In personal injury lawsuits, it is not uncommon for the plaintiff to file one or more amended complaints. Sometimes these amendments add factual or legal allegations. In other cases, the amended complaint actually names additional defendants.
Preferred Women’s Healthcare, LLC v. Sain
A recent decision by the Georgia Court of Appeals, however, establishes some limits to how far a plaintiff can go to add a defendant, particularly in situations in which Georgia’s statute of repose comes into play. This particular case, Preferred Women’s Healthcare, LLC v. Sain, is a medical malpractice lawsuit. The plaintiff is the widower of a woman who died from complications arising from cancer.
The story is a bit more complicated than you might think. The victim received prenatal care from the defendant hospital during her pregnancy. A series of prenatal sonograms in April 2012 revealed the victim had no right ovary and showed “a large complex mass” near her uterus. Apparently, the defendant never informed the victim or her husband of the existence of this mass.
In November 2012, the victim delivered her baby at the defendant’s hospital via Cesarean section. Six weeks later, the victim reported to another hospital complaining of abdominal pain. At this point, she learned about the large mass. Exploratory surgery revealed that the mass ruptured during the victim’s pregnancy and that the “malignancy had spread from the original site to other structures in [her] pelvis and abdomen.” The victim died approximately one year later.
Several months after his wife’s death, in July 2014, the plaintiff filed a wrongful death and medical malpractice lawsuit against the defendant hospital and the doctors who performed the C-section. During a deposition in early 2017, the plaintiff learned that there was another doctor who actually “ordered and reviewed” the original 2012 sonograms.
The plaintiff then moved to amend his complaint to add this new doctor as a defendant. The doctor objected, citing Georgia’s statute of repose. This is a legal rule that states a medical malpractice action can not be “brought more than five years after the date on which the negligent or wrongful act or omission occurred,” regardless of when the victim or plaintiff actually discovers the injury. Here, the doctor ordered and reviewed the sonograms in April 2012. The plaintiff’s motion to add the doctor as a defendant came in June 2017, just past the five-year deadline.
The plaintiff maintained that since he filed his original complaint within the five-year window, it did not matter that his amendment to add the additional defendant fell outside the statute of repose period. The Court of Appeals disagreed. The statute of repose applies to the “commencement” of a lawsuit, the Court explained, and here, when a complaint “does not confront a certain party with the plaintiff’s demand for judgment,” it has not been commenced. In other words, since the proposed new defendant was never served with the original complaint, it did not commence an action against her, so the clock on the statute of repose continued to run.