In Dove v. Ty Cobb Healthcare Sys., Inc., ___ Ga.App. ____, 2012 WL 1759979 (May 18, 2012), Plaintiff filed a medical malpractice action on behalf of her deceased mother’s estate against her mother’s former nursing home. In a separate opinion (305 Ga.App. 13 (2010)), the Court of Appeals affirmed the trial court’s grant of the nursing home’s motion for partial summary judgment based on the statute of limitations. Thereafter, Plaintiff amended her complaint by recasting the same facts as amounting to simple negligence, not professional negligence. The trial court dismissed the amendment, holding that the majority of her claims were precluded by res judicata and the remaining still alleged professional negligence, albeit now without the support of an expert affidavit, which is improper. The doctrine of “res judicata” prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action; the doctrine prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim. Three prerequisites must be satisfied before res judicata applies-(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction. In affirming the trial court’s dismissal based on res judicata, the Court held that there was clearly identity of the parties and a previous adjudication and, further, that it was undisputed that Dove’s third amended complaint is based on the identical set of facts alleged in her previous complaints with the only difference being that she now has characterized those allegations as constituting simple negligence instead of professional negligence, so there was a clear identification of the cause of action. Finally, however, the Court reversed the trial court on its decision that the remaining allegations must also be dismissed as without support of an expert affidavit, finding that the nursing home did not argue that Dove’s claims should also be dismissed because she failed to file an expert affidavit with her third amended complaint, and remanded for further proceedings on only those two remaining claims.
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