Jensen v. Engler

• Decision Date: 11 October 2012
• Docket Number: A12A1170
• Parties: JENSEN v. ENGLER et al.
• Court: Georgia Court of Appeals

JENSEN v. ENGLER et al.

A12A1170

Court of Appeals of Georgia

October 11, 2012

THIRD DIVISION

MILLER, P. J., RAY and BRANCH, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

Miller, Presiding Judge.

We granted this application for interlocutory appeal to consider the trial court's denial of Dr. Kevin L. Jensen's motion to dismiss professional negligence and battery claims brought against him by Yong Ha Engler, as surviving spouse and administrator of the estate of Mr. Eric Walter Engler. On appeal, Dr. Jensen asserts that the trial court erred by allowing Engler to amend her original complaint after the expiration of the statute of limitation to add claims for professional negligence and battery. For the reasons set forth below, we affirm the trial court's ruling.

"On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor." (Footnote omitted.) Comprehensive Pain Mgmt. v. Blakely, 312 Ga. App. 721 (719 SE2d 579) (2011).

So viewed, Engler's complaint alleged that on May 1, 2008, Dr. Jensen performed laparoscopic gallbladder surgery on Mr. Engler. Mr. Engler was discharged the following day. On May 6, 2008, Mr. Engler returned and presented to the emergency department at Gwinnett Medical Center with signs of an emerging infection. Although the emergency room doctor called Dr. Jensen to discuss Mr. Engler's case, Dr. Jensen did not go to the hospital to personally examine Mr. Engler. Dr. Jensen indicated that he would instead see Mr. Engler three days later, at his previously scheduled follow-up appointment. Mr. Engler was discharged from the hospital.

On May 8, 2008, two days later, Mr. Engler collapsed at his home. Upon the arrival of emergency medical services, Mr. Engler had no detectable pulse and was believed to be in cardiac arrest. He was transported to Gwinnett Medical Center; the emergency medical technicians noted that Mr. Engler's abdomen was extremely swollen and the sutures had begun to open in the middle of his abdomen and chest. All efforts to resuscitate Mr. Engler were unsuccessful, and he was pronounced dead. According to the autopsy examination conducted the following day, Mr. Engler died as a result of an acute bacterial infection caused by thermal burns in the area where Dr. Jensen had performed the laparoscopic surgery.

On March 5, 2010, Engler filed suit against several defendants,¹ including Dr. Jensen. Her original complaint raised a claim of ordinary negligence against Dr. Jensen for his failure to ensure the proper functioning of certain monitoring equipment during Mr. Engler's surgery so as to prevent thermal burn injuries. Dr. Jensen subsequently moved to dismiss the suit on the basis that Engler's claims actually sounded in professional negligence and her complaint was not accompanied by the requisite expert affidavit.² The trial court denied the motion, finding that the allegations in Engler's complaint did not disclose with certainty that she would not be entitled to relief on a claim of ordinary negligence against Dr. Jensen.

On July 15, 2011, Engler amended her complaint to include, in addition to the ordinary negligence claim, new claims against Dr. Jensen for professional negligence and battery. In light of the new professional negligence claim, she also filed the requisite expert affidavit along with her amended complaint. Engler's professional negligence claim was based upon Dr. Jensen's failure to come to the hospital on May 6, 2008, and personally evaluate and investigate the cause of Mr. Engler's post-surgical symptoms. Her new battery claim was based upon Dr. Jensen's deviation from the informed consent signed by Mr. Engler prior to his surgery. Dr. Jensen filed a second motion to dismiss, arguing that Engler's new claims for professional negligence and battery were barred. Following a hearing, the trial court denied Dr. Jensen's motion and issued a certificate of immediate review.

1. In his first enumeration of error, Dr. Jensen contends that the trial court erred in failing to dismiss Engler's professional negligence claim because (a) it was barred due to Engler's failure to file an expert affidavit with her original complaint; and (b) it was otherwise time-barred by the statute of limitation since it did not "relate back" to the original complaint.

(a) Dr. Jensen argues that Engler's failure to file an expert affidavit along with her original complaint was fatal to her subsequent professional negligence claim. We disagree.

As noted above, a plaintiff is required to attach an OCGA § 9-11-9.1 expert affidavit to a complaint raising a claim for medical malpractice against a medical doctor. See OCGA § 9-11-9.1 (a) (1), (g) (11). Absent compliance with the expert affidavit requirement, a medical malpractice claim is subject to dismissal for failure to state a claim. See Roberson v. Northup, 302 Ga. App. 405, 406 (691 SE2d 547) (2010). Here, however, as the trial court recognized, Engler's original complaint raised only a claim of ordinary negligence,³ and therefore the OCGA § 9-11-9.1 affidavit requirement was not implicated at the time that the original complaint was filed. See OKelley v. Atlanta Heart Assoc., 316 Ga. App. 218, 219 (728 SE2d 313) (2012).

Citing Fales v. Jacobs, 263 Ga. App. 461, 462 (588 SE2d 294) (2003), Dr. Jensen nevertheless claims that the contemporaneous affidavit filing requirement of OCGA § 9-11-9.1 (a) would be negated if a plaintiff was allowed to bring an ordinary negligence claim without an affidavit, and then later add claims for professional negligence after the expiration of the statute of limitation. Fales, however, is inapplicable to the instant situation. There, the plaintiff originally brought a medical malpractice claim, but failed to attach the requisite expert affidavit. Fales, supra, 263 Ga. App. at 461. The plaintiff instead filed an amended complaint that included an expert affidavit, claiming that OCGA § 9-11-9.1 allowed an amended complaint to cure a failure to file an affidavit. Id. at 461-462. This Court rejected the plaintiff's argument. Id. at 462; see also Roberson, supra, 302 Ga. App. at 407 (holding that OCGA § 9-11-9.1 does not allow a plaintiff suing for medical malpractice to cure a failure to attach an expert affidavit through amendment). Here, on the other hand, Engler did not raise a medical malpractice claim in her original complaint, thereby obviating the need to file an expert affidavit at that time. Engler subsequently filed an expert affidavit with her amended complaint only because she had raised a new claim for medical malpractice, in addition to the ordinary negligence claim, that was based on different factual allegations. Thus, the pleadings do not reflect that Engler's amended complaint was an improper attempt to cure any original failure to file an expert affidavit or otherwise avoid the contemporaneous filing requirement of OCGA § 9-11-9.1 (a). And because Engler filed the required expert affidavit contemporaneously with the filing of her professional negligence claim, she satisfied the requirements of OCGA § 9-11-9.1 (a).

(b) Dr. Jensen further contends that Engler's professional negligence claim was time-barred by the relevant statute of limitation because the new claim was based upon different factual allegations than the original ordinary negligence claim, and therefore did not "relate back" to the date of Engler's original complaint. Again, we disagree.

"[A]n action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." (Punctuation omitted.) OCGA § 9-3-71 (a). As Mr. Engler died on May 8, 2008, the statute of limitation on a medical malpractice claim, brought in Engler's personal capacity as surviving spouse, expired on May 8, 2010. In addition, since Engler was appointed administrator of Mr. Engler's estate on January 22, 2009, the statute of limitation on a medical malpractice claim, brought in Engler's capacity as administrator, expired on January 22, 2011. See OCGA § 9-3-92 (tolling the statute of limitation from the date of death until the commencement of representation upon the decedent's estate, provided that such time shall not exceed five years). Thus, in raising her professional negligence claim for the first time on July 15, 2011, the statute of limitation had already expired.

However, pursuant to OCGA § 9-11-15 (a), "[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order."⁴ (Punctuation omitted.) Moreover, "[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth...