Court allowed amendment to complaint after limitations ran.

Author:Tammelleo, A. David
Position:Medical Law Case on Point

CASE ON POINT: Jensen v. Engler, Al2A1170 GACA (10/11/2012)-GA

CASE FACTS: On May 1, 2008, Dr. Kevin Jensen performed laparoscopic gallbladder surgery at Gwinnett Medical Center (Gwinnett) on Eric Engler. Eric was discharged from the hospital the following day. On May 6, 2008, Eric returned and presented to the emergency department at Gwinnett with signs of an emerging infection. Although the emergency room doctor called Dr. Jensen to discuss Eric's case with him, Dr. Jensen did not go to the hospital to examine Eric. Dr. Jensen indicated that he would instead, see Eric three days later, at his previously scheduled follow-up appointment. Eric was discharged from the hospital. On May 3, 2008, two days later, Eric collapsed at his home. Upon the arrival of emergency medical services, Eric had no detectable pulse and was believed to be in cardiac arrest. He was transported to Gwinnett. The emergency medical technicians noted that Eric's abdomen was extremely swollen and the sutures had begun to open in the middle of the abdomen and chest. All efforts to resuscitate Eric was unsuccessful, and he was pronounced dead. According to the autopsy examination conducted the following day, Eric died as a result of an acute bacterial infection caused by thermal bums in the area where Dr. Jensen had performed the laparoscopic surgery, On March 5, 2010, Eric's Estate filed suit against several defendants, including Dr. Jensen. The Executrix of Eric's Estate, in her original complaint, raised a claim of ordinary negligence against Dr. Jensen for his failure to ensure the proper functioning of certain monitoring equipment used during Eric's surgery so as to prevent thermal bum injuries. Dr. Jensen subsequently moved to dismiss the suit on the basis that the Estate's claims sounded in professional negligence and the complaint was not accompanied by the requisite expert affidavit. The trial court denied the motion, finding that the allegations in the complaint did not disclose with certainty that the Estate would not be entitled to relief on a claim of ordinary negligence against Dr. Jensen. On July 12, 2011, the Estate amended its complaint to include, in addition to the or ordinary negligence claim, new claims against Dr. Jensen for profession negligence and battery. In light of the new professional negligence claim, the Estate also filed the requisite expert affidavit along with the amended complaint. In light of the fact that the new professional claim was...

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