FIFTH DIVISION

MCFADDEN, P. J.,

GOBEIL and PINSON, 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.

https://www.gaappeals.us/rules

June 24, 2022

In the Court of Appeals of Georgia

A22A0160. MILDRED TOOMER, IN HER CAPACITY AS

ADMINISTRATOR OF THE ESTATE OF MILTON

MCBRIDE v. METRO AMBULANCE SERVICES, INC.

PINSON, Judge.

Milton McBride was injured when two employees of an ambulance company

dropped him froma stretcher. He died more than a year later. The administrator of his

estate, Mildred Toomer, sued the company and the two employees to recover for his

injuries, just inside the statutory limitation period for personal-injury actions. But

later, during discovery, Toomer learned that McBride’s injuries from the stretcher

incident caused his death, so she amended her complaint to add a wrongful-death

claim. The trial court dismissed the wrongful-death claim as untimely. 

We reverse. The new claim was timely because it related back to the original

complaint under OCGA § 9-11-15 (c). The new claim arose out of the same core of
operative facts that gave rise to Toomer’s initial negligence claims: McBride being

dropped from the stretcher and sustaining serious injuries. The relation-back inquiry

here is not affected by the rule that we must “strictly construe” the wrongful-death

statute. That rule is not a true “strict construction” rule, but in any event, we are not

interpreting that statute. Nor does Miles v. Ashland Chem. Co., 261 Ga. 726, 727-28

(410 SE2d 290) (1991), which rejected a discovery rule for wrongful-death actions,

have anything relevant to say about the relation-back question here. Finally, Toomer

could properly add the claim because she was acting in the same capacity in filing

each claim, and even if that were not so, adding the new claim was proper under the

testset out in Morris v. Chewning, 201 Ga. App. 658, 659-60 (411 SE2d 891) (1991). 

Background

Metro Ambulance Services provides non-emergency medical transport for

patients who are non-ambulatory. On April 28, 2016, two Metro employees, Milagros

Bracero and Keysha Ford, were taking Milton McBride back to his hospital room

from a routine appointment. They were carrying McBride on a stretcher because he

is paraplegic. But he had not been properly secured in the stretcher for transport, and

he fell off the stretcher onto pavement. McBride sustained multiple injuriesin the fall,

including a fractured neck and spine. 

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McBride died on June 26, 2017. A little lessthan ten monthslater, on April 10,

2018, the administrator ofMcBride’s estate, Toomer, brought a personal-injury action

against Metro seeking damages for medical expenses and pain and suffering. This

wasjust before the two-year statute of limitationsfor personal-injury actions expired.

See OCGA § 9-3-33 (“[A]ctionsfor injuriesto the person shall be brought within two

years after the right of action accrues. . . .”).

During discovery, Toomer consulted with an expert forensic pathologist, Dr.

Matthias Okoye.After reviewing the medicalrecords and evidence, Dr. Okoye opined

that McBride’s death was caused by complications from the neck fractures he

suffered as a result of hisfall from the stretcher. So on October 21, 2020—three years

after McBride’s death—Toomer amended her complaint under OCGA § 9-11-15 to

add a claim for wrongful death against all of the defendants. 

Metro moved to dismiss the wrongful-death claim, contending that it was

barred by the statute of limitations. The trial court granted the motion. Toomer argued

that the wrongful-death claim related back to the original complaint under OCGA §

9-11-15 (c), but the court reasoned that the wrongful death claim could not relate

back to the initial complaint because (1) it did not arise from the same injury alleged

in the initial complaint, (2) wrongful-death claims cannot take advantage of the

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relation-back provision of OCGA § 9-11-15 (c), and (3) Toomer was acting in a

different capacity in bringing the personal-injury claim than she was in bringing the

wrongful death claim. We granted Toomer’s application for interlocutory review of

the trial court’s order. 

Discussion

When reviewing a trial court’s ruling on a motion to dismiss an amended

complaint as untimely, we evaluate “whether the facts provable under the amended

complaint arose out of the conduct alleged in the original complaint.” Tenet

Healthsystem GB, Inc. v. Thomas, 304 Ga. 86, 89 (816 SE2d 627) (2018) (citation

omitted). This “relation-back issue . . . is more analogous to a dismissal on the

pleadings” and the proper standard of review is de novo. Id. (citation omitted).

1. A new claim in an amended complaint “relates back to the date of the

original pleading” when it “arises out of the conduct, transaction, or occurrence set

forth or attempted to be set forth in the original pleading.” Tenet, 304 Ga. at 90;

Deering v. Keever, 282 Ga. 161, 163 (646 SE2d 262) (2007). (“Under OCGA § 9-11-

15, an amendment to a complaint may raise a new cause of action”). The idea is that

allowing the amendment even after the limitation period has run does not deprive the

defendant of a statute of limitation’s protection from stale claims if the initial

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complaint gave a defendant fair notice of the conduct, transaction, or occurrence

giving rise to the amended complaint. Morris v. Chewning, 201 Ga. App. 658, 659-60

(411 SE2d 891) (1991). This relation-back provision is “liberally construed in favor

of allowing amendments.” Deering, 282 Ga. at 163.

The “same conduct, transaction, or occurrence” question “turns on fair notice

of the same general fact situation from which the claim arises.” Tenet, 304 Ga. at 90-

91 (citation omitted; emphasis in original). Put another way, “relation back depends

on the existence of a common ‘core of operative facts’ uniting the original and newly

asserted claims.” Id. at 90 (citation and punctuation omitted). The new claim relates

back if the factual allegations in the original complaint and those supporting the new

claim in the 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.’” Id. at 91.

Justso here. Toomer’s original complaint, filed in her capacity as administrator

of McBride’s estate, alleged negligence and sought to recover for McBride’s “pain

and suffering” as well as his medical expenses. As soon as Toomer obtained the

opinion from her expert witness that McBride’s death was likely caused by his fall

from the stretcher, she amended the complaint to add a wrongful-death claim seeking

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to recover for the “full economic value of [McBride’s] life.” That claim arises out of

the same core of operative facts that gave rise to her initial negligence claims:

McBride not being secured properly to the stretcher, falling from the stretcher to the

pavement, and sustaining injuries to his neck and spine. Although the amended

complaint newly alleges that those injuries (particularly the neck fractures) later led

to McBride’s death, it alleges the same episode as the root cause. Although the

original complaint “did not expressly pray for damages for the full value of the

decedent’s life . . . the original pleading gives fair notice of the general fact situation

out of which the claim arises and specifies the conduct of [the defendants] upon

which [Toomer] relies.” Morris, 201 Ga. App. at 659 (citation and punctuation

omitted). This is enough for the wrongful-death claim to relate back to the original

complaint under OCGA § 9-11-15 (c). See Tenet, 304 Ga. App. at 89-91 (patient who

filed an initial complaint for professional negligence was permitted to file an

amended complaint which related back for limitations purposesfor additional counts

of simple negligence when the alleged wrongful acts took place as a result of the

same hospital admission for the patient’s unstable spine); Jensen v. Engler, 317 Ga.

App. 879, 883-84 (1) (b), (2) (733 SE2d 52) (2012) (amended complaint against

surgeon, adding professional negligence and battery claims, related back, for

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limitations purposes, to original timely complaint for ordinary negligence, when all

claims arose from patient’s gallbladder surgery, follow-up, and discharge). 

2. The trial court declined to allow the new wrongful-death claimto relate back

because “[t]he wrongful death statute of limitation is construed narrowly,” and the

court saw “nothing in OCGA § 9-11-15 that specifically addressed or altered the

narrow construction.” That reasoning has a couple of problems.

To begin with, we should clarify something about the rule of so-called “strict”

or “narrow” construction of the wrongful-death statute, which allows recovery in

cases in which the death of a human being results from negligence. See OCGA § 51-

4-1 et seq. It is true that our Supreme Court has said that the wrongful-death statute,

being in derogation of the common law, must be “strictly construed.” Thompson v.

Watson, 186 Ga. 396, 405 (197 SE 774) (1938), disapproved of on other grounds by

Walden v. Coleman, 217 Ga. 599, 604 (124 SE2d 265) (1962). But each time the

Court has said this or something like it, the Court has made clear that this is not quite

a rule of strict construction in the usual sense—that is, it is not a tiebreaker that

requires choosing the narrower construction when multiple reasonable ones are

pressed. Instead, the Court simply explains that “[t]he express language of the Act

will be followed” and “no exceptions to the requirements of the Act will be read into

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the statute by the courts.” Tolbert v. Maner, 271 Ga. 207, 208 (518 SE2d 423) (1999)

(punctuation and footnote omitted);see also Lovett v. Garvin, 232 Ga. 747, 748 (208

SE2d 838) (1974) (“Since [the wrongful-death statute] gives a right of action not had

under common law, it must be limited strictly to the meaning of the language

employed and not extended beyond its plain and explicit terms.”); Thompson, 186 Ga.

at 405 (explaining thatstatutes “in derogation of the common law . . . must be limited

strictly to the meaning of the language employed, and not extended beyond the plain

and explicit terms of the statute”). Those instructions sound a lot like what we already

do when we interpret statutes: give the statutory text its “plain and ordinary

meaning,” “view[ed] in the context in which it appears,” Deal v. Coleman, 294 Ga.

170, 172 (751 SE2d 337) (2013), and don’t create judge-made exceptions not found

in the statute, see, e.g., Turner v. Georgia River Network, 297 Ga. 306, 308-09 (773

SE2d 706) (2015) (“The doctrine of separation of powers is an immutable

constitutional principle whichmust be strictly enforced. Under that doctrine,statutory

construction belongsto the courts, legislation to the legislature. We can not add a line

to the law.”); Morse v. SunTrust Bank, N.A., A22A0200, 2022 WL 1533841 at *7

(Ga. Ct. App. May 16, 2022) (“[I]t is not the judiciary’s province to create exceptions

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to statutes.”). Those basic rules of statutory construction apply to the wrongful-death

statute, too.

1

But whatever that rule of construction’s import for interpreting the wrongfuldeath statute, we can put it aside here, because we are not interpreting the wrongfuldeath statute. The question here is whether an otherwise proper wrongful-death claim

(at this stage) added in an amended complaint relates back to the original complaint.

We answer that question by applying the Civil Practice Act’srelation-back provision,

OCGA § 9-11-15 (c), not the wrongful-death statute. And if we conclude that the new

claim relates back (and as we just explained, we do), even then “the general two-year

statute of limitation for personal injury claims” applies, because the wrongful-death

statute does not have its own statute of limitation. DeKalb Med. Ctr., Inc. v. Hawkins,

288 Ga. App. 840, 845 (2) (a) (655 SE2d 823) (2007), overruled on other grounds

1 We also note that the common phrasing of the more general rule of

construction about statutes in derogation of the common law—that such statutes are

to be “strictly construed”—has been called “a relic of the courts’ historical hostility

to the emergence of statutory law.” Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 318-19 (2012). Although it makessense to presume

that a statute does not change the common law unless it does so clearly, if a statute

does clearly change the common law, it is not apparent where a court would get the

power to limit that clear change through a rule of construction. See Turner, 297 Ga.

at 308-09.

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recognized by Ga. Dept. of Transp. v. Delor, 351 Ga. App. 414, 420 (2) n. 25 (830

SE2d 519) (2019).2

Metro resists relation back based on Miles v. Ashland Chemical Co., 261 Ga.

726, 727-28 (410 SE2d 290) (1991), which held that the “discovery rule” does not

apply to claimsfor wrongful death: plaintiffs must file a wrongful-death claim within

two years of the death, regardless of when they discover what caused the death. 261

Ga. at 726. . But that holding is not inconsistent with our holding here that the

wrongful-death claim relates back to the original complaint. If a claim relates back

to the original complaint, it is deemed filed as of the date of the original complaint.

And here, that complaint wasfiled within two years of McBride’s death. So Toomer’s

wrongful-death claim is timely without applying a discovery rule. 

2

In the related contexts of tolling and renewal actions, we have not read special

wrongful-death exceptions into the relevant statutes. See DeKalb Medical Ctr., 288

Ga. App. at 844-48 (holding that the provision which tollsthe statute of limitation for

minor plaintiffs, OCGA § 9-3-90 (a), applied to a minor’s claim for the wrongful

death of a parent and extended the limitation period until the plaintiff reached the age

of majority); Somani v. Cannon, __ Ga. App. __ (1) (872 SE2d 9) (2022) (tolling of

two-year limitation period for minor child’s wrongful death action did not end, and

limitation period did not begin to run, when conservator previously filed wrongful

death lawsuit on child’s behalf against other defendants); Stokes v. Hill, 324 Ga. App.

256, 257 (749 SE2d 819) (2013) (recognizing that when plaintiff filed and dismissed

a wrongful death lawsuit within the two-year statute of limitation that she later

dismissed, plaintiff had the right to file one renewal action under OCGA § 9-2-61 that

would relate back to the original suit).

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Metro also points out that the Miles Court declined to apply the discovery rule

to wrongful-death claims based on the Court’s belief that “[t]o prolong the running

of this period would be to subject the defendants to potentially infinite liability and

is counter to the policy underlying statutes of limitation.” Id. at 728. But for one

thing, relation back does not toll a statute of limitation like a discovery rule does.

Relation back is but a limited means of turning back the effective filing date for a set

of factually related claims. For another, relation back does not subject defendants to

“potentially infinite liability,” because only the limited universe of claims that arose

from the same conduct, transaction, or occurrence may be added. And finally, in any

event, those kinds of policy concerns cannot override the plain language of the Civil

Practice Act, which allows relation back under these circumstances without limiting

the kinds of claims that may take advantage of it.

3. In ruling that Toomer’s wrongful-death claimwastime-barred, the trial court

also noted that Toomer was acting in a different capacity than when she filed the

original complaint.

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3 Metro argues that Toomer waived this argument because she did not raise it

below. But the trial court’s order granted the defendants’ motion to dismiss in part

because it found that she was acting “in a different legal capacity as administrator of

the estate (personal injury claim) and as heir of the decedent (wrongful death claim).”

Because the trial court ruled on this basis, it is properly before us. See, e. g.

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First, we reject the premise that Toomer was acting in a different capacity. She

had the statutory right to bring both the initial personal-injury action under OCGA §

9-2-41 and the wrongful-death claim under OCGA § 51-4-5 (a) in her capacity as the

administrator of McBride’s estate.4 And neither the trial court nor Metro offer any

basis for concluding that having different statutory authority for the two claims

somehow precluded application of the relation-back provision.

Second, even if Toomer were acting in different capacities in filing her initial

and amended complaints, that would not end the inquiry. Complaints “may be

amended to change the capacity of the plaintiff,” and the amended complaint will

relate back to the original one if the three-part test in Morris, 201 Ga. App. at 659, is

met. This test requires a plaintiff to show that (1) the claim “asserted in the amended

Lafontaine v. Alexander, 343 Ga. App. 672, 679 (6) n. 8 (808 SE2d 50) (2017).

4 Code Section 9-2-41 provides that “No action for a tort shall abate by the

death of either party. . . . The cause of action, in the case of the death of the plaintiff

and in the event there is no right of survivorship in any other person, shall survive to

the personal representative of the deceased plaintiff.” And OCGA § 51-4-5 provides

that the administrator or executor of the decedent’s estate may bring a wrongful-death

claim when “there is no person entitled to bring an action for the wrongful death of

a decedent.” OCGA § 51-4-5 (a); see Seay v. Valdosta Kidney Clinic LLC 353 Ga.

App. 378, 379 (1) (837 SE2d 529) (2020). Although a wrongful-death claimgenerally

belongs to a surviving spouse, child or surviving parents, see OCGA § 51-4-2 (a), at

the time of his death, McBride had no spouse or children and his parents were

deceased. 

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complaint arises out of the conduct, transaction, or occurrence set forth” in the

original complaint, (2) there is an “identity of interest between the old and new

parties,” and (3) relation back will not prejudice the defendant. Morris, 201 Ga. App.

at 659.

Toomer would pass that test here. We have already explained why the

wrongful-death claim in the amended complaint arose from the same conduct,

transaction, or occurrence set forth in the original complaint. Toomer also “had the

same beneficial interest in the subject matter of the litigation and was asserting a

claim for recovery of damages resulting from the same alleged acts or omissions.”

Morris, 201 Ga. App. at 659. And finally, there was no prejudicial delay because

Toomer “did not propose the amendment as a dilatory measure but instead sought in

good faith” to add the wrongful death claim assoon asit was brought to her attention.

Morris, 201 Ga. App. at 659; see Seay, 353 Ga. App. at 382 (1) (trial court should

have permitted amendment to wrongful death complaint to add patient’s widow as

plaintiff outside the statute of limitation to relate back to the initial complaint filed

by patient’s estate and children when parties shared an identity of interests and claim

arose from occurrences alleged in original complaint).

*

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For the above reasons, we conclude that Toomer’s wrongful-death claim was

timely, and so we reverse the trial court’s order granting Metro’s motion to dismiss

Toomer’s amended complaint.

Judgment reversed. McFadden, P. J., and Gobeil, J., concur.

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