Trial Practice and Procedure - Kate S. Cook, Alan J. Hamilton, and John C. Morrison Iii

• Publication year: 2008

by Kate S. Cook^*

Alan J. Hamilton^** and John C. Morrison III^***

I. Introduction

This Article addresses significant judicial and legislative developments of interest to the Georgia trial practitioner.

II. Legislation

Georgia Senate Bill 276 (SB 276)¹ will substantially alter two aspects of litigating uninsured and underinsured motorist claims. First, SB 276 appears facially to allow uninsured motorist (uM) policies to exclude liability for property or personal injury claims for which an insured has been compensated through medpay, workers' compensation, or other liability insurance.² Second, SB 276 allows for the stacking of UM and liability policies and for the implementation of deductible limits.³ Insureds, however, may reject such stacking coverage or, as before, all UM coverage.⁴ Practitioners must therefore take special care to read the language of their clients' UM policies to ascertain the extent of their UM limits.⁵

III. CASE LAW

A. Vanishing Venue, Service of Process, and Notice Issues

Georgia's reintroduced "vanishing venue doctrine"⁶ gives a nonresident defendant the right to transfer venue immediately "[i]f all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury."⁷ In Georgia Casualty & Surety Co. v. Valley Wood, Inc.,⁸ the trial court entered an order dismissing with prejudice the only resident defendant in a declaratory judgment insurance action. The trial court expressly noted in its order of dismissal, however, that the defendant, who was also a plaintiffin the underlying lawsuit for which Georgia Casualty was seeking declaratory judgment, had already obtained relief on her claims and had no remaining claims at issue in the underlying lawsuit.⁹ The Georgia Court of Appeals held that this order of dismissal was akin to a dismissal effected by consent judgment and, therefore, could not be used to invoke the vanishing venue statute.¹⁰

Perfecting service against the State has always been one of the many pitfalls in pursuing an action under the Georgia Tort Claims Act (GTCA).¹¹ In Georgia Pines Community Service Board v. Summer-lin,¹² however, the Georgia Supreme Court made two significant rulings regarding these service issues. First, service does not have to be personally handed to a person explicitly authorized to receive process by the GTCA.¹³ Rather, litigants should refer to the Civil Practice Act's

(CPA)¹⁴ requirement regarding how service of process should be made.¹⁵ Second, "[t]he service of process provision of the [GTCA] is procedural in nature, not jurisdictional," and therefore a state defendant can waive defects in service of process.¹⁶ In the similar cases of Backensto v. Georgia Department of Transportation¹⁷ and Ingram v. Department of Transportation,¹⁸ the court of appeals also held that absent prejudice to the State, a plaintiff's GTCA claim would not be barred by her failure to mail the attorney general a copy of her complaint and to certify this mailing by amending her complaint prior to the expiration of the applicable statute of limitations.¹⁹

Generally of note on the topic of service during this survey period, the court of appeals has expressly noted the existing conflict concerning "whether [under the CPA] the plaintiff must exercise the greatest possible diligence [in perfecting service] from the point at which he first has notice of a problem with service of the complaint, or only from the point at which the defendant raises a service defense."²⁰ Until this conflict is resolved, practitioners would be advised to work immediately and meticulously towards resolving any known service defects.

It is well settled that a complete failure to give ante litem notice²¹ for claims arising under the GTCA will bar any action against the State, regardless of whether the State had actual notice of the claims.²² However, in Cummings v. Georgia Department of Juvenile Justice,²³ the supreme court held that the GTCA s ante litem notice provision will not bar suit if a claimant incorrectly but in good faith identifies the responsible state entity in her ante litem notice if the claimant correctly notifies the Department of Administrative Services and there is no prejudice to the State.²⁴

The court of appeals shed light on when a statutory notice provision requires pre-suit notice in SunTrust Bank v. Hightower.²⁵ Noting that the CPA already requires a written demand for damages to be included in every complaint, the court of appeals stated that a statutory notice provision may be satisfied by giving notice in the complaint if the CPA does not render the statutory notice provision redundant.²⁶ The court of appeals cited the Official Code of Georgia Annotated (O.C.G.A.) Sec. 7-414²⁷ and 33-31-9(c)²⁸ as examples of notice provisions that co-exist with the CPA because, "given the purpose to be served by [these] demand requirement[s] . . . it does not matter whether the demand or notice is first provided in the complaint."²⁹ By contrast however, O.C.G.A. Sec. 44-14-3(c),³⁰ which "authorizes the grantor [of a secured instrument] to recover $500 as liquidated damages upon written demand"³¹ after the failure of the grantee to cancel a security deed within sixty days after satisfaction of the debt, was held to require pre-suit notice because if such a demand was first given in the complaint, it would constitute nothing more than a demand for damages already contemplated by the CPA.³²

B. Statutes ofLimitation and Repose

During the survey period, Georgia courts considered a number of cases considering the application of statutes of limitation and statutes of repose in medical malpractice actions involving misdiagnoses.

First, in Kaminer v. Canas,³³ the supreme court considered a case in which the treating physician failed to diagnose a minor patient with pediatric AIDS.³⁴ The patient displayed signs of pediatric AIDS in 1993, but the condition was not diagnosed until 2001.³⁵ The trial court denied summary judgment on behalf of the doctors "on all medical malpractice claims where the injury occurred within 2 years of the date [the] action was filed and the negligent or wrongful act or omission that caused the injury occurred within 5 years of the date [the] action was filed."³⁶ The court of appeals affirmed because the physicians had seen the patient within two years of the commencement of the action and "persisted in their failure to diagnose his worsening AIDS condition."³⁷

The supreme court reversed the court of appeals.³⁸ The court relied on the notion that "in most misdiagnosis cases, the two-year statute of limitations³⁹ and the five-year statute of repose⁴⁰ begin to run simultaneously on the date that the doctor negligently failed to diagnose the condition and, thereby, injured the patient."⁴¹ The supreme court rejected the patient s argument that the doctors subsequent failures to diagnose "additional or increased symptoms . . . constitute[d] new and separate instances of professional negligence."⁴²

The court ofappeals considered several misdiagnosis cases in the wake of Kaminer, issuing opinions with lengthy dissents. The first post-Kaminer misdiagnosis case to appear in the court ofappeals, Cleaveland v. Gannon,⁴³ involved a factual situation somewhat similar to that in Kaminer: a doctor failed to diagnose cysts in the patient's kidney as cancerous, and the kidney cancer metastasized about two years after the misdiagnosis. The patient filed suit within two years of discovering the metastasized kidney cancer, but more than two years after the initial misdiagnosis.⁴⁴

In this case, and unlike Kaminer, the court of appeals sitting en banc held that the patient s claim was not time-barred.⁴⁵ The court applied the "subsequent injury" exception, determining that the metastatic cancer was a new injury and that the patient was asymptomatic for metastatic cancer at the time of the misdiagnosis.⁴⁶

Judge Andrews authored a dissent that relied heavily upon the supreme court's holding in Kaminer.⁴⁷ The dissent did not rely upon the "subsequent injury" exception because the kidney cancer was present at the time of the misdiagnosis and merely progressed and metastasized thereafter, and was therefore not a "new" injury for which the statute of limitations could be tolled.⁴⁸ Moreover, the dissent rejected the "subsequent injury" exception altogether, rhetorically asking: "[H]ow can a doctor misdiagnose an 'asymptomatic' condition?"⁴⁹

In Lyon v. Schramm,⁵⁰ the court of appeals distinguished Kaminer as it applied to the five-year statute of repose.⁵¹ This case involved a patient who had her spleen removed over twenty years ago. In 2004 the patient suffered an overwhelming post-splenectomy infection (OPSI). In August 2006 the patient sued eight doctors who had treated her during the five years preceding the lawsuit and who had failed to warn her of the risk of contracting OPSI. The trial court dismissed the patient s claims against three doctors whose treatment began before August 2001 because they were time-barred by the five-year statute of repose.⁵²

The court of appeals reversed the trial court.⁵³ In so holding, the court of appeals again distinguished Kaminer, this time by characterizing the patient's malpractice claims as a "failure to warn" claim as opposed to a misdiagnosis claim.⁵⁴ The court explained that in misdiagnosis cases, there is generally "a complete tort" at the time of the misdiagnosis; that is, the concurrence of a negligent act and injury.⁵⁵ In failure to warn cases, however, the tort is not complete until the injury actually occurs.⁵⁶ The significance of the difference is that once a cause of action accrues, subsequent failures to lessen the effect of the earlier negligent act do not constitute new acts of negligence.⁵⁷ However, when the cause of action has not yet accrued, each subsequent failure to warn may represent a new negligent act...