Joyce Blackmon filed a complaint in Fulton County State Court for medical malpractice and wrongful death against Tenet Healthsystem Spalding, Inc. and others collectively, “Tenet”. Blackmon had been named the legal guardian of her grandchild, Cecily Brooke Futral, because her son-in-law was incarcerated. Blackmon filed suit in her representative capacity as the legal guardian of the child, and the state court denied Tenet’s motion for partial summary judgment. The question before us is whether the Court of Appeals erred in reversing the state court’s denial of partial summary judgment on the ground that a state court lacks the equitable power of a superior court to authorize someone other than the surviving spouse to file a claim for wrongful death. We hold that it did. Instead of reversing the state court’s judgment, the Court of Appeals should have vacated the ruling on the motion for partial summary judgment and remanded the case with direction to the state court to transfer the matter to superior court in accordance with Article VI, Section I, Paragraph VIII of the Georgia Constitution.1 Tenet moved for partial summary judgment on the ground that Blackmon was not the proper party to bring the wrongful death claim. The state court denied the motion in a purported exercise of its equitable power to allow an exception to OCGA § 51-4-2 a’s stipulation that only the surviving spouse can bring a wrongful death action. The Court of Appeals reversed, holding that a state court does not possess the equitable power that a superior court does to make an exception to the statute and enable a legal guardian to bring a wrongful death action.2
The Court of Appeals declined Blackmon’s invitation to transfer the case to superior court because it determined that Blackmon had not requested that relief in state court. The Court of Appeals went on to say that even if it were to apply Uniform Superior Court Rule 19.1 on appeal,3 as urged by Blackmon, transfer to the superior court would still be inappropriate, because Rule 19.1 only applies where subject matter jurisdiction is lacking, and the issue before the state court was whether Blackmon lacked standing to file suit, not whether the state court lacked subject matter jurisdiction over the case. The Court of Appeals denied Blackmon’s motion for reconsideration, and we granted certiorari.
