S07G0489. KAMINER v. CANAS et al. S07G0566.
S07G0489, S07G0566, S07G0578, S07G0587
Supreme Court of Georgia
October 29, 2007
December 14, 2007
282 Ga. 830 | 653 SE2d 691
CARLEY, Justice.
Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Rebecca S. Adams, Robert L. Bunner, Assistant Attorneys General, for appellee.
CARLEY, Justice.
(653 SE2d 691)
In 1984, Derek Canas was born with a rare heart defect. At the age of two months, he
On December 28, 2001, Canas brought suit against Dr. Kaminer and Dr. Al-Jabi. On February 7, 2003, he filed an amended complaint which added the Board of Regents of the University System of Georgia (Board) and MCG Health, Inc. (MCGHI) as defendants and which alleged that, in their capacities as operators of the Hospital, they were vicariously liable for Dr. Kaminer‘s alleged malpractice. All four defendants moved for summary judgment. The trial court granted summary judgment “on all claims for medical malpractice where the alleged negligent or wrongful act or omission occurred more than 5 years before the date on which the action was brought.” However, summary judgment was denied “on all medical malpractice claims where the injury occurred within 2 years of the date this action was filed and the negligent or wrongful act or omission that caused the injury occurred within 5 years of the date this action was filed.”
On appeal, thе Court of Appeals affirmed, even though Dr. Kaminer and Dr. Al-Jabi initially misdiagnosed Canas’ condition more than five years before his suit was filed. Within two years of the commencement of the action, the two physicians had seen Canas and persisted in their failure to diagnose his worsening AIDS condition, and the Court of Appeals concluded that
where a patient continues to be treated by the doctor and presents the doctor with a significant change in manifestations of his conditiоn — additional symptoms or significantly increased symptoms — such that the standard of care would require the doctor to reevaluate the first diagnosis, it can be a new negligent act or omission to fail to reconsider the original diagnosis and take appropriate action. . . . There is evidence . . . that after the initial misdiagnoses[,] Canas presented [Dr.] Al-Jabi and [Dr.] Kaminer with significant changes in the manifestations of his condition.
Canas v. Al-Jabi, 282 Ga. App. 764, 777 (1) (a) (639 SE2d 494) (2006). The four defendants applied for certiorari, and we granted their petitions to determine 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.
1. With regard to the statute of limitations, “[u]nder the 1976 medical malpractice statute the time period [began] to run on the date the negligence ocсur[red].” Shessel v. Stroup, 253 Ga. 56, 57 (316 SE2d 155) (1984). However, that is no longer the law. After that statute was found to be unconstitutional in Shessel, the General Assembly replaced it with current
This is a case of misdiagnosis. “In most such cases, the injury begins immediately upon the misdiagnosis due to pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.” [Cit.]
Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994). Thus, in most misdiagnosis сases, 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.
“[P]rescribing periods of limitation is a legislative, not a judicial, function. . . .” Hunter, Maclean, Exley & Dunn v. Frame, 269 Ga. 844, 846 (1) (507 SE2d 411) (1998). Because
“[i]f the treatment by the doctor is a continuing course and the patient‘s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuous treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive. [Cit.]”
Williams v. Young, 247 Ga. App. 337, 340 (543 SE2d 737) (2000), rev‘d, Young v. Williams, supra.
[T]he continuous treatment doctrine, which “deems that the negligent act . . . continues as long as the patient remains under the physician‘s care” ([cit.]), is more appropriatеly incorporated into a statute of limitation that commences upon the occurrence of the negligent act. [Cits.] (Emphasis in original.)
Young v. Williams, supra at 846.
“(T)he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” [Cits.]
Allrid v. Emory Univ., 249 Ga. 35, 36 (1) (a) (285 SE2d 521) (1982). With regard to Canas’ claim for the misdiagnosis of his AIDS condition, he was injured and, consequently, the statute of limitations began to run, on the date that Dr. Kaminer and Dr. Al-Jabi first failed to diаgnose it. Ford v. Dove, 218 Ga. App. 828, 830 (3) (463 SE2d 351) (1995), overruled on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 (1) (526 SE2d 609) (1999).
The injury at the time of the misdiagnosis was that [Canas] continued to suffer from an undiagnosed and untreated [AIDS condition] that continued to slowly progress and worsen. Clearly, [Canas‘] injury had occurred, and [his] cause of action had accrued, [as of the initial misdiagnoses]. The fact that [he] did not know the medical cause of these symptoms does not affect the applicability of
OCGA § 9-3-71 (a) . In addition, the fact that these symptoms worsened . . . does not lead to a different result, as the subsequent [worsened condition] was directly related to the initial symptoms and misdiagnosis. [Cit.] The two-year statute of limitation[s] inOCGA § 9-3-71 (a) commenced to run on [Canas‘] medical malpractice action alleging misdiagnosis of [his AIDS condition] from the date of [his] injury in [1991, in the case of Dr. Kaminer, and 1993, in the case of Dr. Al-Jabi] and expired prior to the date [he]filed [his complaint against them] on [December 28, 2001].
Stafford-Fox v. Jenkins, 282 Ga. App. 667, 669-670 (1) (639 SE2d 610) (2006). “‘A subjective belief that symptoms were due to some other cause unrelated to the alleged negligence does not change the point аt which the injury occurred.’ [Cit.]” Ford v. Dove, supra at 831 (3).
Nevertheless, Canas contends that, when he developed the additional or significantly increased symptoms of his misdiagnosed condition and still was not treated for AIDS, he was, in effect, reinjured and the statute of limitations recommenced. However, any subsequent failure on the part of Dr. Kaminer or Dr. Al-Jabi to diagnose and treat Canas for AIDS despite the change in his condition did not inflict any new injury on him. Instead, the result of that failure was that his original injury, having now presumably worsened as the consequence of the lack of treatment stemming from the initial misdiagnoses, remained untreated and was, therefore, allowed to continue unabated. His preexisting injury was not transformed into a new injury simply because his underlying AIDS condition remained untreated notwithstanding the increase in his symptoms. Instead, the new injury that he contends he suffered was the direct proximate continuing result of the original misdiagnoses. “With proper diagnosis and treatment, the resultant problems would not have occurred; here, the misdiagnosis and mistreatment were the cause of the ‘injury’ for which [Canas] sought recovery.” (Emphasis in original.) Burt v. James, 276 Ga. App. 370, 373 (623 SE2d 223) (2005). Where, as here, the patient‘s symptoms of his untreated condition worsen over time, “for statute of limitation[s] purposes, the ‘injury’ occurred at the time of the alleged misdiagnosis. [Cits.]” Harrison v. Daly, 268 Ga. App. 280, 284 (601 SE2d 771) (2004). Canas’ “evidence demonstrates only that [his] existing condition was misdiagnosed and mistreated, and that condition was the same one that existed at the time [he] first sought treatmеnt from Dr. [Kaminer and Dr. Al-Jabi].” Kane v. Shoup, 260 Ga. App. 723, 725 (1) (580 SE2d 555) (2003). “If [his subsequent] symptoms were symptoms of the same injury that existed at the time of the alleged misdiagnosis, then the claim is barred by the two-year limitation[s] period.” Kitchens v. Brusman, 280 Ga. App. 163, 165 (2) (633 SE2d 585) (2006).
Subsequent failures on the part of Dr. Kaminer and Dr. Al-Jabi to recognize that Canas’ additional or increased symptoms were indicative of AIDS may well constitute new and separate instances of professional negligence. After Shessel and under
In order for a tort action to lie, there must be an injury to the рlaintiff, i.e., some initiating event which is the result of the defendant‘s negligence and brings that wrongful conduct to light. “‘Proof of negligence in the air, so to speak, will not do.’ [Cit.]” [Cit.]
Cotton States Mut. Ins. Co. v. Crosby, 244 Ga. 456, 457 (1) (260 SE2d 860) (1979). Canas
had a cause of action against [Dr. Kaminer and Dr. Al-Jabi] on the day the original [misdiagnoses were made]. This was a complete cause of action. For a period of time, [the physicians] had an opportunity to [rediagnose his condition] and thereby lessen the extent of the claim which [he] could have made against [them]. This omission on the part of [Dr. Kaminer and Dr. Al-Jabi] was a failure to avoid the ultimate effect of the[ir] earlier breach [es] and a failure to mitigate their own damages. It was not an act inflicting new harm.
Janowski v. Taylor, Bishop & Lee, 246 Ga. 804, 807 (2) (273 SE2d 16) (1980).
As the Court of Appeals noted, it “would be absurd” to hold “as a matter of law [that]
The General Assembly has determined that medical malpractice actions must be filed within two years of the occurrence of injury or death arising from a negligent or wrongful act or omission. [Cit.] The legislatively-prescribed statute of limitation[s] does not provide for the commencement of the period of limitation [at any other point], and the judicial branch is not empоwered to engraft such a provision on to what the legislature has enacted.
Young v. Williams, supra at 847-848.
In addition to reviving the rejected continuing treatment doctrine, the holding of the Court of Appeals in this case introduces an element of unpredictability into the determination of the date that the statute of limitations commences to run on a misdiagnosis claim. A jury issue will arise in every case in which more than two years may have elapsed since the original misdiagnosis, and there are confliсting expert opinions as to whether, within two years of filing suit, the patient‘s worsening symptoms were of such magnitude as to compel a rediagnosis of his condition. Thus, the viability of a statute of limitations defense in a misdiagnosis case would almost never be capable of determination as a matter of law before a trial on the merits.
Instead of unpredictability, “[i]t is desirable to have stability and certainty in the law. . . . [Cits.]” Dowis v. Mud Slingers, 279 Ga. 808, 811 (621 SE2d 413) (2005). Stability and certainty are not advanced by holding that it is possible for the statute of limitations to recommence whenever, over the course of continuing treatment, the physician negligently fails to recognize that the cause of the patient‘s worsening condition is different from that which was originally diagnosed. In the context of a misdiagnosis case, the plaintiff‘s “injury” as used in
“(E)ven those who regard ‘stare decisis’ with something less than enthusiasm recognize that the principle has even greater weight where the precedent relates to interpretation of a statute.” [Cit.] A reinterpretation of a statute after the General Assembly‘s implicit acceptance of the original interpretation would constitute a judicial usurpation of the legislative function.
Abernathy v. City of Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998). See also Hart v. Owens-Illinois, 250 Ga. 397, 400 (297 SE2d 462) (1982).
As authority for its holding, the Court of Appeals cited Oliver v. Sutton, 246 Ga. App. 436 (540 SE2d 645) (2000). Canas v. Al-Jabi, supra at 785 (1) (b). However, that case is distinguishable, as it did not involve a series of failures to diagnose the same underlying medical condition. Instead, the physician in Oliver committed a subsequent act of malpractice when he eventually
2. There is a line of Court of Appeals cases in which the patient was held to have suffered a new injury subsequent to the initial diagnosis. See Walker v. Melton, 227 Ga. App. 149, 150 (489 SE2d 63) (1997); Zechmann v. Thigpen, 210 Ga. App. 726, 728-729 (3) (437 SE2d 475) (1993); Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) (1988). Canas urges that the denial of Dr. Kaminer‘s and Dr. Al-Jabi‘s motions for partial summary judgment should be affirmed under the authority of those decisions. However, those cases involve only “the most extreme circumstances . . . ‘in which the plaintiff remains asymptomatic for a period of time following the misdiagnosis.’ [Cit.]” Burt v. James, supra at 374. As the Court of Appeаls noted, that line of cases is not applicable here because Canas’ claim
is premised on these alleged facts: he had AIDS at the beginning of his treatment with [Dr.] Al-Jabi and [Dr.] Kaminer; he had a medical history indicating the possibility of HIV infection; and he had symptoms of AIDS such that [Dr.] Al-Jabi and [Dr.] Kaminer should have recognized a need for further investigation. Canas did not have a more benign precursor condition; nor did he have an asymptomatic period. Instead, his untreated AIDS continuously сaused his growth to be stunted, his immune system to be compromised, and his life expectancy to be diminished. Therefore, the limited “new injury” exception does not apply in this case. [Cit.]
Canas v. Al-Jabi, supra at 785 (1) (b). Since the limited “new injury” line of decisions cited by Canas in support of his position “are not in any way implicated in this case under the particular fact situation presented[,] . . . this case does not present [this] Court with an appropriate vehicle to address” the continuing viability of those opinions. Stafford-Fox v. Jenkins, supra at 670 (1).
3. The Court of Appeals did correctly hold that the statute of repose began to run on the dates that Dr. Kaminer and Dr. Al-Jabi committed their allegedly negligent acts or omissions, and that the commencement of that five-year period of limitation was not tolled until such time as they ceased to occupy the status of treating physicians. Canas v. Al-Jabi, supra at 776-778 (1) (a). However, the applicable dates are the same as those on which the statute of limitations started to run in 1991 and 1993, respectively, when the misdiаgnoses were initially reached. Thus, the statute of repose, as well as the statute of limitations, has run on Canas’ claim for the negligent failure to diagnose his AIDS condition.
4. [W]e find [
Allrid v. Emory Univ., supra at 37 (1) (a). Accordingly, based upon the applicability of
Judgment reversed. All the Justices concur, except Sears, C. J., Hunstein, P. J., and Thompson, J., who dissent.
HUNSTEIN, Presiding Justice, dissenting.
Because I believe that the decision below both conforms to existing precedent and avoids the concededly harsh result reached by the majority, I hereby respectfully dissent.
I agree with the majority that the two-year statute of limitations applicable to those claims by Canas regarding the initial misdiagnoses by Drs. Kaminer and Al-Jabi began to run as of the date these alleged misdiagnoses were rendered. See Stafford-Fox v. Jenkins, 282 Ga. App. 667, 669 (639 SE2d 610) (2006) (for statute of limitation purposes, injury in misdiagnosis case occurs at time of misdiagnosis). However, I do not agree with the majority‘s holding that, as a matter of law, there can be only a single, indivisible injury flowing from serial misdiagnoses of the same condition.
As the majority notes, “[s]ubsequent failures on the part of Dr. Kaminer and Dr. Al-Jabi to recognize that Canas’ additional or increased symptoms were indicative of AIDS may well constitute new and separate instances of professional negligence.” Maj. Op., p. 834. Thе majority goes on to hold that, as a matter of law, Canas did not suffer any new injury as a result of any subsequent acts of malpractice because the deterioration in his condition was the inevitable result of his previously misdiagnosed illness. However, given that the initial injury in a misdiagnosis case is the pain and expense caused by the untreated condition, the majority opinion overlooks the possibility that there may be a separate injury after a later misdiagnosis, in the form of the сontinued pain and expense caused by the untreated condition which, but for the later misdiagnosis, would not have occurred. This possible factual scenario renders inappropriate the majority‘s ruling as a matter of law.
Thus, in holding that subsequent misdiagnoses may constitute new acts of negligence resulting in new injury, the Court of Appeals merely recognized that, as the majority acknowledges, it is possible for a doctor to misdiagnose a patient more than once in the course of treatment, where new or more severe symptoms would, under the relevant standard of care, require a reassessment of the initial diagnosis.1 The Court of Appeals did not, as the majority contends, effectively revive the continuing treatment doctrine, which effects an extension of the statute of limitation with respect to the initial diagnosis. See Young v. Williams, 274 Ga. 845, 846 (560 SE2d 690) (2002). Instead, the Court of Appeals simply held that a new act of negligence, with its concomitant new injury, carries with it a new limitаtions period.2 Likewise, the Court of Appeals did not undermine “the long-standing interpretation given to the term ‘injury’ as it appears in
The majority justifies its notion of the single, indivisible injury as fostering “[s]tability and certainty” in the law by fixing an easily determinable date on which the statute of limitations in a misdiagnosis case will begin. Maj. Op., p. 836. However, merely because the Court of Appeals’ holding might make it more difficult for medical malpractice defendants to obtain dismissal on statute of limitations
grounds does not mean that it fosters unpredictability in the law. Moreover, curtailing the rights of the injured in the name of stability in the law is misguided where, as here, neither the letter nor the intent of the statute in question requires such a harsh result.
In sum, I would hold that in those cases where a subsequent misdiagnosis is not merely a continuation of/failure to remedy a prior misdiagnosis but is instead (because of new or more severe symptoms that under the applicable standard of care would require a re-evaluation of the prior diagnosis) a distinct negligent act in its own right, a new injury, i.e., additional pain, suffering, and expense due to the untreated condition, has occurred, giving rise to an independent cause of action for negligence accruing on the date of the subsequent misdiagnosis. This is precisely what the Court of Appeals held, and, therefore, I would affirm.3
I am authorized to state that Chief Justice Sears and Justice Thompson join in this dissent.
DECIDED OCTOBER 29, 2007 — RECONSIDERATION DENIED DECEMBER 14, 2007.
Scherffius, Ballard, Still & Ayres, William L. Ballard, Michael G. Regas II, Smith Moore, J. Robert Persons, for Canas.
Oliver, Maner & Gray, Leslie P. Sheehan, William P. Franklin, Jr., Christopher L. Ray, for Al-Jabi.
Carlock, Copeland, Semler & Stair, Adam L. Appel, Kim M. Ruder, for Kaminer.
Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Bryan F. Dorsey, for Board of Regents of the University System of Georgia.
Hull, Towill, Norman, Barrett & Salley, James S.V. Weston, for MCG Health, Inc.
Temple Sellers, Donald J. Palmisano, Jr., Owen, Gleaton, Egan, Jones & Sweeney, H. Andrew Owen, Jr., Roger E. Harris, Shannon C. Shipley, Huff, Powell & Bailey, Daniel J. Huff, Pope & Howard, J. Marcus E. Howard, Charles M. Cork III, amici curiae.