Jensen v. Engler
317 Ga. App. 879
| Ga. Ct. App. | 2012Background
- Engler sued Dr. Jensen for ordinary negligence for post-surgical care; cells: May 1, 2008 surgery, May 6 ER visit, May 8 death from infection/thermal burns at surgery site.
- Jensen did not personally examine Engler at the ER; Engler would be seen later at follow-up.
- Engler’s death triggered medical malpractice theories and the need for OCGA § 9-11-9.1 expert affidavit if malpractice claims were pursued.
- Engler filed original suit March 5, 2010 alleging ordinary negligence; Jensen moved to dismiss arguing professional negligence claims were improper without an affidavit.
- Engler amended the complaint on July 15, 2011 to add professional negligence and battery, attaching the expert affidavit for the new malpractice claim.
- Trial court denied the motion to dismiss, and the case proceeded to whether the amended claims relate back and are time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the professional negligence claim was barred for lack of an expert affidavit. | Engler complied by filing the affidavit with the amended complaint. | Affidavit requirement applies to medical malpractice claims; amendment cannot cure. | Affidavit requirement not bar due to original claim being ordinary negligence; relation back valid. |
| Whether the professional negligence claim relates back to the original complaint. | Amendment arose from the same conduct surrounding Engler’s surgery and follow-up. | New factual allegations require separate consideration and not relate back. | Amendment relates back under OCGA 9-11-15(c); not time-barred. |
| Whether the battery claim, if improper as a malpractice claim, should be dismissed. | Battery claim arises from informed consent deviation; related to original conduct. | Should be dismissed if actually a malpractice claim lacking affidavit. | Battery claim survives; relates back and not barred by affidavit; proper under same reasoning as professional negligence. |
| Whether Engler’s professional negligence claim was time-barred under the statute of limitations. | Relation back saves the claim from timeliness issues. | Two-year limit expired before amended filing. | Relation back defeats time-bar; amended claims timely. |
Key Cases Cited
- Roberson v. Northrup, 302 Ga. App. 405 (2010) (OCGA 9-11-9.1 affidavit requirement governs malpractice claims; absence leads to dismissal when applicable)
- OKelley v. Atlanta Heart Assoc., 316 Ga. App. 218 (2012) (OCGA 9-11-9.1 not implicated when original claim is ordinary negligence)
- Fales v. Jacobs, 263 Ga. App. 461 (2003) (Amendment cannot cure failure to attach affidavit for malpractice claim later added)
- Deering v. Keever, 282 Ga. 161 (2007) (OCGA 9-11-15 liberal amendment of pleadings; relation back where arising from same conduct)
- Smith v. Wilfong, 218 Ga. App. 503 (1995) (Relation back turns on same general fact situation, not wholly different facts)
- Pazur v. Belcher, 272 Ga. App. 456 (2004) (Relation-back considerations when amended action is not against a wholly separate defendant)