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Moore v. Baker - 989 F.2d 1129 (11th Cir. 1993)


Leave to amend a complaint shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). While a decision whether to grant leave to amend is clearly within the discretion of the district court, a justifying reason must be apparent for denial of a motion to amend. 


Plaintiff Moore was suffering from a partial blockage of her left common carotid artery, which impeded the flow of oxygen to her brain and caused her to feel dizzy and tired. She consulted with defendant Dr. Roy Baker, an employee of the Neurological Institute of Savannah, P.C. (NIS), about her symptoms and was diagnosed with a blockage of her left carotid artery due to artherosclerotic plaque. Dr. Baker recommended that she undergo a neurosurgical procedure known as a carotid endarterectomy to correct her medical problem. He discussed the procedure with her and advised her of the risks of undergoing the surgery. He did not advise her, however, of an alternative treatment known as EDTA therapy. Moore signed a written consent allowing Dr. Baker to perform the carotid endarterectomy. Following surgery, she appeared to recover well, but soon the hospital staff discovered that Moore was weak on one side. Dr. Baker reopened the operative wound and removed a blood clot that had formed in the artery. Although the clot was removed and the area repaired, Moore suffered permanent brain damage and became permanently and severely disabled. Moore filed a complaint alleging that Dr. Baker committed medical malpractice by failing to inform her of the availability of EDTA therapy as an alternative to surgery in violation of Georgia's informed consent law. Dr. Baker filed a motion for summary judgment on the issue of informed consent. On August 26, 1991, Moore moved to amend her complaint to assert allegations of negligence by Dr. Baker in the performance of the surgery and in his post-operative care of Moore. The district court granted Dr. Baker's motion for summary judgment on the informed consent issue, finding that EDTA therapy was not a "generally recognized or accepted" alternative treatment for coronary surgery. The district court also denied Moore's motion to amend her complaint, thus terminating all of Moore's outstanding claims. The case was appealed asserting abuse of discretion.


In plaintiff's medical malpractice action against defendants doctor and medical center, where plaintiff alleged a lack of informed consent and sought--the day before the statute of limitations expired--to amend her complaint to add claims of negligence during and after surgery, did the trial court abuse its discretion by denying the motion to amend the complaint?




The United States Court of Appeals for the Eleventh Circuit affirmed the district court, holding that Moore's amended claims did not arise out of the same conduct, transaction, or occurrence as the claims in the original complaint and therefore did not relate back to it. As such, the amended complaint could not survive the statute of limitations because it was new and distinct conduct, alleging completely different facts. The court also noted that summary judgment was proper under Ga. Code Ann. § 31-9-6.1 (1991) because defendants provided overwhelming evidence that alternative therapies were not generally recognized and accepted by reasonably prudent physicians. Therefore, there was no duty to inform Moore of the availability of the alternative therapies.

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