Tenet HealthSystem GB, Inc. v. Thomas

• Decision Date: 29 June 2018
• Docket Number: S17G1021
• Citation: 304 Ga. 86,816 S.E.2d 627
• Parties: TENET HEALTHSYSTEM GB, INC. v. THOMAS.
• Court: Georgia Supreme Court

304 Ga. 86

816 S.E.2d 627

TENET HEALTHSYSTEM GB, INC.

v.THOMAS.

S17G1021

Supreme Court of Georgia.

Decided: June 29, 2018

Leah Ward Sears, Edward H. Wasmuth, Jr., Smith, Gambrell & Russell, LLP, Promenade, Suite 3100, 1230 Peachtree Street N.E., Atlanta, Georgia 30309, Brian K. Mathis, Huff Powell & Bailey LLC, 999 Peachtree Street, Suite 950, Atlanta, Georgia 30309, for Appellant.

Layne Zhou, Hunter S. Allen, Jr., Allen & McCain, P.C., 2 Midtown Plaza, Suite 1700, 1349 W. Peachtree St. NW, Atlanta, Georgia 30309, for Amicus Appellant.

Robin N. Loeb, Anne H. Coolidge-Kaplan, Garland, Samuel & Loeb, P.C., 3151 Maple Drive, N.E., Atlanta, Georgia 30305, for Appellee.

Charles Madden Cork, III, P.O. Box 2594, Decatur, Georgia 30031, for Amicus Appellee.

Eric Jeffrey Frisch, Claire A. Sumner, Carlock, Copeland & Stair, LLP, 191 Peachtree Street, N.E., Suite 3600, Atlanta, Georgia 30303, Michael Scott Bailey, David Donald Mackenzie, Huff, Powell & Bailey, LLC, 999 Peachtree Street NE, Suite 950 Atlanta, Georgia 30309, for Other Party.

Hines, Chief Justice.

This Court granted a writ of certiorari to the Court of Appeals in Thomas v. Tenet HealthSystem GB , 340 Ga. App. 70, 796 S.E.2d 301 (2017), to consider whether that court properly held that a claim of imputed simple negligence against a hospital, which was asserted in a second amended complaint, related back to the original complaint pursuant to OCGA § 9-11-15 (c).¹ Finding that the Court of Appeals was correct, we affirm that court’s judgment.

The original complaint was filed on May 6, 2014, shortly before expiration of the applicable two-year statute of limitation, OCGA § 9-3-33, and the facts alleged in that initial filing include the following. Lorrine Thomas was involved in a motor vehicle accident. Emergency personnel secured her neck with a cervical collar, or "C-collar," placed her on a backboard, and transported her to the emergency room operated by Tenet HealthSystem GB, Inc., d/b/a Atlanta Medical Center ("hospital"). Still immobilized with the C-collar, Thomas presented to the emergency room at approximately 8:44 p.m. on May 10, 2012, was triaged by the hospital nursing staff, was examined by at least two hospital nurses, and was medically screened by Dr. Robin Lowman, who ordered a cervical CT scan. Dr. Clifford Grossman interpreted the CT scan, found no evidence of any acute fracture or subluxation of Thomas’s cervical spine, and reported his findings to Dr. Lowman. After further examination of Thomas, Dr. Lowman discharged her, and "[t]he C-collar was removed by [hospital] personnel." Thomas was placed in a wheelchair and escorted out of the hospital at approximately 12:19 a.m. on May 11, 2012, to wait for her ride home. While waiting, however, she became unresponsive, was rushed back into the emergency room, and admitted to the hospital. After a cervical spine MRI later in the day, it was discovered that Thomas did have a cervical spine fracture that became dislocated and resulted in compression of the spinal cord, neurological damage, and quadriplegia. Nursing personnel were immediately notified to place a C-collar back on Thomas.

After setting out these facts, the original complaint asserted claims for professional negligence against Dr. Grossman and Dr. Lowman and alleged that, as a proximate result, "the injury to Ms. Thomas’s cervical spine progressed to subluxation and spinal cord injury resulting in her becoming a quadriplegic." The original complaint then asserted a claim against the hospital of imputed liability for the negligent acts and omissions of those two doctors pursuant to the doctrines of respondeat superior, joint venture, and ostensible and apparent agency. Attached as exhibits to and referenced in the original complaint are the affidavits of two experts.² Dr. Anthony Scarcella’s affidavit includes his opinion that if Dr. Lowman interpreted the cervical CT scan herself, then she breached the standard of care by, among other things, failing to stabilize, protect, and treat or cause to be treated Thomas’s dangerously unstable cervical spine prior to discharging her from the hospital. The two expert affidavits concluded that the acts and omissions of the doctors contributed to Thomas being discharged from the emergency room with a dangerously unstable spine. Dr. Joel Meyer’s affidavit concluded that due to gross negligence on the part of Dr. Grossman, "the injury to Ms. Lorrine Thomas’s cervical spine progressed to subluxation and spinal cord injury after the cervical collar was removed at discharge resulting in her becoming a quadriplegic."

In August 2015, Thomas filed a second amended complaint that added three counts of negligence against the hospital. One of those counts asserted a claim against the hospital of imputed liability, pursuant to the doctrine of respondeat superior or agency, for the simple negligence of a nursing employee who removed Thomas’s cervical spine collar in violation of a hospital policy that only a physician could remove a patient’s cervical spine collar. On the hospital’s motion, the trial court dismissed that count, finding that the original complaint was "devoid of allegations of liability on the part of the hospital nursing staff," that the new imputed liability claim does not arise from "the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading," OCGA § 9-11-15 (c), and that the new claim therefore does not relate back to the filing of the original complaint. On interlocutory appeal, the Court of Appeals reversed, determining that, as the original complaint included the allegation that the cervical spine collar was removed by a hospital employee, as well as other allegations based on the conduct of the hospital and others related to Thomas’s emergency room visit, treatment, and discharge, her new imputed liability claim against the hospital for a nurse’s removal of the collar in violation of hospital policy arose out of the same conduct, transaction, or occurrence set forth in the original complaint. Thomas , 340 Ga. App. at 73-74, 796 S.E.2d 301.³

The language of OCGA § 9-11-15 (c) is modeled after Federal Rule of Civil Procedure 15 (c), "and although there are some differences between the state and federal provisions, those differences are not material to the question presented here. We may, therefore, look for guidance in decisions of the federal courts interpreting and applying" Rule 15 (c).⁴ Community & Southern Bank v. Lovell , 302 Ga. 375, 377 (2), n. 6, 807 S.E.2d 444 (2017). See also Sam Finley, Inc. v. Interstate Fire Ins. Co. , 135 Ga. App. 14, 16 (2), 217 S.E.2d 358 (1975). It follows that we may also look to decisions from the courts of other states that interpret and apply their own rules that are modeled after Federal Rule 15 (c). With this in mind, we turn first to the standard of review. In its opinion, the Court of Appeals, after stating that " ‘[a] motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his or her claim,’ " said that its review of the ruling on the motion to dismiss in this case would be reviewed under the "de novo" standard. Thomas , 340 Ga. App. at 71, 796 S.E.2d 301. We agree. Although the standard of review for "decisions under the same transaction or occurrence test of Federal Rule 15 (c) (1) (B) has sometimes been said to be abuse of discretion," the better position is that decisions under the rule do not involve an exercise of discretion. 3 Edward Sherman et al., Moore’s Federal Practice—Civil § 15:19 [2] (2018).

Instead, the court asks whether the facts provable under the amended complaint arose out of the conduct alleged in the original complaint. The abuse of discretion standard is suitable for decisions that balance several factors, often including equitable considerations. The relation-back issue, on the other hand, is more analogous to a dismissal on the pleadings. If facts provable under the amended complaint arose out of the conduct alleged in the original complaint, relation back is mandatory. Therefore, the proper standard of review is de novo.

Id. See also Slayton v. American Express Co. , 460 F.3d 215, 226-228 (2nd Cir. 2006). Accordingly, the decision of the trial court is owed no deference on appeal. See Johnson v. Burrell , 294 Ga. 301, 301 (2), n. 2, 751 S.E.2d 301 (2013).

Generally, our Civil Practice Act (CPA), OCGA § 9-11-1 et seq., "advances ‘liberality of pleading.’ " Deering v. Keever , 282 Ga. 161, 163, 646 S.E.2d 262 (2007) (citation omitted). Under OCGA § 9-11-8 (a) (2), an original complaint, or any other pleading that sets forth a claim for relief, shall contain "[a] short and plain statement of the claims showing that the pleader is entitled to relief; and ... [a] demand for judgment for the relief to which the pleader deems himself entitled ...." Under this provision, "a complaint need only provide ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’ " Mayle v. Felix , 545 U.S. 644, 655, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005) (citation omitted) (construing similar Federal Rule 8 (a) ). Such notice pleading "is the hallmark of and prescribed by the CPA," Phagan v. State , 287 Ga. 856, 859, 700 S.E.2d 589 (2010), which "abolished issue pleading." Cotton, Inc. v. Phil-Dan Trucking , 270 Ga. 95, 95 (2), 507 S.E.2d 730 (1998). The particular section of the CPA at issue in this case, OCGA § 9-11-15, "is liberally construed in favor of allowing amendments. Under OCGA § 9-11-15, an amendment to a complaint may raise a new cause of action." Deering , 282 Ga. at 163, 646 S.E.2d 262 (citations omitted). And under OCGA § 9-11-15 (c), the specific subsection that is relevant here, "[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in...