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Georgia Court of Appeals Affirms Denial of Motion to Add Party and Reverses Summary Judgment – Health Law and Regulation Update Blog Post by Eric Frisch
Recent Health Law and Regulation Update Blog Post by Eric Frisch.
In a case involving care provided in an emergency department by a physician assistant, the Georgia Court of Appeals affirmed the denial of a motion to add the physician assistant as a party defendant. The Court also reversed the grant of summary judgment based on the “emergency medical treatment” statute.
Plaintiff presented to the emergency department with complaints of acute lower leg pain, which she characterized as 9 out of 10. She was evaluated by a physician assistant, who examined the patient and found pulses in both legs. The PA ordered an ultrasound to rule out a deep venous thrombosis. The patient was then discharged to home. The supervising physician signed off on the chart after the patient was discharged.
The patient returned three days later with discoloration and increased pain. She was diagnosed with acute limb ischemia and eventually had her foot amputated.
The patient initially sued the supervising physician and the radiologist who read the ultrasound, but not the physician assistant. Shortly before expiration of the statute of limitations, the patient amended the complaint to add the physician assistant, but did not file a motion. The patient did not serve the physician assistant before expiration of the statute of limitation. The physician assistant filed a special appearance and a motion to dismiss for failure to obtain leave of court to add her as a party and failure to serve within the statute of limitation. The trial court granted the motion. On appeal, the Court of Appeals affirmed, reaffirming the general rule that an amendment to a complaint adding a new party without leave is without effect. The Court distinguished the line of cases holding that there is relation back for similar and related corporate entities when there is notice because the physician assistant had no notice and did not have enough commonality with the supervising physician.
The trial court also granted summary judgment to the supervising physician based on the emergency medical treatment statute, which requires proof of gross negligence. The Court of Appeals reversed, holding there were disputed issues of fact about whether the patient presented with an emergency medical condition and whether she had been stabilized. The Court also held there were disputed issues of fact and expert opinion regarding causation. While plaintiff’s experts may have given conflicting opinions in their depositions and later affidavits, the Court reaffirmed the rule that such contradictions go to credibility, not admissibility.
Take-home: the rule remains that, in general, a motion to add under O.C.G.A. §9-11-21 is necessary to bring in a new party. Also, experts may give contradictory testimony but still create a fact dispute for the jury.
The case is Connie v. Garnett, 860 S.E.2d 592 (2021).
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