304 Ga. 86 FINAL COPY
S17G1021. TENET HEALTHSYSTEM GB, INC. v. THOMAS.
HINES, Chief Justice.
This Court granted a writ of certiorari to the Court of Appeals in Thomas
v. Tenet HealthSystem GB, 340 Ga. App. 70 (796 SE2d 301) (2017), to consider
whether that court properly held that a claim of imputed simple negligence
against a hospital, which was asserted in a second amended complaint, related
back to the original complaint pursuant to OCGA § 9-11-15 (c).1 Finding that
the Court of Appeals was correct, we affirm that court’s judgment.
1 OCGA § 9-11-15 (c) provides: Whenever 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. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. The original complaint was filed on May 6, 2014, shortly before
expiration of the applicable two-year statute of limitation, OCGA § 9-3-33, and
the facts alleged in that initial filing include the following. Lorrine Thomas was
involved in a motor vehicle accident. Emergency personnel secured her neck
with a cervical collar, or “C-collar,” placed her on a backboard, and transported
her to the emergency room operated by Tenet HealthSystem GB, Inc. d/b/a
Atlanta Medical Center (“hospital”). Still immobilized with the C-collar,
Thomas presented to the emergency room at approximately 8:44 p.m. on May
10, 2012, was triaged by the hospital nursing staff, was examined by at least two
hospital nurses, and was medically screened by Dr. Robin Lowman, who
ordered a cervical CT scan. Dr. Clifford Grossman interpreted the CT scan,
found no evidence of any acute fracture or subluxation of Thomas’s cervical
spine, and reported his findings to Dr. Lowman. After further examination of
Thomas, Dr. Lowman discharged her, and “[t]he C-collar was removed by
[hospital] personnel.” Thomas was placed in a wheelchair and escorted out of
the hospital at approximately 12:19 a.m. on May 11, 2012, to wait for her ride
home. While waiting, however, she became unresponsive, was rushed back into
the emergency room, and admitted to the hospital. After a cervical spine MRI
2 later in the day, it was discovered that Thomas did have a cervical spine fracture
that became dislocated and resulted in compression of the spinal cord,
neurological damage, and quadriplegia. Nursing personnel were immediately
notified to place a C-collar back on Thomas.
After setting out these facts, the original complaint asserted claims for
professional negligence against Dr. Grossman and Dr. Lowman and alleged that,
as a proximate result, “the injury to Ms. Thomas’s cervical spine progressed to
subluxation and spinal cord injury resulting in her becoming a quadriplegic.”
The original complaint then asserted a claim against the hospital of imputed
liability for the negligent acts and omissions of those two doctors pursuant to the
doctrines of respondeat superior, joint venture, and ostensible and apparent
agency. Attached as exhibits to and referenced in the original complaint are the
affidavits of two experts.2 Dr. Anthony Scarcella’s affidavit includes his
opinion that if Dr. Lowman interpreted the cervical CT scan herself, then she
breached the standard of care by, among other things, failing to stabilize,
protect, and treat or cause to be treated Thomas’s dangerously unstable cervical
2 In reviewing a trial court’s ruling on a motion to dismiss, an appellate court may consider any exhibits attached to and incorporated into the complaint. See Thomas v. Gregory, 332 Ga. App. 286, 287 (772 SE2d 382) (2015).
3 spine prior to discharging her from the hospital. The two expert affidavits
concluded that the acts and omissions of the doctors contributed to Thomas
being discharged from the emergency room with a dangerously unstable spine.
Dr. Joel Meyer’s affidavit concluded that due to gross negligence on the part of
Dr. Grossman, “the injury to Ms. Lorrine Thomas’s cervical spine progressed
to subluxation and spinal cord injury after the cervical collar was removed at
discharge resulting in her becoming a quadriplegic.”
In August 2015, Thomas filed a second amended complaint that added
three counts of negligence against the hospital. One of those counts asserted a
claim against the hospital of imputed liability, pursuant to the doctrine of
respondeat superior or agency, for the simple negligence of a nursing employee
who removed Thomas’s cervical spine collar in violation of a hospital policy
that only a physician could remove a patient’s cervical spine collar. On the
hospital’s motion, the trial court dismissed that count, finding that the original
complaint was “devoid of allegations of liability on the part of the hospital
nursing staff,” that the new imputed liability claim 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), and that the new claim therefore does
4 not relate back to the filing of the original complaint. On interlocutory appeal,
the Court of Appeals reversed, determining that, as the original complaint
included the allegation that the cervical spine collar was removed by a hospital
employee, as well as other allegations based on the conduct of the hospital and
others related to Thomas’s emergency room visit, treatment, and discharge, her
new imputed liability claim against the hospital for a nurse’s removal of the
collar in violation of hospital policy arose out of the same conduct, transaction,
or occurrence set forth in the original complaint. Thomas, 340 Ga. App. at 73-
74.3
The language of OCGA § 9-11-15 (c) is modeled after Federal Rule of
Civil Procedure 15 (c), “and although there are some differences between the
state and federal provisions, those differences are not material to the question
presented here. We may, therefore, look for guidance in decisions of the federal
3 From the same trial court order that is the subject of this case, Thomas filed a separate appeal to the Court of Appeals regarding the trial court’s grant of summary judgment to the hospital on certain issues. The Court of Appeals affirmed in part, vacated in part, and remanded the case to the trial court. Thomas v. Tenet HealthSystem GB, 340 Ga. App. 78 (796 SE2d 307) (2017). We denied the hospital’s petition for certiorari.
5 courts interpreting and applying” Rule 15 (c).4 Community & Southern Bank v.
Lovell, 302 Ga. 375, 377 (2), n. 6 (807 SE2d 444) (2017). See also Sam Finley,
Inc. v. Interstate Fire Ins. Co., 135 Ga. App. 14, 16 (2) (217 SE2d 358) (1975).
It follows that we may also look to decisions from the courts of other states that
interpret and apply their own rules that are modeled after Federal Rule 15 (c).
With this in mind, we turn first to the standard of review. In its opinion, the
Court of Appeals, after stating that “‘[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,’” said that its review of the ruling on the motion to dismiss in this case
would be reviewed under the “de novo” standard. Thomas, 340 Ga. App. at 71
(citation omitted). We agree. Although the standard of review for “decisions
under the same transaction or occurrence test of Federal Rule 15 (c) (1) (B) has
sometimes been said to be abuse of discretion,” the better position is that
4 Federal Rule 15 (c) (1) (B) provides that “[a]n amendment . . . relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading[.]”
6 decisions under the rule do not involve an exercise of discretion. 3 Edward
Sherman et al., Moore’s Federal Practice — Civil § 15.19 [2] (2018).
Instead, the court asks whether the facts provable under the amended complaint arose out of the conduct alleged in the original complaint. The abuse of discretion standard is suitable for decisions that balance several factors, often including equitable considerations. The relation-back issue, on the other hand, is more analogous to a dismissal on the pleadings. If facts provable under the amended complaint arose out of the conduct alleged in the original complaint, relation back is mandatory. Therefore, the proper standard of review is de novo.
Id. See also Slayton v. American Express Co., 460 F3d 215, 226-228 (2nd Cir.
2006). Accordingly, the decision of the trial court is owed no deference on
appeal. See Johnson v. Burrell, 294 Ga. 301, 301 (2), n. 2 (751 SE2d 301)
(2013).
Generally, our Civil Practice Act (CPA), OCGA § 9-11-1 et seq.,
“advances ‘liberality of pleading.’” Deering v. Keever, 282 Ga. 161, 163 (646
SE2d 262) (2007) (citation omitted). Under OCGA § 9-11-8 (a) (2), an original
complaint, or any other pleading that sets forth a claim for relief, shall contain
“[a] short and plain statement of the claims showing that the pleader is entitled
to relief; and . . . [a] demand for judgment for the relief to which the pleader
deems himself entitled . . . .” Under this provision, “a complaint need only
7 provide ‘fair notice of what the plaintiff’s claim is and the grounds upon which
it rests.’” Mayle v. Felix, 545 U. S. 644, 655 (125 SCt 2562, 162 LE2d 582)
(2005) (citation omitted) (construing similar Federal Rule 8 (a)). Such notice
pleading “is the hallmark of and prescribed by the CPA,” Phagan v. State, 287
Ga. 856, 859 (700 SE2d 589) (2010), which “abolished issue pleading.” Cotton,
Inc. v. Phil-Dan Trucking, 270 Ga. 95, 95 (2) (507 SE2d 730) (1998). The
particular section of the CPA at issue in this case, OCGA § 9-11-15, “is liberally
construed in favor of allowing amendments. Under OCGA § 9-11-15, an
amendment to a complaint may raise a new cause of action.” Deering, 282 Ga.
at 163 (citations omitted). And under OCGA § 9-11-15 (c), the specific
subsection that is relevant here, “[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.” Cf. Federal Rule of Civil Procedure 15 (c)
(1) (B) (formerly Rule 15 (c) (2)) (“An amendment . . . relates back to the date
of the original pleading when . . . the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out — or attempted to be
set out — in the original pleading[.]”). “The very purpose of [OCGA § 9-11-15
8 (c)] is to ‘qualify a statute of limitations.’” Mayle, 545 U. S. at 662 (citation
omitted). The relation back rule
is based on the notion that once litigation involving particular conduct or a given transaction or occurrence has been instituted, the parties are not entitled to the protection of the statute of limitations against the later assertion by amendment of defenses or claims that arise out of the same conduct, transaction, or occurrence as set forth in the original pleading.
6A Wright & Miller, Federal Practice & Procedure Civil § 1496 (3d ed., April
2018 Update). See also Mayle, 545 U. S. at 666 (Souter, J., dissenting).
In OCGA § 9-11-15 (c), like Federal Rule 15 (c) (1) (B), “[t]he key words
are ‘conduct, transaction, or occurrence.’” Mayle, 545 U. S. at 656. The best
“formulation[ ] for describing the parameters of the relation-back doctrine and
focusing on its underlying policies” is the standard found in the rule itself, i.e.,
“whether the amended pleading alleges matter that arises out of the same
conduct, transaction, or occurrence as that set forth in the original pleading.”
6A Wright & Miller, supra at § 1497. See also Grange Mut. Cas. Co. v.
Woodard, 300 Ga. 848, 852 (2) (A) (797 SE2d 814) (2017) (in construing a
provision of the CPA, like other statutes, we must afford the statutory text its
plain and ordinary meaning, view it in context, and read it in its most natural and
9 reasonable way). The Supreme Court of the United States has approved a
“formulation” that is closely based on the plain language of the rule: “relation
back depends on the existence of a common ‘core of operative facts’ uniting the
original and newly asserted claims.” Mayle, 545 U. S. at 659. See also 6A
Wright & Miller, supra at § 1497 (“As is true in a number of other contexts,
such as compulsory counterclaims, crossclaims, and certain third-party claims,
the search under Rule 15 (c) is for a common core of operative facts in the two
pleadings.”). This formulation is consistent with prior analysis by our Court of
Appeals:
[T]he 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. App. 879, 883 (1) (733 SE2d 52) (2012) (citation and
punctuation omitted; emphasis in original). See also Sam Finley, Inc., 135 Ga.
App. at 18, 20 (apparently the first Georgia case to use this language, based on
an extensive quote from Moore’s Federal Practice).
10 The United States Supreme Court has recognized that, in a case where
“[t]here was but one episode-in-suit,” and no “separate episodes” at a “different
time and place,” an “amendment related back, and therefore avoided a statute of
limitations bar, even though the amendment invoked a legal theory not
suggested by the original complaint and relied on facts not originally asserted.”
Mayle, 545 U. S. at 659-660 (explaining Tiller v. Atlantic Coast Line R. Co., 323
U. S. 574, 580-581 (65 SCt 421, 89 LE 465) (1945)). In Tiller, the Supreme
Court emphasized that both the original and amended complaints “related to the
same general conduct, transaction and occurrence which involved” the alleged
injury and that the defendant “had notice from the beginning that [the plaintiff]
was trying to enforce a claim against it because of the events leading up to” that
injury on its property. 323 U. S. at 581. Accordingly, we will examine whether
the factual allegations in Thomas’s original complaint and in the new imputed
liability claim in her second amended complaint are close in time, place, and
subject matter, and involve events leading up to the same injury, such that there
was but a single “episode-in-suit.” See In re Olympia Brewing Co. Securities
Litigation, 612 FSupp. 1370, 1373 (N.D. Ill. 1985) (relying on Tiller and other
federal authority); Porter v. Decatur Mem. Hosp., 882 NE2d 583, 592-593 (Ill.
11 2008) (looking to Tiller and Olympia Brewing); 27A Tracy Bateman et al.,
Federal Procedure, Lawyers Edition § 62:319 (June 2018 Update) (citing
Olympia Brewing).
Thomas’s original complaint alleged that hospital nurses were involved
in her care and treatment at the hospital’s emergency room following the motor
vehicle accident and that the negligent acts and omissions of two doctors caused
Thomas to be discharged just three-and-a-half hours later with a dangerously
unstable spine that resulted in serious injury after hospital personnel removed
her cervical collar. The new imputed liability claim in Thomas’s second
amended complaint alleged that this same removal of the C-collar was the
negligent act of a hospital nursing employee in violation of a hospital policy.
These facts alleged in Thomas’s second amended complaint occurred at the
same time as certain facts in the original complaint, near the end of the three-
and-a-half hour time frame of the treatment preceding the alleged injury. Thus,
the relevant factual allegations were quite close in time, to say the least. They
also occurred at the exact same location, and they involved the same general
subject matter, i.e., the negligent treatment of Thomas’s dangerously unstable
spine. Finally, the allegations were part of the same events that led up to the
12 same ultimate injury for which Thomas is seeking damages. See Porter, 882
NE2d at 593. Cf. Moore v. Baker, 989 F2d 1129, 1132 (11th Cir. 1993) (“The
alleged acts of negligence occurred at different times and involved separate and
distinct conduct.”). As a result of these close factual connections between the
relevant allegations, they amounted to a single “episode-in-suit,” sharing a
“common core of operative facts.” The fact that Thomas’s second amended
complaint invoked a legal theory, the imputed simple negligence of the hospital
nurse who removed the C-collar, that was not in the original complaint does not
prevent this new claim from relating back. See Mayle, 545 U. S. at 659; 6A
Wright & Miller, supra at § 1497 (“The fact that an amendment changes the
legal theory on which the action initially was brought is of no consequence if the
factual situation upon which the action depends remains the same and has been
brought to defendant’s attention by the original pleading.”). Nor is relation back
foreclosed by the original complaint’s omission of an allegation that a nurse’s
negligent conduct caused or contributed to Thomas’s discharge with a
dangerously unstable spine and to the ultimate injury that resulted, as “personal
injury plaintiffs often cannot pinpoint the precise cause of an injury prior to
discovery.” Mayle, 545 U. S. at 660.
13 For the same reasons, relation back is not prevented by the fact that
Thomas’s second amended complaint alleged that the hospital was vicariously
liable for the conduct of a different individual than the individuals on whose
conduct the original claim of imputed liability against the hospital was based.
See Maraj v. North Broward Hosp. Dist., 989 S2d 682, 686 (Fla. App. 2008)
(where the plaintiff sued two emergency room physicians and a hospital as
vicariously liable for their acts, an amended claim against a previously unnamed
radiologist arose out of the same occurrence under a Florida rule very similar to
OCGA § 9-11-15 (c)); Cammon v. West Suburban Hosp. Med. Center, 704
NE2d 731, 737 (Ill. App. 1998) (Illinois’ very similar relation back provision
was triggered by an amended complaint against a hospital for vicarious liability
alleging different conduct by different persons than was alleged in support of the
original claims against the hospital.). See also Miller v. Warren Hosp., 2016
WL 3509305 (D. N.J. 2016) (new claim against hospital for vicarious liability
for previously unnamed health providers related back under the federal rule to
the original complaint that named only a single doctor); Carlson v. Countryside
Manor Healthcare Facility, 2018 WL 2471283 *5 (Conn. Super. Ct. 2018)
(addition of nursing staff as additional actors to a vicarious liability claim for the
14 acts of a doctor related back because, “[a]lthough there are different actors and
possibly different standards of care, . . . [t]he acts committed arose out of the
same factual situation[;] . . . [t]he alleged events occurred during the same
period of time, occurred at the same location, and resulted in the identical
injury”); Lloyd v. Wollin, 2017 IL App. (1st) 162546-U (Ill. App. 2017)
(applying Porter and Olympia Brewing to hold that a new vicarious liability
claim against a hospital for a nurse’s conduct related back to a previous
vicarious liability claim against the hospital for a doctor’s conduct during the
same emergency room visit). Cf. Weber v. Freeman, 3 S3d 825, 834 (Ala.
2008) (under Alabama’s very similar provision, no relation back where the
plaintiff “was seeking to add new facts and a new claim that the surgery center
was vicariously liable for a different doctor on a different day from those actions
that formed the basis of the claims asserted in the [earlier] complaint[s]”).
Accordingly, we conclude that the imputed liability claim in Thomas’s
second amended complaint relates back to the date of her original complaint
pursuant to OCGA § 9-11-15 (c) and that, as a result, that new claim is not
barred by the applicable two-year statute of limitation. The Court of Appeals,
therefore, correctly reversed the trial court’s dismissal of Thomas’s new imputed
15 liability claim as time-barred.5 We note that the hospital asserted in a brief in
support of its motion to dismiss that, contrary to the allegations of the second
amended complaint, the new imputed liability claim actually constituted a claim
of the nurse’s professional negligence rather than simple negligence and,
consequently, was subject to dismissal for Thomas’s failure to file a supporting
expert affidavit under OCGA § 9-11-9.1. The trial court, however, did not rule
on that separate issue, instead assuming that the new claim was based on
allegations of the nurse’s simple negligence, and we express no opinion on it at
this time. Cf. Cammon, 704 NE2d at 738 (“Having determined that the claims
asserting [the hospital] is vicariously liable . . . are not time-barred, we must
next determine whether these claims were properly dismissed by reason of the
plaintiff’s failure to comply with [the statute requiring an expert affidavit].”).
Judgment affirmed. Melton, P. J., Benham, Hunstein, Nahmias,
Blackwell, Boggs, Grant, JJ., and Judge Dean Carlos Bucci concur. Peterson,
J., not participating.
5 To the extent that Thomas v. Med. Center of Central Ga., 286 Ga. App. 147 (648 SE2d 409) (2007), which never cited OCGA § 9-11-15, much less analyzed that statute, is inconsistent with our specific holding in this case, it is hereby disapproved.
16 Decided June 29, 2018.
Certiorari to the Court of Appeals of Georgia — 340 Ga. App. 70.
Huff Powell & Bailey, Brian K. Mathis; Smith, Gambrell & Russell, Leah
Ward Sears, Edward H. Wasmuth, Jr., for appellant.
Garland, Samuel & Loeb, Robin N. Loeb, Anne H. Coolidge-Kaplan, for
appellee.
Allen & McCain, Hunter S. Allen, Jr., Layne Zhou; Charles M. Cork III,
amici curiae.