Dove v. Ty Cobb Healthcare Systems, Inc.
316 Ga. App. 7
| Ga. Ct. App. | 2012Background
- Dove filed a medical-malpractice action on behalf of her deceased mother against Ty Cobb Nursing Home in 2007; Dove I affirmed a partial summary judgment barring pre-May 2005 claims by statute of limitations.
- Dove amended to recast the same facts as simple negligence rather than professional malpractice.
- Nursing home argued that precluded claims were res judicata and that two remaining claims lacked a supporting expert affidavit due to medical-malpractice labeling.
- At a hearing, Dove stipulated she no longer alleged medical malpractice and the remaining claims were simple negligence; the court then dismissed claims thought to be precluded and lacking affidavit.
- The trial court concluded most claims were barred by res judicata and that two remaining claims (Paragraphs 7(e) and 7(f)) were medical-malpractice claims not supported by an expert affidavit.
- The Court of Appeals affirmed in part (res judicata) and reversed in part (two remaining claims), remanding for proceedings consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata precludes the majority of claims | Dove argues preclusion should apply to previously adjudicated claims. | Ty Cobb contends all previously adjudicated claims are barred under res judicata. | Yes; majority precluded by res judicata. |
| Whether the two remaining claims were properly dismissed for lack of expert affidavit | Dove contends those claims are simple negligence and do not require an expert affidavit; waiver issues apply. | Ty Cobb contends the claims are medical-malpractice and require an expert affidavit, and the defense motion should have addressed this. | No; dismissal reversed and remanded for further proceedings. |
Key Cases Cited
- Towe v. Connors, 284 Ga. App. 320 (2007) (dismissal on statute of limitations is a merits decision; res judicata may bar later suit)
- QoS Networks, Ltd. v. Warburg, Pincus & Co., 294 Ga. App. 528 (2008) (whether issues were decided hinges on same facts and pleadings)
- Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145 (2009) (failure to file separate motion to dismiss based on lack of expert affidavit waives objection)
- Ndlovu v. Pham, 314 Ga. App. 337 (2012) (dismissal on inadequacy of expert affidavit requires specific identified grounds in motion)
- Waldroup v. Greene County Hosp. Auth., 265 Ga. 864 (1995) (per curiam decision cited in res judicata context)