Relation Back: The Georgia Supreme Court Decides That New Claims (Even Under New Legal Theories with New Individuals At-Issue) are Not Time Barred if There is a “Single Episode-in-Suit” Sharing a “Common Core of Operative Facts”

  • Jul 30 2018

Written by: Lindsay Forlines, July 29, 2018

On June 28, 2018, the Georgia Supreme Court affirmed a decision by the Georgia Court of Appeals relating to O.C.G.A § 9-11-15(c) and the principles of ‘relation back.’    This is a decision that medical malpractice defendants and their counsel should certainly be aware of, as it could allow a late shift in a lawsuit’s focus, key players, and some operative facts — all of which may be difficult to anticipate. In this decision, the Court allowed a plaintiff to add a new claim of imputed liability for the simple negligence of a nursing employee following the expiration of the applicable statute of limitation.  This employee’s care had not been at issue in the original complaint, which only alleged professional negligence against different individuals.  

The original complaint at issue was filed on May 6, 2014, shortly before expiration of the applicable two-year statute of limitation (found at O.C.G.A § 9-3-33). The facts alleged in this initial filing were set forth as follows:  On May 10, 2012, Plaintiff Lorrine Thomas was injured in a motor vehicle accident. When emergency medical personnel responded to the scene, they secured her neck with a cervical collar, or C-collar. She was placed on a backboard and transported to the emergency room at Atlanta Medical Center.  Still immobilized by the C-collar, she was shortly thereafter triaged by nursing staff and medically screened by the emergency room physician. A cervical CT scan was executed and interpreted, and the reading radiologist found no evidence of acute fracture or subluxation of the plaintiff’s cervical spine.  After further examination, the plaintiff was discharged and the c-collar was removed. The plaintiff was placed in a wheelchair and escorted out of the hospital to wait for a ride home. While waiting, the plaintiff became unresponsive, was rushed back into the ER, and admitted. After a cervical spine MRI, it was discovered that the plaintiff did indeed have a cervical spine fracture that had become dislocated and resulted in compression of the spinal cord, neurological damage, and quadriplegia. At that point, nursing personnel were notified to place a C-collar back on the patient.

The original complaint asserted claims for professional negligence against the emergency room physician and the radiologist who read the initial cervical CT. The original complaint also asserted a claim against the hospital for imputed liability for the acts of these two doctors.  As required under Georgia law, the original complaint attached the affidavits of two experts detailing the allegations of professional negligence being brought against the two physicians.

In August 2015, Plaintiff Thomas filed a second amended complaint, well outside the original two-year statute of limitation.  In this amended complaint, the plaintiff added three counts of negligence against the hospital. One of these new counts asserted a claim against the hospital for imputed liability for the simple negligence of the nursing employee who had removed the plaintiff’s c-collar, allegedly in violation of a hospital policy that only a physician could remove such a collar.  On the hospital’s subsequent motion, the trial court dismissed that count as time-barred, finding that the original complaint lacked allegations of liability on the part of hospital nursing staff, that the new imputed liability claim did not arise from “the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading,” (O.C.G.A § 9-11-15(c)), and therefore, that the new claim did not ‘relate back’ to the filing date of the original complaint. On interlocutory appeal, the Court of Appeals reversed, finding that this count did relate back, and disagreed explicitly with the trial court as to whether this claim arose out of the same conduct, transaction, or occurrence.  

At the start of its analysis, the Georgia Supreme Court evaluated the appropriate standard of review. The court noted that the language of O.C.G.A §  9-11-15(c) is modeled after Federal Rule of Civil Procedure 15 (c).  This is notable as the court noted it may look for guidance from decisions of the federal courts interpreting and applying that rule, and also to decisions from the courts of other states interpreting and applying their own rules also modeled after Rule 15 (c).  In the decision below, the Court of Appeals had said that its review of the ruling on the motion to dismiss was reviewed under the ‘de novo’ standard. The Georgia Supreme Court agreed with that determination (although the standard of review for decisions under the same transaction or occurrence test of Rule 15 (c)(1)(B) has sometimes been said to be abuse of discretion).  One reason for the importance is that the de novo standard’s application meant the decision of the trial court was owed no deference on appeal.

Once the decision, as authored by Chief Justice Hines, got to the heart of the analysis, the Court noted at the outset the advancement of ‘liberality of pleading’ as set forth by Georgia’s Civil Practice Act (“CPA”)(found at O.C.G.A § 9-11-1 et seq).  Under the CPA, an original complaint need only contain “a short and plain statement of the claims showing that the pleader is entitled to relief.”  The court also noted that the particular section of the CPA at issue in this case, the relation back provision found at O.C.G.A § 9-11-15, is ‘liberally construed in favor of allowing amendments.”  The court also found guidance from the United States Supreme Court, noting that it has approved a formulation closely based on the plain language of Rule 15 (c), finding that relation back depends on the existence of a ‘common core of operative facts’ uniting the original and newly asserted claims.  Indeed, the United States Supreme Court has found that, in a case where there was one ‘episode-in-suit’ and no separate episodes at a different time and place, an amendment related back, even though an amendment invoked a legal theory not suggested by the original complaint and relied on facts not originally asserted.  With the above as a basis, the Georgia Supreme Court examined whether the factual allegations in the case at hand were close in time, place, and subject matter, and involved events leading up to the same injury — such that there could be said to be a common core of operative facts and one single episode-in-suit.

The court examined the facts at issue and found that all the controlling factors were in Plaintiff’s favor, including that: the events were close in time (three and a half hours apart at most), involved the exact same location (the hospital), and involved the same general subject matter (i.e. the allegedly negligent treatment of the plaintiff’s “dangerously unstable” spine).  Finally, the allegations were part of ‘the same offense that led up to the same ultimate injury.’  As a result of these factual connections as found between the relevant allegations, the court reasoned that they amounted to a single episode-in-suit which shared a common core of operative facts, and thus, relation back was proper. For the same factual reasons, the court also found that relation back was not prevented by the fact that the second amended complaint alleged vicarious liability for the conduct of a different individual than the individuals on whose conduct the original claim against the hospital was based. In coming to this part of the decision, the Georgia Supreme Court made note of decisions from other states such as Florida, Illinois, New Jersey, and Alabama.

Thus, the court found that the new imputed liability claim in the second amended complaint related back to the date of the original complaint pursuant to O.C.G.A §  9-11-15(c), and as a result, the new claim was not barred by the applicable two-year statute of limitation. The Court of Appeals had therefore correctly reversed the trial court’s dismissal. As a final matter, the Georgia Supreme Court expressed no opinion on the hospital’s claim that the new imputed liability claim actually constituted a claim of professional negligence (rather than simple or ordinary negligence), and consequently was subject to dismissal for failure to file a supporting expert affidavit under O.C.G.A §  9-11-9.1.  This had not been ruled upon by the trial court.

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