                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, JJ.

                    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


                                                                     October 1, 2015


In the Court of Appeals of Georgia
 A15A1488. EVANS et al. v. CALDWELL et al.

      BARNES, Presiding Judge.

      Craig Caldwell and his professional practice, Internal Medicine Associates of

Middle Georgia, P. C. (collectively “Caldwell”), appeal the trial court’s order

permitting a substitution and addition of plaintiffs in this medical malpractice case

following the deaths of the named plaintiffs. Caldwell contends that the trial court

erred in allowing the plaintiffs to add only two of the five surviving children of the

deceased plaintiffs, arguing that the wrongful death statute requires all surviving

children must be parties to the suit in the absence of a surviving spouse. For the

reasons that follow, we affirm the trial court.

      In 2012, Claudia Evans sued Caldwell for medical malpractice, alleging that

he had negligently failed to diagnose her cancer. Claudia’s husband, Edison Evans,

asserted a claim for loss of consortium. Edison died in 2013, and Claudia died in

2014, leaving five surviving children. Two of those children – the ones appointed as
executors of their parents’ estates – filed a motion to substitute parties and add

additional parties. The trial court granted the motion, substituting the two children in

their capacities as co-executors in place of the parents and adding the two children

as additional parties for the purpose of pursuing a wrongful death claim for Claudia’s

life. At Caldwell’s request, the court certified its order for immediate review, we

granted Caldwell’s application for interlocutory appeal, and this appeal followed.

      Citing OCGA § 51-4-2, which addresses the parties entitled to bring wrongful

death actions for the death of a spouse or parent, Caldwell argues on appeal that the

trial court erred by allowing fewer than all of Claudia Evans’ five surviving children

to be added as plaintiffs. The plaintiffs argue that Caldwell lacks standing to make

this argument because he is subject to only one cause of action, and that, in any event,

Caldwell’s interpretation of the law is wrong.

      The predecessor to OCGA § 51-4-2 has been amended several times over the

years, and most of the cases cited by both Caldwell and the plaintiffs were decided

under earlier versions of the law. In 1939, Code Ann. § 105-1306 provided a right of

action for wrongful death to the survivors of a married woman:

      The husband and/or child or children may recover from the homicide of
      the wife or mother, and those surviving at the time the action is brought


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       shall sue jointly and not separately, with the right to recover the full
       value of the life of the decedent, as shown by the evidence, and with the
       right of survivorship as to said suit, if either shall die pending the action.


Ga. L. 1939, p. 233, § 1 (emphasis supplied). The Supreme Court interpreted this

language as requiring that all surviving parties had to join in the wrongful death

action for any surviving party to recover. See Happy Valley Farms v. Wilson, 192 Ga.

830, 835 (16 SE2d 720) (1941) (explaining “the necessity of all joining as

plaintiffs”).

       In 1960, the statute was amended to add the following language:

       Provided, however, if any one or more of those comprising the husband
       and children . . . shall desire to bring an action seeking to recover for the
       tortious homicide of such mother, he or they may file such action and
       cause a copy thereof to be served personally upon the remaining
       individuals comprising said husband and children, . . . and any of such
       persons may intervene in said case as an additional plaintiff at any time
       before final judgment. After final judgment, any of such persons not a
       party plaintiff shall have no further right of action against the alleged
       tortfeasor; but any of such persons not duly served as provided above
       shall have a right against the parties plaintiff for his or their
       proportionate part of the recovery in said action.




                                             3
Code Ann. §105-306; (Ga. L. 1960, p. 968, § 1.) Interpreting this additional language,

we held:

      This legislation evidences a clear intent that less than all of the potential
      plaintiffs may bring an action for the full value of the life of the
      decedent, and all potential plaintiffs who are not served may bring a
      subsequent action against the successful plaintiffs for a proportionate
      share of any amount recovered from a tortfeasor.


Adams v. Wright, 162 Ga. App. 550, 552 (2) (293 SE2d 446) (1982). We further held

that the wrongful death defendant in such a case “has no standing to object to an

action by less than all plaintiffs since only one action can be brought against him.”

Id. Thus, if the present case had arisen under the 1960 law, then the plaintiffs plainly

would be correct – all five surviving children would not need to be made parties

plaintiff, and Caldwell would lack standing to object to the addition of fewer than all

of them.

      But the law was amended in 1985 to substantially its present form, which

provides:

      (a) The surviving spouse, or if there is no surviving spouse, a child or
      children . . . may recover for the homicide of the spouse or parent the
      full value of the life of the decedent, as shown by the evidence.




                                           4
      (b)    (1) If an action for wrongful death is brought by a surviving
             spouse under subsection (a) of this Code section and the
             surviving spouse dies pending the action, the action shall survive
             to the child or children of the decedent.

             (2) If an action for wrongful death is brought by a child or
             children under subsection (a) of this Code section and one of the
             children dies pending the action, the action shall survive to the
             surviving child or children.

      ***

      (d)    (1) Any amount recovered under subsection (a) of this Code
             section shall be equally divided, share and share alike, among the
             surviving spouse and the children per capita . . .

OCGA § 51-4-2. See Ga. L. 1985, p. 1253, § 1. The current version of the law, then,

does not contain the language from the 1960 amendment specifically providing that

fewer than all survivors may bring a wrongful death action. Caldwell relies upon this

omission for his claim that the current law requires full survivor participation. He also

argues that the holding in Adams, supra, that the defendant lacks standing to

challenge such matters, does not apply in light of the 1985 statutory change.

      Caldwell’s arguments lack merit. First, although the current law does not

explicitly say that full participation is not required, the language of the statute

strongly implies it. Under OCGA § 51-4-2 (b) (2), if a child brings a wrongful death

action for a parent’s death, but the child later dies, the action “shall survive to the

                                           5
  surviving child or children” — suggesting that the “surviving child or children” was

  not a plaintiff at the outset. Second, nothing in the current law changes the rule

  announced in Adams that a wrongful death defendant “has no standing to object to

  an action by less than all plaintiffs since only one action can be brought against him.”

  162 Ga. App. at 552 (2). Under OCGA § 51-4-2 (d) (1), the recovery from the

  wrongful death action is to be divided equally among the survivors, suggesting that

  there is only one recovery and therefore only one action to be brought. Accordingly,

  Caldwell has no real stake in the question of whether all the children join in the

  action, as the number of plaintiffs does not affect the outcome for him. Under Adams,

  Caldwell lacked standing to object to the motion to add plaintiffs.1

          Because Caldwell lacks standing to complain that fewer than all of Claudia

  Evans’ surviving children are named plaintiffs, and because the trial court did not err

  in granting the plaintiffs’ motion to add and substitute parties, we affirm.

          Judgment affirmed. Ray and McMillian, JJ., concur.

      1
        The plaintiffs also argue that even if Caldwell’s interpretation of the current statute
is correct, the trial court had equitable discretion to allow the prosecution of a wrongful
death claim by parties other than those designated by the statute. See Blackmon v. Tenet
Healthsystem Spalding, 284 Ga. 369, 370-371 (667 SE2d 348) (2008) (recognizing court’s
equitable authority to allow a representative of a minor child to bring a wrongful death
action when a surviving spouse will not). In light of our conclusion that Caldwell lacks
standing and has misread the statute, we do not reach this argument.

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