 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Green v. Central State Hospital9/9/2005
y the Prison or the DOC. According to the affidavit, the Prison's medical staff were not MCG faculty members or physicians but were specially hired to staff the infirmary at the Prison.
Three months later, on May 23, 2003, plaintiffs filed an amendment to the complaint "to correct alleged misnomer," seeking to add the Board and MCG d/b/a GCHC as defendants. Defendants countered that any claim against the Board was barred by the failure to give the Board ante litem notice and by the two-year statute of limitation. The trial court granted summary judgment, ruling that the GDOC, Prison, and Rogers were not proper parties; that the Board and MCG could not be added as defendants; and that the defendants were not properly served under OCGA § 50-21-35.
1. Plaintiffs first contend that the trial court erred in ruling that the GDOC and Prison had not been properly served. In this regard, OCGA § 50-21-35 provides in pertinent part:
In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services ["DOAS"] at his or her usual office address.
In this case, the plaintiffs failed to meet the second requirement. "The procedural strictures of the [GTCA], like its other terms, are strictly construed." Here, the record shows that the Prison was served through its warden, and the DOC was served through its commissioner. Process was never served upon the director of the Risk Management Division of DOAS. Instead, on May 30, 2003, two years after filing suit, plaintiffs caused process to be served upon DOAS "through Carla Banks, the Executive Assistant to Commissioner Dana Russell." In Shelnutt v. Ga. Dept. of Transp., we held that the delivery of the ante litem notice to the Commissioner of DOAS did not strictly comply with the requirement of OCGA § 50-21-26 (a) (2) that such notice be given to the Risk Management Division. Even if service upon Commissioner Russell had been timely, plaintiffs did not strictly comply with the requirement of OCGA § 50-21-35 that process be served upon the director of DOAS's Risk Management Division. Summary judgment was properly granted to the GDOC and the Prison.
2. In their brief, plaintiffs concede that, at all times relevant to the underlying action, Rogers and the medical staff at the Prison were employed by the Board. This admission is fatal to their claim against Rogers.
OCGA § 50-21-25 provides, in pertinent part:
A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor. . . . A person bringing an action against the state . . . must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually.
Here, Rogers was acting within the scope of his duties as an employee of the Board, not the GDOC, and was not a proper party defendant. Moreover, he was immune from suit, as plaintiffs did not allege that he was acting outside the scope of his employment when he treated Walker. Accordingly, the trial court properly granted summary judgment to Rogers.
3. Plaintiffs argue that the trial court abused its discretion in refusing to permit them to amend the complaint "to correct alleged misnomer." We disagree. An amendment to correct a misnomer pursuant to O
Page 1 2 3 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|