Connie v. Garnett

• Decision Date: 22 June 2021
• Docket Number: A21A0413
• Parties: CONNIE v. GARNETT.
• Court: United States Court of Appeals (Georgia)

CONNIE
v.
GARNETT.

A21A0413

Court of Appeals of Georgia

June 22, 2021

THIRD DIVISION

DOYLE, P. J.,

REESE and BROWN, 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.

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

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 SE2d 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 SE2d 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

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