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New Appellate Opinion on “Relates Back” in a Lap Chole Case

The Georgia Court of Appeals issued an opinion last Thursday on an interesting issue in a wrongful death malpractice claim that we see all too frequently: botched laparoscopic gallbladder surgery.

Quick facts in this classic malpractice case. Defendant performs a lap chole procedure on a man. The man returns to the hospital the next day with an infection. ER calls treating surgeon/defendant who does not go to the hospital to personally examine the man. Instead, he just says “I’ll see you in three days at your scheduled appointment.” (I’m guessing plaintiff will make hay of this arguably benign fact at trial because it has real reptile jury appeal.) Two days later, the man collapses at this home and dies.

The wife/plaintiff files a wrongful death action The autopsy showed his death was from an acute bacterial infection caused by thermal burns in the area where Jensen had performed the lap chole procedure.


Plaintiff’s complaint alleged negligence against the treating doctor for failure to ensure the proper functioning of monitoring equipment during her husband’s surgery in order to prevent thermal burn injuries. I’m surprised the emergency room doctor who released the patient was not named. Plaintiff later sought to amend her complaint to add counts for professional negligence beyond just the monitoring the equipment during surgery and battery.

The trial court denied defendant’s motion to exclude plaintiff’s amended complaint and defendant filed an interlocutory appeal contending, I think ridiculously, that plaintiff should not be able to amend her complaint after expiration of the statute of limitation. The Georgia Court of Appeals affirmed, ruling that “the claim arose out of the same conduct, transaction, or occurrence set forth in the original complaint, and plaintiff’s failure to file an expert affidavit along with her original complaint did not bar the subsequent claim.” Georgia, like Maryland and most – maybe all? – states, liberally allows amendments to the complaint against the same defendant for claims arising out of the same operative facts.

Two points I want to make. First, if you are a malpractice lawyer, why wouldn’t you just include all of the potential claims the plaintiff might have? I still can’t figure out why they did not name – at least to explore – the idea that the ER doctor should have done more than just release the guy to follow up in three days. I mean, plaintiff won and she should have won. But this is a lot of hassle and delay for the client that could have easily been avoided.

Second, we have to do something with these laparoscopic gallbladder surgeries. The studies are crystal clear that the same doctors bungle this procedure – that is very lucrative for doctors – time and time again and that experience matters. Yet surgeons are taking weekend courses in lap chole procedures and then letting it rip and it is causing a lot of unnecessary injuries and deaths in the country. There should be tougher rules governing who can perform these procedures.

You can find the Georgia Court of Appeals opinion in Jensen v. Engler here.

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