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Harding v. Godwin6/3/1999
must arise out of the same facts as the original complaint; (2) the new defendant must have sufficient notice of the action; and (3) the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, that action would have been brought against him." Cobb v. Stephens, 186 Ga. App. 648 649-650 (368 SE2d 341) (1988) (citing A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975).
"In Cobb, we recognized the requirement that there be a strict adherence to the letter of OCGA § 9-11-15 (c) by the one who would rely upon it as authority for the addition of a new party to an existing action." Swan v. Johnson, 219 Ga. App. 450, 451 (465 SE2d 684) (1995). In Swan, as in the case before us, Swan was the party the defendant sought to add and, therefore, Swan had the burden as the movant on summary judgment, to show that OCGA § 9-11-15 (c) was inapplicable. Swan did this by filing an affidavit stating that there could have been no mistake as to his identity because he was the only lifeguard on duty the day of the drowning, the occurrence giving rise to the complaint. This shifted the burden back to the plaintiff to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c). Because there was nothing in the record which contradicted Swan's affidavit, Swan had demonstrated as a matter of law that the relation-back provisions of the statute did not apply. Id. at 451.
Similarly, in this case, Harding has pointed out that the plaintiff was present when Harding examined her husband, was privy to all that occurred during that examination, and heard Harding tell Nicholas to go home and take some antacids and rest.
This shifted the burden back to Godwin to show the applicability of the relation-back provisions of OCGA § 9-11-15 (c). The record is clear that Ms. Godwin does not dispute that she was present when Dr. Harding examined her husband. Therefore, Godwin cannot satisfy the requirement that, but for some mistake concerning her identity as a proper party, Harding should have known the action would have been brought against her. There can be no mistake concerning the doctor's identity, examination or diagnosis when the plaintiff herself was present.
Because Godwin cannot satisfy one of the requirements necessary for the amended complaint to relate back to the date of the original pleading, her claim against Harding is time-barred. The trial court erred in not granting Harding's motion to dismiss.
Judgment reversed. McMurray, P. J., and Ruffin, J., concur.
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