Georgia Court of Appeals Denies Defendant’s Clever Attempt to Escape from Liability


Naming the right Defendant in a timely manner is obviously important in lawsuits but if you make a mistake and the defendants knew you made a mistake, then the Defendant is not getting out of a meritorious case. For instance, in one case, the Georgia Court of Appeals addressed an interesting issue regarding whether a medical malpractice wrongful death claim could be dismissed because the plaintiff erroneously named the wrong physician in the complaint.

The key issue here is the idea in Georgia law that if you screw up and name the wrong defendant but everything else about the case is the same and the defense knew about the mistake and is not prejudiced, then you get to relate the new complaint back to the old one and the Statute of Limitations won’t bar you.

Here a Doctor was sued within the 2 years for medical malpractice. The plaintiff named one doctor when it should have been another at the same practice. The defense lawyer met with the right doctor and discussed the mistake and then sat around and waited until three years later to try to get the case kicked out. The plaintiff corrected the mistake but the trial court threw the case out anyway. Here the Court of Appeals reversed that decision saying the hospital group “has not been surprised by the claim, and they were aware almost immediately, and indeed, they notified Dr. Ellis about the malpractice allegations in the complaint within a month of service of the complaint.” In other words, no harm, no foul.

This wrongful death case that is the subject of this appeal, which was originally filed on December 11, 2011, was brought by the late husband of a woman who died shortly after undergoing a total knee replacement surgery.  Specifically, after surgery, the decedent’s lungs experienced aspiration that caused her to develop acute respiratory distress syndrome, which ultimately led to a cardiac arrest, organ failure, and death. In the complaint, the decedent’s husband alleged that this string of events was caused by the purportedly negligent care of a physician employed by a local physician group. An attached expert affidavit further detailed how the physician’s conduct resulted in the death. About a month after the complaint was filed, counsel for the late husband met with the physician named in the original complaint and learned that it was in fact a different physician who performed the acts alleged to be negligent in the complaint. Counsel for the physician did not immediately move to amend the complaint.

Following the completion of discovery, the physician group moved for summary judgment, arguing that dismissal was proper because the evidence in the record did not show that the physician originally named in the complaint performed any negligent act. The plaintiff moved to amend the complaint in order to correct the identity of the physician. The physician group argued that summary judgment should still be granted because the date of the amended complaint could not relate back to the date of the filing of the original complaint, and therefore the claim would be time-barred because the statute of limitations had long passed. The trial court denied the motion but allowed an immediate appeal to the Georgia Court of Appeals.

Fortunately for the plaintiff, the Georgia Court of Appeals did not buy the argument and affirmed the trial court’s denial of the motion for summary judgment. Georgia law permits a plaintiff to amend his or her complaint and, in many circumstances, have it relate back in time to the date of the filing of the original complaint. See O.C.G.A. § 9-11-15 (c). The Court of Appeals found that the relation back doctrine was clearly applicable here to correct a simple misnomer in the complaint, considering the remaining allegations remained fundamentally the same. Although the defendant proffered the Court’s decision in Thomas v. Medical Center of Central Ga., 286 Ga. App. 147, (2007) to support its position, the Court of Appeal found that this case was clearly distinguishable. Indeed, in Thomas, the plaintiff had not sought to simply correct a misnomer but instead wanted to add several new defendants based on an entirely new theory of liability to be applied to these novel parties. 286 Ga. App. at 147-48. Given these pertinent factual differences, the physician group’s reliance on Thomas was misplaced.

Even though this argument was clearly a stretch, the case still demonstrates how creative defendants can be in their efforts to avoid liability. Indeed, if you have a meritorious claim, you should take care in finding counsel experienced in dealing with the various procedural moves wily opposing counsel may make. The Atlanta wrongful death attorneys at Christopher Simon Attorney at Law have represented many injured Georgian patients and are experienced with dealing with the ploys of opposing counsel. If you’ve recently been harmed as a result of possible medical negligence and are curious about your legal options, feel free to contact us and arrange a complimentary case consultation.

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