Bethel, Judge. Beverly Kern, individually and on behalf of the children of Donna Kern, and Harriet Curles and Tillie Knight, individually and on behalf of the children of William Chapman (collectively, the “Plaintiffs”) appeal from the trial court’s order granting the motion to dismiss Plaintiffs’ third amended complaint (the “Third Complaint”) filed by Universal Health Services (“UHS”) and Psychiatric Solutions, Inc.’s (“PSI”) (collectively, the “Corporate Defendants”). Via the Third Complaint, Plaintiffs brought wrongful death actions alleging ordinary and medical negligence against the owners, operators, and employees of a psychiatric treatment facility that treated and released a patient who later killed two persons. Plaintiffs argue that the trial court erred by finding (1) that Counts II and III of the Third Complaint are medical malpractice claims; (2) that Plaintiffs’ claims are barred by the statute of repose; (3) that the Third Complaint related back to a renewal complaint filed in this case after an earlier voluntary dismissal of the action; (4) that the Corporate Defendants were not equitably estopped from raising the statute of repose as a defense; and (5) that the Corporate Defendants should be dismissed from the case entirely. For reasons explained below, we reverse the trial court’s grant of the motion to dismiss.“A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his or her claim. We review the trial court’s ruling on a motion to dismiss under the de novo standard of review.” Walker Cty. v. TriState Crematory, 292 Ga. App. 411, 411 (664 SE2d 788) (2008) (citation omitted). With these principles and standards in mind, we will turn to the case before us. This case arises from the deaths of Donna Kern and William Chapman at the hand of Amy Kern. Amy Kern had an extensive mental health history dating back to 1999, and she suffered from a series of psychotic breaks which resulted in violent conduct. Between November 2008 and January 2009, Amy was an involuntary patient at Focus by the Sea (hereinafter “Focus”), a private psychiatric facility, on three separate occasions.[1] Amy’s first involuntary committal to Focus came after she attempted suicide. She remained at Focus for ten days after that incident, and upon release on November 17, 2008, she voluntarily sought outpatient psychiatric treatment.Amy was later arrested on December 28, 2008, after she chased her boyfriend around their home with an axe. As a condition of her release from custody, she was ordered to return to Focus for psychiatric treatment. Amy was treated at Focus for seven days and discharged on January 6, 2009.Seven days later, on January 13, 2009, Amy was involuntarily committed to Focus for a third time by emergency room staff after threatening violence against her boyfriend. Fourteen days after her commitment, Amy was discharged from Focus on January 26, 2009. Twelve days after she was discharged from Focus, Amy killed her grandmother, Donna Kern, and her aunt’s boyfriend, William Chapman. On February 4, 2011, Plaintiffs sued the Corporate Defendants, HHC, Amy’s treatment providers, and a pharmaceutical company for wrongful death (the “Original Complaint”). The Original Complaint alleged that the defendants breached their duty to exercise reasonable care to control Amy and that the defendants’ actions constituted both medical and ordinary negligence. The Original Complaint was accompanied by an expert affidavit averring that the defendants breached the applicable professional standards of care. The Corporate Defendants filed a motion for summary judgment that was never ruled upon because Plaintiffs voluntarily dismissed without prejudice the Corporate Defendants from the original action on November 6, 2013.On May 6, 2014, Plaintiffs filed a renewal complaint (the “Renewal Complaint”) raising the same allegations as were stated in the Original Complaint, again naming the Corporate Defendants as parties. The Plaintiffs did not attach an expert affidavit to the Renewal Complaint. Eight days later, Plaintiffs moved to consolidate the Renewal Complaint with the Original Complaint, or in the alternative, amend the Original Complaint to add the Corporate Defendants back. Although the Corporate Defendants did not agree to consolidate the renewal action with the original action, the trial court granted the motion and amended the Original Complaint to add the Corporate Defendants back to the action. On May 12, 2015, Plaintiffs filed their second amended complaint, and the Corporate Defendants moved to dismiss. On March 18, 2016, the trial court held a hearing on the motion.[2] Plaintiffs then filed the Third Complaint, and the Corporate Defendants moved to dismiss it. After two hearings on the motion, the trial court granted the Corporate Defendants’ motion to dismiss the Third Complaint. This appeal followed.1. Count II. Plaintiffs contend that the trial court erred in construing Count II of the Third Complaint as a medical malpractice claim because the failure to comply with statutory notification and discharge requirements pursuant to OCGA §§ 37-3-4, 37-3-24, and 37-3-95 did not involve the exercise of professional judgment. We agree.
OCGA § 37-3-4 provides in part that: [a]ny hospital or any physician . . . who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his or her actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility[.]
