*1 Pope, Judge, dissenting.
I opinion. to 2 of the majority majority dissent Division finds part error here in did reversible witness answer certain questions prior invoking and, privilege to his Fifth ac- Amendment cording majority, only ques- it was prior the answers those to were incriminating tions which to the defendant. While it is true that questions concerning witness’ answers to some of the his relation- ship with the defendant raised an inference concerning the defend- activities, ant’s in criminal I involvement believe most damaging aspect testimony acknowledgement of the witness’ was his that he given incriminating had statement to Florida authorities and his subsequent refusal questions to answer about the contents I statement. Thus think it matters little whether the could defendant have aspects testimony confronted witness about other of his the defendant could not confront the witness damag- about ing aspect testimony. of his disagree also that defendant invited the error here. The State testify
knew of the witness’ intention not to the incriminating about statement, State, and it was upon party calling incumbent witness, request hearing to at testimony, the outset of the at minimum, request hearing before the was asked which the State knew would cause the the privilege. witness invoke
As I the majority, only read error if reversible occurs State exactly does prosecutor State, what the Lingerfelt did precedent Such a rote ig- nores the underlying rationale in case and allows the State to procedure pursuant circumvent Lingerfelt established its my opinion, defendant’s motion for mistrial should have progeny. been granted. —
Decided December Reconsideration denied December Hackel, Hackel,
Hackel & Harrison, Thomas M. Harrison & Harrison, Llop, M. Steven for appellant. Wiggins,
James L. Attorney, District Spivey, Russell P. Assis- tant Attorney, District appellee.
A92A1315. JONES et al. al. LAMON et Sognier, Chief Judge.
Bettye Jones and Luther Jones filed suit for medical M.D., and, Lamon, under the Clyde against loss of consortium County Hospital Au- Colquitt against superior, theory respondeat The trial court Center. Colquitt Regional Medical thority d/b/a respondeat supe- hospital on the granted basis that Joneses’ defendants to both rior issue and specifi- appeal, The Joneses by the limitation. statute of was barred *2 limita- the statute of consideration to cally confining the issue our ruling. Bettye Jones underwent sur- reveals that record July prescribed the anti- hospital 1989 and was at gery Coumadin, drug appellee Lamon. The effect of by coagulant drug, by prothrombin time tests conducted was monitored on Ms. Jones hospital from on hospital. discharge After she was her while 15, 1989, daily Coumadin taking doses of August Ms. Jones continued 26, reported to Lamon prescribed by August appellants On Lamon. nausea, vomiting, experiencing Ms. the onset that Jones was hospital symptoms. Ms. Jones was admitted on certain other 1989, 28, that was suffer- which time tests determined she August at hemorrhaging, appellants from which contend ing gastrointestinal her by appellees’ properly failure to monitor while she caused 27, August filed 1991. taking Appellants Coumadin. suit on Loube, M.D., in Appellants of Julian M. submitted the affidavit hemorrhaging Ms. resulted from which Dr. Loube averred that Jones’ Coumadin”; symp- that “inappropriate management her interpreted experienced reasonably Ms. “could have been toms Jones a stomach lay, medically unsophisticated people to indicate underly- upset”; physicians bowel that could not certain of or laboratory examinations ing diagnosis appropriate without 1989; 28, Dr. on and that August studies conducted on Ms. Jones have known she was suf- opinion Loube’s Ms. Jones “could not that , improperly until fering from the effects of administered Coumadin 28, hospital on 1989.” August her admission (hereinafter Bettye appellant) that Appellant Jones contends not barred under 9-3- her medical suit was time OCGA § run period begin 71 the limitation her claim did on not 28, 1989, until the date which she discovered causal duty. relationship appellees’ alleged her between breach 556, 1, 1985, 1985, is (a), p. L. OCGA 9-3-71 as amended Ga. § § action for applicable provides here and that “an or brought shall be within two after the date on which or act or occurred.” negligent wrongful death from a omission arising mal- Appellant, by asserting period for her medical the limitation she begin did to run until the date discovered practice claim not OCGA 9-3- injury, engraft have this court onto cause seeks to general tort “discovery applied rule” to OCGA 71 844 Inc., limitation, by King Seitzingers,
statute of 160 Ga. (1981).1 (287 252) “discovery SE2d rule” is based on specific (Ga. 3-1004) in OCGA Code Ann. providing general the limitation torts begins run the date Co., Miles v. Ashland Chemical right “the of action accrues.” (410 290) (1991); King, supra. Supreme Ga. Court recognized points “there four at are tort cause may accrue: duty; the defendant his breaches [I] [w]hen [II] plaintiff when the is first injured; plaintiff when the becomes [III] injury; his plaintiff aware of when the discovers the causal [IV] relationship between his and the duty.” defendant’s breach of (Emphasis supplied.) Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 344) Corpo- part, overruled ration Mercer Gypsum Co., Univ. Nat. (1) (368 732) (1988) (held, King discovery rule in applicable prop- erty damage 9-3-30). statute of OCGA § argued
It
“discovery
this court must
apply
rule”
OCGA 9-3-33 to OCGA 9-3-71
because when the latter
was amended
the legislature
compelled
opinion
Court’s
In Shessel the defendant
duty
plaintiff by
breached a
owed the
negligently performing a sterilization procedure on her. Under
the
1976 version of OCGA
the statute of
on
plain-
the
tiff’s malpractice
began
claim
to run at
procedure.
the time of the
(Point I in
Co.,
Lumbermen’s Mut. Cas.
However,
supra.)
plain-
the
Shessel,
injury
tiff’s
was her subsequent
pregnancy.
supra at 57.
Shessel
opinion
does not
point
reflect whether
II
the
of the in-
date
(i.e.,
jury
the
plaintiff
date the
became pregnant) was
same
the
as the
point III date
discovery
(i.e.,
of
injury
plaintiff
of the
the date the
learned she was pregnant), although the
recognize
court did
the dis-
Supreme Court,
in a case decided since
Shessel
Accordingly, when unconstitutional, not Court was to 9-3-71 OCGA § II, III, IV, points all of which among on the differences focused plaintiff, be- affects a varying times at involve the Shessel court Instead, were not issue. cause those differences period that com- on the difference between a limitation focused I) duty of rather (point on the date of defendant’s breach menced IV). II, III, It plaintiff (points date of an to than on the the limita- point calculating for beginning “this difference appeal,” id. at point the focal Shessel] period which [the [was] the 1976 holding the basis for the therein and constituted similarly situ- of OCGA 9-3-71 was unconstitutional version alike. at 59. parties were not treated Id. ated deficiency Shessel reveals that the constitutional analysis This by focusing OCGA 9-3-71 could be cured in the 1976 version of period” point calculating the limitation “beginning statute’s on plaintiff rather than on the date of amending OCGA duty. legislature, breach of a defendant’s brought must be within provide to actions arising death date “on which an two after the conformity occurred,” wrongful act or omission acted negligent or point” de- in Shessel because the “beginning is now holding with the acts consequence defendant’s looking termined plaintiff. contention, compelled
Contrary appellant’s nothing discovery the cause of point IV date legislature select period. the limitation beginning point calculating as the Indeed, contains intimating Supreme Court was unwilling approve point even at the earlier setting the beginning It discovery III id. at point injury. however, *4 our necessary over-analyze given to the 9-3-71 legislature, amending that the when OCGA determination § to required by a redundant statute enact thereby abolish all provisions the of OCGA 9-3-33 and duplicating general the tort statutes distinction between and by for the providing for identical commencement dates limitation begins only general action “The tort when the ‘accrues’ limitation OCGA [in 9-3-33] [point perhaps injury than date sooner the and that is no sooner than the date of II] discovery [point supra at 58. III]. [Cit.]” periods in
limitation each statute.3 plain language OCGA the limi- 9-3-71 that statute of begins tation a medical to run on date “on arising . . . malpractice] which from act of occurred” [an support would seem the conclusion to that limitation com- i.e., injury, to run on date of point mences II. This court in Zirkle, Whitaker without matter, analysis any of the an injury stated that date occurs III, point under “the statute date the is discovered. However, supra.” necessary Id. at 708.4 is not it to because, resolve that pretermitting issue here limi- whether time running very appellant tation commenced first day on went un- II), (point judice monitored case the evidence sub establishes uncontrovertedly III) appellant (point aware her at by August least the date on which appellee she contacted Lamon because she was and had been experiencing nausea other symptoms of the hemorrhaging internal from which she was suffering. Thus, and, appellant the fact according did not know to Dr. Loube’s affidavit, uncontroverted could not have known cause of her suf- fering August before does not affect the of OCGA 9-§ 3-71 when the evidence that appellant’s establishes oc- physically curred and had manifested by itself to her August Ap- 26. pellant’s subjective suffering belief that her stemmed from a stomach virus or appellees’ some other unrelated alleged cause negligence not change does fact that her occurred
Therefore, appellant Bettye Jones failed to file suit August 26, within two her injury arising appellees’ alleged negligent occurred, act or omission OCGA 9-§ (a), complaint untimely 3-71 her as Accordingly, a matter of law. trial court’s judgment appellees favor of claim is affirmed.
2. We agree with Luther Jones that the trial court by granting summary erred Lamon as to his claim for loss of consortium. No of fact exists his loss of consortium claim remains viable because the ap- plicable claim, year period to his the four set forth in OCGA § legislature compelled Our determination that the was not 9-3-71 enact OCGA with supported same commencement as that OCGA 9-3-33 is also rule of “ provisos scope construction significance having which ‘forbids that two should be treated as no more standing than one them would have if alone. . . .’ Butterworth But [Cit.]” terworth, 4 Contrary assertion, nothing proposition to the dissent’s in Whitaker stands for the the distinction between the statutes of limitation OCGA 9-3-33 §§ been controlling authority abolished. Whitaker does not thus address and does not constitute interpretation (a). for the dissent’s of OCGA 9-3-71
847 (313 481, 482 App. Haney, 169 Ga. Elwell v. See expired. not injury claim does personal (1984) (running of limitation claim). the alter- note that We of consortium loss bar derivative judg- its by the trial court for given native basis appeal. challenged hospital was not in ment favor in effect. presumed binding be Hence, is Atlanta, 441 Ga. Nat. Bank Jones First generally J., Birdsong, P. part. reversed in part and Judgment affirmed JJ., Johnson, Andrews, J., Beasley and J., concur. P. Carley, JJ., J., Cooper, dissent. McMurray, Pope and P. specially. concur specially. Judge, concurring Beasley, statutory the 1985 extent majority concur with rule, at least when oc- may discovery-of-the-injury in effect
change be is occurrence. That knowledge of the currence is simultaneous with August 26. here, was even before case unless the occurrence itself years the date the oc- Act made it two after Georgia Supreme Court is the which the language curred. That same 155) (1984), would in Shessel v. implied equal pro- acceptable: OCGA 9-3-71 is a denial of “We hold that applied personal as tection and therefore unconstitutional years negligent two after the claims which occurs more than (Emphasis supplied.) wrongful or act or occurred.” omission supra at 59. accrual, is there little dif- equates
Since that event with (two years the date on which ference between OCGA 9-3-71 occurred) (two years right of ac- and OCGA 9-3-33 after accrues), general accrued except that tailors the OCGA 9-3-71 specifically malprac- it medical language meaning, to more state tice, the the injury occurs. it Georgia,
If is a rule would discovery-of-the-injury there or part is of OCGA 9-3-71 make difference this case whether it not, simultaneous with or even earlier because occurrence was filing suit knowledge of the occurrence. The limitation than began running no later than special in this Judge joins
I am state that Johnson authorized to concurrence. Presiding dissenting. Judge,
McMurray,
which classi-
Assembly
legislation
the General
enacted
actions for
separately from other tort
fied
actions
“Ex-
provided that:
purposes.
The 1976 statute
medical mal-
provided
chapter,
an action for
cept as otherwise
this
on which the
practice
two
after
brought
shall be
within
negligent
wrongful
act or
L.
pp.
omission occurred.” Ga.
Univ.,
Emory
(1a) (285
Allrid
1. In
521),
Supreme
Court acknowledged
“to be an
extremely
in effect,
harsh limitation
it
has the
cases,
many
cutting
rights
any
off
there
knowledge
before
of in
thereafter,
jury.” Shortly
Court
the 1976
held
stat
Equal
ute
limitation violated the
Protection Clause
those medi
*6
in
malpractice
alleged
produced
cal
actions
which the
negligence
years
until more than two
alleged negligence
after such
oc
(316
Stroup,
Shessel v.
Singer,
Clark v.
155);
curred.
In of malpractice 1976 statute limitation for medical claims, by in by then contained OCGA was Georgia amended 1985, 556, p. Laws 1. The five-year 1985 amendment added a stat (b) repose ute of ultimate paragraph paragraph as while inserted in lieu language provides of the 1976 that: “Except pro as otherwise article, in vided malpractice an action for medical shall be years brought within two after the date on an or death Quinn arising from negligent v. wrongful a or omission occurred.” See Stafford, (5) 608, 49). 257 Ga. 610 change This the stat utory language apparently was intended to cure the constitutional de such cases as Shessel v. Stroup, ficiency 56, noted supra, 253 Ga. Singer, v. and Clark 470, Ga. supra. question toas whether the 1985 amendment also altered of after the and Clark deci- applied
substance the 1976 as law v. appears by sions to have been answered decision Whitaker our Zirkle, (1) App. 106) which, Ga. in reference statute, to the 1976 states that: “At [plaintiff] the time Zirkle’s cancer diagnosed May 1985], was Georgia or permitted pa- June law a [in tient bring medical years claim within two from the the injury v. by date of negligent act. See Shessel alleged caused an Stroup, [supra].” As this statement of the of construction the 1976 of limitation after the Clark and Shessel is indistinguishable decisions of of paragraph 1985 amendment which became July effective on applicable case, which is my to this it is view that paragraph of the 1985 statute change substantive of the statute limita- Clark tion as construed following solely but was enacted to remove the constitutional impor- faults of the 1976 language. The Whitaker, tance of this conclusion is that decisions well as as Shessel, may clearly recognized authority as controlling on the is- present present sues appeal may distinguished not be as relating only statutory language which has superseded. now been Whitaker,
As in the case judice sub an injury involves which oc- subsequent curs to the date of medical treatment negligence. or treatment, of medical subsequent to the date injury occurs an “When is dis- from the date the commences statute of limitation Zirkle, Stroup, supra.” Whitaker covered. supra. judice Dr. pre- sub Lamon’s alleged negligence the case patient monitoring. resulting injury
scribing Coumadin without Thus, the statute reaction Coumadin. adverse discovery symptoms of an adverse re- from the commences plaintiff Bettye Discovery relates to Coumadin. action to discovery suffered where that an been Jones’ actual plaintiff Bettye have Jones should diligence exercise of reasonable 56, 57, it. supra. fn. discovered plaintiff jury for the as to when remains judice, case sub actually injury. or should have discovered Bettye discovered Jones plaintiffs par- favorable light When viewed evidence shows summary judgment, opposing ties the motion discovery to Coumadin until was no of the adverse reaction that there 28, 1989, hospi- Bettye Jones’ readmission to the date, been filed within of that having tal. This action two summary judgment grant erred insofar as its superior court plaintiffs’ were the stat- on a conclusion that actions barred based of limitation. would hold that the ute *7 of Lamon was reversible error.
favor defendant question opinion effort to the majority devotes considerable reaching of without ever malpractice when a medical action accrues hypothesis an favor majority conclusion. While the advances clear Whita- II the point injury, acknowledges holding of the date of it majority ker point III applying date the is discovered. ap- proceeds issue as to which should be then to avoid obvious Whitaker plied distinguish judice by purporting in the case sub While the through judice. its of the facts the case sub construction judice majority maintains evidence the case sub estab- that “the (point was uncontrovertedly lishes that aware III) she August at least the date on which contacted experiencing she and had been nausea and Lamon because she was symptoms hemorrhaging other of the internal from which expert affidavit suffering,” entirely disregards this the evidence via Jones, any medi- majority opinion noted earlier in the that Ms. like interpreted cally person, reasonably have unsophisticated lay could physi- upset symptoms a stomach or bowel and that to indicate problem cians could not be certain of the without examination Ms. laboratory so been known that studies that it could not have administered suffering improperly Jones was from the effects of hospital August until Coumadin her admission to the ambiguous view, my permit equating of the evidence would not symptoms August suffered Ms. Jones on 26 with actual or con- knowledge structive she had suffered. Since Ms. Jones knowledge had no of her until of the Whitaker would holding in require period that the began limitation Contrary view, I see the Whita- day. majority’s to run on that ker case, abolishing not as the differences between OCGA §§ only being but as decision from Georgia either appellate courts which was decided under current version of OCGA 9-3-71 and directed to the issues on appeal, therefore precedent. would follow this
I am Pope joins authorized to state that Judge this dissent. Judge, dissenting. Cooper, pivotal this case is whether the Court 155) (1984) any held
difference in
malpractice
treatment
between medical
actions and
respect
other
with
negligence actions
period
when the limitation
unconstitutional,
begins to run was
simply
or whether it
held that a
providing
statute
period
malpractice
for medical
begins to run at the
negligent
time
act rather than the
time
In choosing
alternative,
unconstitutional.
the latter
majority
ignored
of Shessel.
as well as the
rationale
period
While the time
bringing
negligence
for
action
the gen-
under
begins
eral tort statute of limitation
run
when the cause of action
accrues,
period
the time
for
bringing
malpractice
medical
in Shessel began to run on the date the
under the
challenged
statute
negligence
occurred. “It
point
beginning
difference
calculating
the limitation
which is
point
ap-
the focal
of this
peal.” (Emphasis supplied.)
Decided December 17, 1992. denied December Reconsideration Donaldson, Jerry W. Campbell & Brimberry, Kaplan, Brimberry, appellants. for Whelchel, Carlton, C. appel-
Whelchel, & James Whelchel lees. SERVICES, P.A. et al. et al. v. RADIOLOGY
A92A1251. STONE Sognier, Judge. Chief suit and Katharine Stone filed
Horace Stone and alleging that the de- December of consortium claim on loss employed professional associations that physicians and the fendant by failing recognize Mr. Stone’s condition misdiagnosed them had September brain taken that a CAT scan of Mr. Stone’s granted The trial court brain.” “showed a tumor on Stone’s] [Mr. limita- on their statute of defendants’ motions for defense, appeal. the Stones appeal dismiss appellees 1. The motion made three brief, error and see untimely filing appellants’ enumeration of (a), appellants have Appeals Rule 14 is denied because Court of by postmark timely filed. shown date that these documents were Appeals Court of Rule 4. summary judg- We find no error the trial court’s Services, P.A., employee/
ment in favor of and its Radiology physicians named this suit on their statute of limitation defense. exper- been record establishes that Horace Stone had years, May scan iencing many severe headaches for but a 1983 brain 30, 1985, September had revealed no abnormalities. On Mr. Stone Services, his appellee Radiology went to at which time a CAT scan of physician employees of Radiol- performed. appellees, brain was Two Services, report, ogy signed radiological reviewed the CAT film and of abnormal which set forth that the CAT scan had revealed no areas calcifica- density within Mr. Stone’s brain or abnormal intracranial brain, tions, were noted the dilatation certain areas of the brain, pronounced in the ventricle and concluded fourth “most diagnostic impression changes the described were with atrophy.” consistent with cerebellar Mr. brain was early December MRI scan of Stone’s MRI did not have by Radiology Radiology
taken Services. Services and, employee-physicians one of its technology available