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IN THE COURT OF APPEALS
OF THE STATE OF GEORGIA
HEATHER OLLER, as Executor of the )
Estate of SHIRLEY NOBLES, deceased, )
and DAVID NOBLES, )
)
Plaintiffs-Appellants, )
)
v. ) CIVIL ACTION
)
ROCKDALE HOSPITAL, LLC d/b/a ) CASE NO. A17A1208
ROCKDALE MEDICAL CENTER, )
24 ON PHYSICIANS, P.C., and )
DR. ALUNDA E. HUNT, )
)
Defendants-Appellees. )
)
BRIEF OF THE MEDICAL ASSOCIATION OF GEORGIA
AS AMICUS CURIAE
Leah Ward Sears
Georgia Bar No. 633750
Colin Đặng Delaney
Georgia Bar No. 216858
SMITH, GAMBRELL & RUSSELL, LLP
Promenade, Suite 3100
1230 Peachtree Street, NE
Atlanta, Georgia 30309
Telephone: 404-815-3500
Email: [email protected]
Email: [email protected]
Donald J. Palmisano, Jr.
State Bar No. 143076
THE MEDICAL ASSOCIATION
OF GEORGIA
1849 The Exchange
Suite 200
Atlanta, Georgia 30339
Counsel for Amicus Curiae The Medical Association of Georgia
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TABLE OF CONTENTS
IDENTITY AND INTEREST OF AMICUS............................................................ 1
SUMMARY OF ARGUMENT ................................................................................ 2
PART ONE: FACTUAL BACKGROUND & PROCEEDINGS BELOW ............. 3
PART TWO: QUESTIONS PRESENTED .............................................................. 7
PART THREE: DISCUSSION & CITATION OF AUTHORITIES ....................... 8
I. When a complaint for medical malpractice is filed before the statute
of limitations expires but the expert affidavit or amended affidavit is
filed after the limitations period expires, is the claim timely? ............ 8
II. Do allegations in a complaint about unidentified “physicians”
employed by a medical practice suffice to state a vicarious liability
claim for negligence on the basis of a particular physician’s
malpractice? .......................................................................................... 13
III. Is a single act of negligence by one employee asserted as
the basis for a vicarious liability claim against a medical practice
sufficient to allow a plaintiff to later, outside the limitations period,
assert vicarious liability on the basis of negligent conduct by other
employees? ........................................................................................... 16
CONCLUSION ......................................................................................................... 27
CERTIFICATION .................................................................................................... 28
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TABLE OF AUTHORITIES
Cases
Bhansali v. Moncada
275 Ga. App. 221 (2005) .................................................................................... 12
Bonner v. Peterson
301 Ga. App. 443 (2009) ........................................................................ 10, 11, 12
Bush v. Bank of New York Mellon
313 Ga. App. 84 (2011) ...................................................................................... 14
Candler Hosp., Inc. v. Carter
224 Ga. App. 425 (1997) .............................................................................. 15, 16
Gadd v. Wilson & Co. Engineers & Architects
262 Ga. 234 (1992) ............................................................................................. 22
Goodin v. Gwinnett Health System, Inc.
273 Ga. App. 461 (2005) .................................................................................... 10
HCA Health Servs. of Georgia, Inc. v. Hampshire
206 Ga. App. 108 (1992) .......................................................................... 9, 18, 21
Health Mgmt. Assocs., Inc. v. Bazemore
286 Ga. App. 285 (2007) .................................................................................... 19
Howard v. City of Columbus
219 Ga. App. 569 (1995) .................................................................................... 25
Jensen v. Engler
317 Ga. 879 (2012) ....................................................................................... 23 n.3
Labovitz v. Hopkinson
271 Ga. 330 (1999) ............................................................................................. 21
Phoebe Putney Mem’l Hosp. v. Skipper,
235 Ga. App. 534 (1998) .............................................................................. 24 n.4
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Pourquez v. Washington
268 Ga. 649 (1997) ............................................................................................. 12
State v. Smith
242 Ga. App. 295 (2000) .................................................................................... 25
Thomas v. Med Ctr. of Cent. Ga.
286 Ga. App. 147 (2007) .............................................................................passim
Thomas v. Tenet Healthsystem GB, Inc.
340 Ga. App. 70 (2017) .................................................................... 22, 23, 23 n.3
Statutes
O.C.G.A. § 9-11-9.1 ..........................................................................................passim
O.C.G.A. § 9-11-9.1 (2007) ..................................................................................... 17
O.C.G.A. § 9-11-15 ...................................................................................... 23, 23 n.3
Rules
Ga. Ct. of App. R. 33 ............................................................................................... 25
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IDENTITY AND INTEREST OF AMICUS
Pursuant to Georgia Supreme Court Rule 23, the Medical Association of
Georgia (“MAG” or “Amicus”) submits this brief as amicus curiae in support of
Appellees 24 On Physicians, P.C., and Dr. Alunda E. Hunt.
MAG is a non-profit, voluntary professional association of Georgia
physicians. Founded in 1849, MAG is part of the American Medical Association
Federation, and is the largest physicians’ organization in Georgia. MAG has
nearly 8,000 members, the majority of whom actively practice medicine.
MAG was founded to promote the improvement of public health in Georgia
and advance the art and science of medicine. To achieve these goals, MAG
actively advocates the positions of physicians and patients in the United States
Congress, the Georgia General Assembly, state and federal courts throughout the
United States, and in the private sector through large health plans, hospitals, and
other entities that significantly affect patient care. Additionally, MAG publishes a
widely disseminated medical journal (the “Journal of the Medical Association of
Georgia”), accredits continuing medical education programs in Georgia, and
provides accreditation for healthcare professionals working in the Georgia prison
system.
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SUMMARY OF ARGUMENT
Amicus urges the Court to affirm the trial court’s judgment because:
(I) expert affidavits must be filed with the complaint or within defined
extension windows, and a plaintiff should not be able to amend an affidavit as of
right at any time while enjoying the filing date of the complaint for limitations
purposes;
(II) regardless of whether allegations about “physicians” sufficiently identify
the professional whose conduct is at issue, to state a valid claim for malpractice, an
accompanying expert affidavit must show how the professional deviated from the
standard of care, which the affidavit in this case failed to show; and
(III) a single act of negligence by one employee asserted as the basis for a
vicarious liability claim against a medical practice does not, and should not, suffice
to allow a plaintiff to later, outside the limitations period, assert vicarious liability
on the basis of malpractice by other employees of the same practice.
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PART ONE: FACTUAL BACKGROUND & PROCEEDINGS BELOW
The following facts and procedural history, adopted from the parties’ briefs,
are pertinent to the resolution of the issues in this case.
Shirley Nobles had diabetes. On May 7, 2011, she visited the emergency
room of Rockdale Medical Center complaining of difficulty breathing and back
pain. She saw Dr. Jeffrey Mitchell, who admitted her to the hospital. Dr. Mitchell,
a hospitalist employed by a private medical practice called 24 On Physicians, P.C.
(the “Practice”), monitored and managed Mrs. Nobles’s blood sugar after her
admission, assisted by nurses employed by the hospital.
During the day on May 8, 2011, another employee of the Practice, Dr.
Alunda E. Hunt, began caring for Mrs. Nobles as an in-patient at the hospital. Her
condition appeared normal through 5:05 a.m. on May 10. At 6:00 a.m. on May 10,
a nurse found Mrs. Nobles unresponsive in hypoglycemic shock. She did not
recover. After weeks in a coma, Mrs. Nobles died on June 3, 2011.
On May 10, 2013, Mrs. Nobles’s executor and husband brought an estate
and wrongful death action against the hospital, Dr. Mitchell, Dr. Hunt, the nurse
who found Mrs. Nobles in shock, and others. Plaintiffs did not initially sue the
Practice as employer of Dr. Mitchell and Dr. Hunt. The initial Complaint alleged
that Mrs. Nobles suffered brain injury secondary to hypoglycemic shock on the
morning of May 10 and ultimately died as a result of negligence by Dr. Mitchell,
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Dr. Hunt, and the nursing staff. An attached affidavit of Dr. Robert Cooper
supported those allegations.
The initial Complaint’s allegations of malpractice against Dr. Mitchell and
Dr. Hunt concerned their management of Mrs. Nobles’s diabetes following her
admission to the hospital, which allegedly contributed to her going into
hypoglycemic shock. The allegations of malpractice regarding the discovery and
attempted treatment of Mrs. Nobles’s hypoglycemic shock episode were directed
solely to the nursing staff.
At the time Mrs. Nobles was found in hypoglycemic shock, neither Dr.
Mitchell nor Dr. Hunt were on duty at the hospital. When the nurse found Mrs.
Nobles unresponsive, the hospitalist on duty was Dr. Mohsin Syed, coincidentally
another employee of the Practice. Although Dr. Syed’s care for Mrs. Nobles was
not mentioned in the initial complaint or expert affidavit, Plaintiffs later contended
that Dr. Syed failed to respond fast enough, failed to recognize and adequately treat
Mrs. Nobles’s hypoglycemic shock, and failed to notify Dr. Hunt of the patient’s
condition when Dr. Hunt came on duty later on the morning of May 10. In
contrast to Dr. Mitchell’s and Dr. Hunt’s roles in managing their patient’s diabetes
before she fell into shock, Dr. Syed’s role was after the shock, trying to resuscitate
the patient. But Dr. Syed’s care would not feature in the litigation until much later.
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Plaintiffs-Appellants dismissed the initial lawsuit in October 2013 and re-
filed in March 2014, within the renewal period. The allegations of negligence
directed at Dr. Mitchell and Dr. Hunt were identical to those in the initial lawsuit,
as was the attached Second Affidavit of Dr. Cooper. The second lawsuit was not,
however, just a renewal action. Plaintiffs added the Practice as a named defendant,
alleging vicarious liability for the conduct of Dr. Mitchell and Dr. Hunt.1 The
Second Affidavit did not mention the Practice by name or generically as Dr.
Mitchell’s and Dr. Hunt’s “employer.” The claim against the Practice then stood
entirely on the legal principle of vicarious liability.
The Complaint in the second lawsuit did not make Dr. Syed a named party
defendant or even refer to him by name. The expert affidavit too made no mention
of Dr. Syed by name, description, or role. And the expert did not criticize the care
Dr. Syed provided. While once again criticizing the nurse’s response after finding
Mrs. Nobles in shock, the expert’s criticism of physicians was restricted to Dr.
Mitchell’s and Dr. Hunt’s management of the patient’s diabetes before she went
into hypoglycemic shock. The expert did not opine on any physician’s conduct (by
name or generically as a “treating physician”) in attempting to resuscitate Mrs.
1 The two-year statute of limitations for the wrongful death action expired on May
10, 2013, before the Practice was named as a defendant in the second lawsuit. The
Practice faces liability solely on the estate claims (for medical expenses and pain
and suffering before death), for which the statute of limitations ran on June 20,
2015, two years after appointment of the estate’s executor.
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Nobles from the hypoglycemic shock episode. The expert’s criticism of the care
from and after discovery of the patient in hypoglycemic shock still related solely to
the nursing staff employed by the hospital.
The Practice moved to dismiss on various grounds. Plaintiffs opposed the
motion but did not amend the complaint. Plaintiffs did file a Third Affidavit of Dr.
Cooper in order “to include specific acts of negligence against” the Practice
“through its agents, Mitchell and Hunt.” Like the un-amended complaint, the
Third Affidavit did not identify Dr. Syed by name or describe an unnamed
physician responsible for treating Mrs. Nobles after she went into shock. And the
Third Affidavit did not opine as to deviations from the standard of care by any
physician responsible for treating Mrs. Nobles after she was found in shock.
A year and a half later, on October 6, 2015, Plaintiffs filed the Fourth
Affidavit of Dr. Cooper, re-packaging his earlier contentions of negligence—which
had not changed in substance—as applicable to the Practice and “its employees
and physicians.” That subtle change notwithstanding, the Fourth Affidavit did not
identify Dr. Syed or his role, nor did it opine on deviations from the standard of
care by any physician other than Dr. Mitchell and Dr. Hunt. As before, the Fourth
Affidavit’s assertions about deviations from the standard of care followed a clean
divide: Dr. Mitchell, Dr. Hunt, and the Practice “and its employee and physicians”
in not preventing the patient from going into hypoglycemic shock on the one hand,
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and the nurse and nursing staff of the hospital in responding to the patient in shock
on the other. (Compare R2 990-93 ¶ 19 with ¶ 21.) The Complaint in the second
lawsuit, still un-amended, and the Fourth Affidavit did not identify by name,
description, or role, or describe acts of negligence by, any physician employed by
the Practice other than Dr. Mitchell and Dr. Hunt. As it stood through then, Dr.
Syed’s care remained outside the parameters of the pleadings.
When deposed a month after swearing out the Fourth Affidavit, Dr. Cooper
testified that he prepared the Fourth Affidavit to assert criticisms of Dr. Syed.
Suddenly, Dr. Syed was in.
The Practice promptly asserted the statute of limitations defense to any
claims against the Practice based on Dr. Syed’s care. The Practice then moved for
partial summary judgment on the vicarious liability claim to the extent Plaintiffs
based it on alleged professional negligence of Dr. Syed—or any other employee of
the Practice whose actions were not criticized by expert affidavit prior to the
expiration of the statute of limitations. The trial court granted the Practice’s
motion. This appeal followed.
PART TWO: QUESTIONS PRESENTED
The following questions of importance to the medical community and the
public at large emerge from the parties’ briefs and the record:
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I. When a complaint for medical malpractice is filed before the statute of
limitations expired but the expert affidavit or amended affidavit is filed after
the limitations period expired, is the claim timely?
II. Do allegations in a complaint about unidentified “physicians” employed by a
medical practice suffice to state a vicarious liability claim for negligence on
the basis of a particular physician’s malpractice?
III. Is a single act of negligence by one employee asserted as the basis for a
vicarious liability claim against a medical practice sufficient to allow a
plaintiff to later, outside the limitations period, assert vicarious liability on
the basis of negligent conduct by other employees?
PART THREE: DISCUSSION & CITATION OF AUTHORITIES
I. When a complaint for medical malpractice is filed before the statute of
limitations expired but the expert affidavit or amended affidavit is filed
after the limitations period expired, is the claim timely?
No. To be timely, the expert affidavit must be filed with the complaint or within
defined extension windows. A plaintiff may not amend an expert affidavit at any
time as of right and enjoy the filing date of the complaint for limitations purposes.
To state a claim for professional negligence, a plaintiff must not only allege
negligence in the complaint but also file an affidavit by a qualified expert opining
to at least one deviation from the applicable standard of care by the defendant.
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HCA Health Servs. of Georgia, Inc. v. Hampshire, 206 Ga. App. 108, 110 (1992).
The expert affidavit generally must be filed with the complaint. O.C.G.A. § 9-11-
9.1(a). The Civil Practice Act, specifically O.C.G.A. § 9-11-9.1, permits late filing
of the required expert affidavit under limited circumstances. Under the so-called
10-45 rule, if the statute of limitations will expire within 10 days of filing the
complaint and the expert affidavit could not be prepared because of time
constraints, upon a certain showing, the plaintiff has 45 days after filing the
complaint to supplement the pleadings with the affidavit. O.C.G.A. § 9-11-9.1(b).
Or if a plaintiff files an allegedly defective affidavit and the defendant moves to
dismiss on the basis of the defect, the plaintiff may cure the defect by amendment
within 30 days of service of the motion to dismiss. O.C.G.A. § 9-11-9.1(e). Or if
a plaintiff fails to file an affidavit at all and the defendant moves to dismiss on that
basis, and then the plaintiff voluntarily dismisses and files a renewal action with
the requisite affidavit, the new action may benefit from relation back under the
renewal statutes if the court finds the plaintiff had the affidavit in time and failed to
file it by mistake. O.C.G.A. § 9-11-9.1(f).
If—and only if—the affidavit or amended affidavit is filed within the narrow
late-filing windows specified in O.C.G.A. § 9-11-9.1, “the filing of the affidavit of
an expert after the expiration of the period of limitations shall be considered timely
and shall provide no basis for a statute of limitations defense.” O.C.G.A. § 9-11-
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9.1(c). In those circumstances, the filing date of the complaint will control and the
filing date of the affidavit may be ignored for limitations purposes. In all other
circumstances, the affidavit will be considered untimely, see Goodin v. Gwinnett
Health System, Inc., 273 Ga. App. 461, 462 (2005), and the time of filing a late-
filed affidavit will control for purposes of the limitations period.
Appellants contend that the date of filing the complaint always controls
timeliness, and the expert “affidavit can be amended at any time, even after the
expiration of the statute of limitations.” (Appellants’ Br. at 15-16 (citing Bonner v.
Peterson, 301 Ga. App. 443, 447 (2009)).) Not so. None of the cases Appellants
cite stands for the proposition that plaintiffs may amend affidavits as of right at any
time regardless of the limitations period. And none of them involved amending an
affidavit to assert negligence by a professional neither named in the complaint nor
identified as a negligent employee of a practice that was previously named.
Moreover, nothing in O.C.G.A. § 9-11-9.1 provides that amended or additional
affidavits opining as to different acts of negligence by different professionals shall
relate back to the filing date of the complaint for limitations purposes, or that the
filing date of the complaint always controls. The statute simply does not read that
way. Appellants point to no statutory language supporting their argument.
Contrary to Appellants’ argument, Bonner did not allow amendments of
expert affidavits as of right at any time regardless of the statute of limitations.
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Instead, Bonner approved only an amendment in response to a motion to dismiss
challenging a defective affidavit filed with the complaint—one of the narrow late-
filing windows created by O.C.G.A. § 9-11-9.1. Bonner held merely that “a
plaintiff’s right to amend an expert affidavit pursuant to O.C.G.A. § 9-11-9.1(e) is
in no way tied to the statute of limitations.” Bonner, 301 Ga. App. at 447. Rather,
section 9.1(e) permits late amendments while limiting the time for making such
amendments to “within 30 days of service of [a] motion alleging that the affidavit
is defective.” O.C.G.A. § 9-11-9.1(e). If the affidavit is amended within that
window, the filing is deemed timely for limitations purposes. O.C.G.A. § 9-11-
9.1(c). In the case at bar, that window closed on May 27, 2014, thirty days after
the Practice moved to dismiss the claims against it in the second action. While the
window was open, Plaintiffs filed the Third Affidavit of Dr. Cooper. Yet the Third
Affidavit did not opine on any negligence by Dr. Syed or any employee of the
Practice other than Dr. Mitchell and Dr. Hunt. Accordingly, neither O.C.G.A. § 9-
11-9.1(e)—which Plaintiffs do not invoke, nor Bonner—which Plaintiffs do rely on
even though it merely applies section 9.1(e), affords Plaintiffs any cover for the
timeliness of allegations against Dr. Syed or the Practice as his employer.
According to Plaintiffs: “Bonner is also important because it highlights the
fact that the allegations of the complaint, not the affidavit, control the analysis of
timeliness of claims.” (Appellants’ Br. at 16.) Fair enough, but only for amended
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affidavits filed under Section 9.1(e) within 30 days of a motion to dismiss.
Therefore, even if the Complaint in the second action sufficed to state a cause of
action against the Practice for negligence by Dr. Syed (which Appellees dispute),
the time of filing the affidavit first opining as to Dr. Syed’s deviations from the
standard of care for physicians bringing a patient back from hypoglycemic shock
controls for purposes of the statute of limitations. That was no earlier than the
Fourth Affidavit, filed on October 6, 2015, after the limitations period expired.2
Bonner is a named-defendant case, not an unidentified-other-employee-of-
the-same-practice case. Likewise, Bhansali v. Moncada, 275 Ga. App. 221, 228
(2005), cited by Appellants (Appellants’ Br. at 15), involved amending an affidavit
to state additional acts of negligence by a defendant already named in the
complaint and criticized in the initial affidavit for at least one negligent act.
Bhansali applied the rule of Pourquez v. Washington, 268 Ga. 649, 650-52 (1997),
another case permitting amendments of affidavits to assert additional acts of
negligence by defendants already named in the complaint and criticized in the
initial affidavit. While those authorities state non-controversial points of law, they
have nothing to do with the case at bar. Amendments to affidavits to assert
2 Amicus gives the Fourth Affidavit the most favorable reading conceivable, for on
its face the Fourth Affidavit does not criticize Dr. Syed or any physician in relation
to attempts to bring Mrs. Nobles back from hypoglycemic shock. The better, and
fairer, reading of the record is that no expert affidavit has ever criticized Dr. Syed’s
care, by name, description, role, or in any other cognizable fashion.
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additional negligent acts by previously identified defendants against whom a valid
claim has already been stated have nothing to do with the statute of limitations or
relation back, because the existing properly stated claim has already stopped the
running of the limitations period.
Those cases concern an altogether different issue than the case at bar. When
an amended affidavit opines on negligent acts by a different professional as the
basis for a vicarious liability claim, the claim is treated as a new one, subject to its
own limitations analysis. Thomas v. Med. Ctr. of Cent. Ga., 286 Ga. App. 147,
148-49 (2007). In such a case, the initial affidavit was at least defective as to the
professional whose conduct it failed to address. For the amended affidavit to gain
the benefit of the complaint’s filing date, it must be filed within the narrow late-
filing windows permitted by O.C.G.A. § 9-11-9.1. Nothing in section 9.1 or any
case cited by Appellants allows a plaintiff to file an amended affidavit as of right at
any time after the limitations period expired and have the initial complaint’s filing
date control for purposes of the statute of limitations.
II. Do allegations in a complaint about unidentified “physicians” employed
by a medical practice suffice to state a vicarious liability claim for
negligence on the basis of a particular physician’s malpractice?
Perhaps, but that’s not the controlling issue in this case, so the Court need not
decide it, because without a timely affidavit opining as to how those employees
deviated from the standard of care, the plaintiff has not stated a valid claim.
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The parties in this case expend considerable effort arguing over whether
certain allegations in the complaint referring to negligence of the Practice “by and
through . . . the treating physicians” and “physicians” sufficed to state a vicarious
liability claim against the Practice on the basis of negligence by any employees
other than Dr. Mitchell and Dr. Hunt. (Compare Appellees’ Br. Part II(A) with
Appellants’ Reply Br. Part II(A).) Another amicus, the Georgia Trial Lawyers
Association (“GTLA”), joins in this discussion. (GTLA Br. Part 2.) All this poses
an interesting, and apparently novel, question of Georgia law.
MAG sees virtue in Appellees’ position. Employers of medical
professionals, such as medical practices and hospitals, and medical-malpractice
insurers, undoubtedly have legitimate due process concerns about the fairness of
having to defend against claims of negligence by unidentified employees. For
without notice of what the claim is, the employer (and its insurer) has no way to
defend against it. See Bush v. Bank of New York Mellon, 313 Ga. App. 84, 89-90
(2011) (explaining that a plaintiff’s short and plain statement of its claim “must
include enough detail to afford the defendant fair notice of the nature of the claim
and a fair opportunity to frame a responsive pleading”). In addition to keeping
defendants in the dark about the real basis for claims, directing allegations against
unidentified “physicians” allows plaintiffs to conceal whether claims have any
basis at all. And such a nebulous pleading seems designed to allow plaintiffs to
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later change the basis for their partially stated claim from one professional to
another, as GTLA practically concedes. (GTLA Br. at 12-16.) To prevent that,
when confronted with allegations against “physicians” or the like, defendants
would feel compelled to file perfunctory motions to dismiss claims to the extent
based on the acts of any unidentified employees. That inevitable defense tactic
would burden the courts with motion practice that would be avoided by a pleading
standard requiring plaintiffs to identify—if not by name then in some other
cognizable fashion—all the professionals whose conduct serves as the basis for a
vicarious liability claim for malpractice.
But the Court need not plow new ground by deciding the sufficiency-of-the-
complaint issue argued by the parties and GTLA. As explained in response to
Question III infra, this Court has already held that O.C.G.A. § 9-11-9.1 requires an
affidavit attesting to negligence by each professional whose care serves as the basis
for a vicarious liability claim. To state a claim against the Practice on the basis of
Dr. Syed’s care, then, the affidavit had to show the factual basis for a claim against
Dr. Syed (or at least a “treating physician” in his role) and opine on deviations
from the standard of care for treating a patient in hypoglycemic shock. The Third
Affidavit of Dr. Cooper does none of that for any physician, be it Dr. Syed or any
unnamed “treating physician.” (It does so for Rockdale Hospital and the nursing
staff, but not for the Practice or any physician.) So, pretermitting whether
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references to “physicians” or even “treating physicians” should in principle suffice
to identify the responsible professional, the absence of an opinion regarding
deviation from the standard of care renders the Third Affidavit defective,
insufficient to state a vicarious liability claim against the Practice on the basis of
care by any physician involved in the response and attempted recovery. See
Candler Hosp., Inc. v. Carter, 224 Ga. App. 425, 426 (1997) (deeming affidavits
insufficient when they failed to specify negligent conduct of hospital employees or
facts upon which the malpractice claim against the hospital was based).
Even if the Fourth Affidavit does suffice to criticize the care of Dr. Syed or
“physicians” treating a patient in hypoglycemic shock (which Appellees dispute), it
came too late, after the limitations period expired. Because no expert affidavit
criticizing Dr. Syed or unnamed “physicians” involved in Mrs. Nobles’s recovery
was filed within the limitations period, the claim is barred regardless of whether
allegations in a complaint directed against “physicians” should suffice.
III. Is a single act of negligence by one employee asserted as the basis for a
vicarious liability claim against a medical practice sufficient to allow a
plaintiff to later, outside the limitations period, assert vicarious liability
on the basis of negligent conduct by other employees?
No. This Court has already held to the contrary. The Georgia Trial Lawyers
Association’s argument to overturn this Court’s precedent flies in the face of the
text, structure, and purpose of O.C.G.A. § 9-11-9.1. Furthermore, the case on
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which Appellants rely is readily distinguished and, in any event, has zero
precedential value.
This Court confronted this very issue in Thomas v. Medical Center of
Central Georgia, 286 Ga. App. 147, 148-49 (2007). That case started with a
medical malpractice claim against a doctor and a vicarious liability claim against
the hospital that employed him, duly supported by an expert affidavit. After the
limitations period expired, the plaintiff submitted an amended complaint asserting
a vicarious liability claim against the same hospital based on the actions of nurses,
a claim supported by an expert affidavit opining as to malpractice by the nurses.
The plaintiff argued that, “since her original expert affidavit alleged one negligent
act attributable to [the hospital], she could raise additional grounds for her
respondeat superior claim without filing any other affidavits,” on the theory that,
having filed an expert affidavit charging the hospital with one act of negligence she
was free thereafter to assert a claim against the hospital based on any act of
negligence by the hospital’s other employees she might discover. This Court
acknowledged that a plaintiff may amend an affidavit to cure a defect under
O.C.G.A. § 9-11-9.1(b) (2007) (now section 9.1(e)), but rejected plaintiff’s
contention that she could add new claims of vicarious liability and have them relate
back to the filing of the original complaint. “To allow a plaintiff to switch or add
professionals upon which she bases her claims would certainly frustrate the intent
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of O.C.G.A. § 9-11-9.1,” the Court held. Id. at 149. While the vicarious liability
theory of recovery against the hospital may have been the same, “the underlying
liability clearly added a new claim for recovery.” Id. at 148. The amendment in
effect “attempted to commence a new action based on the conduct of different
professionals,” so it had to be filed within the limitations period. Id. at 149.
Because the amendment wasn’t timely filed, the claim against the hospital based
on its other employees was barred. Id.
Medical Center of Central Georgia did not create new law. This Court
merely applied the textual requirements of O.C.G.A. § 9-11-9.1 to cases of
vicarious liability claims against a single employer who employed more than one
potentially negligent professional, following the reasoning of HCA Health Services
of Georgia v. Hampshire, 206 Ga. App. 108 (1992). As this Court held in HCA
Health Services, to state a viable claim for professional malpractice, O.C.G.A. § 9-
11-9.1 requires a plaintiff to submit an affidavit setting forth “specifically at least
one negligent act or omission claimed to exist as to each professional defendant
(jointly, where appropriate; otherwise, severally), and the factual basis for the
claim against each defendant.” HCA Health Servs., 206 Ga. App. at 110 (emphasis
added). To construe the statute otherwise “would defeat the purpose of the statute
by authorizing the naming of professionals as defendants in malpractice suits in
which a plaintiff can set forth not one negligent act or omission attributable to that
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defendant, thus sanctioning the filing of frivolous malpractice lawsuits against
professional defendants who are only tangentially related to the legitimate
malpractice claim brought against another defendant.” Id. Just as the affidavit
requirement pertains to each professional defendant, to state a valid claim for
vicarious liability, logic dictates that the affidavit must opine as to malpractice by
each allegedly negligent professional (named defendant or not) whose conduct
serves as the basis for the claim. Nothing in the text of the statute suggests that the
requirement should be any different when the liability starts with the professional
and runs vicariously to his or her employer. After all, stating a claim against an
employer on the basis of one employee-professional’s conduct does nothing to
state a claim against the same employer on the basis of another employee’s
conduct. They are different claims. To state a valid claim, then, the affidavit must
opine as to each professional. Med. Ctr. of Cent. Ga., 286 Ga. App. at 148-49.
These holdings faithfully follow the text of the statute. When claims against
an employer are entirely derivative, the employer is not itself the negligent one; the
professional employees are. The plaintiff has no negligence claim against the
employer. The plaintiff has a negligence claim against the employees (whether or
not stated directly against the employees) combined with the principle of vicarious
liability to make the employer answer for its employees’ conduct. For this reason,
to state a valid claim for vicarious liability on the basis of an employee’s
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professional malpractice, a plaintiff must file an affidavit opining as to the
employee’s deviations from the standard of care, even if the employee is not
himself a named defendant. Health Mgmt. Assocs., Inc. v. Bazemore, 286 Ga.
App. 285, 286 (2007). Nothing changes under the text of the statute when the
employer happens to employ more than one potentially negligent professional.
The statute’s requirement of an affidavit opining as to “one negligent act or
omission claimed to exist and the factual basis for each such claim” by its terms
applies and always remains at the level of the professionals whose conduct gives
rise to the vicarious liability. Construing the statute in this way embodies a
straightforward principle: when liability is entirely derivative, a plaintiff must be
able to state from whom the liability derives.
To summarize: when the liability is direct, the alleged negligent conduct of
each named defendant professional must be set forth in the affidavit. When the
liability is vicarious, the conduct of each professional—named defendant or not—
whose alleged negligence gives rise to the liability must be set forth in the
affidavit. Outside the late-filing windows of Section 9.1, the time of filing the
affidavit controls for limitations purposes. So if an affidavit filed outside those
windows calls into question the conduct of a new professional, a separate
limitations analysis must be done.
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The structure of O.C.G.A. § 9-11-9.1 supports construction of the statute in
this way. The affidavit requirement of subsection (a) applies to each professional,
even for vicarious liability claims. If a defendant moves to dismiss on the basis of
a defective affidavit, under subsection (e), the plaintiff has 30 days to file an
amended affidavit while still enjoying the initial complaint’s filing date for
limitations purposes. Otherwise, under subsection (c), the limitations period
cannot be extended. Within this framework, a later-filed affidavit perfecting the
claim as required by subsection (a) must face the limitations analysis based on its
own filing date, not that of the complaint and the earlier, defective affidavit.
The purpose of O.C.G.A. § 9-11-9.1, screening frivolous claims, Labovitz v.
Hopkinson, 271 Ga. 330, 336 (1999), also supports this construction. Just as
allowing a claim against a professional to proceed without an affidavit opining as
to that professional’s negligence would defeat the purpose of the statute by
sanctioning the assertion of frivolous claims, HCA Health Servs., 206 Ga. App. at
110, allowing vicarious liability claims to proceed against an employer on the basis
of negligence by multiple employees without an affidavit opining as to each
professional employee’s negligence would defeat the purpose of the statute. Any
other reading would welcome frivolous claims against employers of multiple
potentially responsible professionals by allowing them to survive even though the
plaintiff has not filed a supporting expert affidavit. Construing the statute to
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22
require an affidavit for each professional whose conduct underlies vicarious
liability claims represents an impediment only to claims based on the negligence of
an employed professional against whom the plaintiff could not state a claim within
the limitations period. That serves the purpose of the statute perfectly.
Any other result would expose employers like hospitals and medical
practices (and their insurers) to unfair and prejudicial surprise while undermining
settled expectations by allowing previously unstated claims based on heretofore
unidentified professionals to spring to life after limitations periods have run. If a
plaintiff can timely state a claim against other professionals employed by the same
practice, let the claim be stated. If not, the plaintiff should face the consequences
under the statute of limitations. Allowing a plaintiff to state a vicarious liability
claim based on one employee and thus have a license to later expand or change the
basis of the liability to any other professional employed by the same defendant
would frustrate the purpose of O.C.G.A. § 9-11-9.1 by failing to screen out
frivolous claims and practically encouraging tardy assertion of claims that could
not be stated within the limitations period. Although “no question of frivolity
could arise from the absence of a specification of identity” in an expert affidavit
when a case involves only one defendant who is, for that reason, implicitly linked
to the alleged negligence, Gadd v. Wilson & Co. Engineers & Architects, 262 Ga.
234 (1992), Appellants’ and GTLA’s argument for a license to later name
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23
unknown, unseen, undercover negligent employees would encourage the tardy
prosecution of claims that were frivolous when the statute of limitations expired.
GTLA urges the Court to overrule Medical Center of Central Georgia,
calling it an “outlier.”3 (GTLA Br. at 24.) According to GTLA, this Court
recognized at least two “analytical failings” of Medical Center of Central Georgia
in the Court’s recent opinion Thomas v. Tenet Healthsystem GB, Inc., 340 Ga.
App. 70 (2017), certiorari pending. Far from it. Tenet Healthsystem found no
flaws in this Court’s analysis or the holding in Medical Center of Central Georgia.
Tenet Healthsystem did not declare, or even suggest, that this Court wrongly based
its decision in Medical Center of Central Georgia on Section 9.1 instead of
O.C.G.A. § 9-11-15. Tenet Healthsystem actually explained that the rule in
Medical Center of Central Georgia applying O.C.G.A. § 9-11-9.1 governs the
timeliness of new claims for professional negligence when a different professional
negligence claim has previously been made, while the limited relation back rule of
O.C.G.A. § 9-11-15 governs in other circumstances, such as adding a professional
3 A footnote in Appellants’ Reply brief foreshadowed GTLA’s argument.
Appellants remark that the “entire discussion” of filing an amended affidavit
before the statute of limitations expires “is essentially academic” because
O.C.G.A. § 9-11-15 allows amendments at any time and provides that they relate
back to the initial complaint. (Reply Br. at 3 n.1.) But that reasoning is limited to
ordinary claims and subject to the constraints of 9-11-15(c). See Jensen v. Engler,
317 Ga. 879, 883 (2012). It does not apply to changing professional malpractice
claims, to which section 9.1 and the rule in Medical Center of Central Georgia
apply. Tenet Healthsystem, 340 Ga. App. at 73.
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24
negligence claim to a prior ordinary negligence claim. Tenet Healthsystem, 340
Ga. App. at 73. Nothing in Tenet Healthsystem supports overturning Medical
Center of Central Georgia. And GTLA’s entire argument against Medical Center
of Central Georgia flies in the face of the text, structure, and purpose of Section
9.1, as explained above. Urging the Court to ignore Section 9.1 in favor of the
more liberal but still limited relation back rules of O.C.G.A. § 9-11-15, GTLA
would have this Court disregard what it has previously recognized as the intent of
the statute: screening out frivolous claims that cannot be supported by an expert.4
In going so far as arguing to overturn Medical Center of Central Georgia,
GTLA all but concedes the weakness of Appellants’ case under the present law.
And Appellants’ own efforts to distinguish Medical Center of Central Georgia fall
flat. Appellants point out that they did not amend their complaint to add a new
count and only amended the affidavit (by the Fourth Affidavit, filed outside the
limitations period) to refer generically to “treating physicians” in addition to Dr.
4 GTLA also contends that this Court already decided, in Phoebe Putney Mem’l
Hosp. v. Skipper, 235 Ga. App. 534 (1998), that “a new 9-11-9.1 affidavit relates
back to the original pleading under the relation-back doctrine.” (GTLA Br. at 20-
21.) Phoebe Putney is not a relation-back case at all and doesn’t even mention
limitations issues. Phoebe Putney decided the propriety of amending a defective
affidavit in response to a motion to dismiss, under the version of O.C.G.A. § 9-11-
9.1 in effect before the 30-day window to cure defective affidavits (now in section
9.1(e)) became part of the statute. Phoebe Putney drew a parallel to 9-11-15 but
did not decide that 9-11-15 governs the late filing of affidavits or that late-filed
affidavits relate back. And Phoebe Putney decided nothing about the statute of
limitations.
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25
Mitchell and Dr. Hunt. (Appellants’ Br. at 23; Reply Br. at 7-8.) Because Dr.
Syed is a hospitalist like Dr. Mitchell and Dr. Hunt, Appellants see “nothing new”
in the claim based on Dr. Syed’s care. But there is something new. First, there is
Dr. Syed, and second, there is his care. He may have the same specialty. But he’s
an independent actor. And he had a different role. Dr. Syed’s role was to try to
bring Mrs. Nobles back from hypoglycemic shock. Dr. Mitchell’s and Dr. Hunt’s
role was to prevent her from going into shock. The standard of care is different for
Dr. Syed and the other doctors. Dr. Syed’s conduct supposedly deviating from the
standard of care is entirely different and wholly independent of the other doctors.
Though the vicarious nature of the liability is the same for the Practice based on its
various employees, the underlying source of the liability, the underlying conduct,
differs. Just as the Court held in Medical Center of Central Georgia, switching or
adding professionals by definition changes the claim, and allowing a plaintiff to do
so without regard to the limitations period “would certainly frustrate the intent of
O.C.G.A. § 9-11-9.1.” Med. Ctr. of Cent. Ga., 286 Ga. App. at 149.
Appellants argue that Howard v. City of Columbus, 219 Ga. App. 569, 571-
73 (1995), is “directly analogous” to the case at bar. (Reply Br. at 8.) They are
wrong. Howard approved an affidavit charging unnamed “jail clinic departmental
personnel and staff” because section 9.1 does not require “specific reference to a
particular defendant” in the affidavit. Id. at 574. But in that case, the allegedly
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26
negligent “departmental personnel and staff” were all named defendants. Howard
decided that referring to a particular named defendant in the body of the affidavit
was unnecessary as long as the affidavit linked the malpractice to the defendants.
Id. at 575 (3(c)). Like the other cases Appellants rely on, Howard is a named
defendant case, not an unidentified-other-employee-of-the-same-practice case.
Above all, Howard has no precedential value. Nine judges of this Court
heard Howard en banc. Only three joined the division of the opinion Appellants
rely on, Division 3. Three judges concurred in the judgment only as to Division 3.
And three judges dissented from Division 3. Accordingly, Howard is physical
precedent only, having merely decided the issues in that case without establishing
binding precedent. See Ga. Ct. of App. R. 33(a); State v. Smith, 242 Ga. App. 295,
296 (2000). Reliance on Howard is not only misplaced but also infirm.
The result Appellants and GTLA seek would substantially disrupt parties’
settled expectations regarding their dealings and expose employers of professionals
(and their insurers) to new claims long after their stale date, when claims against
the professionals themselves are barred.5 Amicus urges the Court to reject
5 Two hypotheticals illustrate the problem:
Plaintiff sues Dr. A, Dr. B, Dr. C, and the practice that employs all of the
doctors. The expert affidavit asserts negligence by Dr. A and Dr. B, and
hence vicarious liability of the practice, but ignores Dr. C. Dr. C moves to
dismiss, arguing defective affidavit. Plaintiff does not amend the affidavit.
Dr. C wins dismissal. Years later, after the limitations period expires,
plaintiff determines that Dr. C acted negligently. As to Dr. C personally, a
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27
Appellants’ (and GTLA’s) unfounded reading of the statute and apply settled law
to this case consistent with the text, structure, and purpose of O.C.G.A. § 9-11-9.1.
Doing so would confirm, rather than muddle, the settled expectations of
organizations that employ professionals and avoid the fundamental unfairness of
allowing potentially frivolous claims to burst forth years later based solely on the
happenstance of a single practice or facility employing multiple professionals.
CONCLUSION
For these reasons, Amicus submits that the judgment of the trial court should
be affirmed.
claim based on a new affidavit would be untimely. On Appellants’ reading
of the law, nothing would stop the plaintiff from nevertheless pursuing a
vicarious liability claim against the practice on the basis of Dr. C’s care.
That makes no sense.
Plaintiff sues Dr. A, Dr. B, and the practice that employs both of them. The
expert affidavit asserts negligence by Dr. A and Dr. B, and hence vicarious
liability of the practice. No one says anything about Dr. C. The case goes
on for years. After the limitations period expires, plaintiff determines that
Dr. C acted negligently. If asserted against Dr. C personally, a new claim
would not relate back and so would be untimely unless the plaintiff could
meet the strict requirements of O.C.G.A. § 9-11-15(c) (essentially, notice to
Dr. C from the outset and mistaken identity). If Dr. C were employed by a
different practice, that practice too would not face relation back. But on
Appellants’ reading of the law, nothing should stop the plaintiff from
pursuing a vicarious liability claim against the practice on the basis of Dr.
C’s care just because the practice also employed Dr. A and Dr. B. Again,
that is absurd.
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CERTIFICATION
This submission does not exceed the word count limit imposed by Rule 24,
in that it contains 6,770 words.
This 6th day of June, 2017.
Respectfully submitted,
SMITH, GAMBRELL & RUSSELL, LLP
/s/ Leah Ward Sears
Leah Ward Sears
Georgia Bar No. 633750
Colin Đặng Delaney
Georgia Bar No. 216858
Promenade, Suite 3100
1230 Peachtree Street, NE
Atlanta, Georgia 30309
Telephone: 404-815-3500
Facsimile: 404-815-3509
Email: [email protected]
Email: [email protected]
Donald J. Palmisano, Jr.
State Bar No. 143076
THE MEDICAL ASSOCIATION OF GEORGIA
1849 The Exchange
Suite 200
Atlanta, Georgia 30339
Counsel for Amicus Curiae
The Medical Association of Georgia
Page 33
IN THE COURT OF APPEALS
OF THE STATE OF GEORGIA
HEATHER OLLER, as Executor of the )
Estate of SHIRLEY NOBLES, deceased, )
and DAVID NOBLES, )
)
Plaintiffs-Appellants, )
)
v. ) CIVIL ACTION
)
ROCKDALE HOSPITAL, LLC d/b/a ) CASE NO. A17A1208
ROCKDALE MEDICAL CENTER, )
24 ON PHYSICIANS, P.C., and )
DR. ALUNDA E. HUNT, )
)
Defendants-Appellees. )
)
CERTIFICATE OF SERVICE
The undersigned counsel for Amicus Curiae The Medical Association of
Georgia hereby certifies that he has served all parties with the foregoing BRIEF
OF THE MEDICAL ASSOCIATION OF GEORGIA AS AMICUS CURIAE
by causing an electronic copy hereof to be filed with the Clerk of Court through the
Court’s eFast docketing system, which will generate an electronic notice of filing
and send an electronic copy hereof to all counsel of record and, in addition, by
sending a paper copy hereof by First Class Mail to:
Darren W. Penn, Esq.
Alexandra “Sachi” Cole, Esq.
Penn Law, LLC
1201 Peachtree Street, N.E., Suite 900
Atlanta, Georgia 30361
Page 34
Counsel of record for Plaintiffs-Appellants at their last known business address;
Frederick N. Gleaton, Esq.
Melissa P. Reading, Esq.
Owen, Gleaton, Egan, Jones & Sweeney, LLP
1180 Peachtree Street, N.E., Suite 3000
Atlanta, Georgia 30309
Counsel of record for Defendants-Appellees 24 On Physicians, P.C., and Alunda
E. Hunt, M.D., at their last known business address;
Daniel J. Huff, Esq.
Francesa G. Townsend, Esq.
Huff, Powell & Bailey, LLP
999 Peachtree Street, N.E., Suite 950
Atlanta, Georgia 30309
Counsel of record for Defendant Rockdale Hospital, LLC d/b/a Rockdale Medical
Center, at their last known business address; and
Charles M. Cork, Esq.
P.O. Box 1041
Macon, Georgia 31202
Counsel of record for Amicus Curiae the Georgia Trial Lawyers Association, at his
last known business address.
This 6th day of June, 2017.
/s/ Colin Đặng Delaney
Colin Đặng Delaney
Georgia Bar No. 216858
Page 35
Smith, Gambrell & Russell, LLP
Suite 3100, Promenade II
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309-3592
Telephone: 404-815-3500
Email: [email protected]
