Yes, you read that right. Two of three judges of a Georgia Court of Appeals panel has held that a patient must be dead for a wrongful death claim to proceed. Plaintiffs was alleged to be conservator of the estate of a mental health patient who was missing from a facility. Plaintiffs alleged that the patient had gone missing since discharge and that the facility breached the duty to keep the patient safe. The initial complaint sounded in negligence, intentional infliction of emotional distress and other theories. Then, Plaintiffs filed a suggestion of death and alleged that Plaintiff had been appointed by the probate court as the conservator of the estate. The document attached to the suggestion of death was a “Letter of Conservatorship of Missing Individual,” which did not contain a statement that the patient had actually died. Plaintiffs then amended the complaint to add a wrongful death claim.

Defendants moved to dismiss the amended complaint on the grounds that Plaintiffs lacked standing to bring the wrongful death claim. A majority of the panel held that Georgia’s wrongful death statute is in derogation of common-law and must be strictly construed. Under the statute, the personal representative of a “deceased person” has standing to bring the action. In this case, there was no determination that the patient was dead and therefore the personal representative lacked standing. Plaintiffs argued that under the probate code, a person missing for four years is presumed dead. The Court held that even if that presumption applied in a wrongful death case, no personal representative had been appointed and Plaintiffs therefore lacked standing.

On dissent, one judge wrote that the motion to dismiss should have been reversed because Plaintiffs alleged, obliquely, that the negligence was the proximate cause of the patient’s death and that was sufficient to survive the very low bar of a motion to dismiss.

The case is Tracy Garner v. Acadia Healthcare Co., Inc., __ S.E.2d __, 2023 WL 6969192 (Oct. 23, 2023).