Lead Opinion
After Willie Johnson died, his widow, Catherine Johnson, filed an amendment to their pending medical malpractice action to add a claim for wrongful death. The defendants below, Dr. Eileen Byrd, Dr. Frazier Todd, and Wesley Chapel Foot and Ankle Center, LLC (hereinafter collectively, “Dr. Byrd”), filed a motion for summary judgment, arguing that the medical malpractice statute of repose barred the wrongful death claim because Mrs. Johnson filed the claim more than five years after Dr. Byrd’s allegedly negligent medical treatment. The trial court denied Dr. Byrd’s motion on this basis.
In order to prevail on a motion for summary judgment under OCGA § 9-11-56,
*882 the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citations omitted.) Benton v. Benton,
Viewed in the light most favorable to Mrs. Johnson, the record reveals the following undisputed facts. Dr. Byrd, a podiatrist, treated Mr. Johnson for pain in his heel on February 25,1999. Dr. Byrd placed a soft cast on Mr. Johnson’s foot and prescribed pain medication but did not prescribe anti-inflammatory medication. Less than three weeks later, lack of blood circulation in Mr. Johnson’s foot and leg necessitated the amputation of his leg. Within two years after Dr. Byrd treated Mr. Johnson, Mr. and Mrs. Johnson filed a medical malpractice action, State Court of Fulton County Civil Action No. 01VS015152, asserting claims for personal injury and for loss of consortium, respectively. The Johnsons alleged that Dr. Byrd’s treatment fell below the standard of care, given Mr. Johnson’s history of diabetes, peripheral vascular disease, and other vascular problems, and that the negligent medical care proximately caused the amputation.
Mr. Johnson died on October 18, 2002. By consent order, the trial court substituted Mrs. Johnson, who was the administratrix of Mr. Johnson’s estate, as the plaintiff for Mr. Johnson’s pending personal injury claim. On October 15, 2004, Mrs. Johnson filed an amended complaint in the pending action, asserting a new claim for wrongful death.
Dr. Byrd contends that, because Mrs. Johnson brought her wrongful death claim by filing her amended complaint more than five years after Dr. Byrd’s alleged negligence, the wrongful death claim is barred by the medical malpractice statute of repose. Dr. Byrd contends the wrongful death claim is barred by the statute of repose, even though Mrs. Johnson filed the wrongful death claim as an amendment to a pending action that timely asserted against the same defendants other claims arising out of the same alleged medical malpractice and within the statutory limitation period for the wrongful death claim. We disagree.
The medical malpractice statute of repose provides:
*883 Notwithstanding subsection (a) of this Code section[, which creates a two-year statute of limitation for medical malpractice claims], in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.
OCGA § 9-3-71 (b). See OCGA § 9-3-71 (c) (OCGA § 9-3-71 (b) “is intended to create a five-year statute of ultimate repose and abrogation.”). OCGA § 9-3-70 defines an “action for medical malpractice” as “any claim for damages resulting from the death of or injury to any person arising out of” certain conduct including “[hjealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care.”
In this case, Mrs. Johnson alleged that Mr. Johnson’s death arose out of Dr. Byrd’s negligent medical diagnosis and care. Consequently, her wrongful death claim met the definition of “an action for medical malpractice” subject to the statute of repose. See OCGA § 9-3-70; Braden v. Bell,
But Mrs. Johnson’s wrongful death claim did not initiate legal proceedings against Dr. Byrd for his diagnosis and care of Mr. Johnson; rather, Mrs. Johnson filed her wrongful death claim as an amendment to Civil Action No. 01VS015152, a pending action that timely asserted other claims arising out of the same alleged medical malpractice. It is undisputed that Mr. and Mrs. Johnson jointly brought this action for medical malpractice and initiated legal proceedings against Dr. Byrd seeking damages for their resulting injuries within five years of Dr. Byrd’s alleged negligence. As a result, Mr. and Mrs. Johnson satisfied one requirement of OCGA § 9-3-71, and this medical malpractice action is not barred by the statute of repose.
Another requirement imposed by OCGA § 9-3-71 is the statute of limitation: “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” OCGA § 9-3-71 (a). See also OCGA § 9-3-71 (c) (OCGA § 9-3-71 (a) “is intended to create
Finally, because the trial court had not entered a pretrial order, Mrs. Johnson was entitled to amend the complaint “as a matter of course and without leave of court.” OCGA § 9-11-15 (a).
In summary, Mrs. Johnson brought her wrongful death claim within two years after the date on which Mr. Johnson died, by filing an amendment to a medical malpractice action that timely asserted other claims arising out of the same alleged medical malpractice, where such action had been pending since before the expiration of five years after the date on which the negligent or wrongful act or omission occurred and when Mrs. Johnson was entitled to amend her pleading as a matter of course and without leave of court. Under these circumstances, Mrs. Johnson’s wrongful death claim is timely both in terms of the statute of repose and the statute of limitation. As a result, the trial court correctly denied Dr. Byrd’s motion for summary judgment on this basis. Cf. Braden v. Bell,
We conclude that this result is consistent with the stated purpose of the medical malpractice statute of repose. As set forth in OCGA § 9-3-73 (f), the General Assembly intended the medical malpractice statutes of repose and limitation to serve “the rational, legitimate state objectives of providing quality health care, assuring the availability of physicians, preventing the curtailment of medical services, stabilizing insurance and medical costs, preventing stale medical malpractice claims, and providing for the public safety, health, and welfare as a whole.” As one of our brethren observed, “[o]ne of the policy considerations for making a right of action finite is the practical recognition that time erodes evidence, memories, and the availability of witnesses.” (Citations omitted.) Braden v. Bell,
Judgment affirmed.
Notes
The trial court granted the motion in part on another issue, concluding that there was no evidence of any doctor-patient relationship between Dr. Todd and Mr. Johnson and, therefore, Dr. Todd could not be held liable for any medical malpractice. Because Mrs. Johnson does not appeal that ruling, the trial court’s summary judgment order stands affirmed in this respect.
See also Ray v. Scottish Rite Children’s Med. Center,
See also Black’s Law Dictionary (7th ed. 1999) (defining “action” as “a civil or criminal judicial proceeding” and as “any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree”); Richard C. Ruskell, Davis and Shulman’s Ga. Prac. and Proc. (2007 ed.), § 30:18 (“[T]he running of the statute [of limitation] stops when an initial action is taken for the enforcement of the right. This is the terminus of the course of the statute, and if the cause of action is not then barred, no matter how long the litigation for the enforcement of the right may continue, the cause of action shall not thereafter be barred.”).
We note that separate legal proceedings stand on their own with respect to the statute of repose. See Wright v. Robinson,
We agree with the dissent’s position that the relation back provisions of OCGA § 9-11-15 (c) do not “save the cause of action asserted in the amended complaint from the expiration of the statute of repose.” In affirming the trial court’s ruling in this case, we do not hold that Mrs. Johnson’s wrongful death claim relates back to the filing of the original complaint. As we have explained, when Mrs. Johnson filed her amended complaint, she did not bring an action, i.e., initiate a new or separate lawsuit. Her wrongful death claim is “saved” (i.e., not barred by the statute of repose) because she and Mr. Johnson brought a timely medical malpractice action and because Mrs. Johnson’s wrongful death claim was properly added to that same pending litigation.
The damages recoverable in a wrongful death action include the decedent’s expected earnings, or the value of the decedent’s services, from the date of the decedent’s tortiouslycaused premature death to the statistically-projected date of the decedent’s natural death, plus an intangible element representing the full value of the life of the decedent. OCGA §§ 19-7-1; 51-4-1; 51-4-2; 51-4-4; Brock v. Wedincamp,
Dissenting Opinion
dissenting.
Willie Frank Johnson died while his cause of action for personal injury arising from medical malpractice was pending against Wesley Chapel Foot and Ankle Center, LLC, Dr. Eileen Byrd, and Dr. Frazier Todd (the medical defendants). After Mr. Johnson’s widow and estate representative, Catherine Johnson, was substituted as plaintiff on the medical malpractice personal injury action, she amended the complaint to add a cause of action asserting that Mr. Johnson’s wrongful death arose from the same medical malpractice. At issue is whether the medical defendants were entitled to summary judgment on the basis of their claim that the five-year statute of repose in OCGA § 9-3-71 (b) applicable to medical malpractice actions barred the cause of action asserting that the wrongful death arose from the medical malpractice. Because the claim that Mr. Johnson’s death arose from the medical malpractice asserted a new and distinct cause of action for medical malpractice, and the new cause of action was added by amendment to the complaint more than five years after the alleged medical malpractice occurred, it was barred by expiration of the statute of repose. Accordingly, the trial court erred by denying summary judgment to the medical defendants.
Pursuant to OCGA § 9-3-70,
the term “action for medical malpractice” means any claim for damages resulting from the death of or injury to any*887 person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
Under this section, Mrs. Johnson’s claim that the medical defendants’ negligent medical acts or omissions caused Mr. Johnson’s wrongful death was an action for medical malpractice. Causes of action seeking damages for personal injury and for wrongful death arising out of medical malpractice are separate and distinct medical malpractice causes of action, even though they arise out of the same alleged medical malpractice and are asserted in the same complaint. Waldroup v. Greene County Hosp. Auth.,
Mrs. Johnson asserted that Mr. Johnson’s wrongful death arose from medical malpractice acts or omissions that occurred on February 25, 1999. This gave rise to a medical malpractice cause of action based on wrongful death which accrued when Mr. Johnson died on October 18,2002. Williams v. Dept. of Human Resources,
As opposed to a statute of limitation, which is a procedural rule barring an already accrued action not brought within a period of time,
A statute of repose stands as an unyielding barrier to a plaintiffs right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.
(Citations and punctuation omitted.) Simmons v. Sonyika,
Moreover, there is no basis for the trial court’s conclusion that the relation back provisions of OCGA § 9-11-15 (c) save the cause of action asserted in the amended complaint from the expiration of the statute of repose. Under OCGA § 9-11-15 (c),
[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
Even if the wrongful death claim arose out of the same medical malpractice conduct asserted in the pending claim for personal injury, the above provisions of OCGA § 9-11-15 (c) are “liberally construed to effect its purpose of ameliorating the impact of [an expired] statute of limitation.” Morris v. Chewning,
Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury [makes] it difficult for insurers to adequately assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause.
In light of these interests, the court found that imposition of a medical malpractice statute of repose in OCGA § 9-3-71 (b) abolishing causes of action five years after the occurrence of the alleged malpractice was a rational and constitutional exercise of legislative power. Id. at 659-660. Although the relation back provisions of OCGA § 9-11-15 (c) can be used to ameliorate a statute of limitation’s procedural bar to an existing action, these provisions cannot be used to resurrect a cause of action abolished by a statute of repose. Wright,
I am authorized to state that Judge Phipps and Judge Mikell join in this dissent.