Connie v. Garnett

• Decision Date: 22 June 2021
• Docket Number: A21A0413
• Citation: 360 Ga.App. 24,860 S.E.2d 592
• Court: Georgia Court of Appeals
• Parties: CONNIE v. GARNETT.

360 Ga.App. 24

860 S.E.2d 592

CONNIE

v.GARNETT.

A21A0413

Court of Appeals of Georgia.

June 22, 2021

Edwin Armon Wilson, Randolph Frails, Augusta, for Appellant.

Jeffrey Daniel Braintwain, David Lawrence Mize, Atlanta, for Appellee.

Brown, Judge.

Keyla Connie filed this medical malpractice suit against Doctors Hospital of Augusta, LLC ("DHA"), HCA Holdings, Inc., William S. Hiltz, M.D., and Robert P. Garnett, M.D.¹ The trial court granted summary judgment in favor of Garnett, and Connie now appeals. She also appeals the trial court's denial of her motion to add Melissa Turner, a physician assistant who treated her, as a party-defendant and the grant of Turner's special appearance motion to dismiss. For the reasons explained below, we affirm the trial court's order denying Connie's motion to add Turner as a party-defendant, but reverse the grant of summary judgment in favor of Garnett.

The underlying facts of this case are largely undisputed. Connie, a 29-year-old woman, presented to the DHA emergency room on the night of October 11, 2014, with complaints of acute lower right leg pain. She reported the pain as a nine out of ten. She was evaluated by Turner, a physician assistant, and the physical examination showed bilateral pulses/normal pulses. Turner ordered a venous duplex ultrasound based on suspicion of possible deep vein thrombosis

("DVT"). Dr. Hiltz reviewed the results and found no evidence of DVT. After believing she found no evidence of blood clots, Turner prescribed pain medication, discharged Connie, and advised her to follow up with her physician. It appears from the record that while Garnett was on shift, he was not present when Turner treated Connie, but he later reviewed and signed Connie's medical chart as Turner's supervising physician.

Three days later, Connie presented to Augusta University Medical Center with swelling and discoloration in her right foot and worsening foot pain. She was diagnosed with right lower extremity ischemia and underwent an open tibial thrombectomy

that day. Ten days after the thrombectomy, Connie again presented to DHA with a "cool to the touch," discolored right foot. Connie's foot was ultimately partially amputated in December 2014.

Connie filed her initial complaint in June 2016, alleging that the pulse exam and venous duplex ultrasound performed "were neither appropriate nor sufficient means of determining whether [she] was contending with a serious arterial dysfunction," and that under the circumstances the defendants should have performed or ordered an arterial duplex scan and/or Doppler probe of her arterial system. On October 7, 2016, Connie filed a second amended complaint naming Turner as a defendant, but Connie neither filed a motion to add Turner as a party nor sought leave from the trial court to file the amended complaint. Connie failed to serve Turner before the statute of limitation expired on October 11, 2016.² In November 2016, Turner filed a special appearance answer and motion to dismiss, asserting that Connie failed to move to add her as a party and to obtain leave of the court to do so prior to filing the second amended complaint as required by OCGA § 9-11-21, and that the statute of limitation barred Connie's claims. Turner alternatively contended that even if she had been properly added to the action, there was an insufficiency of process and service of process warranting dismissal.³ Connie moved to add Turner as a party-defendant for the first time on December 19, 2016.

Following a hearing, the trial court issued a detailed order denying Connie's motion and granting Turner's motion to dismiss the complaint against her, finding that Turner did not receive notice of the institution of the action prior to the expiration of the statute of limitation and that Turner did not know nor should she have known that, but for a mistake by Connie concerning her identify, she would have been a defendant in the case.⁴

Garnett filed a motion for summary judgment which the trial court granted after a hearing. In its order, the court found that Connie "failed to produce sufficient evidence showing Dr. Garnett violated the standard of care or that the alleged negligence was the cause of [Connie's] damages." Connie appeals from this order and the trial court's order denying her motion to add Turner as a party.

1. Connie contends the trial court erred in denying her motion to add Turner as a party. As this Court previously has explained, "an amendment to a complaint adding a new party without first obtaining leave of the court is without effect." Wright v. Safari Club Intl. , 322 Ga. App. 486, 494 (5), 745 S.E.2d 730 (2013). While Connie filed her second amended complaint adding Turner as a party-defendant within the statute of limitation, it was without leave of the trial court and thus was without effect. "Where, as here, the party would be added after the running of the statute of limitation, it must be determined whether under OCGA § 9-11-15 (c) the claim against the new party relates back to the date of the original pleading." (Citation and punctuation omitted.) Callaway v. Quinn , 347 Ga. App. 325, 329 (2), 819 S.E.2d 493 (2018). Under OCGA § 9-11-15 (c), an amended complaint adding a new party after the running of the statute of limitation may relate back to the date of the original complaint if the following three elements are satisfied:

(1) That the amendment adding the new defendant arise out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and, (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him.

Cobb v. Stephens , 186 Ga. App. 648, 649-650, 368 S.E.2d 341 (1988). "A trial court's decision as to whether a party should be added to a lawsuit 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 S.E.2d 442 (2005).

There is no issue regarding the first relation-back element — Connie's claims against Turner arose out of the occurrence set forth in the original complaint, that is, the medical treatment Connie received on October 11, 2014. As to the second element, Turner averred that she had no notice of the lawsuit until after the statute of limitation had run. Connie claims that Turner's role as a physician assistant was "unequivocally connected and intertwined" with Garnett's role as her supervising physician, and thus notice to Garnett was tantamount to notice to Turner. Connie relies on two cases in which the wrong corporate defendant was sued to support her proposition that notice as to one defendant is notice to a related defendant. However, those cases are distinguishable from the facts at hand.

In Fontaine v. Home Depot, Inc. , 250 Ga. App. 123, 550 S.E.2d 691 (2001), the plaintiff fell at a Home Depot facility. The plaintiff sued "Home Depot, Inc." instead of the actual property owner, "Home Depot U. S. A." Id. Because both Home Depot, Inc. and Home Depot U. S. A. occupied portions of the building in which the plaintiff fell, had the same registered agent, used the title "Home Depot" generically in their briefs, and because Home Depot U. S. A. had notice of the claim based on the shared registered agent, this Court found that an amended complaint adding Home Depot U. S. A. related back to the original complaint. Id. at 124-126, 550 S.E.2d 691. We even noted our own "difficult[y] to identify whether an attorney's, deponent's, or affiant's reference to ‘Home Depot’ refer[red] to The Home Depot, Inc. or Home Depot U.S.A." Id. at 124, 550 S.E.2d 691.

In Rasheed , supra, the plaintiff was injured when his car was struck by a commercial van. 276 Ga. App. at 92 (1), 622 S.E.2d 442. Klopp Enterprises insured the van, and Easy T. V. was listed as an additional insured. Id. at 92-93 (1), 622 S.E.2d 442. The plaintiff believed Klopp Enterprises employed the van's driver and filed suit against Klopp. Id. In fact, the driver was employed by Easy T. V., which was a subsidiary of Klopp. Id. at 93 (1), 622 S.E.2d 442. Both entities were owned by the same, single shareholder who served as the chairman of the board for both businesses. Id. Both companies also had the same president and registered agent, operated out of the same office, and were represented by the same attorney in the litigation. Id. Under those circumstances, we found that Easy T. V. — the proper defendant — had notice of the claim when Klopp Enterprises was served. Id.

Neither of these cases stands for the proposition that notice of the lawsuit to Garnett can be construed as notice to Turner. Rather, this case is more analogous to Beaver v. Steinichen , 182 Ga. App. 303, 355 S.E.2d 698 (1987), in which a plaintiff filed a medical malpractice action against a hospital. Id. at 304, 355 S.E.2d 698. After the statute of limitation ran, the plaintiff attempted to add as defendants two doctors involved in her care. Id. We concluded that the new complaint did not relate back under OCGA § 9-11-15 (c) because the plaintiff was not seeking to simply change parties but to commence suit against new defendants, "strangers to the action" against the hospital. Id. Here, although Garnett was Turner's supervising physician while she was employed at the hospital,⁵ the two neither had a corporate affiliation nor a shared registered agent. Indeed, Turner was neither working at DHA nor supervised by Garnett at the time Connie filed her original complaint. See St. Francis Health v. Weng , 354 Ga. App. 310, 312, 840 S.E.2d 712 (2020) (the required notice is "notice of the institution of the action (i.e., notice of the lawsuit itself) and not merely notice of the incidents giving rise to such action") (citation and punctuation omitted). Given Connie's failure to come forward with any evidence...