*1 parol specific performance contract for sale of a is entitled seeking by party executed has been sofar “ifthe contract land party by the other the inducements of the instance or relief and at be restored to his he could not if the contract were abandoned that pre-contract position.” to his Here, can be restored Shuman former improvements any by recovering quantum position for meruit Pettigrew Property. repairs Collins, See made to the n. 4 finding light foregoing, the trial court’s we reverse specific Agreement that Shuman is entitled to is enforceable and the performance by Agreement, with as modified his conversations ofthe judgment Ryan, as a matter Jr., find that the Estate is entitled to for trial Shuman’s claims each of these issues. This leaves of law on quantum claims for a reasonable rent and meruit and the Estate’s by damages allegedly any had caused work Shuman done for by Property performed unlicensed contractors and which was building applicable codes. violation
Judgment Barnes, Smith, J., J., reversed. C. P. concur.
Decided November
Reconsideeation denied Decembee Callaway, Hughes, Hughes, Braun, Riddle & Edward M. for appellant. appellee. Gnann, Gnann, Jr.,
Gannam & J. Hamrick A07A0837. CLEAVELANDv. GANNON et al.
A07A0838. ENTREKIN et al. v. GANNON et al. 662) Judge. Ellington,
William and Jane filed this medical Gannon against Lynwood Cleaveland, M.D., Entrekin, M.D., John Deborah G. Goodrich, D.O., Rockdale, P.C., and Internal Medicine Associates of claiming appellants negligently treat kidney cancer, Mr. Gannon’s which later metastasized. pending,
died while the suit was complaint and Ms. Gannon amended appellants moved to include a death claim. summary judgment grounds personal original complaint barred claims the Gannons asserted were that Ms. death claim statute oflimitation and repose. The trial court denied the barred the statute of appellants appeal.1 follow, motions, For the reasons that we and the affirm. genuine
Summary judgment proper when there is no issue judgment entitled to as a of material fact and the movant is (c). A de novo standard of *2 matter of law. OCGA 9-11-56 applies appeal grant [or denial] to an from a review summary judgment, evidence, and all we view it, reasonable conclusions and inferences drawn from in the light most favorable to the nonmovant. omitted.) Murray Fitzgerald
(Citations Centers, v. Convenient 915) (1999). Defendants who move for summary judgment based on an affirmative defense such as the rely cannot on the absence of evidence in the statute of limitation disproving (c); record the affirmative defense. OCGA 9-11-8 Porex Corp. Haldopoulos, 510, light Gannons, in the most
Viewed favorable to the the evidence following. 2000, shows the In June Mr. Gannon was admitted to the hospital appendicitis surgery appendix. with and had to remove his performed during hospitalization A scan CT showed two masses kidney. urinalysis in Mr. Gannon’s left A also that Mr. showed Gan- microscopic hematuria, is, non had blood in the urine which is microscope. under the visible Mr. Gannon was referred to Dr. urological regarding Cleaveland for a consultation the hematuria. hospital 24, Dr. Cleaveland met with Mr. Gannon at the on June day surgery. 2000, the after Dr. his Cleaveland reviewed the CT scan According Gannon, as well as a renal ultrasound. to Mr. Dr. Cleave- cyst kidney, land told him that he had a small in his which was up cyst, common, and there was no need to follow on the but that he primary physician should see his care about the hematuria after he got hospital. During consultation, out of the Dr. Cleaveland noticed that Mr. indicated Gannon’s records that Mr. Gannon had demonstrated hematuria since at he had least and that several problems including insufficiency, hematuria, that could cause renal hypertension, gout. up physicians
Mr. at Gannon followed with his Internal Medicine July urinalysis performed A Associates at that time showed microscopic specific diagnose hematuria. Dr. Entrekin did not cause 1 Following grant applications interlocutory appeal, appeals our oftheir Dr. Cleaveland A07A0837, Entrekin, Goodrich, in Case No. and Dr. Dr. and Internal Medicine Associates appeal in Case No. A07A0838. problem and the condition was a common because of the hematuria including possible multiple condition, causes for Mr. had Gannon gout. taking Goodrich, another doctor Dr. medicines he was began Associates, of Mr. Gannon treatment Internal Medicine diagnose attempt April but also microscopic precise hematuria. cause of July During 31, 2002, Mr. until October urinating, pain pain in his back or side. nor had no when Gannon August in his urine on one a small amount of blood he saw might thought nurse, the blood Gannon, was a occasion. Ms. who gave antibiotic. He took infection, so she Mr. Gannon an indicate an days, any did blood in his urine the medicine for a few and he not see beginning up “night again. sweats,” also had instances of asked about Mr. to five months before November 2002. When night sweats, that her husband had Ms. Gannon admitted say long, them, that Mr. Gannon and could not for how but she noted job working this time. had started a new and was late around suspicious lump 31, 2002, Mr. Gannon noticed a On October subsequent biopsy lump in neck showed that Mr. his neck. A ofthe his suffering from cancer that had become meta- Gannon was *3 static. support 29, In of
The filed this action on October 2004. Gannons complaint, testimony of one medical their the Gannons offered the expert opined kidney in who that the masses detected Mr. Gannon’s progressed cancerous; and me- in June 2000 were the cancer later diagnosed tastasized; and, at or before its had cancer been likely completely. metastasis, In Mr. would have recovered appellants’ experts opined addition, medical two other appropriate fell standard of care. treatment of Gannon below complications Mr. Gannon died from of his metastatic original complaint July 9, cancer Ms. Gannon amended the on 2005. September wrongful 2005, to add a death claim. appellants’ summary judgment, ruling motion for personal claims and trial court concluded that the Gannons’ timely Ms. death claim were all filed both terms applicable repose. of the statute of limitation and the statute original appellants filed their contend Gannons injured by complaint years they more than two after were appellants’ negligence and, therefore, that the trial medical appellants’ summary judg- denying motions for court erred of limitation. ment based on the medical (a), plaintiff file a medical mal- § Under 9-3-71 a must OCGA practice years or action “within two after the date on which negligent occurred.” death a act or omission from 878
Generally, malpractice involving misdiagnosis a cases condition, in failure to treat a that resulted (a) “injury’ occurs at the time referred to OCGA patient usually of the This is because pain, suffering, experience continues to or economic loss problem the time until the medical properly diagnosed is and treated.
(Citations omitted.) Bergen, App. (626 v.Ward 277 Ga. SE2d 224) (2006), May 18, Canas, cert. denied 2006. See also Kaminer (1) (653 691) (2007) (accord). Consequently, SE2d period usually misdiagnosis, runs from the date of the not subsequent discovery proper diagnosis. from the Kaminer v. (1); Daly, Canas, Harrison v. 771) (2004). According complaint, to the Gannons’
appellants negligently
Mr. Gannon’s
they
when
examined and treated him in 2000 and
more than
years
complaint.
three
before the
filed
Gannons
their
complaint
timely
Ms. Gannon contends that the
was nonetheless
“subsequent injury’ exception
originated
filed under the
with
Zirkle,
Whitaker v.
This
exception
general
applies
limited
rule
in cases in which the
patient’s injury arising
subsequently,
occurs
generally
relatively benign
precursor
when a
condition,
or treatable
which is left untreated because of the
leads to the
development
debilitating
Thus,
a more
or less treatable condition.2
the deleterious result of a doctor’s failure to arrive at the correct
diagnosis
pain
in these cases is not
or economic loss that the
beginning immediately
continuing
original
suffers
until the
problem properly diagnosed
Rather,
and treated.
subsequent development
is the
ofthe other condition. When we
apply
subsequent injury
case,
to such a
the result
plaintiff
is that a
must file his or her medical
debilitating
within two
after the date on which the more
or less
*4
2 See,
Melton,
e.g.,
App.
(1) (489
63) (1997),
January
Walker v.
227
149
Ga.
SE2d
cert. denied
(x-ray
fracture,
treat;
diagnose
1998
revealed a minor vertebral
which doctor failed to
and
patient
subsequent injury
failed,
spinal ligament
a
sustained
under Whitaker v. Zirkle when a
causing
spine);
Thigpen,
App.
(3) (437
475)
destabilization ofthe
Zechmann v.
210 Ga.
726
SE2d
(1993),
January 21,1994 (examination
eye
cert. denied
revealed a minor
condition which doctor
treat;
diagnose
patient
subsequent
injury
failed to
sustained a
under Whitaker v. Zirkle
developed
glaucoma,
Zirkle,
causing
eye);
when she
neovascular
destruction of the
v.
Whitaker
App.
(1) (after
mole,
pathologist
properly diagnose patient’s malignant
188 Ga.
at 706
failed to
patient
subsequent
injury
developed
melanoma);
sustained a
when she
metastatic
see also
Canas,
(2) (acknowledging,
distinguishing,
authority).
Kaminer v.
879 Barnes, Amu v. App. 286 Ga. actually condition arises.3 treatable subsequent such a The date when SE2d (1) 730 calculate however, difficult, impossible, if not to occurs, is often injury v. Zirkle under Whitaker this, (1). Id. 729-730 Because of at precisely. injury subsequent results in misdiagnosis a progeny, and its “[w]hen of limita precisely, date impossible difficult or is injury are attributable to the new symptoms the date tion runs from Melton, 227 omitted.) Walker v. (Citations plaintiff.” manifest 4 63) (1997). SE2d (1) (b) (489 151 App. Ga. Zirkle, of in this case is in Whitaker v. injury complained As occurred if would not have allegedly of a cancer that the metastasis treated at the time of diagnosed and the cancer had been summary for App. moving 188 at 706.5 negligence. Ga. mammogram biopsy App. (routine Bergen, revealed v. 277 Ga. See Ward treat; patient lesions, patient preoancerous and to doctor failed to communicate to developed subsequent injury metastatic hreast under v. Zirkle when she sustained a Whitaker Bhatti, (1) (469 490) (1996) (routine mammogram cancer); Staples App. 404 SE2d v. 220 Ga. treat; cancer, patient possible a sustained hreast which doctor revealed spread lymph node). subsequent later to a under Whitaker v. Zirkle when position dissent, supports Presiding Judge that we Andrews Dr. Cleaveland’s In his injury exception, extent the new “to the overrule Whitaker v. Zirkle and eliminate should view, injury exception discovery Presiding Judge the new creates a rule.” In Andrews’ Whitaker (a). squared plain language of 9-3-71 See also v. cannot he Jenkins, with the OCGA § Stafford-Fox J., specially). 667, 673-685 (639 610) (2006) (Andrews, concurring App. P. 282 Ga. Barnes, explained nearly years. in Amu v. This Court has held otherwise for As we subsequent injury exception, App. (1), expressly declined to disavow the at 730 which we “discovery injury” authority rule in Whitaker v. Zirkle line of does not create a Rather, misdiagnosis cases. straightforward symptoms intended to serve as a the focus on manifested arose, analytic identifying injury actually given the tool for the date when the new date, accurately difficulty, impossibility, many pinpointing that if not cases of given and the that the new arises at some time between Hence, (is) experiencing symptoms. diagnosis, not correct subsequent when (a), injury exception disregard but rather does not OCGA § injur/’ attempts language with the fact that it is to reconcile the statute’s “date of precisely impossible to calculate when often difficult or in the context the new arose. Barnes, (1). Again, at 730 we decline to overrule Whitaker v.Zirkle and its Amu v. progeny. appellants subsequent injury exception apply in this case The contend that the does not asymptomatic misdiagnosis but continued to because Mr. Gannon was never after the rather symptoms appellants argue, display held hematuria and other cancer. As the we have subsequent injury] exception apply, there be evidence order for not must [the “[i]n plaintiff asymptomatic plaintiff developed injury, new but the also must remain a omitted.) misdiagnosis.” (Citations punctuation following Amu v. of time Barnes, question asymptomatic The is not whether Mr. Gannon was at 729 subsequent present time of the cancer that was at the because, applies following misdiagnosis, exception Mr. Gannon was here for a oftime If, hand, injury. asymptomatic his on the other for the metastatic cancer that constitutes already present the time of the cancer had been attributable to the metastatic injury exception apply. negligent would not See Bousset then the plaintiff Walker, App. 102, 104 (2) (645 593) (2007) (where suffer continued to
judgment, appellants coming the burden of forward with bear establishing defense that the evidence their affirmative Gannons’ untimely (a). Bergen, complaint under OCGA 9-3-71 Ward v. they summary App. result, at 260. As a are entitled to 277 Ga. undisputed judgment if that evidence shows Mr. Gannon experienced symptoms subsequent injury (that is, of his cancer that organs had metastasized and invaded kidney) or tissues other than his years malprac more than two before the Gannons filed their appellants tice suit on October 2004. Id. The contend the metasta sis of Mr. Gannon’s experienced gross cancer became manifest to him when he (visible urine) night hematuria blood in the appeared, respectively, August perhaps sweats, which 2002 and early expert testimony, as June 2002. The record contains medical (pre however, these were attributable to his metastasis) kidney cancer or to unrelated medical conditions. Accord ingly, undisputed evidence does not show that Mr. Gannon experienced any symptom subsequent injury of his before he found lump the their his neck on October 2002. Because Gannons filed
complaint
years
symptom
within two
after this
attributable to
appeared,
correctly
the metastatic cancer first
that the
the trial court
ruled
appellants
summary judgment
are not entitled to
Bergen,
App. 258;
basis ofthe statute oflimitation.
v.Ward
277 Ga.
Staples
App.
(1)(
2. The contend because Ms. Gannon filed her wrongful years appellants’ death claim more than five after the ****6 alleged misdiagnoses July 2000,* in June and the trial court erred in failing grant summary judgment their motions for based on the repose.7 premise malpractice that the medical statute omission. filed her ings pain, lumps the infection invaded her time of the plaintiff pain properly diagnosed under sustain a pain did not as a matter of law limitation, within five at the site of the from the time the defendant The statute of We note that because Dr. Goodrich first treated Mr. Gannon in Whitaker Whitaker v. under App. continued to suffer from the effects of an untreated vitamin B-12 wrongful breast cancer until the time of the correct in her OCGA§ years v. Zirkle); five death claim within breast, repose, after the act or omission that constitutes medical allegedly negligent treated, plaintiff until the sustain Harrison v. sinuses, plaintiff Zirkle); 223) (2005) (where (a), requires under Whitaker v. increasing a deficiency subsequent Stafford-Fox Daly, did not as a matter of law sustain a breast size from the time of the defendant’s failure to back years diagnose (b), requires plaintiff did not as a matter of law sustain a caused surgery Zirkle). after Dr. Goodrich’s v. diagnosis, plaintiff plaintiff Jenkins, permanent neurological damage, plaintiff an infection in a tooth until the time that to file each claim Whitaker v. under from the time of at 280 experienced plaintiff 282 Ga. (where negligent allegedly did not as a matter of law to initiate App. April negligence. Zirkle); redness, surgery plaintiff experienced deficiency at 667 subsequent from the medical Burt v. legal proceed swelling, Ms. Gannon until he was The statute subsequent (where James, act or every repose case where death in bars a claim negligence after the medical than five dies more Wesley holding allegedly recent defeated our the death is caused (650 SE2d Chapel Johnson, and Ankle Center Foot explained 387) (2007), in that As we October cert. denied timely malpractice wrongful under death claim decision, a medical plaintiff repose (1) where the medical brings years years timely action, is, that within five negligent two omission and within act or after the *6 wrongful injury, (2) resulting claim, death if not and after a original brought part action, to that same is added Chapel Wesley pending litigation. in Foot and As noted Id. at 885. we with the Johnson, construction is consistent Ankle Center v. repose, malpractice purposes statute of includ of the medical stated recognition “preventing ing in claims”8 stale availability memories, evidence, and the the fact that “time erodes Id. witnesses.”9 original undisputed case, filed their
In this it is Gannons complaint years negligent wrongful acts and within five after or resulting injury10 years after the and that omissions and within two years brought wrongful her death claim within two after Ms. Gannon by filing pending died, an amendment to that action. wrongful timely Thus, filed in Ms. Gannon’s death claim was both repose limitation. The trial terms of the statute of and the statute of summary correctly appellants’ judgment denied the motions for court WesleyChapel wrongful on Ms. death claim. Foot and Ankle App. Johnson, Center v. at 885. Judgment J., Johnson, J., Blackburn, Barnes, C. P. affirmed. Phipps J., Miller, Bernes, JJ., Mikell, JJ., concur. and
P. Adams and part part. Andrews, J., Smith, J., P. concur in and dissent in P. J., dissent. Ruffin, concurring part dissenting part. Judge,
PHIPPS, in WesleyChapel given the reasons in our dissent in Foot and For my opinion wrongful Johnson,11 death Ankle v. Ms. Gannon’s against by Entrekin are barred claims Dr. Cleaveland and Dr. repose (b). negligence or death C. J., concurring specially). OCGA§ (Citations See Division (in within two the case of a claim for omitted.) Braden v. 1, supra. (f). after the wrongful death). Bell, resulting injury (in the 144, 148 case of a claim for 523) (1996) (Beasley, personal injury) Therefore, 2,1 as to Division dissent from the affirmance of the summary judgment trial court’s denial of Dr. Cleaveland’s motion for wrongful as to the death claim in No. Case A07A0837 summary affirmance of the denial of Dr. Entrekin’s motion for judgment wrongful A07A0838; as to the death claim in Case No. I concur in the affirmance of the denial Dr. of Goodrich’s and therefore summary judgment Internal Medicine Associates’ motion for in Case No. A07A0838. judgment
Moreover, I concur in Division l’s of affirmance of the summary judgment denial of all defendants’ motions for as to the personal injury brought original and loss of consortium claims in the complaint.
Although respect the result with death claim might logical my opinion fair, not seem demanded language (h) §§ of OCGA 9-3-71 and 9-3-70 and “case law estab- lishing] seeking damages personal injury that actions and for separate though they distinct, death are even arise out of the same event.”12 Judge joins opinion.
I am authorized to state that Mikell in this Presiding Judge, dissenting. ANDREWS, respectfully (1) I dissent because I find: oflimitation in OCGA§ 9-3-71 bars the medical *7 against (2) five-year repose defendants, all the and that the (b) against § bars the death action Dr. Cleaveland and Dr. Entrekin. 29,2004,
1. On October William and Jane Gannon filed a medical malpractice against urologist, Cleaveland, action Mr. Gannon’s Dr. against primary physicians, and Goodrich, his care Dr. Entrekin and Dr.
along professional corporation, with their Internal Medi- (IMA) (hereafter collectively cine Rockdale, Associates of PC. re- defendants).13 allegations ferred to as the medical As shown the of complaint malpractice record, the brought and the the medical action was following kidney
on the basis: Mr. Gannon had cancer when 2000, Dr. Cleaveland first treated him in June when Dr. Entrekin July 2000, first treated him in him in and when Dr. Goodrich first treated April despite 2001; the fact that Mr. Gannon had a mass Ms. Gannon husband, respondeat superior of Mr. Gannon’s (footnote omitted). 12 Waldroup IMA was named as a defendant on the basis that Mr. Gannon. After Mr. Gannon died in sought recovery against estate, v. Greene the was substituted in his alleged malpractice County Hosp. the medical defendants Auth., place of its July 265 Ga. employees, plaintiff. it was liable under the Ms. 864, for loss of consortium with her Dr. Entrekin and Dr. Goodrich. Gannon, (2) as the (463 SE2d representative principle 5) (1995) of kidney medical kidney cancer when of and other his diagnose they negligently failed to him, treated saw and defendants provide negligently kidney him with and cancer that he had properly had cancer; if medical defendants for the treatment likely kidney not the diagnosed it, more than and treated defendants cured; the medical and because have been cancer would failed progressed cancer, the cancer and treat the to throughout spreading time, over metastasized becoming body terminal illness. an incurable and judgment summary defendants moved The medical two-year medical of limitation for statute basis that the complaint expired filed in before § 9-3-71 actions OCGA (a), medical “an action for 9-3-71 2004. Under OCGA October malpractice brought after the date on within two shall be negligent arising act or from a or death an omission occurred.” plainly limitation means that the This period of an run from the occurrence to commenced Young alleged malpractice. Williams, 846-847 v. 274 Ga. (560 690) (2002). most cases where SE2d injury begins treat, the failure to upon immediately Canas, v. Kaminer cases, the two- “Thus, in most SE2d begin year that the run ... on the date [s] diagnose ... to of limitations thereby, negligently and, the condition to failed doctor “[bjecause patient.” (1). injured Moreover, OCGA Id at 832 period begins (a) provides run at the injury, initiating in a medical mal of limitation time of alleged negli point, practice when the at some other such as plain language contrary gence be discovered!,] is first would 654) (1) (439 Humana, v. the statute. Crowe omitted.) (Punctuation (1994).” Id. upon immediately injury beginning present case,
In the
misdiagnosis by
that, as a
defendants was
each of the medical
first
consequence
to suffer
continued
Mr. Gannon
undiagnosed
cancer that continued
untreated
from the
progress
of time.
and metastasize over
Stafford-Fox
610) (2006);
Kaminer,
Jenkins,
669-670
necessarily
follows
This conclusion
This result cannot be avoided
as the
does, that the
statute of limitation in OCGA
did
§ 9-3-71
not commence to run until Mr. Gannon suffered a new or different
misdiagnosis,
which arose from the
but which occurred some
subsequent
of time
to the
con
progressed
cludes
when the untreated
cancer
and me
tastasized into a terminal cancer condition some
of time
subsequent
subsequent injury
awas
from
which the statute of limitation
commenced to run on October
experienced symptom
2002, when Mr. Gannon
a
of the metastasized
by feeling lump
cancer
in his
A
neck.
similar new or
injury theory
rejected
Supreme
Kaminer,
when the
Court
attempt
previously rejected “continuing
addressed an
to revive the
(1).
Supreme
Kaminer,
treatment doctrine.”
This conclusion
two-year
running
in OCGA
limitation
the
of
the
mence
injury
patient
incurs an
(a)
first
the
date that
§ 9-3-71
patient’s
malpractice.
of
alleged
cause
arising
Because
the
from
patient
date the
than the
no sooner
can accrue
malpractice,
injury
the date
the
from
an
first incurs
limitation is the
legislature
of
the statute
to commence
the
chosen
period
run.
can
possible
limitation
the
date from which
earliest
155) (1984);
(316
Stroup,
Jan-
SE2d
57-58
v.
253 Ga.
Shessel
Accordingly, when Mr.
805-806;
51-1-8.
§
OCGA
kowski, 246 Ga. at
immediately
beginning
injury arising from and
incurred
misdiagnosis
defendant,
cause of
upon
his
each medical
the first
injury arising
any
the misdi-
against
from
defendant for
each
action
agnosis
two-year
limitation
of
dates,
the
statute
accrued on those
(a)
This is true
those dates.
to run from
commenced
§
in OCGA 9-3-71
yet progressed
kidney
though
had not
Mr. Gannon’s
even
recover, and there-
sued to
which he later
condition for
the terminal
part
greater
yet
incurred all or even
he had not
fore
misdiagnosis.
ultimately
Jankowski,
at
246 Ga.
arose from
which
(1).
of action
the cause
Kaminer,
at 834-835
Once
806-807;
282 Ga.
immediately upon
occurring
injury arising
from
accrued
complete
kidney
misdiagnosis
cancer,
cause of
this was a
ofthe
initial
running
triggered
the statute oflimitation
action,
of
subsequent growth
of the cancer arose
and metastasis
claim that the
806-807;
Jankowski,
at
Kam-
246 Ga.
from the same
(a)
Moreover,
§
under OCGA 9-3-71
iner,
limitation does not run from the date of the initial “subsequent injury” exception. because this case falls within a But “subsequent injury” exception recognized in Walker does not apply injuries Walker, in this case. In we concluded because “the sued for arose after the date them,” that caused the statute of limitation did not commence run until the date of injuries. those unique. Id. at 150. The facts Walker were x-ray spine injured
An of Walker’s after he was in an percent automobile accident showed that he sustained a “35 com- pression Melton, fracture of a vertebra” in the accident. Dr. *10 radiologist x-ray May recognize any 1992, who read the in January fracture, soWalker received no treatment for the fracture. In experiencing episode pain, 1994, after ofback x-ray Walker was treated physician, spine another who took an of his which showed percent compression that he had a 66 fracture of the same vertebra. May claiming misdiagnosed In Walker sued Dr. Melton he x-ray May initial years in 1992. Because the suit was filed more than two May misdiagnosis,
after the 1992 Dr. Melton asserted that the (a) statute of limitation in § OCGA 9-3-71 barred the suit. pro- The medical evidence showed that Walker’s vertebra fracture gressively percent worsened from a 35 fracture at the time of the misdiagnosed x-ray May percent to a 66 fracture when properly diagnosed January Walker was and treated in But 1994. medical evidence also showed that Dr. Melton’s did not worsening percent percent cause the initial from 35 to 50 because the degree proper fracture would have worsened to that even with diagnosis Thus, and treatment. Walker’s suit that the mis- diagnosis only subsequent worsening percent caused the from 50 to percent. worsening percent percent 66 Since the from 50 to 66 did not May misdiagnosis, point occur at the time of the but at some subsequent May time to the we found that Walker injury subsequent misdiagno- sued for an which occurred sis, and that the statute of limitation commenced to run from the subsequent injury. Id. at 149-150. (a)
Walker shows that the statute of limitation in
§
injury
run
commences to
subsequent
from an
which occurred some
of time
alleged misdiagnosis
“subsequent
to the
where the
in-
jury”
injury arising
misdiagnosis.
is the first
from the
If an
arising
immediately upon misdiag-
occurs
(as
including
present case),
cases,
nosis
in most
the limitation
(a)
injury,
in OCGA 9-3-71
commences to run from the first
despite
misdiagnosed
progressively
the fact that the
condition
wors-
ens and the
incurs additional and
also
Jankowski,
806-807;
from the same
246 Ga. at
Kaminer,
that this nosis, occurred at some jury experi- because the could find that Mr. Gannon lump enced no theof metastasized cancer until he felt the 31, 2002, in his neck on October date on which the two-year statute oflimitation to run. commenced Whitaker cannot be squared plain application with the
OCGA sistent and should be overruled to the extent is incon- the statute. with patient, suspicious Whitaker, Zirkle,
In had a mole surrounding May tissue removed from her back in exam- I tasized cancer she discovered in 1985 was an by pathologist, ined at that time Dr. Whitaker. Because Dr. Whi- diagnosed containing
taker cancer, the removed tissue as no Zirkle experience any symp- received no further treatment. Zirkle did not May body, toms of cancer until when she noticed nodules her diagnosed containing which were metastasized cancer. A re- sample initially examination of the tissue examined Dr. Whitaker malignant cells, revealed that it contained melanoma cancer treating physician Dr. Whitaker failed detect in 1978. Zirkle’s diagnosed suffering her in 1985 as from melanoma cancer which had parts body metastasized to other her from the site of the mole May removed 1978. Id. Zirkle and her husband *11 malpractice claiming sued Dr. Whitaker for medical the that metas-
injury arising from Dr. Whitaker’s 1978 As Whitaker made clear: allege misdiagnosis Plaintiffs do not the caused Mrs. Zirkle plaintiffs’ cancer; to have the basis of claims is that she had along. injury complained subsequent cancer all of is the metastasis cancerous cells which remained the site subsequent where the mole was removed. The metastasis allegedly not if would have occurred the cancer had been properly diagnosed original and treated at the time the biopsy. two-year
Id. at 708. Dr. Whitaker asserted that the statute of limi- (a) malpractice tation in OCGA 9-3-71 barred the suit. Id. at 706-707. Whitaker identified the relevant the issue as date Zirkle’s injury recognized occurred; most the cases injury upon begins immediately misdiagnosis, the but then observed shortly I that Zirkle “suffered no further of cancer until years diagnosed 1985, some seven after cancer before was misdiagnosis.” record, on this Whi- Id. at 707-708. Based the initial at the time of the that, if cancer Zirkle had in 1978 found the taker yet of the and had not near the site mole was localized — subsequent injury metastasized, the then the for which she sued — Thus, Id. some later date. at 708. occurred at metastasized cancer subsequent date that, an occurs “[w]hen held Whitaker treatment, of limitation commences from statute of medical did not she Id. Because Zirkle discover date the is discovered.” properly diagnosed held it Whitaker had cancer until was (a) two-year period in commenced limitation 1985, and that the the date Zirkle the cancer in to run from discovered timely suit filed in 1986. was focusing suit on the fact that Zirkle’s
Whitaker erred subsequent from metastasis of her untreated arose that the consequence ignoring misdiagnosis, that, immediate while fact an misdiagnosis, continued to suffer from
ofthe 1978
Zirkle
progressively spread and metastasized
the untreated cancer that
which arose
over a
of time. Because Zirkle suffered
upon
misdiagnosis,
immediately
the 1978
from and occurred
triggered
running
date,
ofthe statute oflimitation from that
even
yet
Kaminer,
if
incurred the
metastasis.
Zirkle had not
(1); Jankowski,
The
notes that the
Court’s decision Kam-
acknowledged
originating
line
iner
a
of cases decided
this Court
represented by
expressly
to
Whitaker. Kaminer
declined
address
viability
continuing
of Whitaker and similar cases decided
purport
Court,
to
which
involve “the most extreme
circumstances
plaintiff
asymptomatic
period
a
remains
of time follow-
ing misdiagnosis.” (Citation
punctuation omitted.) Kaminer,
(2).
837 Kaminer also reiterated
a rule
which tolls
patient
injury contrary
limitation
until a
discovers the
to
plain meaning
(a).
Kaminer,
2.1 conclude that the in OCGA§ 9-3-71 (b) against bars the death cause Dr. Cleaveland allegations and Dr. Entrekin. That cause of action was based on *13 by malpractice in June and and Dr. Entrekin Dr. Cleaveland alleged malprac- July Because the death. 2000 caused years by more than five Dr. Entrekin occurred Dr. tice Cleaveland September wrongful 2005, the asserted in death action was before (b) repose five-year barred the action in OCGA statute of (473 against Bell, 222 144 Braden v. Ga. these defendants.15 SE2d WesleyChapel Johnson, Foot and Ankle Center v. 286 on
Based 387) (2007), concludes that the expiration timely brought of after the death action was by repose it added amendment a medical of because was statute timely applicable malpractice of limi- filed within the action Although reasons that the statute I find for the above-stated tation. expired filed, the action was of limitation majority before Accordingly, contrary. for the reasons stated in holds to the WesleyChapel, my WesleyChapel my belief that I reiterate dissent wrongly I be also write to add decided and should overruled. expired before the I find that the statute of limitation because would timely malprac- filed, no there be filed action was would exception amend, to the statute of tice action to repose WesleyChapel and therefore apply. not would Judge joins dissent, that Ruffin in this I am authorized to state joins Presiding Judge Smith this dissent as Division and only. Presiding Judge, dissenting. SMITH, Judge join fully Presiding dissent, Andrews’s I in Division 1 of portion join Division which addresses the merits but I cannot repose. issue is mooted Division 1 of the of the statute of That words, were this court’s dissent. In other if Division 1 of the dissent repose majority opinion, issue should not be reached at the statute of join Judge Therefore, I Andrews’s dissent all. Division of repose issue moot. extent that it finds the statute 30, 2007 Decided November 14,2007 denied December Reconsiderations Sweeney, Egan, Martin, Gleaton, Owen, M. for Jones & Rolfe appellant (case A07A0837). no. IMA to before the The record shows that Dr. Goodrich repose extent does not bar this action that the claim death action was asserted against against IMA based first treated Mr. Gannon Dr. Goodrich, alleged malpractice September nor does bar inApril 2001,less Accordingly, Dr. Goodrich. than five against Epps, Snow, II, Jr., Gunn Richard A. Martin Robert R. A07A0838). appellants (case no. PreyeshK. Maniklal, Dennis, III, & M.
Maniklal Charles Cork appellees. PINCKNEY et
A07A0982. al. v. THE COVINGTON ATHLETIC AND FITNESS
CLUB CENTER. 650) Presiding Judge. SMITH, slip Terry Pinckney appeal case, In this and fall Connie grant summary judgment Covington the trial court’s to The *14 (“Covington Athletic”). Athletic Club and Fitness Center Because genuine there is no issue ofmaterial fact to as the existence of defect any Pinckney to and as whether such defect could have caused Connie fall, to we affirm.
Summary judgment proper genuine when no issue of material judgment fact exists and the movant is entitled to as a matter of law. (c). applies appeal OCGA§ 9-11-56 Ade novo standard ofreview to an grant summary judgment, from a evidence, and we view the and all light it, reasonable conclusions inferences drawn from in the Matjoulis Integon most favorable nonmovant. Gen. Ins. Corp., (1) (486 viewed, So Pinckney Covington record shows that Mrs. fell at Athletic as she stepped swimming pool during Pinckney out of the a swim lesson. deposition walking up steps testified in her “[a]s I was holding my put my right hand, on the rail with left I soon as foot up thing, slipped.” down on the deck to come and stand on the last Pinckney deposition day testified fall, also in her her she nothing explain fall, had no idea what her made she saw that could fall, her there no fall, was substance on her foot after her and she saw day no “slime” on the her fall. report signed by Pinckney
The accident after her fall stated that “slipping deposi- the cause of the accident was on wet deck.” In her Pinckney acknowledged tion, that the area where she fell was “sort Covington employee inspected of” wet. A Athletic the area after Pinckney’s nothing explain fall saw other than her water fall. day Pinckney’s Covington fall, after Athletic closed and pool replastering. pool days reopened drained the When Pinckney’s pool just fall, after went she back to the [she] “because was wondering going why, time, what I how did fall.” At that greenish looking slime, she “noticed that there was ... a little stuff along that was line.” She then “assumed” that the slime was what