing the claims.
In a mixed victory, the Court of Appeals affirmed the trial court’s dismissal of the battery and negligence claims but reversed the trial court’s grant of summary judgment on the fraud claim. First, the Court of Appeals affirmed dismissal of the battery claim on statute of limitation grounds. Under Georgia law, claims for battery must be brought within two years of the occurrence of the battery. See O.C.G.A. § 9-3-33. The estate argued that the statute of limitations period should not be measured from the date of the filing of the second complaint but rather should relate back to the date of the filing of the original complaint. However, the Court of Appeals noted that a claim for battery was not stated, either explicitly or implicitly, in the original complaint. Accordingly, because the relation back doctrine does not allow for “[a] defendant’s liability [to] be enlarged beyond that indicated by the pleadings in the first case,” the statute of limitation should be measured from the filing of the second complaint for the purposes of the battery claim. Blier v. Greene, 263 Ga. App. 35, 38 (2003).
Likewise, the Court of Appeals affirmed dismissal of the negligence claim. Although the plaintiff characterized its claim as one for ordinary negligence, the Court of Appeals concurred with the trial court’s reasoning that the claim was actually predicated on professional negligence. Under Georgia law, if the “allegations of negligence against a professional involve the exercise of professional skill and judgment within [his] area of expertise, the action states professional negligence.” Pattman v. Mann, 307 Ga. App. 413, 415 (2010). Furthermore, “if a claim . . . goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.”Ambrose v. Saint Joseph’s Hosp. of Atlanta, Inc., 325 Ga. App. 557, 559 (2014). In this case, the Court noted that the negligence claim was not predicated simply to the placement of the decedent in hospice care, an act that would likely be subject to ordinary negligence standards, but rather on the treatment provided to the decedent after she was placed in hospice care. Therefore, the claim was properly considered one for professional negligence. As the claim was one for professional negligence, the plaintiff needed to “file with the complaint an affidavit of an expert competent to testify, which . . . set[s] forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” O.C.G.A. § 9-11-9.1(a). As the estate did not file an expert affidavit, the Court of Appeals concluded that the negligence claim was properly dismissed.
However, the Court of Appeals reversed with respect the trial court’s summary judgment dismissal of the fraud claim. In granting the motion for summary judgment, the trial court relied on the estates failure to respond to several requests for admissions. Generally, when a party fails to respond to a request for admission in a timely fashion, the request is deemed admitted. See O.C.G.A. § 9-11-36(a)(2). Even when a request is admitted, the party may have the admission withdrawn if “(1) the presentation of the merits of the action will be subserved by the withdrawal; and (2) the party who obtained the admission fails to [show] that withdrawal will prejudice him in maintaining his action or defense.” Parham v. Weldon, 333 Ga. App. 744, 746 (2015). In this instant case, the trial court applied the improper standard when reviewing the estate’s motion to withdraw the admission. Indeed, rather than applying the aforementioned test, the trial court erroneously placed the burden on the plaintiff to show that its failure to respond to the request for admission was not prejudicial rather than requiring the defendant to establish prejudice. As the trial court applied an improper standard for determining whether the admission should be withdrawn and then applied the admission in resolving the fraud claim, the Court of Appeals founds that the grant of summary judgment was in error and vacated the decision.
As our population continues to age, nursing home and hospice care claims will continue to proliferate. Since nursing home and hospice care often touch on both contractual and medical issues, there are not only various types of claims that can be asserted but also varying legal standards that may be applied. Accordingly, anyone considering bringing such a claim should consider enlisting the aid of experienced counsel who is well versed in these varying legal standards. The Atlanta wrongful death attorneys at the Simon Law Firm are experienced with elder abuse matters, and they are ready to provide you with competent assistance. Indeed, if you believe you or a loved one has a possible elder abuse claim and are curious about your options for legal recovery, please feel free to contact us to arrange a complimentary case consultation.