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Georgia Court of Appeals Holds New Claim in Renewal Action Barred
The Georgia Court of Appeals has held that a plaintiff could not assert new claims in a renewal action based on expiration of the statute of limitations. Plaintiff presented to the emergency department at Floyd Medical Center on at 8:30 pm July 1, 2016 complaining of abdominal pain, fever, chills, and nausea. During triage, Plaintiff was noted to have a low grade fever, heart rate of 118 beats per minute, an elevated white blood cell count and 15% bands. Plaintiff alleges that, based on the findings in triage, she should have been monitored for sepsis. A nurse practitioner saw Plaintiff and ordered pain medications and fluids.
At around 2:00 am, an automated “Sepsis Alert” was activated. Plaintiff alleged that the charge nurse failed to forward the Sepsis Alert to the attending physician or nurse. Plaintiff was provided with additional medication and then discharged. On July 2, 2016, Plaintiff continued to worsen with new symptoms. She presented to a different emergency department and was admitted to the intensive care unit for treatment of septic shock. As a result of septic shock, Plaintiff lost part of her fingers and toes.
On June 30, 2018, Plaintiff filed a lawsuit in Federal court against the hospital, attending physician, a physician assistant, and the nurse practitioner. Plaintiff alleged medical and “hospital” malpractice, abandonment, and violations of EMTALA. As discovery was set to expire, Plaintiff filed two expert reports and named 40 treating physicians as percipient expert witnesses. Ten days later, Plaintiff moved to amend the complaint to assert claims arising out of the charge nurse’s failure to forward the Sepsis Alert. Defendants moved to strike the experts, which the District Court granted. Plaintiff then moved to dismiss the complaint voluntarily and without prejudice. The Defendants objected to the dismissal and moved for summary judgment. The District Court granted Plaintiff’s motion but ordered that “all discovery from this case be incorporated into any subsequent action on the same claims and facts.”
On October 21, 2021, Plaintiff filed a renewal action in Superior Court. The renewal action included a claim for “ordinary negligence.” Defendants move to dismiss on the grounds that the complaint was barred by expiration of the statute of repose and the “ordinary negligence” claim had not been asserted in the original action. The trial court granted the motion to dismiss the ordinary negligence claim on the grounds it was not asserted in the first action.
On appeal, Plaintiff argued that the trial court erred in dismissing the “ordinary negligence” claim because the “true gravamen” of the claim was the same. The Court disagreed, holding that the original Federal court complaint did not include any claims against the charge nurse. The Court noted that the claim against the charge nurse was based on “new allegations of fact” and was part of the late-filed expert reports. To get around this, Plaintiff argued that the hospital was vicariously liable for the charge nurse and therefore did not need to assert the claim directly. In distinguishing other cases on this point, the Court held that the original Federal court complaint on sought to hold the hospital vicariously liable for the named professionals and not any nurses, let alone the charge nurse or claims related to the Sepsis Alert. Because the ordinary negligence claim was not substantially the same as the original complaint, Plaintiff could not rely on the renewal statute to save the ordinary negligence claim. Finally, the Court held that the COVID-19 tolling orders did not save the rest of the claims from expiration of the statute of repose. The case is Golden v. Floyd Healthcare Management, Inc., __ S.E.2d __ (Ga.Ct.App. June 27, 2023).