Misdiagnosis Law in Georgia: Where Are We Now?
| Publication year | 2011 |
| Pages | 0012 |
A Look at the Law
by Gregory G. Sewell
The path traveled by misdiagnosis law in Georgia over the past few years has been an indecisive and circuitous one indeed. The path began just before Halloween 2007, when the Supreme Court of Georgia issued its opinion in Kaminer v. Canas .[1] At first blush, Kaminer stood as a watershed case in the application of the statute of limitations and statute of repose in medical malpractice actions premised upon alleged misdiagnosis. As time passed, however, the would-be watershed nature of Kaminer began to dwindle under the weight of exceptions; exceptions as to context and exceptions to the rule.
As the appellate courts of this state continue to pigeon-hole Kaminer, it will become increasingly important for the medical malpractice practitioner to more fully explore both the intricacies of the case law reviewing Kaminer's interpretation of O.C.G.A. § 9-371 as well as the nature and interplay of the medical
malpractice statute of limitations and statute of repose in the context of misdiagnosis actions. A thorough understanding of these areas will assist the medical malpractice practitioner in protecting their clients' interests most effectively in this uncertain climate of medical misdiagnosis law in Georgia.
Interaction Between the Statute of Repose and the Statute of Limitations
The statute of limitations and the statute of repose for medical malpractice actions are contained at O.C.G.A. § 9-3-71, which provides, in pertinent part:
(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.
(b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.
(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.[
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The express language of this statute provides guidance as to its scope. O.C.G.A. § 9-3-71(a) prescribes a two-year statute of limitations for medical malpractice actions premised upon an alleged failure to diagnose as calculated from the "date on which an injury or death . . . occurred." It is at this point in time when a prospective plaintiff may maintain an accrued cause of action against the alleged tortfeasor. Further, it is for this reason that a statute of limitations may not begin to run on the date the negligence occurred.[3] By contrast, the statute of repose relates not to the accrued cause of action—both an act or omission and an injury—but instead, only concerns the alleged negligent act or omission itself.
These two periods of limitations will run separately or concurrently. For instance, a negligent act or omission sufficient for the accrual of the statute of repose may not cause an injury sufficient for the accrual of an action, and the running of the statute of limitations, until more than five years after the act or omission. In many instances the negligent act or omission and the injury caused thereby occur in close time proximity. Thus, from this perspective, the statute of ultimate repose acts as a procedural penumbra within which, but never beyond, the statute of limitations may move in accordance with the various tolling provisions contained in the Georgia Code.
Kaminer v. Canas: The 'Would-Be' Watershed Decision
On Oct. 29, 2007, the Supreme Court of Georgia issued an opinion which stood to provide the ever-elusive bright line of demarcation as it relates to the computation of the periods of limitation in medical malpractice actions based on medical misdiagnosis.[4] While ostensibly a case which would change the direction of medical misdiagnosis law in Georgia, the Supreme Court's opinion in Kaminer has been pigeon-holed by subsequent cases from both the Court of Appeals and the Supreme Court such that it remains a shadow of its former self; more an exception rather than the rule.
In Kaminer, a patient who became infected with the Human Immunodeficiency Virus (HIV) as an infant brought a medical malpractice action against, among others, two physicians, claiming that the physicians negligently failed to diagnose the plaintiff's pediatric Acquired Immune Deficiency Syndrome (AIDS) based on evident symptoms. The two physician defendants allegedly misdiagnosed the plaintiff's condition in May 1991 and May 1993, respectively, but the plaintiff did not file suit until 2001. The defendant physicians moved for summary judgment, which the trial court denied on "claims where the injury occurred within 2 years of the date of [the] action was filed and the negligent or wrongful act or omission that caused injury occurred within 5 years of the date [the] action was filed."[5] The Court of Appeals of Georgia affirmed and the defendants applied for certiorari to the Supreme Court of Georgia.
At issue before the Supreme Court was "whether the Court of Appeals erred in holding that, if a plaintiff in a misdiagnosis case presents with additional or significantly increased symptoms of the same misdiagnosed disease, the medical malpractice statute of limitations and statute of repose do not bar the plaintiff's claims."[6] In considering this issue, the Supreme Court noted that, pursuant to O.C.G.A. §§ 9-3-71(a) and (b), "[t]his is a case of misdiagnosis."[7] "˜In most such cases . . . [t]he misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis' ... in most misdiagnosis cases, the two-year statute of limitations and the five-year statute of repose begin to run simultaneously on the date that the doctor negligently failed to diagnose the condition and thereby, injured the patient."[8]
In support of this conclusion, the Supreme Court reasoned that "[w] ith regard to [the plaintiff's] claim for the misdiagnosis of his AIDS condition, he was injured and, consequently, the statute of limitations began to run, on the date that [the defendants] first failed to diagnose it."[9] The Supreme Court then acknowledged and dismissed the lone exception to this general rule in the context of cases alleging negligent misdiagnosis, the new injury exception.[10] In this regard, the Supreme Court acknowledged the "line of Court of Appeals cases in which the patient was held to have suffered a new injury subsequent to the initial diagnosis."[11] But the Court also opined that the cases in which application of the new injury exception are appropriate "involve only "˜the most extreme circumstances . . . in which the plaintiff remains asymptomatic for a period of time following the misdiagnosis.'"[12]
In reversing the partial denial of summary judgment to the defendants, the Supreme Court held that the statute of limitations and, by extension, the statute of repose began to run as to the plaintiff's claim against each defendant physician in 1991 and 1993, respectively; thus, making the plaintiff's 2001 lawsuit barred under O.C.G.A. § 9-3-71.[13]
What's in a Name: "Failure to Warn" Versus "Failure to Diagnose"
At present, the sine qua non of the inquiry is whether the case is one of alleged failure to diagnose and treat or a case of alleged failure to warn and advise. To be sure, the two are mutually exclusive and the delineation can likely become the deciding factor in the grant or denial of a dispositive motion. The Supreme Court recently enunciated the legal significance of the difference between an alleged failure to warn and advise and an alleged failure to diagnose and treat in Schramm v. Lyon.[14] In Schramm, the Supreme Court affirmed the Court of Appeals' holding that the case was not one of medical misdiagnosis, that Kaminer did not apply and, thus, the period of repose as to "each separate claim of professional negligence began to run within the statutory five-year period" notwithstanding the fact that the first alleged failure to warn and advise occurred outside the statutory period.[15]
Clearly, the Court of Appeals and Supreme Court's respective holdings render the description of the negligence at issue all too important in the calculation of the statute of limitations and the statute of repose. However, the Supreme Court did not provide specific guidance as to when a case is one of alleged failure to warn as opposed to alleged failure to diagnose. The Court further failed to address whether the delineation of a cause of action as one or the other in the complaint would end the inquiry. In this connection, this author expects the form of complaints to evolve such that the inclusion of an allegation as to some failure to warn and advise will emerge as ubiquitous. When this occurs, the relevant inquiry should proceed to the substantive nature of the underlying facts and the emergence of the condition at issue.
To this end, it can be argued that one "diagnoses and treats" a condition which already exists, whereas one "warns and advises" relative to a condition which has yet to be acquired. By the converse, one cannot "diagnose and treat" something which does not yet exist, just as one cannot "warn and advise" as to a condition which someone already has.[16] As implicitly acknowledged by the Court of Appeals in Howell v. Zottoli,[17] this distinction becomes self-evident after a brief comparison of the facts at issue in Kaminer with those at issue in Schramm.
In Schramm, the plaintiff alleged that the defendants failed to appropriately warn her and advise her as to a complication of her splenectomy (spleen removal)—over-whelming post-splenectomy infection (OPSI).[18] At the time of the alleged...
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