*1 Decided December denied
Reconsideration December Attorney, McBroom, Ison, William T. Jr., District Thomas J. Attorney, appellant. Assistant District for Virgil Virgil Associates, Brown, L. Hearn, Brown & L. Eric D. Ellington, appellee. Ronald J.
A04A1437. SIDLOW et al. v. LEWIS.
Barnes, Judge. podiatrist Georgia Joe Lewis sued Charles J. and Sidlow North Surgery, alleging P.C., Podiatric Medicine & that Sidlow committed malpractice by failing diagnose significant that led to amputation leg. parties completed discovery, of Lewis’s After the summary judgment, arguing two-year Sidlow moved for that the statute of limitation had run before Lewis filed suit. The trial court granted denied Sidlow’smotion and a certificate ofimmediate review. granted application, This court and for follow, the reasons that we summary judgment affirm podiatrist the trial court’s denial of Sidlow. by diabetes,
Lewis had and was treated Sidlow from June 1996 diagnosed to June 2000. On June Sidlow Lewis with arthropathy right gave Charcot’s in his foot and him an orthotic prescription right adjusted. arthropathy to have his shoe involving an arthritic condition midfoot, heralded increased causing pooling, pain, swelling, blood flow to the limb, affected blood heat, increased demineralization of the foot, bones in the and bone symptoms onset, fractures. After initial abate, but untreated, left secondary amputation. the condition leads to bone infection and On hospital sepsis, June Lewis was admitted to the with an placed blood, infection in his and was on intravenous An antibiotics. MRI of Lewis’s foot on June revealed fractures and osteomyelitis, developed gangrene, an infection in the bones. He leg amputated July August 2000. Lewis died in malpractice complaint alleges that Sidlow failed to exercise degree podiatric diligence, ordinarily a reasonable care, and skill employed by podiatrists generally conditions, under similar complications permanent injury right leg. led to to Lewis’s Sidlow summary judgment, arguing complaint moved for that the was filed years began running, more than two after the statute of solely pleadings relying he took of Lewis’s and the on the contended witness. He therefore Lewis’s itself March manifested barred. disagreed, holding The trial court throughout the case has defended Defendant Sidlow maintaining *2 negligence. Amaterial offact no issue there was any negligence certainly at to whether there was exists as arising negligence only complaining of The Plaintiff is all. after diagnosis that the the foot in June of The fact of might does not some evidence of a there be running that the of limitations from mandate a date, of statute subsequent negligence particularly of if there was complains. misdiagnosis negli- the A Plaintiff gence per se. argues appeal testimony again that the of Lewis’s
Sidlow on misdiagnosed that Lewis March and that establishes Sidlow consequently the of had run the time Lewis filed statute limitation began complaint. argues response the statute his running Lewis actually diagnosed on June when Sidlow properly. then treat it foot and failed to expert’s testimony reading
A fair the does not of support argument. The Sidlow’s testified that Sidlow treated years, always making notations, that on Lewis for March the same changed to show com- Sidlow’s notes that Lewis plained breaking signs and had that differed of orthotic boot down previous from visits. alleges appeal applying court
Sidlow the trial erred the to of “continuous treatment” doctrine find statute complaint. run when He also had not Lewis contends the failing find trial court erred in that either Sidlow’s Charcot’s foot “misdiagnosis, itself, manifested March 2000 or the injury running stat- the the medical commences ute of limitations.” pivotal questions (1) are: did The two before us When the — original misdiagnosis
patient’s injury the occur at time of diagnosis proper made? should time after the and When some trigger running patient have in order discovered record, as it now before this of the statute court, limitation? exists all-important questions a matter of does not these as answer law. directly Georgia point no with this we have found case
While prior matter, can be attained from our decisions. some direction cases, most the injury begins immediately [I]n upon misdiagnosis due to the pain, suffering, or eco- the time nomic loss sustained misdiagnosis until the problem medical is properly diag- nosed and treated. The misdiagnosis itself is the subsequent discovery proper diagnosis; thus the fact that the patient did not know the medical cause of his suffering does not affect applicability of OCGA (a). 9-3-71 § supplied.) Harrison v. Daly,
(Emphasis App. 280, SE2d 771) (2004). matter,
In this unlike most misdiagnosis cases where manifests itself diagnosis, that, the plaintiff alleges the proper diagnosis, Sidlow treated him improperly, resulting after in injury. Furthermore, record, when viewed in the light most plaintiff, that, favorable to the indicates at the time of the proper diagnosis, had no redness or swelling in his foot which would have him put that, on notice time point, before that injured. had been This evidence significant raises a question of fact as to both plaintiffs when the injury occurred and when the plaintiff *3 should have known about this In injury. light of these questions, trial court did not err in defendant’s motion for summary judgment which would required determine, have it to as a matter of law, the date on patient’s which the injury occurred.
1. This is not a “continuous treatment”
case
controlled
Supreme Court of Georgia’s ruling
Williams,
in Young v.
On this court considered whether the trial court erred in granting the defendants’ motion for summary judgment on the basis the suit was barred limitation, statute of and concluded that it did not err. Williams v. (575 Ga. SE2d 648) Dr. was on Young last visit to that Williams’ This court noted (2002). until not filed October 30,1996, that her suit was September 1998, concluding that that Williams’ the trial court established evidence Young’s Dr. throughout continuous leg pain than her, present more and that the
treatment of Accordingly, appli- before she filed suit. years two [Cit.] expired before Williams statute of limitation two-year cable lawsuit, and, reason, properly the trial court for this filed her the defendants. summary judgment granted Id. at 824.1 Williams, however, before us in
Unlike the situation to Sidlow. Thus we of his last visit years within two the trial court contention that find no for reversal ground doctrine, treatment because applying the continuous erred inapplicable doctrine is here. “injury” an becomes whether Lewis suffered
2. The issue then
considering
In
this
running in March 2000.
that started the statute
in the statute
issue,
legislative change
it
to review the
helpful
response
Supreme
made in
to the
malpractice
limitation for medical
Stroup,
Shessel
injury arising negligent wrongful or death from a act or omission (5) (a) (362 49) Quinn 608, occurred.” Stafford, v. 257 Ga. 610 SE2d (1987). Supreme Georgia repeated concept Young Court of this v. supra, reiterating (a),
Williams,
that,
§
under
9-3-71
OCGA
period
“begins
injury,
of limitation
with the occurrence of an
performance
negligent
subsequent
of a
act.”
260 Ga. 724 SE2d “This is not always App. (374 106) case[,] Zirkle, Whitaker v. 188 Ga. SE2d Thigpen, App. (3) (437 ,” Zechmann v. 210 Ga. SE2d 475) (1993), (a) however, because “the § focus of OCGA 9-3-71 ‘consequence the date of the act but the of the defendant’s plaintiff.’ App. (426 Lamon, acts on the 657) (1992).” Jones v. 206 Ga. SE2d App. (430 671) Miller,
Vitner v. 208 Ga. SE2d (1993). “[wjhen injury subsequent The result is that an occurs to the date treatment, of medical the statute of limitation commences from injury (Citation punctuation the date the is discovered.” omit- ted.) Thigpen, supra, App. Zechmann v. cases, Ga. at 729. In such injury. itself Currie, Price 299) (2003) (physical precedent only). SE2d Whether the negligence analy- occurs before or after the does not alter the sis.
“Because the statute of limitation is an defense, affirmative (c), applica- § OCGA 9-11-8 the burden was on [Sidlow] to show its bility.” (1) (b) (489 Melton, Walker 227 Ga. (1997). required Therefore, Sidlow was to show that Lewis suffered an in March 2000 that started the statute of limitation running. Based on record, the evidence of he has not done so. Sidlow deposition testimony expert quoting relies on the witness, Lewis’s portion testimony support expert ofthat ofhis conclusion that the thought injury began Reading in March 2000. as a merely whole, commenting however, it is clear that the change Sidlow’s notes in March before which “Sidlow always thing did the same 6,2000 his notes.” Sidlow’sMarch
117 deposition, in the expert in his said Sidlow swelling, even or warmth redness, us, had no that Lewis record diagnosed although time Sidlow at that 1, visit, on the June having foot. Charcot’s Lewis as testimony expert’s deviated from that Sidlow
The crux of failing by accepted after his to treat Lewis of care standard testimony diagnosis 1, 2000. While on June foot Charcot’s thought expert quotes to indicate in his brief seems Sidlow injuries foot March from the Charcot’s resulted that Lewis’s subsequently errata sheet in his clarified injuries gave regarding opinion to Sidlow’s referred Lewis’s he on June to treat Lewis failure established the evidence, has not Sidlow
Based on this scant jury whether to determine of fact for a absence of an issue Because it is treatment of Lewis. in his committed injury running, not the misdi- the statute that starts proven standing agnosis here, has not alone, and because Sidlow denying injury began did err in trial court in March summary judgment. motion for Eldridge J., Judgment Blackburn, J., P. Ruffin, P. affirmed. J., J., Mikell, JJ., Andrews, dissent. Adams, P. concur. Judge, dissenting. MlKELL, respectfully action was I believe that Lewis’s I dissent because therefore, court erred in and, the trial time-barred judgment. summary in favor of the Viewed Sidlow’s motion for nonmoving party,2 Lewis, who the record shows as the podiatrist, by diabetes, Sidlow, a licensed treated suffered from diagnosed 1, 2000, Sidlow 2000. On June from June 1996 to June Lewis with right 10, 2000, an MRI revealed foot.3On June including, complications foot, but not extensive Lewis’s right leg ampu- osteomyelitis. Consequently, to, Lewis’s limited complaint July 2000. Lewis tated below the knee on July alleg- 19, 2002,4 and his amended June things, ing, among other that his 432) (1996). Martinez, (2) (479 Goring See also Urban 224 Ga. SE2d
Lemley, type Neuropathy “a of arthritic condition as witness defined Charcot’s hyperemic person, in which the blood flow involving event the midfoot of a heralded limb, causing pooling, of the bone demineralization blood increases to the infected [and] secondary osteomyelitis, untreated it will lead to [and] He also testified that fractures.” “[l]eft instances.” loss of limb most July arguing that filed a motion to dismiss on The record reflects that Sidlow 19, 2002, and Lewis last visited it filed on June time-barred because was Lewis’s claim was motion, finding apparently that the statute denied the 2000. The trial court Sidlow on June
right leg permanently injured damaged is now as a timely to, result of defendants’ failure in a reasonable and diagnose, manage complications manner, treat, and mellitus, infection, diabetes and fracture as each was exhib- plaintiff during ited his course of treatment with the complications defendants. included, These but are not lim- osteomyelitis, neuropathic pathology, cellulitis, ited to and calcaneal fracture.
Based on Sidlow’snotes from his treatment ofLewis on March *6 opined witness, Dente, D.P.M., Michael right Lewis had a Charcot event foot on March 6 that Sidlow diagnose deposition, failed to and treat. In his Dente testified as follows: everything changed. flag
3/6 of 2000 is when It’s like a red just straight up. Everything going along went has been routinely, everyone Something hap- is cool until 3/6/2000. pened change to make Dr. Sidlow sit down and what he’s saying. talking way been breaking . . . He’s about the his boot is actually making
down----He’s a note to himself... right quite subtaylor pronation, that that foot has a bit of — flattening, right which is medial arch whole collapses, which is in the thing about column Charcot is where the medial you usually get
and a lateral fracture. deposition, following exchange place Later in the also took between Sidlow’s counsel and Dente: your professional opin-
[Counsel:] Doctor, based on medical you ion, do think on March [Lewis] had a Charcot right event in his foot?
[Dente:] Acute? [Counsel:] Acute or otherwise.
[Dente:] Yes.
[Counsel:] Yes?
[Dente:] Yes. . . . your professional opinion you In
[Counsel:] medical ... do believe that [Lewis] had a Charcot foot on March 2000? days by untimely response
was tolled for 17 request. Sidlow’s to Lewis’s medical records We (1) need not challenged address this issue for two reasons: Sidlow has not the denial of his dismiss, motion expired to the evidence shows that the statute of limitation on March Yes. [Dente:] your opinion, Doctor, failed [Sidlow] And is it
[Counsel:] appreciate 6, 2000? it March it and treat on to Yes. [Dente:] testimony, appellants
Relying motion for sum- filed their Dente’s began arguing run on mary judgment, to oflimitation that the statute nondiagnosis, precisely, misdiagnosis, or, more the date of controlling precedent, was, as a matter Lewis 6, 2000. Under March diagnose “injured” failure law, March problem. newly treat the severe (a) medical mal- action for that “an 9-3-71 mandates §
OCGA years brought practice on which an after the date two be within shall wrongful arising or omission act from a or death applicable diagnose, involving a failure In cases occurred.”5 misdiagnosis.6 alleged of the from the date runs because This is immediately injury begins misdiagnosis cases, the
in most upon pain, suffering, or eco- due to the patient the time of the nomic loss sustained misdiagnosis diag- properly problem until the medical itself is the nosed and treated. diagnosis; discovery subsequent thus, cause of did know the medical
the fact that *7 applicability suffering of OCGA affect the does not (a).7 § 9-3-71 defense, . the . . is an affirmative the statute of limitation
“Because applicability.”8 its [Sidlow] on to show [is] burden period com- could not have the limitation maintains that Lewis injury symptoms of the 6, 2000, because he had no menced on March injury According wife, did not manifest the that date. to Lewis’s on days visit, he his June 1 when until a few itself to Lewis 5 (reiterating Williams, 845, (560 690) (2002) that “the Young 848 SE2d See v. 274 Ga. injury, begins the occurrence of an under the current statute with of limitation act”). performance negligent of a 6 Sutton, 280, (601 771) (2004); 246 Ga. Daly, App. Oliver v. 283 SE2d v. 268 Ga. Harrison Melton, 149, 150 (1) (b) (489 App. 436, 437 (2000). App. (540 227 Ga. Accord Walker v. SE2d 63) (1997). SE2d 7 705, App. Harrison, Young, supra. 707-708 (Footnote omitted.) v. 265 Ga. See also Brahn 648) (2002); App. 821, (575 (595 553) (2004); 823 SE2d (2) v. 258 Ga. SE2d Williams Clark, 147) (1994). App. (444 223 SE2d v. 213 Ga. Frankel 8 (c). Walker, (1) (b). omitted.) supra 9-11-8 (Citations See at 151 OCGA§ 120
complained pain disagree. Dente, of and fever.9 We Lewis’s own expert, unequivocally that had a Lewis misdiagnosed injury on March and that Sidlow that time.
Appellee governing that the further contends law the commence- apply of ment the statute oflimitation in cases does not because act here was not the but explains complained failure to treat. “is not Lewis osteomyelitis, gangrene, foot, [,] a Charcot but rather of limb loss developed proper diagnosis which after the was made on June (emphasis omitted) by 2000,” argument but was not treated This Sidlow. adversely
has been decided to Lewis.10 Although injuries argues that Lewis are the suit basis of his diagnosis occurred after the on June was made Dente 11 injuries testified that the were caused Lewis’s Charcot foot. In 12 Kearby Surgery rejected argument Assoc. v. this court a similar plaintiff. plaintiffs leg There, advanced lower left and foot amputated developed gangrene, argued were after he and he that his amputation.13 did not “[t] occur until We held amputation part of the course treatment of the massive resulting improper diagnosis, injury.”14 infection from and not the Similarly process here, there evidence that disease amputation leg improper caused the of Lewis’s resulted from the diagnosis on March argues dispositive
Lewis Oliver v. Sutton15 is case of this diagnose because it involved a failure to and failure to treat. In proper diagnosis January Oliver,16 was made on nine presented plaintiff complaints pain April months after the with January arguing 11,1995. 8,1998, begun that the statute of limitation had run on the date deposition Because the of Lewis’s wife was not included the record for our consider ation, See, State, e.g., Pabey (585 App. we cannot consider this statement. v. 262 Ga. 200) (2003) (“[t]his ..., SE2d unable Court is to consider matters outside the record thus by appellee]”) (citation omitted). we cannot consider references the ... [cited Surgery Kearby, (405 See Assoc. Ga. SE2d Hughley Frazier, (physical 821) (2002) See precedent only) (where plaintiff argued surgery, incontinence resulted from proper diagnosis earlier, would not have occurred had the made been was a new commencing running limitation, alleged injury of the statute of held that court was a part resulting alleged misdiagnosis ofthe course of the condition treatment of and was *8 injury). not a new 12Supra. Id. 717-718. 14(Citation omitted.) Id. at 718. 15Supra.
16Id. diagnosis. proper im- concluded, however, that We April 11, 1995, when the on or treatment occurred plaintiff.17 physically Therefore, manifested to had itself “any time-barred, [was] as [was] of claim we held misdiagnosis.”18 improper treatment claim of based in Oliver was statute of limitation The claim that survived diagnosis,19which asserted in to the correct the failure disclose proposition quotes for dicta Oliver action. Lewis Lewis’s separate negligent act and that to treat after June was a the failure injuries damages However, were suffered after date.20 those explain damages to the measure to in Oliver made our reference any, may damages, if have resulted from failure disclose of diagnosis, diagnose/treat Therefore, failure to claim.21 helpful contrary argument, as to his case it Lewis’s Oliver is separate act the failure to treat was a does not conclude that negligence.22
Although argument appears to be a variation adamantly doctrine,23 it treatment maintains that continuous Supreme rejected Nonetheless, note that not. we our Court Young in treatment doctrine v. continuous Williams. clearly Because record that Lewis had an shows condition, March and that Sidlow failed to treat the the trial summary judgment. court erred motion Presiding Judge joins I am authorized to state Andrews this dissent.
17 Id. at 438. 18 (Citation omitted.) and footnote Id. 19 Id. at 438-439.
20 Id. at 439. 21 Id. “additional selves to the (Citation omitted.) Williams, supra. Supra. [24] If the treatment statute or condition is of doctor for during See also continuing treatment acts of plaintiff, treatment runs from Frankel negligence”). Williams v. particular care, treatment doctrine such the time of the doctor is defendant’s failure to the statute Clark, supra (injury a nature as to disease or condition involved learns or discovery, does not continuing provides: should learn impose commence actual or correct occurred when course 337, 340 (543 “previous negligence” the doctor a constructive. running and the negligence, has symptoms patient’s illness, injury until treatment terminated duty 737) (2000), of continuous manifested them did not — case the unless rev'd, constitute Young
Decided December
Reconsideration denied December Egan, Sweeney,Roger Owen, Gleaton, Harris, Jones & E. Gretchen appellants. Holt, M. for appellee. Chambers, Jr., III,
H Harold Charles F. Fenton for A04A1641. HOLMES v. THE STATE. JOHNSON,Presiding Judge. appeal challenges
This from a criminal conviction the admission of certain evidence and the effectiveness of trial counsel. The chal- lenges merit, are without and we therefore affirm the conviction. County grand jury
A Richmond indicted Vorenzo Holmes and Jeffery aggravated possession Jr., Foat, assault and of a firearm during the commission of a crime. Holmes was also indicted for influencing charges a witness. Holmes and Foat denied the and were together jury. tried before a presented including eyewitness trial,
At evidence, state showing July accounts, that on victim, Delshawn Flournoy, acquaintance. went into the house of an A later, short time carrying guns. They Holmes and Foat arrived outside the house began shooting porch, at a man who was on the and one of their Flournoy shooting, bullets struck in the head. A few weeks after the approached eyewitnesses shooting Holmes one of the to the give money testify against offered to her if she would not him. they testified, Holmes and Foat both had fired guns. They they gone claimed that were unarmed and had to the fight sitting porch. house so that Foat could the man who on the they But them, the man shot at so ran from the scene. Holmes also pay money eyewitness keep never offered to to the testifying against her from him. jury guilty charges. found Holmes and Foat Holmes, of all twenty-year
whom the trial court ordered to serve a sentence for the aggravated five-year assault and sentences for each of the other appeals judgment jury offenses, from the of conviction entered on the verdict. lyrics admitting
1. Holmes contends the trial court erred in rap songs they improperly put that he had written because bad character into evidence. But brief, as Holmes notes in his neither attorneys objection of his trial ever raised a bad character to the notes by noting pulses varied from the norm and that his “boot is breaking change pattern down.” The said that the in the caught despite repeated question- attention, Sidlow’s notes but ing, never said that Lewis had an fact, on that date. In