FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 18, 2017
In the Court of Appeals of Georgia
A16A2167. THOMAS v. TENET HEALTHSYSTEM GB, INC. ME-094
d/b/a ATLANTA MEDICAL CENTER.
MERCIER, Judge.
Lorrine Thomas appeals the trial court’s dismissal of one count of her amended
complaint. She argues that the trial court erred in dismissing Count 10 of Thomas’s
second amended complaint because the allegations related back to the date of the
original filing, and were not time barred. We agree and reverse.
In May 2012, Thomas was involved in a car accident. At the scene of the
accident Thomas was placed on a backboard by paramedics, and taken by ambulance
to Atlanta Medical Center (AMC). Dr. Robin Lowman was Thomas’s physician when
she arrived at AMC’s emergency room, and he ordered that a cervical CT scan and
other tests be performed on Thomas. When completed, the CT scan was sent to Dr.
Clifford Grossman who read it at his home. After reviewing the CT scan, Dr.
Grossman concluded that there were no fractures in Thomas’s cervical spine, and
communicated this to Dr. Lowman. Dr. Lowman instructed a nurse to remove a
cervical spine collar that had been placed on Thomas, and to discharge her from the
hospital. The collar was then removed from Thomas’s neck.
Thomas, who was heavily medicated at the time, was placed in a wheelchair and
taken to the curb to await her ride, but when her brother arrived to pick her up,
Thomas was slumped over and unresponsive in the wheelchair. Thomas was
readmitted to the hospital and upon re-examination it was discovered that Thomas did
in fact have a fracture in her cervical spine. When the cervical spine collar was
removed, the fracture in Thomas’s spine was displaced, which caused a compression
of Thomas’s spinal cord, and neurological damage. As a result of the neurological
damage, Thomas was rendered a quadriplegic.
In May 2014, Thomas filed a complaint alleging professional negligence against
Dr. Lowman and Dr. Grossman, as well as against AMC for imputed liability. In
August 2015, Thomas filed a second amended complaint alleging three additional
counts of simple negligence against AMC. AMC filed a motion to dismiss the three
new counts, arguing that they were time-barred. Thomas filed her reply in opposition
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in October 2015. In April 2016, the trial court issued an order dismissing one of the
three new counts against AMC, finding that the allegations did not relate back to the
time the original complaint was filed. In May 2016, Thomas filed an application for
interlocutory appeal, which we granted, and this appeal followed.
In her sole enumeration of error, Thomas contends that the trial court erred in
granting AMC’s motion to dismiss Count 10 of her second amended complaint
because the allegations contained therein related back to the date of the original filing
pursuant to OCGA § 9-11-15 (c). See Generally OCGA § 9-3-33. “A motion to
dismiss may be granted only where a complaint shows with certainty that the plaintiff
would not be entitled to relief under any state of facts that could be proven in support
of his or her claim. We review the trial court’s ruling on a motion to dismiss under the
de novo standard of review.” Walker County v. Tri-State Crematory, 292 Ga. App.
411 (664 SE2d 788) (2008) (citations omitted).
Viewed in such a light, the evidence shows that on May 6, 2014, Thomas filed
her original complaint alleging professional negligence against Drs. Lowman and
Grossman, as well as against AMC for imputed liability for the negligence of its
physicians on staff. During the course of discovery, Thomas learned that AMC had
a policy entitled “Termination of Cervical Spine Immobilization,” which required that
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a physician remove the cervical spine collar, that Dr. Lowman instructed a nurse to
remove the collar, and that the nurses had been trained on the policy. Based on this
information, Thomas amended her complaint on August 19, 2015, to add three claims
against the hospital: negligent credentialing (Count 8), negligent failure to train (Count
9), and simple negligence (Count 10). Specifically, Thomas alleged that the nurse who
violated hospital policy caused or contributed to Thomas’s injuries and that AMC was
liable for the nurse’s simple negligence. AMC argued that the new causes of action
were barred by the statute of limitations. The trial court agreed in part, dismissing
Count 10, and finding that the original complaint was “devoid of allegations of liability
on the part of the AMC nursing staff. Therefore, . . . the claim for imputed simple
negligence . . . does not arise from ‘the same conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading’. OCGA § 9-11-15 (c).”
However, the trial court denied the motion to dismiss as to the negligent credentialing
(Count 8) and negligent training (Count 9) claims.
OCGA § 9-11-15 (c) states that “[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.” Additionally, we are to construe OCGA § 9-11-15
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liberally in favor of allowing amendments. See Deering v. Keever, 282 Ga. 161, 163
(646 SE2d 262) (2007). With respect to whether an amendment to a complaint relates
back to the original filing we have held that:
the question of relation back of the amendment turns on fair notice of the
same general fact situation from which the claim arises. It is apparent that
the strict rule of no relation back of the amendment to the time of filing
the original complaint because of the assertion of a new cause of action
is no longer applicable unless the causes of the action are not only
different but arise out of wholly different facts.
Jensen v. Engler, 317 Ga. 879, 883 (1) (b) (733 SE2d 52) (2012) (citation, emphasis,
and punctuation omitted).
In Jensen, in which the plaintiff initially asserted an ordinary negligence claim
and then amended the claim after the statute of limitation expired to add a professional
negligence claim, we concluded that the trial court properly denied the motion to
dismiss the claim. Id. at 884 (1). In that case, the plaintiff found evidence during
discovery suggesting that the physician defendant had deviated from the standard of
care during the patient’s emergency room visit, and we found that the claim was not
time barred. Id. at 884 (1), n. 6. Similarly, here, Thomas discovered the violation of
the hospital policy during discovery. In Thomas’s original complaint, she alleged that
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“the C-collar was removed by Defendant Atlanta Medical personnel.” Thus, AMC had
fair notice of the same general fact situation from which the simple negligence claim
arose. S4391ee Jensen, supra. Consequently, the argument that the removal of the
collar arose out of the conduct, transaction, or occurrence set forth in the original
complaint appears to be correct.
In its order granting the motion to dismiss, the trial court relied on Thomas v.
Medical Center of Central Georgia, 286 Ga. App. 147 (648 SE2d 409) (2007) to
support its ruling. There, the plaintiff filed a professional malpractice claim against a
physician and a hospital based on vicarious liability, then amended the complaint to
add professional negligence claims based on the conduct of the nursing staff. Id. We
did not analyze the case under OCGA § 9-11-15, ruling instead that allowing “a
plaintiff to switch or add professionals upon which she bases her claims would
certainly frustrate the intent of OCGA § 9-11-9.1.” Id. at 149. There, we concluded
that the plaintiff was not allowed to commence a new professional malpractice action
based on the conduct of different professionals outside the statute of limitation. Id.
Thomas’s argument is that the instant case is more akin to Jensen than to Thomas,
while AMC argues that Thomas is controlling.
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However, because in Thomas we analyzed the amendment to the original
complaint under OCGA § 9-11-9.1, its holding is inapplicable in the present case
inasmuch as the new claims do not allege professional negligence. Thus, we must
analyze the claims asserted in Count 10 under OCGA § 9-11-15 and determine whether
it arises out of the same conduct, transaction, or occurrence set forth the original
complaint. See OCGA § 9-11-15 (c), supra.
In her original complaint, Thomas set out allegations that were based upon the
conduct of AMC and others that related to her visit to the emergency room, her
treatment there, and her discharge. Moreover, Thomas made allegations in her original
complaint that the cervical spine collar was removed by an employee of AMC. Here
both the original and amended complaints set out allegations about the improper
removal of the cervical spine collar by an employee of AMC. Specifically, Thomas’s
amended complaint alleges that the nurse who violated hospital policy by removing the
collar, and this caused or contributed to Thomas’s injuries and that AMC was liable
for the nurse’s simple negligence in that regard. Thus, the claims in Count 10 of the
amended complaint arise out of the same conduct, transaction, or occurrence set forth
in the original complaint. See Jensen, supra at 884; OCGA § 9-11-15 (c). AMC’s
argument that the removal of the collar constituted different conduct unrelated to the
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claims alleged in the original complaint not only fails, but also appears to ignore our
directive to construe OCGA § 9-11-15 liberally. Therefore, for the foregoing reasons,
the trial court’s order dismissing Count 10 of Thomas’s second amended complaint
is reversed.
Judgment reversed. Ellington, P. J., and Branch, J., concur.
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