In May 1978, Sarah E. Zirkle became suspicious of a mole on her back and visited her physician to have it removed and analyzed. The tissue was examined by Dr. James Q. Whitaker, a pathologist, who diagnosed it to be non-malignant. In reliance upon the favorable diagnosis, Mrs. Zirkle sought no further treatment. The record shows Mrs. Zirkle remained free of any cancer symptoms until May or June of 1985 when she noticed bruises and nodules on her body. A biopsy of tissue from the affected area revealed metastatic cancer. A re-examination of the tissue sample taken in 1978 revealed the presence of malignant melanoma cancer cells. Mrs. Zirkle’s treating physician diagnosed her condition as metastatic melanoma originating from the site of the mole removed in 1978. Mrs. Zirkle underwent treatment for the cancer but eventually died.
On May 7, 1986, within one year from the diagnosis of cancer, Mrs. Zirkle and her husband, Raymond Zirkle, filed separate actions for alleged medical malpractice against Dr. Whitaker, the professional association of which he is a member, the Hospital Authority of Houston County and The Medical Center of Houston County. After Mrs. Zirkle’s death her complaint was amended to substitute as plaintiff Raymond Zirkle, individually and as Executor of the Estate of Sarah E. Zirkle. Mr. Zirkle’s separate complaint, which originally alleged loss of consortium, was amended to add a claim for wrongful death. All defendants jointly filed a motion for summary judgment in the action brought on behalf of the estate (Case No. 76821) on the ground the claim for the decedent’s pain and suffering was barred by the ap *707 plicable statute of limitation. An identical motion for partial summary judgment was filed in the action brought by Raymond Zirkle (Case No. 76820) in regard to the claim for loss of consortium. Defendants did not assert a statute of limitation defense to that action’s claim for wrongful death. The Medical Center of Houston County (hereinafter “Hospital”) filed a motion for summary judgment in both actions contending it was not liable for the acts or omissions of Dr. Whitaker because he was not an agent or employee of the Hospital. All motions were denied and defendants brought these appeals, which were consolidated for consideration.
1. At the time Mrs. Zirkle’s cancer was diagnosed, Georgia law permitted a patient to bring a medical malpractice claim within two years from the date of the injury caused by an alleged negligent act. See
Shessel v. Stroup,
The critical issue is when did Mrs. Zirkle’s injury occur. In most misdiagnosis cases, 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. See
Edmonds v. Bates,
Although the five-year statute of ultimate repose was imposed later in 1985, plaintiffs were allowed a grace period of one year, until July 1, 1986, to bring their claims. Plaintiffs’ claims were filed within the grace period and summary judgment was properly denied.
2. The Hospital argues the evidence shows Dr. Whitaker was an independent contractor and not its agent or employee. The Hospital contends it is entitled to summary judgment because it was not liable for the alleged negligence of Dr. Whitaker.
The evidence shows that at the time the 1978 tissue sample was examined, Dr. Whitaker was the sole member of his professional corporation. The professional corporation was under contract to provide pathology services to the hospital. The written contract described the professional corporation as an independent contractor. It provided that the professional employees of the professional corporation were to perform their work free of any direction or control by the Hospital, except that the physicians were to be subject to peer review by the Hospital staff. The professional corporation and its professional employees expressly assumed responsibility for any value judgments rendered by the professional employees in regard to pathology services such as tissue interpretations. Pursuant to the contract, Dr. Whitaker was permitted to offer his services as a consultant to other physicians for his own account, although all charges were to be billed through regular Hospital billing procedures. He was paid a minimum monthly salary for services rendered to the Hospital plus a percentage of billings. None of these provisions are sufficient to impose liability against the Hospital for Dr. Whitaker’s professional judgment. See
Overstreet v. Doctors Hosp.,
Although the evidence clearly indicates that Dr. Whitaker and his professional corporation were independent contractors of the Hospital, the Hospital was not entitled to summary judgment on the issue of liability pursuant to the doctrine of apparent or ostensible agency. See
Brown v. Coastal Emergency Svcs.,
The evidence in this case shows Dr. Whitaker’s written report on the 1978 biopsy was issued on Hospital stationery showing Dr. Whitaker to be the director of the Hospital’s department of pathology. This evidence is sufficient to create a jury issue as to whether the Hospital represented Dr. Whitaker to be its agent. By sworn affidavit, decedent’s husband presented evidence that he and the decedent relied upon the reputation and integrity of the Hospital in accepting the accuracy of the report and in seeking no further treatment or diagnosis. On the other hand, in the deposition taken before her death, Mrs. Zirkle testified she received the pathologist’s report orally from her treating physician and did not recall being told where the tissue had been sent for analysis. The evidence contained in the record creates an issue for jury determination concerning whether plaintiffs were aware of the Hospital’s apparent representation of agency and whether they relied upon that representation to their detriment. Thus, summary judgment was properly denied the Hospital.
Judgments affirmed.