THIRD DIVISION

DOYLE, P. J.,

REESE and BROWN, 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

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

June 22, 2021

In the Court of Appeals of Georgia

A21A0413. CONNIE v. GARNETT.

BROWN, Judge.

Keyla Connie filed this medical malpractice suit against Doctors Hospital of

Augusta, LLC (“DHA”), HCA Holdings, Inc., William S. Hiltz, M.D., and Robert P.

Garnett, M.D.1 The trial court granted summary judgment in favor of Garnett, and

Connie now appeals. She also appeals the trial court’s denial of her motion to add

Melissa Turner, a physician assistant who treated her, as a party-defendant and the

grant of Turner’s special appearance motion to dismiss. For the reasons explained

below, we affirm the trial court’s order denying Connie’s motion to add Turner as a

party-defendant, but reverse the grant of summary judgment in favor of Garnett.

1 HCA Holdings, Inc., Hiltz, and DHA were subsequently dismissed from the

action and are not parties to this appeal.
The underlying facts of this case are largely undisputed. Connie, a 29-year-old

woman, presented to the DHA emergency room on the night of October 11, 2014,

with complaints of acute lower right leg pain. She reported the pain as a nine out of

ten. She was evaluated by Turner, a physician assistant, and the physical examination

showed bilateral pulses/normal pulses. Turner ordered a venous duplex ultrasound

based on suspicion of possible deep vein thrombosis(“DVT”). Dr. Hiltz reviewed the

results and found no evidence of DVT. After believing she found no evidence of

blood clots, Turner prescribed pain medication, discharged Connie, and advised her

to follow up with her physician. It appears from the record that while Garnett was on

shift, he was not present when Turner treated Connie, but he later reviewed and

signed Connie’s medical chart as Turner’s supervising physician. 

Three dayslater, Connie presented to Augusta University Medical Center with

swelling and discoloration in her right foot and worsening foot pain. She was

diagnosed with right lower extremity ischemia and underwent an open tibial

thrombectomy that day. Ten days after the thrombectomy, Connie again presented to

DHA with a “cool to the touch,” discolored right foot. Connie’s foot was ultimately

partially amputated in December 2014.

2
Connie filed her initial complaint in June 2016, alleging that the pulse exam

and venous duplex ultrasound performed “were neither appropriate nor sufficient

means of determining whether [she] was contending with a serious arterial

dysfunction,” and that underthe circumstancesthe defendantsshould have performed

or ordered an arterial duplex scan and/or Doppler probe of her arterial system. On

October 7, 2016, Connie filed a second amended complaint naming Turner as a

defendant, but Connie neither filed a motion to add Turner as a party nor sought leave

from the trial court to file the amended complaint. Connie failed to serve Turner

before the statute of limitation expired on October 11, 2016.

2

In November 2016,

Turner filed a special appearance answer and motion to dismiss, asserting thatConnie

failed to move to add her as a party and to obtain leave of the court to do so prior to

filing the second amended complaint as required by OCGA § 9-11-21, and that the

statute of limitation barred Connie’s claims. Turner alternatively contended that even

if she had been properly added to the action, there was an insufficiency of process and

2 A medical malpractice action must be brought “within two years after the date

on which an injury or death arising from a negligent or wrongful act or omission

occurred.” OCGA § 9-3-71 (a).

3
service of process warranting dismissal.

3 Connie moved to add Turner as a partydefendant for the first time on December 19, 2016.

Following a hearing, the trial court issued a detailed order denying Connie’s

motion and granting Turner’s motion to dismiss the complaint against her, finding

that Turner did not receive notice of the institution of the action prior to the

expiration of the statute of limitation and that Turner did not know nor should she

have known that, but for a mistake by Connie concerning her identify, she would

have been a defendant in the case.4

Garnettfiled a motion for summary judgment which the trial court granted after

a hearing. In its order, the court found that Connie “failed to produce sufficient

evidence showing Dr. Garnett violated the standard of care or that the alleged

negligence wasthe cause of [Connie’s] damages.” Connie appealsfromthis order and

the trial court’s order denying her motion to add Turner as a party. 

3

In November 2016, Connie attempted to serve Turner with the second

amended complaint and summons, but the summons with which Turner was served

was the summons issued with the original complaint and did not list her as a party. 

4 The trial court certified its order for immediate review, but this Court denied

the application for interlocutory review. 

4
1. Connie contends the trial court erred in denying her motion to add Turner

as a party. As this Court previously has explained, “an amendment to a complaint

adding a new party without first obtaining leave of the court is without effect.”

Wright v. Safari Club Intl., 322 Ga. App. 486, 494 (5) (745 SE2d 730) (2013). While

Connie filed her second amended complaint adding Turner as a party-defendant

within the statute of limitation, it was without leave of the trial court and thus was

without effect. “Where, as here, the party would be added after the running of the

statute of limitation, it must be determined whether under OCGA § 9-11-15 (c) the

claim against the new party relates back to the date of the original pleading.”

(Citation and punctuation omitted.) Callaway v. Quinn, 347 Ga. App. 325, 329 (2)

(819 SE2d 493) (2018). Under OCGA § 9-11-15 (c), an amended complaint adding

a new party after the running of the statute of limitation may relate back to the date

of the original complaint if the following three elements are satisfied:

(1) That the amendment adding the new defendant arise out of the same

facts asthe original complaint;(2) That the new defendant had sufficient

notice of the action; and, (3) That the new defendant knew or should

have known that, but for a mistake concerning his identity as a proper

party, the action would have been brought against him.

5
Cobb v. Stephens, 186 Ga. App. 648, 649-650 (368 SE2d 341) (1988). “A trial court’s

decision as to whether a party should be added to a lawsuit lies in the court’s sound

discretion and will be overturned on appeal only upon a showing of abuse of that

discretion.” (Citation and punctuation omitted.) Rasheed v. Klopp Enterprises, 276

Ga. App. 91, 92 (1) (622 SE2d 442) (2005).

There is no issue regarding the first relation-back element — Connie’s claims

against Turner arose out of the occurrence set forth in the original complaint, that is,

the medical treatment Connie received on October 11, 2014. As to the second

element, Turner averred that she had no notice of the lawsuit until after the statute of

limitation had run. Connie claims that Turner’s role as a physician assistant was

“unequivocally connected and intertwined” with Garnett’s role as her supervising

physician, and thus notice to Garnett was tantamount to notice to Turner. Connie

relies on two cases in which the wrong corporate defendant was sued to support her

proposition that notice as to one defendant is notice to a related defendant. However,

those cases are distinguishable from the facts at hand.

In Fontaine v. Home Depot, Inc., 250 Ga. App. 123 (550 SE2d 691) (2001), the

plaintiff fell at a Home Depot facility. The plaintiff sued “Home Depot, Inc.” instead

of the actual property owner, “Home Depot U. S. A.” Id. Because both Home Depot,

6
Inc. and Home Depot U. S. A. occupied portions of the building in which the plaintiff

fell, had the same registered agent, used the title “Home Depot” generically in their

briefs, and because Home Depot U. S. A. had notice of the claim based on the shared

registered agent, this Court found that an amended complaint adding Home Depot U.

S. A. related back to the original complaint. Id. at 124-126. We even noted our own

“difficult[y] to identify whether an attorney’s, deponent’s, or affiant’s reference to

‘Home Depot’ refer[red] to The Home Depot, Inc. or Home Depot U.S.A.” Id. at 124.

In Rasheed, supra, the plaintiff was injured when his car was struck by a

commercial van. 276 Ga. App. at 92 (1). Klopp Enterprisesinsured the van, and Easy

T. V. waslisted as an additional insured. Id. at 92-93 (1). The plaintiff believed Klopp

Enterprises employed the van’s driver and filed suit against Klopp. Id. In fact, the

driver was employed by Easy T. V., which was a subsidiary of Klopp. Id. at 93 (1).

Both entities were owned by the same, single shareholder who served asthe chairman

of the board for both businesses. Id. Both companies also had the same president and

registered agent, operated out of the same office, and were represented by the same

attorney in the litigation. Id. Under those circumstances, we found that Easy T. V. —

the proper defendant — had notice of the claim when Klopp Enterprises was served.

Id.

7
Neither of these cases stands for the proposition that notice of the lawsuit to

Garnett can be construed as notice to Turner. Rather, this case is more analogous to

Beaver v. Steinichen, 182 Ga. App. 303 (355 SE2d 698) (1987), in which a plaintiff

filed a medical malpractice action against a hospital. Id. at 304. After the statute of

limitation ran, the plaintiff attempted to add as defendantstwo doctorsinvolved in her

care. Id. We concluded that the new complaint did not relate back under OCGA § 9-

11-15 (c) because the plaintiff was not seeking to simply change parties but to

commence suit against new defendants, “strangersto the action” against the hospital.

Id. Here, although Garnett was Turner’s supervising physician while she was

employed at the hospital,

5

the two neither had a corporate affiliation nor a shared

registered agent. Indeed, Turner was neither working at DHA nor supervised by

Garnett at the time Connie filed her original complaint. See St. Francis Health v.

Weng, 354 Ga. App. 310, 312 (840 SE2d 712) (2020) (the required notice is “notice

of the institution of the action (i.e., notice of the lawsuit itself) and not merely notice

of the incidents giving rise to such action”) (citation and punctuation omitted). Given

Connie’s failure to come forward with any evidence showing that Turner had

5

 The record reflects that Turner had eight other supervising physicians apart

from Garnett. 

8
knowledge of her lawsuit before the limitation period expired, the trial court properly

denied Connie’s motion to add Turner as a party defendant and granted Turner’s

motion to dismiss the amended complaint against her.6

2. Connie contends that the trial court erred in granting summary judgment to

Garnett, the last remaining defendant in the case. The trial court found that Connie

had failed to produce sufficient evidence showing that Garnett violated the standard

of care or that Garnett’s alleged negligence was the cause of Connie’s damages. 

Summary judgment is proper when there is no genuine issue of material

fact and the movant is entitled to judgment as a matter of law. OCGA §

9-11-56 (c). A de novo standard of review applies to an appeal from a

grant of summary judgment, and we view the evidence, and all

reasonable conclusions and inferences drawn from it, in the light most

favorable to the nonmovant.

6 Connie cites several cases in her brief for the proposition that “a mere lapse

in time is not enough to support . . . denial of a motion to add [a] party.” However,

these cases are inapplicable asthey did not address OCGA § 9-11-15 (c). Connie also

contends that based on thisCourt’s holding inPreferred Women’s Healthcare v. Sain,

348 Ga. App. 481 (823 SE2d 569) (2019), she should not have been barred from

adding Turner as a party-defendant simply because she was unable to serve her with

process within the statute of limitation. The Sain case addressed only a plaintiff’s

ability to amend her complaint to add a party-defendant in a medical malpractice

action after the five-year medical malpractice statute of repose had run, an issue

different from the one at hand. Id. at 490-491.

9
(Citation and punctuation omitted.) Beamon v. Mahadevan, 329 Ga. App. 685, 686

(766 SE2d 98) (2014).

(a) Standard of Care. Connie contends that the trial court erred in granting

Garnettsummary judgment on the issue of standard of care because a question of fact

remains as to whether she was provided “emergency medical care” such that Garnett

may claim the protections of the heightened standard set out in OCGA § 51-1-29.5

(c). In an action for medical malpractice based on the provision of emergencymedical

care in an emergency department, Georgia law requires clear and convincing proof

of a health care provider’s gross negligence. See OCGA § 51-1-29.5 (c).7 We

previously have held that there are three conditions which must be present in order

for OCGA § 51-1-29.5 to apply:

(a) the lawsuit must involve a “health care liability claim”; (b) the claim

must arise out of the provision of “emergency medical care”; and (c) the

care must have been provided to the patient “in a hospital emergency

7

 OCGA § 51-1-29.5 (c) provides:

In an action involving a health care liability claim arising out of

the provision of emergency medical care in a hospital emergency

department or obstetrical unit or in a surgical suite immediately

following the evaluation or treatment of a patient in a hospital

emergency department, no physician or health care provider shall be

held liable unless it is proven by clear and convincing evidence that the

physician or health care provider’s actions showed gross negligence.

10
department or obstetrical unit or in a surgical suite immediately

following the evaluation or treatment of a patient in a hospital

emergency department.”

(Citation and punctuation omitted.) Southwestern Emergency Physicians v. Nguyen,

330 Ga. App. 156, 158 (1) (767 SE2d 818) (2014). The statute further specifically

excludesfromthe definition of emergencymedical care “care or treatment that occurs

after the patient is stabilized and is capable of receiving medical treatment as a

nonemergency patient or care that is unrelated to the original medical emergency.”

(Emphasis supplied.) OCGA § 51-1-29.5 (a) (5). Here, it is undisputed that Connie’s

complaint raises a “health care liability claim” and that she received treatment in “a

hospital emergency department.” Connie contends, however, that a question of fact

remains as to whether she was stable at the time she was discharged from the DHA

emergency room. We agree.

In support of her claims, Connie submitted the affidavits of a vascular surgeon

and an emergency room physician. With regard to the timing of the alleged

professional negligence, one of Connie’s experts opined in an affidavit attached to

her complaint that her emergency room provider “should have, upon learning of her

symptoms [and her history of lupus], immediately performed or advised another

11
facility or caregiver to perform not just a venous scan, but an arterial duplex scan

and/or handheld Doppler probe of Ms. Connie’s arterial system.” The other expert

also opined that such a scan or probe should have been performed or directed to be

done “immediately” upon learning of her symptoms, history of lupus, and “history of

lower extremity numbness and color change.” While one of Connie’s expertstestified

that when she presented to the DHA emergency room on October 11, it was an

emergency situation needing “emergent medical care,” neither expert’s testimony

addressed whether Connie at any point became “capable of receiving medical

treatment as a nonemergency patient.” In fact, the record reflects that although

Connie reported her pain at a nine out of ten when she presented to the emergency

room, records from her emergency room visit show that she reported her pain at an

intensity of “3” before discharge. Turner testified that “based on [Connie’s] history

and [Turner’s] physical assessment,” she determined that Connie “was not in any

distress, that her arterial circulation was intact.” She further testified that she

understood emergent conditions to mean “threatening of life, limb, or eyesight. And

I would say this was not any of that.” The emergency room records also show that

Connie’s condition had “improved” before she was discharged. Connie, however,

testified that upon discharge her pain had not improved and was at a ten out of ten;

12
she disputed the reports of her pain level and readiness to go home in the emergency

room records. 

In evaluating whether the patient has “stabilized” such that the care or

treatment provided to the patient does not qualify as “emergency medical care” under

the statute, “the condition of the patient controls, not the opinion of the physician.”

Bonds v. Nesbitt, 322 Ga. App. 852, 855 (1) (747 SE2d 40) (2013). Thus, if a health

care provider 

mistakenly concludes that a patient has become “stabilized” and

“capable of receiving medical treatment as a nonemergency patient” and

therefore stops providing emergency care to that patient —

notwithstanding that the patientstill needs emergency care — and if the

patient is injured or killed as a result of the withdrawal of emergency

care, the physician or health care provider is entitled to claim the

protection of the gross negligence standard.

Id. Here, Turner’s determination that Connie was not in any distress and that her

condition had improved while she was in the emergency room is some evidence that

Connie was in fact stabilized. Id. However, as already stated, “the condition of the

patient controls, not the opinion of the physician.” Id. at 855 (1). Connie disputed that

her pain level had decreased from a ten out of ten and that she had improved to the

point that she was ready to be discharged. And, both of her experts testified that she

13
required emergency treatment “immediately.” In light of the conflicting evidence on

this point, we conclude that whether Connie at some point had stabilized and was

capable of receivingmedical treatment as a nonemergency patient within the meaning

of OCGA § 51-1-29.5 (a) (5) is a question for the trier of fact. See Howland v.

Wadsworth, 324 Ga. App. 175, 180-181 (2) (749 SE2d 762) (2013) (question of fact

as to whether patient presenting to emergency room with complaints of pain in feet,

difficulty walking, feet cold to touch, and palpable pulses had stabilized within

meaning of OCGA § 51-1-29.5 (a) (5); physician assistant ordered venous ultrasound

examinations but no arterial ultrasound or other tests to rule out arterial occlusion).

See Bonds, 322 Ga. App. at 855-856 (1) (summary judgment not appropriate because

question of fact remained as to whether patient’s condition stabilized such that gross

negligence standard did not apply; plaintiff’s expert witness testified that patient’s

condition never became stable while he was in the emergency room but treating

physician determined that patient’s condition had improved and patient could be

transferred to a regular hospital room). Compare Quinney v. Phoebe Putney Mem.

Hosp., 325 Ga. App. 112, 113-115, 115-117 (1) (751 SE2d 874) (2013) (gross

negligence standard applied to plaintiff’s claims where evidence showed that patient

was unable to walk, reported pain at a nine out of ten, remained symptomatic with

14
worsening pain and vital signs despite administration of pain medication, and was

transported by ambulance to another medical center). Thus, the trial court erred in

granting Garnett summary judgment on the issue of standard of care.

(b) Causation. Connie also contends that the trial court erred in granting

summary judgment in favor of Garnett on the basis of causation. Again, we agree.

“To recover in a medical malpractice case, a plaintiff must show not only a

violation of the applicable medical standard of care but also that the purported

violation or deviation from the proper standard of care is the proximate cause of the

injury sustained.” (Citation and punctuation omitted.) Knight v. Roberts, 316 Ga.

App. 599, 603 (1) (730 SE2d 78) (2012).

Causation is established through expert testimony because the question

of whether the alleged professional negligence caused the plaintiff’s

injury is generally one for specialized expert knowledge. The expert

must state his or her opinion regarding proximate causation in terms

stronger than that of medical possibility — e.g., a reasonable degree of

medical certainty or reasonable medical probability. The use of the

magic words “reasonable degree of medical certainty” is not required

and causation may be established by linking the testimony of several

different experts.

15
(Citations and punctuation omitted.) Swint v. Mae, 340 Ga. App. 480, 482 (1) (798

SE2d 23) (2017). “[Q]uestions regarding proximate cause are undeniably a jury

question and may only be determined by the courts in plain and undisputed cases.”

(Citation and punctuation omitted.) Pruette v. Phoebe Putney Mem. Hosp., 295 Ga.

App. 335, 338 (1) (671 SE2d 844) (2008).

According to both of the expert affidavitssubmitted byConnie, the health care

providers at DHA should have known that her history of lupus placed her at a higher

risk of developing arterial occlusion and that a pulse exam is not always reliable.

Both opined that it was their

opinion to a reasonable degree of medical certainty that had Dr. Hiltz,

Dr. Garnett, or any of Doctor[ ]s Hospital’s physicians and staff

performed or directed another caregiver to perform an arterial duplex

scan or a handheld Doppler probe of [Connie’s] arteries, or at the very

least referred her to a vascular surgeon, it is highly likely that the right

extremity arterial blockage would have been detected and removed

before ischemia developed to the point to where a substantial amount of

tissue became non-viable. 

The emergency surgeon further opined that Turner’s failure “to make any notations

in [Connie’s] records demonstrating that she asked [Connie] about the presence or

absence of color changes in the affected foot or toes constituted a deviation from the

16
standard of care”; that Garnett, as Turner’s supervising physician, “was responsible

for any acts or omissions” of Turner and had Garnett “more diligently supervised,

scrutinized, and reviewed [her] examinations and findings, as well as followed up

with [Connie] in person based on her symptoms, the arterial blockage . . . would have

been timely discovered and removed . . .”; and that “but for the three-day delay

between [Connie’s] initial visit . . . and . . . discovery of the arterial blockage, the . .

. amputation she underwent would not have been necessary.” The emergency surgeon

testified that simply performing a pulse test was not a diagnostic test that could be

used to rule out arterial occlusion, and that the venous duplex ultrasound ordered,

while appropriate to diagnose DVT, was not the appropriate diagnostic test to rule out

arterial occlusion.

Based on the affidavits and testimony, a jury question was presented as to

causation. More specifically, “[t]o the extent that the delay caused by [the]

misdiagnosis contributed to the delay in [Connie’s] ability to receive timely treatment

and surgical intervention, a jury question as to the element of causation existed.”

Knight, 316 Ga. App. at 607 (1) (a) (concluding that a jury issue as to causation

existed based upon combined expert testimony that if emergency roomphysician had

ordered the appropriate diagnostic tests, patient’s aortic dissection, which

17
progressively worsened over time, would have been discovered and her death could

have been prevented); MCG Health v. Barton, 285 Ga. App. 577, 583-584 (2), (3)

(647 SE2d 81) (2007) (affirming the denial of defendant’s motion for summary

judgment since a jury question regarding causation existed based upon expert

testimony that the physician’s delay in diagnosing the patient’s torsion condition

prevented emergency surgery to salvage the patient’s testicle).

Garnett contends that both “experts were asked in their respective depositions

whether anything would have changed if the care and treatment on October 11 would

have been different” and neither was “able to say that, more likely than not, [Connie]

would have kept her toesif she had not been discharged [from DHA on October 11].”

Even if the record were to support this characterization of the experts’ deposition

testimony, it does not entitle Garnett to summary judgment on the issue of causation.

Focusing only on such testimony would ignore the experts’ affidavits, and even if the

affidavits contradict the experts’ deposition testimony, such “[c]ontradictions go

solely to the expert[s’] credibility, and are to be assessed by the jury when weighing

the expert[s’]testimony.” (Citation and punctuation omitted.) Naik v. Booker, 303 Ga.

App. 282, 286 (692 SE2d 855) (2010) (appellate court could not resolve conflict

between expert’s affidavit and expert’s deposition testimony regarding whether

18
patient would have survived had physician-defendantsurgically intervened). See also

Thompson v. Ezor, 272 Ga. 849, 853 (2) (536 SE2d 749) (2000).

Judgment affirmed in part and reversed in part. Doyle, P. J., and Reese, J.,

concur.

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