Facts
In this medical malpractice renewal action, Jami Lynn Golden sued Floyd Medical Center and Floyd Emergency Physicians for “medical and hospital negligence” (Count 1) and ordinary negligence (Count 2) arising from injuries she sustained due to an alleged failure to properly diagnose sepsis. Her renewal complaint alleged that in July 2016, Golden visited Floyd Emergency Center complaining of abdominal pain, fever, chills, and nausea. Among other readings taken during Golden's triage assessment, medical staff noted that she had a low-grade fever, a heart rate of 118 beats per minute, a white blood cell count of 4.9, and bands of 15 percent. As a result of these readings, Golden alleged that she satisfied two general internal criteria of “systemic inflammatory response syndrome” to be monitored for sepsis — an elevated heart rate and bands in excess of 10 percent.
According to Golden, later during this hospital visit, “a computer-generated Sepsis Alert concerning ... Golden activated based on an algorithm that interpreted her vital signs and lab results as being at risk for sepsis.” Golden alleged that Gaylor, the charge nurse on duty at the time of the sepsis alert, failed to forward the alert to the attending physician on duty and the primary nurse assigned to Golden, in violation of Floyd Medical's written sepsis alert policy. Golden was prescribed additional pain medication and discharged approximately one hour after the sepsis alert, with instructions to follow up in two to three days.
Golden's symptoms persisted and her condition worsened throughout the day, including the onset of additional symptoms of a sore throat, headache, dizziness, and shortness of breath. Golden—in septic shock—called an ambulance and was transported to a different facility. She was hospitalized for 11 days and, as a result of the septic shock, Golden suffered necrosis that required the amputation of parts of her fingers and toes.
Golden had originally filed suit in federal district court before the expiration of the two-year statute of limitations. As Defendants, she named Floyd Medical, Floyd Physicians, the attending physician, a physician's assistant, and the nurse practitioner who treated Golden while she was a patient at Floyd Medical. Golden's federal complaint asserted claims for medical and hospital negligence, abandonment, and violations of the Federal Emergency Medical Treatment and Active Labor Act, 42 U. S. C. § 1395 (dd) et seq. The parties actively litigated the federal case for more than two years, with the district court granting at least two discovery extensions, the latest discovery extension expiring on November 2, 2020.
On the last day of discovery, Golden filed two expert reports and named more than 40 of her treating physicians as experts who might be called to testify. Ten days following the close of discovery in November 2020, Golden moved to amend her complaint to assert a claim that Floyd Medical was vicariously liable for the negligence or gross negligence of Gaylor, the charge nurse who allegedly failed to forward the sepsis alert to the attending physician on duty. Floyd Medical and Floyd Physicians moved to strike Golden's expert disclosures, as well as her expert reports. The district court granted the motion to strike and, two days later, Golden moved to voluntarily dismiss her complaint without prejudice. Over Defendants’ objection, the district court granted Golden's motion for voluntary dismissal and denied as moot her motion to amend and the Defendants’ motions for summary judgment. The district court also ordered that “all discovery from this case be incorporated into any subsequent action on the same claims and facts to preserve the usefulness of that discovery and allow for an expedited discovery and motion schedule in any later action.”
When Golden filed her renewal action, she included new allegations of fact based upon Gaylor's acts and omissions in support of her claim for medical malpractice in Count 1 and included a separate claim for ordinary negligence in Count 2 alleging, for the first time, that the Defendants were vicariously liable for Gaynor's negligence. Defendants moved to dismiss the renewal action, primarily arguing that: (1) the complaint was barred by the five-year medical malpractice statute of repose; and (2) Count 2 of the renewal complaint asserted a new claim not brought in the federal action.
The trial court held that the statute of repose did not bar the renewal action because Georgia’s COVID-19 judicial emergency orders tolled the statute of repose. The trial court also held, however, that the ordinary negligence claim in the renewal action asserted a new cause of action that was not brought in the original lawsuit, and thus it was barred by the statute of limitations. Both Parties appealed.
Issues & Holdings
The issues in this case were as follows:
- Did Golden’s claim for “ordinary negligence” assert a new claim not brought in the original action?
- Was Golden’s professional negligence claim barred by the five-year statute of repose?
The court held that:
- Yes. This claim presented a new claim not raised in the original action and was thus barred by the statute of limitations.
- Yes. Statutes of repose are not tolled by the COVID-19 judicial emergency orders.
Reasoning
“Substantial Similarity” Between the Original and Renewal Claims
The Court explained that to be a good renewal action, so as to suspend the running of the statute of limitations under O.C.G.A. § 9-2-61, the new complaint must be substantially the same both as to the cause of action and as to the essential parties. Thus, if a plaintiff files a renewal suit after the applicable limitations period has expired and adds a new cause of action based on a new theory of recovery, the renewal statute is inapplicable to save the claim from being time-barred. Thus, the ultimate question is whether the renewal action presents “a substantially similar” cause of action or a new cause of action.
Count I of Golden’s complaint was not substantially similar and thus did not relate back to the original complaint. In federal court, Golden asserted claims for vicarious liability against the Defendants based on factual allegations concerning the attending physician, physician's assistant, and nurse practitioner. The original action did not identify Gaylor or include any factual allegations of her acts or omissions. As a result, there was no claim against the Defendants based upon Gaylor's acts or omissions when Golden voluntarily dismissed her original action. She then asserted claims in her renewal action based on the acts and omissions of Gaylor. As a result, the causes of action were not substantially similar, so Count I of the renewal action was barred by the statute of limitations.
Statute of Repose
The Court next considered whether Golden’s claim of professional malpractice against Floyd Medical was barred by the five-year statute of repose. The Parties agreed the cause of action accrued, at the latest, on July 2, 2016, and that, unless some factor precluded its application, the five-year medical malpractice statute of repose expired on July 2, 2021. The district court had granted Golden's motion to voluntarily dismiss the original federal action on August 30, 2021. Golden then filed her renewal action on October 21, 2021.
The Court rejected Golden’s arguments that Chief Justice Melton’s COVID-19 judicial emergency orders tolled (or otherwise extended) the five-year statute of repose requiring Golden to file her claim by July 2, 2021. Explaining the distinction between a statute of limitations and a statute of repose, the Court noted that a “statute of repose is absolute . . . [It] destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.” The Court also noted that Justice Melton’s emergency orders never mentioned statutes of repose. Indeed, statutes of limitation are specifically included in the categories of matters which may be tolled pursuant to both O.C.G.A. § 38-3-62 and the judicial emergency orders, but statutes of repose are not, reinforcing that there was no intention to toll applicable statutes of repose.
Conclusion
Be extremely cautious before deciding to dismiss a case and file a renewal action, and know that all claims in the renewal action must be “substantial the same” as the claims brought in the original case. In addition, the five-year statute of repose (and other statutes of repose like it) is absolute and was not tolled by any of Georgia’s COVID-19 judicial emergency orders.
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Citation: Golden v. Floyd Healthcare Management, Inc. d/b/a Floyd Medical Center, No. A23A0118 (Ga. Ct. App. June 27, 2023)
