Professional Negligence Law Reporter

Preferred Women’s Healthcare, LLC v. Sain, 2019 WL 346799 (Ga. Ct. App. Jan. 28, 2019).

A Georgia appellate court held that Ga. Code Ann. §9-3-71 (b), which creates a five-year statute of ultimate repose for medical negligence actions, bars a plaintiff from amending his complaint to add another defendant physician five years after the alleged negligence. Here, Debbie Sain received prenatal care from Preferred Women’s Healthcare (PWH) in early 2012. In April of that year, she underwent several ultrasounds, which showed a large mass on the right adnexa of the uterus and the absence of a right ovary. The mass was not disclosed to Sain during the pregnancy. After giving birth, she required exploratory surgery, which revealed that the mass, identified as squamous cell carcinoma of the right ovary, had ruptured. Sain died of metastatic cancer the following year.

In July 2014, Sain’s husband filed a wrongful death lawsuit against PWH, the physician who performed the exploratory surgery, and the doctor who delivered Sain’s child by cesarean section. In February 2017, plaintiff counsel discovered at deposition that another physician, Audrey Arona, had been aware of the mass in April 2012 after reviewing the sonographer’s report. That June, counsel moved to amend the complaint to add Arona as a party. The trial court granted the motion. The defense filed an interlocutory appeal.

Reversing, the appellate court noted that §9-3-71(b) creates a bright-line rule that precludes late-filed complaints on a case-by-case basis. The court distinguished case law allowing late amendment of a wrongful death claim under the statute. The court found that there is a qualitative difference between amending a complaint to add a defendant to a pending suit and other types of amended pleadings that don’t demand judgment from a new defendant.

Applying these principles, the court found that the plaintiff had not commenced his medical negligence action against Arona until he amended his complaint over five years after the doctor’s alleged negligence. By the time the plaintiff named Arona, his cause of action against her no longer existed under the statute of repose, the court said. Thus, the court held that the trial court had erred in allowing the plaintiff to amend his complaint to add Arona in June 2017.

Comment: In another obstetrics case, Tapia v. Alam, No. L-000163-15 (N.J. Super. Ct. Essex Cnty. Oct. 24, 2018), the parents of twins alleged that maternal-fetal medicine specialist Garry Frisoli was aware of one of the twin’s possible intrauterine growth retardation on a series of four prenatal screening tests conducted during a high-risk pregnancy but did not contact the mother or her obstetrician for four days after learning of this. The plaintiffs alleged that Frisoli should have timely contacted
the obstetrician for additional tests, which would have revealed fetal distress and avoided their daughter’s severe brain damage. A jury awarded $20 million, apportioning liability at 70 percent against the treating obstetrician, who settled confidentially before trial, and 30 percent against Frisoli. AAJ member Dennis M. Donnelly, Summit, N.J., represented the plaintiffs.