STAFFORD-FOX v. JENKINS et al.; and vice versa.
A06A1090, A06A1091
Court of Appeals of Georgia
DECEMBER 1, 2006
639 SE2d 610 | 282 Ga. App. 667
JOHNSON, Presiding Judge.
These appeals concern a medical malpractice action alleging that an injury arose from the misdiagnosis of a vitamin B-12 deficiency — and a subsequent amendment to the complaint adding claims for ordinary negligence and breach of fiduciary duty — filed by Diane Stafford-Fox against Lonnie C. Jenkins, M.D. and his professional corporation, Lonnie C. Jenkins, M.D., P.C. In Case No. A06A1090, Stafford-Fox appeals from the portion of the trial court‘s order granting summary judgment in favor of Jenkins and the professional corporation on the ordinary negligence and breach of fiduciary duty claims. In Case No. A06A1091, Jenkins and the professional corporation cross-appeal (a) from the portion of the trial court‘s order denying their motion seeking partial summary judgment on medical malpractice claims, and (b) from partial denial of their motion seeking summary judgment on the ordinary negligence claims.
1. In the cross-appeal in Case No. A06A1091, Jenkins and the professional corporation1 contend that the trial court erred by denying their motion for partial summary judgment asserting that the two-year statute of limitation in
Stafford-Fox alleged in her complaint filed on May 1, 2002, that she sustained an injury which arose from the misdiagnosis of a vitamin B-12 deficiency. She alleged that when Jenkins treated her during a series of office visits beginning in January 1999, and ending on May 1, 2000, he negligently failed to diagnose that she was suffering from a B-12
Stafford-Fox contends that the misdiagnosis left her with an untreated moderate B-12 deficiency, and that the subsequent surgery further depleted her B-12 level, so that the misdiagnosis and the surgery combined to cause a severe B-12 deficiency that rendered her permanently disabled. She contends that her complaint filed on May 1, 2002, was within the two-year limitation period of
In an order dated August 21, 2003, the trial court granted a motion for partial summary judgment on the misdiagnosis claims in favor of Jenkins and the professional corporation on the basis that Stafford-Fox failed to file her complaint within the two-year limitation period set forth in
Based on additional expert evidence produced in the case, Stafford-Fox subsequently filed a motion requesting that the trial court reconsider its August 21, 2003 ruling, and on October 6, 2004, the trial court entered an order granting the motion for reconsideration and finding that a factual issue existed as to whether the statute of limitation had expired on the misdiagnosis claims. As the basis for this ruling, the trial court found that, even though the evidence established that Stafford-Fox manifested symptoms of a moderate but treatable B-12 deficiency no later than April 14, 2000, other evidence showed that the deficiency did not become severe and cause permanent disability until after the May 15, 2000 surgery. The trial court found that a factual issue was presented as to whether the severe B-12 deficiency and resulting permanent disability was an injury which arose from but occurred subsequent to the misdiagnosis. Because the May 1, 2002 complaint was filed less than two years after Stafford-Fox manifested symptoms of the severe B-12 deficiency that caused permanent disability, the trial court vacated its earlier ruling that the two-year statute of limitation had expired.
At issue on these facts is when did the cause of action for medical malpractice accrue and when did the two-year limitation period in
the injury begins immediately upon the misdiagnosis due to the 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; thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of
OCGA § 9-3-71 (a) .3
In the present case, the record clearly shows that Stafford-Fox suffered an injury arising out of the misdiagnosis in January 1999, when she was first seen in Jenkins’ office manifesting continuous symptoms of a moderate B-12 deficiency, and Jenkins failed to make the diagnosis and provide treatment.
The injury at the time of the misdiagnosis was that Stafford-Fox continued to suffer from an undiagnosed and untreated B-12 deficiency that continued to slowly progress and worsen. Clearly, Stafford-Fox‘s injury had occurred, and her cause of action had accrued, in 1999. The fact that she did not know the medical cause of these symptoms does not affect the applicability of
The special concurrence discusses in great detail lines of cases in which this Court has recognized two principles related to the application of the statute of limitation in medical malpractice cases. It argues that the cases in which these two doctrines have been recognized and applied should be overruled. However, these principles, which have come to be referred to as the “discovery rule” and the “continuous treatment doctrine,” are not in any way implicated in this case under the particular fact situation presented. Therefore, this case does not present the Court with an appropriate vehicle to address the concerns expressed in the special concurrence.
2. After alleging only professional negligence against Jenkins and the professional corporation in her original complaint, Stafford-Fox amended the complaint to add claims alleging simple negligence and breach of fiduciary duty. In Case No. A06A1090, Stafford-Fox contends the trial court erred by partially granting summary judgment in favor of Jenkins on these claims, and in Case No. A06A1091, Jenkins and the professional corporation contend the trial court erred by partially denying their motion for summary judgment on the same claims.
The amendment added Counts 3 and 4 to the complaint. Amended Count 3 alleged that Jenkins and the professional corporation, acting by and through various agents and employees, breached duties to exercise ordinary care to ensure that Jenkins was made aware of lab reports or other documents that could have enabled him to diagnose Stafford-Fox‘s B-12 deficiency, and that, as a result, Stafford-Fox was not promptly diagnosed and treated for the B-12 deficiency. Amended Count 4 alleged that Stafford-Fox was not promptly diagnosed and treated for her B-12 deficiency because Jenkins breached a fiduciary duty he owed to tell her: (a) that he suspected during the entire course of her treatment that she might have a B-12 deficiency, and (b) that a lab test he ordered on her B-12 level showed she had a B-12 deficiency.
Jenkins and the professional corporation moved for summary judgment on the amended
We find no error in the trial court‘s order granting summary judgment and dismissing the ordinary negligence and breach of fiduciary claims against Jenkins and the professional corporation. Although complaints against professionals may state claims based on ordinary as well as professional negligence, where the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional‘s area of expertise, the action states professional negligence.5 The claim in Count 3 alleging that Jenkins was negligent because he failed to diagnose and treat the B-12 deficiency stated a cause of action for medical malpractice under
Similarly, the claim that Jenkins breached a fiduciary duty by failing to inform Stafford-Fox about her B-12 deficiency stated a claim for medical malpractice.7 To the extent the ordinary negligence or breach of fiduciary claims duplicated the medical malpractice claims on which the statute of limitation expired, the trial court correctly dismissed them for the reasons stated in Division 1, supra. To the extent the breach of fiduciary duty claim in Count 4 restated a medical malpractice claim which was not addressed on summary judgment — the claim that Jenkins breached a duty to inform Stafford-Fox of her condition8 — the trial court properly dismissed Count 4 as duplicative, but the substance of the claim remains in the case as part of the surviving medical malpractice claim.
The trial court erred to the extent it found that an ordinary or simple negligence claim was stated in Count 3 against the professional corporation based on allegations that nonprofessional staff employees of the professional corporation “contributed to the loss or failure to consider the B-12 test.” There is evidence that ordinary negligence of nonprofessional staff employees of the professional corporation, who failed to place B-12 test results in Stafford-Fox‘s chart or otherwise bring information to the attention of Jenkins, contributed to Jenkins’ failure to diagnose and treat the B-12 deficiency. Although this is a claim against the professional corporation based on ordinary negligence of its nonprofessional employees, the claimed damages still arose out of the misdiagnosis by Jenkins involving the exercise of medical skill and judgment.9 Under
any claim for damages resulting from the death of or injury to any person arising out of . . . [h]ealth, medical, dental, or surgical service, diagnosis, prescription, treatment,
or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person. . . .
(Emphasis supplied.) Under this definition, even though the claim asserted ordinary negligence, it was “an action for medical malpractice” and was subject to the same two-year statute of limitation in
Finally, there is no merit to Stafford-Fox‘s contention that nonprofessional employees who worked in Jenkins’ office were his personal employees and agents, and that Jenkins was personally liable for their ordinary negligence on the basis of respondeat superior. To the contrary, Stafford-Fox has asserted and the record shows that these employees were employed by the professional corporation. The trial court correctly dismissed any claims that Jenkins was personally liable for ordinary negligence on the basis of respondeat superior.
Judgment affirmed in Case No. A06A1090. Judgment reversed in Case No. A06A1091. Ruffin, C. J., Blackburn, P. J., Smith, P. J., Barnes, Miller, Ellington, Phipps, Adams and Bernes, JJ., concur. Andrews, P. J., concurs specially. Mikell, J., concurs in the judgment only.
ANDREWS, Presiding Judge, concurring specially.
I concur fully in Division 2 of the majority opinion. With respect to Division 1 of the majority opinion, I concur in the conclusion that Dr. Jenkins and his professional corporation, Lonnie C. Jenkins, M.D., P.C., were entitled to summary judgment on the medical malpractice claims related to misdiagnosis because the two-year statute of limitation in
The motion for summary judgment brought by Dr. Jenkins and his professional corporation on the misdiagnosis claim presented two related issues: (1) the issue of when the cause of action for medical malpractice (by misdiagnosis) accrued, and (2) the issue of when the two-year limitation period commenced to run.
Under
the injury begins immediately upon the misdiagnosis due to the 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.
(Citations omitted.) Whitaker v. Zirkle, 188 Ga. App. 706, 707 (374 SE2d 106) (1988). The decision in Whitaker also held that, “[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered.” (Citation omitted.) Id. at 708.
The present version of
In response to the Supreme Court‘s decision in Shessel, the legislature amended
Subsequent to the 1985 enactment of
the discovery rule cannot be engrafted on specifically-worded statutes like
Moreover, the Supreme Court and this Court have recognized that the specific wording of the prior and present versions of
In Jones v. Lamon, supra, a plurality of this Court noted that
there are four points at which a tort cause of action may accrue: [I] when the defendant breaches his duty; [II] when the plaintiff is first injured; [III] when the plaintiff becomes aware of his injury; or [IV] when the plaintiff discovers the causal relationship between his injury and the defendant‘s breach of duty.
(Citations and punctuation omitted.) Id. at 844. We also specifically recognized that “[t]he plain language in
we then concluded without elaboration that the limitation period in
For example, in Williams v. Devell R. Young, M.D., P.C., 247 Ga. App. 337, 339 (543 SE2d 737) (2000), overruled on other grounds, Young, 274 Ga. 845, we held that “[t]he rule that the injury ‘occurs’ when its symptoms manifest themselves to the patient applies even if the patient is not aware of either the cause of the pain or of the connection between the symptoms and the negligent act or omission.” (Citations omitted.) And in Oxley v. Kilpatrick, 225 Ga. App. 838, 839-840 (486 SE2d 44) (1997), overruled on other grounds, Rossi v. Oxley, 269 Ga. 82 (495 SE2d 39) (1998), we held that “[t]he two-year statute of limitation for medical malpractice actions in
In Whitaker v. Zirkle, [supra], this court adopted the “discovery rule” in medical malpractice cases. Our Supreme Court denied certiorari in Whitaker, 188 Ga. App. 913, and that case has not been overruled; therefore, it must be followed by this court. The rationale underlying the discovery rule is that until symptoms of an injury or illness manifest themselves, it is impossible to know that a negligent act has occurred during medical treatment. To interpret
OCGA § 9-3-71 (a) to hold that the statute of limitation begins running on the date of injury as the dissent advocates would work a manifest injustice in many medical malpractice cases in which no symptoms or other indications of the negligent act are manifested for several days or even several
years so that the plaintiff is not aware of and, even assuming the exercise of reasonable care, cannot discover the injury on the day the negligent act occurred.
Id. at 308 (Pope, C. J., concurring specially).11
Regardless of any belief that
A statute of limitation has as its purpose the limiting of the time period in which an action may be brought, thereby providing a date certain after which potential defendants can no longer be held liable for claims brought on such actions. It is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. Prescribing periods of limitation is a legislative, not a judicial function.
[W]e find [
OCGA § 9-3-71 ] to be an extremely harsh limitation in application because it has the effect, in many cases, of cutting off rights before there is any knowledge of injury. Nonetheless, the legislature has the power, within constitutional limitations, to make such provisions.
Allrid v. Emory Univ., 249 Ga. 35, 37 (285 SE2d 521) (1982). The Supreme Court subsequently found the prior version of
I recognize that the discovery or awareness rule does not have the effect of tolling the statute of limitation in many cases where manifestation of symptoms coincides with the injury or is the only evidence of injury. In other cases, like Vitner, supra, it operates to improperly toll the statute of limitation. Moreover, by adopting the discovery rule, this Court has improperly taken the position that, where the limitation period in
an injury occurred as a result of the misdiagnosis. This evidence could include expert medical testimony establishing, for example, that an undiagnosed medical condition caused progressive injury to the patient even though the patient was unaware of the injury until symptoms later manifested or injury was eventually diagnosed.
In the present case, Stafford-Fox suffered an injury arising out of the misdiagnosis at
Nevertheless, Stafford-Fox contended that the two-year limitation period could not commence to run prior to the date she suffered permanent disability from the severe B-12 deficiency following the May 15, 2000 surgery. Even though she alleged that the permanent disability was caused by the misdiagnosis, she claimed that, because this injury did not exist prior to May 15, 2000, the cause of action could not accrue and the limitation period could not commence to run prior to that date.
As set forth above, a medical malpractice cause of action accrues and the two-year statute of limitation begins to run on the date that an injury arising from a negligent or wrongful act or omission has occurred.
[A] statute of limitation begins to run on the date a cause of action on a claim accrues. In other words, the period within which a suit may be brought is measured from the date upon which the plaintiff could have successfully maintained the action.
(Citations omitted.) Jankowski, 246 Ga. at 805; Hoffman v. Ins. Co. of North America, 241 Ga. 328, 329 (245 SE2d 287) (1978). It follows that the date on which Stafford-Fox‘s medical malpractice action
accrued and she could have successfully maintained the action was the date she suffered an injury arising from the misdiagnosis. Moreover, the statute of limitation commenced to run from the first date of injury, regardless of whether Stafford-Fox had yet to suffer all of the damage which ultimately arose out of the misdiagnosis. Jankowski, 246 Ga. at 806. This principle was applied by the Supreme Court in Jankowski which considered when the statute of limitation ran for legal malpractice. Under Jankowski:
Even in the jurisdictions which clearly require the sustaining of damage as a triggering device for the statute of limitation, the suffering of damages to the fullest extent is seldom required. The cause of action arises, however, before the client sustains all, or even the greater part, of the damages occasioned by his attorney‘s negligence. Any appreciable and actual harm flowing from the attorney‘s negligent conduct establishes a cause of action upon which the client may sue.
(Citations and punctuation omitted.) Id. at 806. Accordingly, Jankowski found that the limitation period commenced to run when the attorney negligently allowed a lawsuit to be dismissed and appreciable damage occurred at the time of the dismissal.14 Id. at 806-807. The attorney‘s subsequent failure to reinstate the suit and lessen the damages which ultimately flowed from the original negligence “was not an act inflicting new harm,” so the only malpractice cause of action against the attorney accrued when appreciable damage occurred at the time of dismissal. Id. In considering
the principles that Jankowski, supra, applied to accrual of the action and commencement of the statute of limitation in legal malpractice cases also apply in medical malpractice cases.
Contrary to Stafford-Fox‘s contention, accrual of the cause of action for medical malpractice arising from the misdiagnosis was not deferred until the B-12 deficiency became severe and she sustained permanent disability after the May 15, 2000 surgery. Jankowski, 246 Ga. at 806. Rather, the cause of action accrued and the statute of limitation commenced to run when she first sustained an appreciable injury arising from the misdiagnosis in 1999. Id.; see Williams v. Devell R. Young, M.D., P.C., 258 Ga. App. 821, 823-824 (575 SE2d 648) (2002); Harrison, 268 Ga. App. at 283-284; Burt v. James, 276 Ga. App. 370 (623 SE2d 223) (2005). It follows that this is not a so-called “subsequent injury” case where there was evidence showing that no injury arose from the misdiagnosis until a date subsequent to the misdiagnosis. Compare Whitaker, 188 Ga. App. at 708; Walker v. Melton, 227 Ga. App. 149 (489 SE2d 63) (1997);16 Zechmann v. Thigpen, 210 Ga. App. 726 (437 SE2d 475) (1993). The “subsequent injury” cases cannot be construed to hold that Stafford-Fox had a cause of action for subsequently incurred permanent disability which was separate from a cause of action for injury that occurred at the time of the misdiagnosis. Stafford-Fox had only one cause of action for medical malpractice arising from the alleged misdiagnosis.
Nevertheless, Stafford-Fox contends that our decision in Ward v. Bergen, 277 Ga. App. 256 (626 SE2d 224) (2006), supports her claim that the permanent disability she suffered after the May 15, 2000 surgery was a “new injury” caused by a severe B-12 deficiency that was different from the earlier injury she suffered after her moderate
B-12 deficiency was misdiagnosed and left untreated. She contends that Ward supports her claim that the statute of limitation commenced to run only after she became disabled as a result of the “new injury,” despite other evidence showing that an injury occurred at the time of the initial misdiagnosis. In Ward, the patient alleged that the physician negligently failed to diagnose and treat a form of precancerous growth in her breast. Id. at 256-257. When the patient subsequently developed invasive breast cancer, she sued the physician claiming that, if he had properly diagnosed and treated the precancerous condition, she would not have developed invasive breast
This position was considered and rejected in Burt, supra, where the patient similarly argued that “when a subsequent injury results from the misdiagnosis, the limitation period does not begin to run until symptoms of the new injury are manifest, even when the plaintiff has experienced symptoms after the initial misdiagnosis.” Id. at 372. As Burt explained, this argument misunderstands the “subsequent injury” cases. Id. at 372-374. The claim in Ward for injury caused by the misdiagnosis was a single cause of action. Endsley, 167 Ga. at 440; Friedenberg, 275 Ga. App. at 242. The cause of action accrued and the two-year statute of limitation commenced to run on the date an injury occurred which arose from the initial misdiagnosis, even if the patient had not yet sustained invasive cancer ultimately caused by the misdiagnosis. Jankowski, 246 Ga. at 806. The point at which the cause of action accrued could not be delayed until the patient later sustained invasive cancer arising from the misdiagnosis, nor could a claim for the invasive cancer be split off and treated as a separate cause of action accruing at a subsequent date. Id. at 806-807; Endsley, 167 Ga. at 440; Friedenberg, 275 Ga. App. at 242. Accordingly, this Court should disapprove any language in Ward, 277 Ga. App. 256, that could be construed to commence the limitation period from a date subsequent to the date that the first appreciable injury occurred that arose from the initial misdiagnosis.
For similar reasons, this Court should disapprove of language in Canas v. Al-Jabi, 282 Ga. App. 764 (639 SE2d 494) (2006), which
adopts what amounts to the “continuous treatment doctrine” to modify the operation of
a patient who continues in treatment after one misdiagnosis may experience separate later acts of negligence where the doctor persists in the misdiagnosis after the patient presents the doctor with a significant change in manifestations of his condition. [Cit.] Because an effect logically cannot occur before its cause, the injury from the new negligent act or omission cannot be deemed to have occurred any earlier than the date of the new misdiagnosis. It follows that, if a plaintiff files suit more than two years after an initial misdiagnosis, but within two years after a later misdiagnosis which rises to the level of a new negligent act or omission, only the claim for injuries arising from the first diagnosis will be barred by the statute of limitation.
Id. at 785. This can only be described as an application of the “continuous treatment doctrine” in a medical malpractice misdiagnosis case to delay the commencement of the statute of limitation from the date on which injury occurred arising from the initial misdiagnosis of the condition to the date of injury arising from subsequent misdiagnosis of the same condition. Application of this doctrine in medical malpractice cases alleging misdiagnosis was explicitly rejected by the Supreme Court in Young, 274 Ga. 845. With respect to each doctor, a single cause of action accrued and the two-year limitation period commenced to run when Canas suffered an injury arising from the doctor‘s initial misdiagnosis of the AIDS condition.
Under the facts of the present case and the plain language of
DECIDED DECEMBER 1, 2006.
Webb, Lindsey & Wade, James H. Webb, Jr., Jonathan J. Wade, Michele M. Bradley, for appellant.
Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Terrell W. Benton III, David J. Lee, for appellees.