811 S.E.2d 445
Ga. Ct. App.2018Background
- Blake Swallows, born October 25, 2011, allegedly suffered a left brachial plexus injury at birth; parents sued for medical malpractice on February 10, 2015.
- Original complaint sought damages for Blake (medical care, pain and suffering, future lost earnings) and generally referenced parental harms; parents later amended complaint (Sept. 19, 2016) to add Kristina and Kenneth Swallows's individual claims.
- Defendants moved for partial summary judgment, asking dismissal of parents' individual claims and claims for the child’s pre-18 maintenance/education/medical expenses.
- Trial court granted partial summary judgment, ruling parents' individual claims were time-barred under the two-year medical malpractice statute.
- Appeal focused on whether OCGA § 9-3-73(b) (minor’s tolling to age five) also extends the filing period for parents' claims and whether the amended complaint relates back to the original filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OCGA § 9-3-73(b) tolling to age five applies to parents' claims for child's medical expenses and ancillary losses | Swallows: § 9-3-73(b) should be read to allow parents to bring their claims within two years of the child's fifth birthday (i.e., extend parents' filing window) | Defendants: § 9-3-73(b) applies only to the minor; parents' claims remain governed by the two-year general malpractice limitation | Court: § 9-3-73(b) is plain and applies only to the minor; parents' claims are governed by the two-year statute and are time-barred |
| Whether the parents' amended individual claims relate back to the original complaint under OCGA § 9-11-15(c) | Swallows: Amended pleading arises from same occurrence; it should relate back to Feb. 10, 2015 filing | Defendants: Even if it relates back, original filing was after the two-year period for parents' claims, so relation back cannot revive expired claims | Court: Relation back applies generally but cannot revive claims already expired on the date of the original complaint; parents' claims remain untimely |
Key Cases Cited
- Harrison v. McAfee, 338 Ga. App. 393 (establishing statute-of-limitations burden and interpretation principles)
- Huggins v. Powell, 315 Ga. App. 599 (standard of review for summary judgment)
- Patton v. Vanterpool, 302 Ga. 253 (give plain statutory text its ordinary meaning)
- Nguyen v. Southwestern Emergency Physicians, P.C., 298 Ga. 75 (statutory interpretation rules)
- Grange Mut. Cas. Co. v. Kay, 264 Ga. App. 139 (parents hold right to recover child's medical expenses; child holds pain-and-suffering claim)
- Wilson v. Obstetrics & Gynecology of Atlanta, P. C., 304 Ga. App. 300 (parents' exclusive right to recover medical expenses under OCGA § 19-7-2)
- Crowe v. Humana, Inc., 263 Ga. 833 (statute of limitations consequences)