Court Revives Case Dismissed On Statute Of Repose Grounds: Linda Carol Goterba filed a Georgia medical malpractice case against against Dr. Nathan Pursifull and Urology Center of Columbus, LLC alleging the following facts:
The Defendants performed surgery on Linda on June 8, 2016. After Linda suffered complications, the Plaintiffs sued the Defendants on June 8, 2018, which was undisputedly within the statute of limitations for medical malpractice
claims as well as prior to the running of the statute of repose.
On May 5, 2021, the Plaintiffs dismissed without prejudice the first timely filed action. Thereafter, Linda attempted to electronically file a renewal complaint on June 8, 2021, but the filing was rejected by the docketing system on June 9 because the expert affidavit was filed as a separate document from the renewal complaint. After receiving the rejection notification on June 9, Linda immediately refiled the renewal complaint and affidavit as a single document.
The Defendants moved to dismiss the renewal complaint on July 8, 2021, arguing that Linda was barred from pursuing the action because the complaint was filed on June 9, which was one day after running of the statute of repose, OCGA § 9-3-71 (b). Linda argued that the trial court should consider the renewal complaint timely filed within the statute of repose because they had filed the necessary documents on June 8 but had been made to refile the same documents in a different way by the clerk, or alternatively, that the Georgia Supreme Court’s Order Declaring a Statewide Judicial Emergency due to the spread of Coronavirus/COVID-19 tolled the statute of repose.
The Court of Appeals of Georgia stated in its opinion dated September 27, 2022: “The Plaintiffs presented evidence that they filed their renewal complaint and other necessary documents on June 8, and the Defendants fail to show that there was any material difference between those documents and the documents filed on June 9. The system merely rejected the timely filed renewal complaint and affidavit because they were not filed as a single document rather than two documents. Nevertheless, we have found no requirement in the record, in the Uniform Superior Court Rules, or in the Standing Order that require one document instead of two. Thus, we agree with the Plaintiffs that the trial court abused its discretion by failing to grant their motion to direct the clerk to change the filing date of the renewal complaint to June 8, 2021 given these facts. Accordingly, the trial court should have ordered the date changed, and it erred by granting the Defendants’ motion to dismiss on this basis. Accordingly, the order granting the Defendant’s motion to dismiss is vacated, and the case is remanded for further proceedings consistent with this opinion.”
Source Goterba v. Pursifull, A22A0817.