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Moore
v Baker
989 F 2d 1129 [1993]
Author:- Sam
Biers
Pleading-
S/L and Relation Back; Responding to the Complaint
Relevant
Facts: Pl, Moore, consulted Df, Dr. Baker about a blockage of her
carotid artery. He recommended surgery and warned her of
the risks. Pl signed the consent form. The operation
went bad and left Pl severely and permanently disabled. Df
moved for Summary on issue of informed consent and Pl motioned to
amend to include negligence.
Legal
Issue(s): Whether the original complaint gave notice to the Df of
the claim now being asserted which would give rise to an abuse of
discretion by trial ct denial of motion to amend?
Court’s
Holding: No, the new claim does not arise out of the same
conduct, transaction or occurrence as the claims in the original;
no abuse of discretion.
Procedure:
F D Ct denied motion to amend on new ground b/c claim was barred
by S/L. 11th Cir Ct of App Affirmed.
Law
or Rule(s): Acts claimed in an amended complaint must arise out
of the same conduct, transaction, or occurrence as the claims in
the original complaint.
Court
Rationale: An amendment relates back to the original filing
“whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading. Pl
filed her original complaint on the last day permitted by the
S/L. Accordingly, the S/L bars the claim asserted in the
proposed amendment UNLESS the amendment relates back to the
original. The Pl’s amended complaint must contain
assertions related to the claims in the original complaint in
order that the Df would have had Notice that the new claims of
negligence might be asserted.
The
original complaint focuses on the Df’s actions before
surgery. The amendment focuses on the Df’s actions during
and after the surgery. The alleged acts of negligence occurred at
different times and involved separate and distinct conduct.
In order to recover on negligence Pl would have to prove
completely different facts than she would otherwise have been
required to prove to recover on the informed consent claim.
Plaintiff’s
Argument: Df failed to inform Pl of an alternative form of
therapy, was negligent in performance of surgery and
post-operative care which are related to the same surgical
episode.
Defendant’s
Argument: There was no notice to the df contained in the original
complaint that he would have to defend against after care
negligence.
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