                                   FOURTH DIVISION
                                    DILLARD, C. J.,
                                 RAY, P. J., and SELF, J.

                       NOTICE: Motions for reconsideration must be
                       physically received in our clerk’s office within ten
                       days of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules


                                                                       August 14, 2017




In the Court of Appeals of Georgia
 A17A1208. OLLER et al. v. ROCKDALE HOSPITAL, LLC et al.

       RAY,   Judge.

       Heather Oller, as the executor of the estate of Shirley Nobles, and David

Nobles (“Appellants”) filed a renewal complaint asserting medical malpractice claims

against various defendants, including 24 On Physicians, PC (“24 On”). The trial court

granted partial summary judgment to 24 On, finding that certain claims were barred

by the statute of limitation. Appellants filed this appeal, contending that the trial court

erred in concluding: (i) that any claims against 24 On for vicarious liability of its

agents, other than those specifically named in the renewal complaint and OCGA § 9-

11-9.1 affidavit, were barred by the expiration of the statute of limitation; (ii) that the

language of the amended OCGA § 9-11-9.1 affidavit, as opposed to the timely filed

renewal complaint, controls the determination of the expiration of the statute of
limitation; and (iii) that Appellants could not file an amended expert affidavit to

conform to the renewal complaint and the evidence revealed during discovery. For

the following reasons, we reverse.

      The standard of review for an appeal from a grant of summary judgment is de

novo, viewing the evidence in the light most favorable to the nonmoving party, to

determine whether a genuine issue of material fact remains or whether the moving

party is entitled to judgment as a matter of law. Smith v. Lott, 317 Ga. App. 37, 37

(730 SE2d 663) (2012).

      So viewed, the record shows that Shirley Nobles (“Nobles”) was admitted to

Rockdale Medical Center on May 7, 2011. Three days later, Nobles was found

unresponsive due to a hypoglycemic event. Nobles never regained full neurological

function and was discharged for hospice care with a diagnosis of a severe brain injury

caused by hypoglycemia. Nobles ultimately died on June 3, 2011.

      The initial lawsuit was filed on May 10, 2013, against Lifepoint Hospitals, Inc.,

Rockdale Hospital, LLC d/b/a Rockdale Medical Center, Dr. Jeffrey C. Mitchell, Dr.

Alunda E. Hunt, Rockdale Physician Practices, LLC, and Stacey V. Grant, RN.

Appellants sought to recover wrongful death and estate damages for the acts and

omissions leading to Nobles’ untimely death. Pursuant to OCGA § 9-11-9.1,

                                          2
Appellants simultaneously filed an expert affidavit of Dr. Robert Cooper. Appellants

voluntarily dismissed the original complaint without prejudice on October 21, 2013,

and filed a renewal complaint, pursuant to OCGA § 9-2-61, on March 18, 2014. In

the renewal complaint, Appellants asserted their claims against 24 On Physicians, PC,

as well as Rockdale Hospital, LLC d/b/a Rockdale Medical Center, Dr. Jeffrey C.

Mitchell, Dr. Alunda E. Hunt, and Stacey V. Grant, RN. However, the OCGA § 9-11-

9.1 affidavit that was filed with the renewal complaint did not specifically mention

24 On.

      On April 23, 2014, 24 On filed a motion to dismiss on various grounds,

including allegations that the second affidavit failed to set forth “even one negligent

act or omission on the part of Defendant 24 On Physicians, PC.” In response, on May

27, 2014, Appellants filed a third affidavit of Dr. Cooper, in order to include specific

acts of negligence against 24 On. The trial court denied 24 On’s motion to dismiss on

June 4, 2014. Finally, on October 8, 2015, Appellants filed the fourth and final

affidavit of Dr. Cooper which, inter alia, clarified that his expert opinion regarding

negligence and breaches of the standard of care extended to 24 On’s employees and




                                           3
physicians who treated Nobles, bringing the language of the final affidavit in line

with the averments of Count 1 of the renewal complaint.1

      On March 16, 2016, 24 On filed a motion for partial summary judgment,

contending that Appellants’ claims for vicarious liability by any of 24 On’s

employees or physicians other than Dr. Mitchell and Dr. Hunt should be dismissed

as untimely because such claims had been asserted after the expiration of the statute

of limitation. Appellants responded on April 18, 2016, arguing that the statute of

limitation for the claims on behalf of the estate had not expired prior to the assertion

of the vicarious liability claims in the pleadings and that the fourth amended affidavit

simply supported the existing claims in the renewal complaint. On September 12,

2016, the trial court entered an order granting 24 On’s motion for partial summary

judgment. Appellants filed a motion for reconsideration of the trial court’s order on

September 19, 2016. The trial court denied the motion for reconsideration on

November 16, 2016, and issued a certificate of immediate review on November 22,

2016. We granted Appellants’ application for interlocutory appeal, and this appeal

ensued.

      1
        Dr. Cooper later testified at his deposition that his amended affidavit was
based, in part, on the acts or omissions of Dr. Syed, a physician employed by 24 On
who had treated Nobles immediately after she was found unresponsive.

                                           4
       1. In three related enumerations of error, Appellants essentially contend that

the trial court erred in determining that the vicarious liability claims against 24 On

for the negligent acts of any of its physicians other than Dr. Mitchell and Dr. Hunt

were barred by the expiration of the statute of limitation. For the reasons that follow,

we agree.

       (a) Appellants were not required to specifically name each physician for which

24 On was allegedly responsible in the renewal complaint. In an action for medical

malpractice, Georgia law simply requires that “any pleading which sets forth a claim

for relief . . . shall contain . . . [a] short and plain statement of the claims showing that

the pleader is entitled to relief[.]” OCGA § 9-11-8 (a) (2) (A). In the renewal

complaint, which was timely filed, Appellants claimed that 24 On was vicariously

liable for the negligence of the “physicians that attended Shirley Nobles” and that

“the treating physicians [were] actual and/or ostensible agents or otherwise servants

and/or employees of . . . 24 On[.]” (Emphasis supplied). As the agents for which 24

On was allegedly liable were identified as “the treating physicians” in the renewal

complaint, 24 On was provided with sufficient notice of the agents for which it was

allegedly responsible.



                                             5
      (b) In considering the statute of limitation, the renewal complaint is the

controlling pleading in this case. Furthermore, as the renewal complaint contemplated

physicians other than those specifically named in the initial expert affidavit, the

amended expert affidavit did not assert new claims after the expiration of the statute

of limitation.

      This Court has held that an amended affidavit that was filed after the expiration

of the statute of limitation did not state a new claim, and that the complaint therefore

was the controlling pleading as to the statute of limitation. See Bonner v. Peterson,

301 Ga. App. 443, 445-448 (1) (687 SE2d 676) (2009). All that is required of an

expert affidavit is that it “set forth specifically at least one negligent act or omission

claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1 (a) (3).

Furthermore, OCGA § 9-11-9.1 (e) provides, in pertinent part:

      If a plaintiff files an affidavit which is allegedly defective, and the
      defendant to whom it pertains alleges, with specificity, by motion to
      dismiss filed on or before the close of discovery, that said affidavit is
      defective, the plaintiff’s complaint shall be subject to dismissal for
      failure to state a claim, except that the plaintiff may cure the alleged
      defect by amendment pursuant to Code Section 9-11-15 within 30 days
      of service of the motion alleging that the affidavit is defective.




                                            6
(Emphasis supplied). It is well-settled that the purpose of OCGA § 9-11-9.1 is to

avoid frivolous lawsuits, and that allowing a plaintiff to amend an expert affidavit

does not frustrate this purpose. See Porquez v. Washington, 268 Ga. 649, 652 (1) (492

SE2d 665) (1997) (physical precedent only) (allowing the amendment of OCGA § 9-

11-9.1 affidavit “does not defeat the purpose of the statute, but instead helps to insure

that the complaint is not frivolous”); Gadd v. Wilson & Co., Engineers & Architects,

262 Ga. 234, 235 (416 SE2d 285) (1992) (initial OCGA § 9-11-9.1 affidavit which

did not specifically identify defendant as a negligent party was curable by

amendment, where the pleadings indicated that the defendant was implicitly the party

to whom plaintiff was attributing the alleged negligence).

      Here, Appellants were acting within the scope of the law when they filed the

amended affidavit. The fourth and final affidavit of Dr. Cooper, though it was filed

after the expiration of the statute of limitation, simply conformed to the language of

the renewal complaint, and it corrected the language of the third affidavit to include

the negligence of “24 On, [and] its employees and physicians[.]” Thus, when viewed

in comparison to the language of the renewal complaint, which includes “the treating

physicians as actual and/or ostensible agents or otherwise servants and/or employees



                                           7
of . . . 24 On[,]” it is clear that the purpose of Dr. Cooper’s fourth affidavit was

simply to track the language of the renewal complaint.

      The facts here can be distinguished from those in Thomas v. Med. Ctr. of

Central Ga., 286 Ga. App. 147 (648 SE2d 409) (2007), which 24 On cited as support

for its contention that the fourth amended OCGA § 9-11-9.1 affidavit constituted a

new claim outside of the statute of limitation. In Thomas, the plaintiff initially filed

an initial complaint against the hospital alleging that it was responsible for the

negligence of one if its physicians. After the expiration of the statute of limitation,

however, the plaintiff filed an amended complaint and an amended expert affidavit

to include the conduct of the hospital’s nurses. Id. at 147-148. This Court held that

the amended affidavit asserted a new claim based on the conduct of a group of

professionals who were not contemplated in the initial complaint and, therefore, such

a claim was barred by the expiration of the statute of limitation. In so holding, we

reasoned that allowing a plaintiff to add a different group of professionals under such

circumstances would frustrate the intent of OCGA § 9-11-9.1. Id. at 148-149. In the

present case, however, the alleged negligence of the “treating physicians” who were

agents or employees of 24 On was contemplated in the renewal complaint. Therefore,



                                           8
the language of the fourth amended OCGA § 9-11-9.1 affidavit cannot be considered

to state a new claim outside the expiration of the statute of limitation.

      Judgment reversed. Dillard, C. J., Ray, P. J., and Self, J., concur fully and

specially.




                                           9
 A17A1208. OLLER et al. v. ROCKDALE HOSPITAL, LLC et al.

      DILLARD, Chief Judge.

      I fully concur with the majority’s well-reasoned opinion. I write separately to

further address 24 On’s argument that the renewal complaint cannot be amended to

assert a vicarious liability claim involving Dr. Syed outside the statute of limitation.

      I agree with the majority that the renewal complaint satisfies Georgia’s notice-

pleading requirements with respect to the alleged negligence of Nobles’s treating

physicians even if they were not specifically named in the complaint. But even if that

were not the case, Georgia’s Civil Practice Act allows for initial theories of liability

to be amended as more information is discovered during the course of litigation.1

      Specifically, OCGA § 9-11-15 (a) provides that “[a] party may amend his

pleading as a matter of course and without leave of court at any time before the entry

of a pretrial order.” And even after that, “the party may amend his pleading . . . by

leave of court . . . .”2 Moreover, such leave “shall be freely given when justice so



      1
        See OCGA § 9-11-15 (a); see also Life Ins. Co. v. Meeks, 274 Ga. App. 212,
216 (2) (2005) (“When entered, the pretrial order supersedes the pleadings and
controls the subsequent scope and course of the action.”).
      2
          OCGA § 9-11-15 (a).
requires.”3 Indeed, we have held that OCGA § 9-11-15 (a) is to be forgivingly

construed “in favor of the allowance of amendments, particularly when the party

opposing the amendment is not prejudiced thereby.”4 Additionally, even if the

Appellants never formally amend their complaint, OCGA § 9-11-15 (b) provides that

“[w]hen issues not raised by the pleadings are tried by express or implied consent of

the parties, they shall be treated in all respects as if they had been raised in the

pleadings.” Thus, as discovery proceeds in this case, “[s]uch amendment of the

pleadings . . . may be necessary to cause them to conform to the evidence and to raise

these issues may be made upon motion of any party at any time . . . .”5

      Finally, under OCGA § 9-11-15 (c), “[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.” And here, 24 On has not alleged that Dr. Syed’s

treatment of Nobles arose out of separate and distinct set of circumstances from those

      3
          Id.
      4
        Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816, 817 (640 SE2d 343)
(2006) (punctuation omitted); see Thomas v. Tenet Healthsystem GB, Inc., 340 Ga.
App. 70, 72 (796 SE2d 301) (2017) (“[W]e are to construe OCGA § 9–11–15
[forgivingly] in favor of allowing amendments.”).
      5
          OCGA § 9-11-15 (b).

                                          2
set forth in the initial complaint. Instead, 24 On essentially argues that every theory

of vicarious liability against it involving the treatment of Nobles by its physicians

must include each treating physician’s name in the renewal complaint. But as ably

explained by the majority, that is not how notice pleading works. Indeed, the

forgiving notice pleading standard of OCGA § 9-11-8 (a) (2) (A)—Georgia’s

statutory codification of Federal Rule of Civil Procedure 8 (a) (2)—is “the starting

point of a simplified pleading system, which was adopted to focus litigation on the

merits of a claim.”6 Thus, while 24 On attempts to characterize the vicarious liability

claim involving Dr. Syed as a separate time-barred claim, it is simply another theory




      6
        Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (II) (122 Sct 992, 152 LE2d
1) (2002) (Thomas, J.); see also Bell Atlantic Corp. v. Twombly, 550 U. S. 544, 575
(I) (127 SCt 1955, 167 LE2d 929) (2007) (Stevens, J., dissenting) (“Under the relaxed
pleading standards of the Federal Rules, the idea was not to keep litigants out of court
but rather to keep them in. The merits of a claim would be sorted out during a flexible
pretrial process and, as appropriate, through the crucible of trial.”); Walker v.
Oglethorpe Power Corp., No. A17A0384, 2017 WL 2493285 at *15 (Ga. App. June
9, 2017) (“[I]n Georgia, it is not necessary for a complaint to set forth all of the
elements of a cause of action in order to survive a motion to dismiss for failure to
state a claim. Instead, the Georgia Civil Practice Act requires only notice pleading
and, under the Act, pleadings are to be construed forgivingly and reasonably to
achieve substantial justice consistent with the statutory requirements of the Act.”
(cleaned up)).

                                           3
of vicarious liability against it for medical malpractice that may be raised, upon

remand, in any manner authorized by OCGA § 9-11-15.7

      I am authorized to state that Ray, P. J. and Self, J. join in this special

concurrence.




      7
         As aptly noted in the Georgia Trial Lawyers Association’s amicus brief, we
have recently held in the medical-malpractice context that, under OCGA § 9-11-15
(c), amendments filed outside the statute of limitation related back to the original
complaint under circumstances similar to this case. See Thomas, 340 Ga. App. at 73-
74 (holding that a claim that a medical facility was vicariously liable for negligence
of its nurses during a plaintiff’s visit to the emergency room that was filed outside the
statute of limitation related back to the original complaint that alleged only that the
medical center was vicariously liable for the negligence of its physicians during the
same emergency room visit); Jensen v. Yong Ha Engler, 317 Ga. App. 879, 883-84
(1) (b), (2) (733 SE2d 52) (2012) (holding that claims of professional negligence and
battery asserted outside the applicable statute of limitation related back to the
plaintiff’s timely ordinary negligence claim because, even if they did not arise from
the same factual allegations, they arose from “out of the conduct, transaction, or
occurrence set forth in the original pleading, which we described as the plaintiff’s
“surgery, emergency room visit, and discharge.”)

                                           4
