COMES NOW the Georgia Trial Lawyers Association (GTLA) and pursuant to Supreme Court Rule 23 files this Amicus Curiae brief in response to this Court's grant of certiorari to the Court of Appeals' decision in Williams v. Young, 247 Ga. App.337, 543 SE2d 737 (2000). The GTLA is a voluntary organization comprised of approximately 2700 trial lawyers licensed to practice in this State whose clients have an interest in this Court's rulings on the important issues presented by this appeal.

Over the years the GTLA has consistently appeared as Amicus Curiae in various matters presented before the appellate courts of Georgia, as well as before the federal courts. The intent of the GTLA is not to support either the Petitioner or the Respondent as Amicus Curiae. Rather, the GTLA desires and attempts to aid the Court to a proper resolution of this case by seeing that the law is correct and correctly followed.

The GTLA wishes to address the following question posed by this Court on certiorari:

Did the Court of Appeals correctly adopt the doctrine of 'continuous treatment' in medical malpractice cases involving misdiagnosis, thus deeming the negligent act to continue as long as the patient remains under the physician's care for the particular disease or condition, for purposes of the applicable statute of limitation, OCGA § 9-3-71 (a)?

In Williams v. Young, supra, the Court of Appeals recognized the long-standing precedent that in the majority of misdiagnosis cases, "the misdiagnosis itself is the injury." 247 Ga. App. at 339. As such, the cause of action accrues and the statute of limitation begins to run on the date of the misdiagnosis--the negligent act. Id. Recognizing that a "harsh result" can ensue from commencement of the statute of limitation on the date of malpractice, the court held:

"that when malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the statute of limitation begins to run when the improper course of examination and treatment, if any, for the particular malady terminates."

247 Ga. App. at 340; 341.

The GTLA does not disagree with the Court of Appeals' reasoning in adopting the rule of continuous treatment in misdiagnosis cases in which there is an uninterrupted course of treatment based on that misdiagnosis. However, the GTLA's position is that there are alternative and more compelling grounds for adopting the continuing treatment rule: the relief offered by that rule is necessary to effect the legislative intent of § 9-3-71 (a), that in misdiagnosis cases where continuous medical treatment is rendered on the basis of the misdiagnosis, the statute of limitation commences on the date of ascertainable injury rather than on the date of the negligent act--the misdiagnosis. Because in most continuous treatment misdiagnosis cases the patient's injury will not become ascertainable until the termination of treatment, the rule of continuous treatment ensures that the statute of limitation of § 9-3-71 (a) will not expire before the patient's cause of action accrues.

Under § 9-3-71 (a) a medical malpractice cause of action accrues and the statute of limitation begins to run on "the date on which an injury or death arising from a negligent or wrongful act or omission occurred." Accordingly the focus of the statute "is not on the date of the negligent act, but [on] the consequence of the defendant's acts on the plaintiff." Vitner v. Miller, 208 Ga. App. 306, 307 (1993) (emphasis supplied.) This Court and the Court of Appeals have held that an injury does not occur within the meaning of § 9-3-71 until it is ascertainable, Shessel v. Stroup, 253 Ga. 56, 59 (1984), or physically manifested. Oxley v. Kilpatrick, 225 Ga. App. 838, 840 (1997), reversed on other grounds in Rossi v. Oxley, 269 Ga. 82 (1998). By requiring the injury to be ascertainable before the statute of limitation begins to run, the courts have attempted to avoid the possible injustice that the statute of limitation may expire before there is any indication the plaintiff has suffered harm, that is, before the cause of action has accrued. The requirement of an ascertainable or physically manifested injury has been applied in all medical malpractice cases except misdiagnosis cases in which there is continuous treatment based on the misdiagnosis. Because in these latter cases the "misdiagnosis is itself the injury", the statute of limitation commences at the time of the negligent act, even though there may not be any physically manifested or ascertainable injury. Williams v. Young, 247 Ga. App. at 339. This may result in the running of the statute of limitation before the cause of action accrues, contrary to the legislative intent of OCGA § 9-3-71 (a).

The GTLA's position is that the rule that the "misdiagnosis is itself the injury" is wrong. While the "injury arising from" the negligent act begins at misdiagnosis, damages are generally speculative at that time. It is rare that an injury contemplated by OCGA § 9-3-71 (a) is ascertainable or manifests physical symptoms at the moment of misdiagnosis. The GTLA submits that where the physician provides uninterrupted medical treatment based on the misdiagnosis, the patient's actionable injury is the injury that develops over time into a greater problem as a result of continuous, erroneous treatment rendered on the basis of the misdiagnosis. The courts have acknowledged that in misdiagnosis cases the "new injury" that develops over time "is difficult or impossible to date precisely." Walker v. Melton, 227 Ga. App. 149, 151, 489 SE2d 63 (1997). Where the plaintiff is undergoing continuous treatment for a misdiagnosed illness or condition, the "new injury" that develops as a result of the physician's misdiagnosis and incorrect treatment is virtually impossible to distinguish from the original condition for which the patient sought treatment. The difficulty of pinpointing the "new injury" is compounded by a variety of factors. The patient, as well as the physician, is entitled to rely on the legal presumption that the physician's medical services are rendered in an ordinarily skillful manner until proven otherwise, and the patient has no duty to question the medical treatment provided. By providing a continuous course of treatment the physician induces the patient's reliance on his skill and care. This reliance impairs the patient's ability to ascertain that there is a "new injury" distinct from the original injury. It additionally impairs the patient's ability to ascertain that the reason the original condition or illness is worsening is because the wrong treatment is being provided. The law condones the patient's reliance by acknowledging both the presumption that the medical services rendered are within the standard of care until proven to the contrary, and that until there is ascertainable injury, the patient has no duty to question the course of treatment. It is generally only when treatment terminates that there can be opportunity for the patient to ascertain the "new injury" that is the consequence of the physician's negligence because at that point the patient is no longer receiving ineffective treatment for his original condition. Separated from medical treatment the patient has the chance to ascertain that there is a "new injury" distinguishable from the "original injury" for which he sought treatment and to ascertain that the "new injury" is the consequence of the physician's acts on him. Vitner v. Miller, supra. Of course, should the patient ascertain the "new injury" during treatment, the statute of limitation would begin to run at that time. Appellate decisions support this conclusion that in misdiagnosis cases where there is continuous treatment, the injury that is the consequence of the physician's acts on the plaintiff is generally not ascertainable until the last date of treatment. Stone v. Radiology Services, PA, 206 Ga. App. 851, 854, SE2d 663 (1992); Surgery Associates PC v. Kearby, 199 Ga. App. 716, 405 SE2d 723 (1991). The relief afforded by the continuous treatment rule commences the statute of limitation running on the last date of treatment, thus carrying out the General Assembly's intent that § 9-3-71 (a) begins to run when the ascertainable injury arises, rather than when the act of misdiagnosis occurs.

Adopting the rule that the ascertainable injury occurs on the last date of treatment benefits both the physician who may realize his diagnostic error and correct treatment before it terminates, thus mitigating damages, and the patient who justifiably relies to his detriment on the erroneous treatment the physician provides based on the misdiagnosis. It brings these misdiagnosis cases within the ambit of what the General Assembly intended § 9-3-71 (a) to accomplish: it results in the statute of limitation commencing at the time of ascertainable injury rather than at the negligent act of misdiagnosis. It ensures that misdiagnosis cases are no longer treated differently than all other medical malpractice cases. Application of the continuous treatment rule in this limited context does not, as Petitioners have argued, judicially extend the statute of limitation. To the contrary, by adopting a rule that cause of action accrues and the statute of limitation runs from the negligent act of misdiagnosis, the courts have judicially rewritten § 9-3-71 (a). Acceptance of the relief provided by the continuous treatment rule rights this wrong by ensuring that in all medical malpractice actions the statute of limitation runs from ascertainable injury, as the General Assembly intended. Therefore, the GTLA respectfully requests that this Court affirm the decision in Williams v. Young.

I. Adoption of the relief offered by the continuous treatment rule ensures that in misdiagnosis cases in which a course of uninterrupted treatment is rendered on the basis of the misdiagnosis, the statute of limitation of OCGA § 9-3-71 (a) commences on the date of ascertainable injury rather than on the date of the negligent act.

A. In misdiagnosis cases where continuous treatment is rendered on the basis of the misdiagnosis, the courts have held that the misdiagnosis is the injury. This rule has rewritten OCGA § 9-3-71 (a) to commence the statute of limitation on the date of the negligent act, rather than the injury as the General Assembly intended. It is therefore wrong.

Prior to 1985, OCGA § 9-3-71 required that an action for medical malpractice "be brought within two years after the date on which the negligent or wrongful act or omission occurred." However, this Court held that as applied this statute of limitation violated equal protection by creating impermissible classifications barring those wrongful death actions in which death occurred more than two years after the negligent act or omission, Clark v. Singer, 250 Ga. 470, 298 SE2d 484 (1983), and barring those claims for personal injury in which the injury occurred more than two years after the negligent act or omission. Shessel v. Stroup, 253 Ga. 56, 59, 316 SE2d 155 (1984). The basis of these decisions was that a statute of limitation may not bar a cause of action before it accrues, i.e., before there is ascertainable injury. Id.; Allrid v. Emory University, 249 Ga. 35, 36, 285 SE2d 521 (1982).

In 1985 the General Assembly amended OCGA § 9-3-71 (a) to remove these constitutional infirmities. Subsection (a) now requires that "an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." The clear intent of this amendment is to prevent the statute of limitation from expiring before the cause of action accrues. Subsection (b) sets forth an ultimate statute of repose, providing that "in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred." Thus in a medical malpractice action the cause of action does not accrue and the statute of limitation does not run until there is death or personal injury. The General Assembly did not define an "injury" that would trigger the statute of limitation. The power and duty to define an "injury" to effect the legislative intent of OCGA § 9-3-71 (a) is vested in the appellate courts. The courts have exercised that power, holding that a medical malpractice personal injury claim does not accrue, and the statute of limitation does not begin to run, until the injury is 'ascertainable' or 'physically manifested,' or that the patient "should have been aware of such injuries from his symptoms." Shessel v. Stroup, supra; Oxley v. Kilpatrick, 225 Ga. App. 838, 840, 486 SE2d 44 (1997), reversed on other grounds in Rossi v. Oxley, 269 Ga. 82, 495 SE2d 39 (1998); Miller v. Kitchens, A01A1695 (Decided July 31, 2001). This construction of "injury" emphasizes that the focus of OCGA § 9-3-71 (a), as amended, "is not on the date of the negligent act, but [on] the consequence of the defendant's acts on the plaintiff." Vitner v. Miller, 208 Ga. App. 306, 307, 430 SE2d 671 (1993) (emphasis supplied). Notably the rule that the plaintiff's cause of action does not accrue until the injury is physically manifested has two limitations: 1) the plaintiff need not be aware of the causal relationship between the injury and the negligence, Williams v. Young supra, 247 Ga. App. at 339; and 2) five years after the negligent act, the cause of action is barred by the statute of repose even though it may not have accrued. OCGA § 9-3-71 (b).

Since the 1985 amendment to § 9-3-71 (a), the courts have been called upon to determine when the injury occurred in a variety of medical malpractice cases. Most of these decisions have adhered to the requirement that the injury be physically manifested or otherwise be ascertainable before the statute of limitation begins to run. However, in cases alleging misdiagnosis, the rules applied to determine when the injury occurred have been inconsistent and inequitable.

In cases where the plaintiff claims that the physician failed to diagnose a condition or illness that did not manifest physical symptoms until months or years following the misdiagnosis, the courts have followed OCGA § 9-3-71 (a) to hold that the actionable injury did not occur and the statute of limitation did not commence until physical manifestation of these symptoms. In these cases the physician failed to diagnose the patient's illness or condition and therefore did not provide continuous treatment based on the misdiagnosis. These cases contemplate that there is a "new injury" resulting from the misdiagnosis that is distinct from the injury the physician failed to diagnose. "When a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation begins to run from the date symptoms attributable to the new injury are manifest to the plaintiff." Walker v. Melton, 227 Ga. App. 149, 151, 489 SE2d 63 (1997) (spinal injury that developed over time from radiologist's failure to diagnose plaintiff's broken back from x-rays arose when plaintiff felt renewed pain 1 ½ years after misdiagnosis) (emphasis supplied); Staples v. Bhatti, 220 Ga. App. 404, 469 SE2d 490 (1996) (metastasis that developed over time from failure to diagnose a cancerous breast tumor did not arise under § 9-3-71 (a) until plaintiff experienced pain in her breast four years after misdiagnosis); Whitaker v. Zirkle, 188 Ga. App. 706, 373 SE2d 106 (1988) (injury that developed over time from misdiagnosis of cancerous mole did not arise until 8 years following misdiagnosis when bruises appeared at the site of the mole);⁽¹⁾ Zechman v. Thigpen, 210 Ga. App. 726, 434 SE2d SE 475 (1993) (injury did not arise from failure to diagnose Coats' disease until child experienced pain in her eye five years after the misdiagnosis; suit filed more than 5 years after the negligent act was within the statute of limitation, but barred by the statute or repose). In each of these cases the plaintiff's "new injury" began at the time of misdiagnosis, but as a result of the failure to treat based on the misdiagnosis, developed into a far worse injury. For example, in Staples v. Bhatti, supra, the patient's mammogram indicated a cancerous mass which the physician misdiagnosed. The patient's injury began at that time, but because it was untreated it developed and spread to her lymph nodes. The injury was not actionable until it manifested physical symptoms to the patient years later in the form of pain in her breast. Her injury, as contemplated by OCGA § 9-3-71 (a), arose when she felt the pain. The cause of action did not accrue and the statute of limitation did not commence until symptoms of this "new injury" were physically manifested. Walker v. Melton, supra. This reasoning is correct because her "new injury" was the consequence of the defendant's negligence in misdiagnosing and failing to treat the condition. Vitner v. Miller, 208 Ga. App. at 307.

However, a contrary rule governs misdiagnosis cases such as the one before this Court. Where, as in this case, the patient seeks treatment for an existing condition or illness that the physician misdiagnoses and continuously treats based on the error of misdiagnosis, the condition or illness gradually worsens, just as in the "subsequent injury" cases. In the "subsequent injury" cases the injury worsens as a result of the failure to provide treatment. In continuous treatment misdiagnosis cases the injury worsens as a result of providing the wrong treatment. The consequence of the physician's misdiagnosis on the patient's injury in both situations is the same: the injury worsens over time. Nonetheless, the rules applied to these cases are different. In a continuous treatment misdiagnosis case it has been held that the actionable injury is not that which developed over time as a result of erroneous treatment based on the misdiagnosis, but that the injury is instead the "misdiagnosis itself". As a result, the cause of action accrues and the statute of limitation begins to run at the time of misdiagnosis regardless of when the symptoms of the "new injury" that develops as a result of the misdiagnosis physically manifest themselves. The distinction between these two groups of misdiagnosis cases has been made in a host of decisions.

"Lawsuits alleging negligence by misdiagnosis come in two varieties, ones in which the symptoms of the injury, usually pain, exist before the misdiagnosis and those in which the symptoms manifest themselves to the patient days or even years after the mistaken and allegedly negligent, misdiagnosis. [Cits.] 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 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. [Cits.] Nevertheless, 'this is not always the case.' [Cit.] Thus, when a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation runs from the date the symptoms attributable to the new injury are manifest to the plaintiff. [Cits.]."

Williams v. Young, 247 Ga. App. 337, 339, 543 SE2d 737 (2000) (emphasis supplied); Walker v. Melton, supra, 227 Ga. App. 149 (1997); Zechman v. Thigpen, supra, 210 Ga. App. 726 (1993).⁽²⁾

In both groups of misdiagnosis cases the actionable injury begins when the patient presents for treatment or examination and is misdiagnosed. In "subsequent injury" cases the actionable injury that develops over time reflects the consequence of the physician's negligence on the patient, and the statute of limitation begins to run at ascertainable injury as mandated by OCGA § 9-3-71 (a). In continuous treatment cases the "injury" that triggers the statute of limitation under § 9-3-71 (a) reflects only the diagnostic error the physician made. This latter rule ignores the consequence of the physician's negligence on the patient--the aggravation of the original condition through a course of erroneous treatment based on the misdiagnosis.⁽³⁾

Further, where the patient is under a continuous course of improper treatment for the condition based on the misdiagnosis, application of this rule has the potential to impermissibly cut off the patient's cause of action before the "new injury" is ascertainable. See Stone v. Radiology Services, PA, 206 Ga. App. 851, 854, SE2d 663 (1992), discussed infra. Such a result brings about the very wrong that the 1985 Amendment to § 9-3-71 (a) was enacted to prevent.

The GTLA respectfully submits that the rule that the "misdiagnosis is itself the injury" is wrong for a number of reasons.

1. It is rare that at the moment of misdiagnosis the plaintiff has sustained an ascertainable, actionable injury. While there could be a situation where the patient suffers a heart attack leaving the physician's office after a misdiagnosis of his heart condition, in most cases the plaintiff's damages at the moment of misdiagnosis are speculative and therefore not recoverable. The determinative characteristic of the injury--the consequence of the defendant's action on the plaintiff-- is not known at the moment of misdiagnosis.

To apply a rule that the injury arises at misdiagnosis penalizes both the physician who discovers and corrects the error of misdiagnosis during a continuing course of treatment, thus mitigating damages, and the patient who relies to his detriment on the erroneous treatment rendered by the physician.

2. By focusing on the act of misdiagnosis rather than on the ascertainable injury that develops over time and is the consequence of the physician's acts, this rule results in the accrual of the cause of action and the commencement of the statute of limitation at the latest on the date of the misdiagnosis--the negligent act or omission--rather than on the date of the injury arising from the negligent act. See n. 4, supra. The rule thus contravenes the General Assembly's intent in amending OCGA § 9-3-71 (a) to commence the statute of limitation on the date of the injury rather than on the date of the negligent act. It allows the statute of limitation to expire before the cause of action accrues.

3. The rule impermissibly treats misdiagnosis cases in which there is continuous treatment differently not only from all other misdiagnosis cases, but differently from all other medical malpractice cases. In medical malpractice cases alleging an overt act of negligence rather than misdiagnosis, the statute of limitation runs from the physically manifested or ascertainable injury arising from that act.⁽⁴⁾ See, Vitner v. Miller, 208 Ga. App. 306, 430 SE2d 671 (1993) (plaintiff's injury from negligently performed abortion did not arise until days later when "the injury manifested itself ...[and the plaintiff] began to bleed and experience pain."); Shessel v. Stroup, 253 Ga. 56, 59, 316 SE2d 155 (1984) (negligently performed tubal ligation did not become actionable until injury manifested itself two years later in the form of pregnancy); Knight v. Sturn, 212 Ga. App. 391, 442 SE2d 255 (1994) (injury arising from negligent injection of silicone to correct acne scarring arose at the latest when plaintiff, who had known that knots were a side effect of the injections, became aware that the standard of care required that the knots be removed.) The results in these cases were reached because the focus of § 9-3-71 (a) "is not on the date of the negligent act, but [on] the consequence of the defendant's acts on the plaintiff." Vitner v. Miller, 208 Ga. App. at 307. However, in cases where the physician misdiagnoses an existing condition and continuously and erroneously treats the patient on the basis of the misdiagnosis, the focus is not on the consequence of the physician's acts on the patient, but on the physician's acts themselves.

4. The rule that the misdiagnosis is itself the injury is contrary to the authority of other states that have addressed this issue. The Supreme Courts of other states with medical malpractice statutes of limitation that commence on the date of injury have concluded that a misdiagnosis is a negligent act or omission, not an injury that will trigger the statute of limitation. These courts have reasoned, consistent with the GTLA's position, that to hold that the injury arises at the moment of misdiagnosis would judicially rewrite the statute of limitation, allowing the cause of action to accrue at the time of the negligent act rather than at injury. Paul v. Skemp, M.D., 625 NW2d 860 (Sct Wis 2001); George v. Pariser, M.D., 484 SE2d 999 (Sct Va 1997); DeBoer, M.D. v. Brown, 673 P2d 912 (Sct Ariz 1983). This is, in fact, what has occurred in Georgia. By holding that the actionable injury arises and the statute of limitation commences upon misdiagnosis, the Georgia courts have engaged in judicial legislation, rewriting § 9-3-71 (a) as to this group of misdiagnosis cases.

Further, the courts in other states have held that the actionable injury in a misdiagnosis case is not the injury that begins at misdiagnosis or the injury with which the patient presents, see n. 3, supra, but is the injury that is allowed to develop because of the negligent diagnosis and treatment. Id. The actionable injury "is the development of the problem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment." St. George, 484 SE2d at 891; Paul, 625 NW2d at 867; DeBoer, 673 P2d at 914. See also, Outman v. U.S., 890 F2d 1050, 1053 (9^th Cir. 1989) (misdiagnosis under the Federal Tort Claims Act is not the actionable injury; rather, the misdiagnosis results in the worsening of a physical condition that is actionable). As previously noted, Georgia follows this rule in cases where the injury resulting from a misdiagnosis does not arise until months or years following the misdiagnosis. There is no rational reason for failing to follow this rule in all misdiagnosis cases.

5. The rule that "[t]he misdiagnosis itself is the injury..." was not necessary to the decision in Whitaker v. Zirkle, supra, 188 Ga. App. 706, 708 (1988), where it was first announced. Whitaker involved the failure to diagnose a cancerous mole that did not result in a physically manifested injury until 8 years later. The rule actually applied in that case was that where an injury develops subsequent to the misdiagnosis, the statute of limitation does not begin to run until physical manifestation of the injury. Perhaps the Court of Appeals stated that the misdiagnosis is itself the injury in the majority of cases in order to distinguish Whitaker and avoid an unjust result under those facts. The rule has nonetheless been perpetuated, even though no case reciting it has actually applied it to the detriment of the patient. See n. 3, supra.

As authority for this rule the Whitaker Court relied on Edmonds v. Bates, 178 Ga. App. 69 (1986), and Daughtry v. Cohen, 187 Ga. App. 253 (1988), which held that the statute of limitations commenced on the date of misdiagnosis. However, in both of those cases the plaintiff's cause of action accrued under the 1976 codification of OCGA § 9-3-71 (a) in which the statute of limitation commenced running at the time of the negligent act--the misdiagnosis.⁽⁵⁾ Therefore neither case is authority for the proposition that the misdiagnosis is itself the injury.

In fact in misdiagnosis cases where the patient is under the continuous treatment of the physician based on the misdiagnosis, and the injury worsens during the course of treatment, the Court of Appeals has avoided application of this rule. That court has instead correctly held, consistent with the relief provided by the continuous treatment doctrine, that for purposes of § 9-3-71 (a) the patient's injury arose on the last date of treatment.

In Stone v. Radiology Services, PA, 206 Ga. App. 851, 854, SE2d 663 (1992), the patient sought treatment for severe headaches. The physician failed to diagnose the plaintiff's brain tumor and for nearly 3 years treated the patient based on this misdiagnosis. During the time of erroneous treatment the patient's tumor grew, eventually rendering him mentally incompetent. In determining when the actionable injury arose, the Court of Appeals held that the "allegation of negligent failure to diagnose Mr. Stone's tumor includes the entire course of [Dr.] Kilgore's treatment of Mr. Stone from October 1985 to April 28, 1988. Any injury appellants suffered as a result of Kilgore's failure to diagnose and treat Mr. Stone occurred at the latest by April 28, 1988, the day Mr. Stone was last treated by the neurologist." (Emphasis supplied.) Had the Court of Appeals applied the rule that the misdiagnosis was the injury such that the statute of limitation commenced at that time, Mr. Stone's cause of action would have been barred before the consequence of his physician's misdiagnosis and "entire course of" negligent treatment was ascertainable. That is, the statute of limitation would have expired before his cause of action accrued. By concluding that Mr. Stone's injury arose on the last date of treatment the Court of Appeals correctly focused on the consequence of the physician's actions in rendering a negligent course of treatment based on the misdiagnosis on the plaintiff instead of focusing on the act of misdiagnosis.

In Surgery Associates PC v. Kearby, 199 Ga. App. 716, 405 SE2d 723 (1991), the physicians misdiagnosed the cause of an ulcer on the patient's ankle and treated it for five months based on this misdiagnosis. At the end of the five months the defendants recognized their error and prescribed a new course of treatment. By then the plaintiff "had lost faith" in them, and transferred to another hospital where his lower leg was amputated. The plaintiff maintained that his injury was the amputation, and that the statute of limitation began to run on that date. The Court of Appeals disagreed, holding that the new injury resulting from the improper treatment based on the misdiagnosis arose on the last date of treatment by the defendants.⁽⁶⁾

Thus, application of the relief provided by the rule of continuous treatment to misdiagnosis cases where there is an uninterrupted course of treatment based on the misdiagnosis is not, as Petitioners or the dissent to Williams v. Young suggests, the engrafting of public policy on § 9-3-71 (a), or judicial legislation. The rule does not judicially extend the statute of limitation. Rather, it determines, as borne out by the decisions in Stone and Kearby, supra, that where there is continuous treatment based on misdiagnosis the injury generally arises on the last date of treatment because the consequence of the defendant's negligence on the plaintiff in aggravating the original injury or condition with a course of improper treatment is then ascertainable. Adopting this rule is not judicial legislation but the exercise of a judicial duty to determine when the injury occurs and the limitation period begins under § 9-3-71 (a). It rights the wrong of singling out this group of misdiagnosis cases and judicially legislating, that as to them, the statute of limitation commences on the date of the negligent act.

Application of this rule is not barred by any Act of the General Assembly. Instead the rule furthers the legislative intent of OCGA § 9-3-71 (a) by focusing on the consequence of the physician's acts on the patient. The relief afforded by the rule levels the playing field by making the statute of commence on the date of ascertainable injury in all medical malpractice cases.

It is inequitable to have two classes of misdiagnosis cases, each of which involves the worsening of an injury that is proximately caused by the misdiagnosis, and allow a plaintiff in one class to have two years from the subsequently developed injury to file suit, but allow the plaintiff in the other class who has submitted to continuous treatment based on the misdiagnosis only two years from the date of the misdiagnosis to file suit. The plaintiff in the latter class of misdiagnosis cases is unfairly penalized because he has submitted to medical treatment which obscured his ability to distinguish between the original injury for which he sought treatment and the "new injury" that is the consequence of the physician's negligence. While the record in this case does not indicate a constitutional challenge to these separate classifications was made, it is clear that this distinction between misdiagnosis cases is not rationally related to a valid legislative purpose because the General Assembly intended that in all medical malpractice cases the statute of limitation commence at the time of injury rather than the negligent act. OCGA § 9-3-71 (a).

B. The relief provided by the continuous treatment rule corrects the inequitable distinction between misdiagnosis cases: if the patient ascertains the "new injury" during treatment, the statute of limitation commences on that date. Otherwise, the statute of limitation begins to run when treatment terminates and there is the opportunity to ascertain the "new injury."

It may be difficult initially to understand why in most continuous treatment cases the "new injury" that develops is not ascertainable until medical treatment for the original condition has terminated. In part this is because misdiagnosis cases in which there is uninterrupted treatment present special circumstances that may be best illustrated by example.

A 45-year old woman seeks medical treatment for severe headaches. Her physician diagnoses the headaches as a symptom of the onset of menopause and prescribes a varying course of treatment for over two years, including hormone replacement therapy; pain killers; exercise; and stress reduction management. The patient receives occasional, temporary relief from this treatment. She remains under the physician's care because of her confidence in the physician's skill; because she knows that failure to find a cure for her condition does not give rise to a presumption of malpractice; and because she knows her HMO allows her little choice. More than two years after her initial diagnosis she collapses at work. An MRI reveals an inoperable brain tumor which, if diagnosed when she first sought medical attention, could have been treated.

If the original misdiagnosis is itself the injury, her claim for malpractice is time barred. If, however, her cause of action accrued and the statute of limitation began to run when symptoms of her "new injury" physically manifested themselves, when did this occur?

The Court of Appeals has acknowledged that in a misdiagnosis case the actionable "new injury" is "difficult or impossible to date precisely." Walker v. Melton, supra, 227 Ga. App. at 151(1997). In "subsequent injury" misdiagnosis cases the Court of Appeals has deemed the injury to occur at the subjective stage of physical manifestation of the "new injury"--generally pain. Id.; Staples v. Bhatti, supra, 220 Ga. App. at 469 SE2d 490 (1996); Zechman v. Thigpen, supra, 210 Ga. App. 726 (1993).

In misdiagnosis cases where the patient is under a course of continuous treatment, ascertaining physical symptoms of the "new injury" may indeed be impossible. The patient in the example reasonably believes that her headaches are worsening because they are not responding to the correct treatment, when in fact the injury is worsening because it is not responding to negligent treatment. In hindsight and on the basis of a cold record jurists and physicians may recognize that her worsening condition is actually symptomatic of her "new injury." But for the patient and the negligent physician who are receiving and prescribing this course of negligent treatment it is likely there is no ascertainable "new injury" distinct from the injury for which the patient sought treatment. This difficulty of ascertaining the actionable injury is compounded by the presumptions and conditions the law imposes on the patient's relationship with her physician.

Georgia law recognizes and the patient is charged with knowledge that a physician may not always bring about a cure, and the failure of prescribed medical treatment to produce favorable results does not give rise to a presumption of negligence. Bray v. Dixon, 176 Ga. App. 895, 897, 338 SE2d 872 (1985); Blount v. Moore, supra, 159 Ga. App. 80, 81 (1981). Further, under Georgia law neither the courts nor a layperson are deemed competent to determine the parameters of acceptable medical care. Only medical experts are qualified to do so. Ketchup v. Howard, 247 Ga. App. 54, 61 (2000).⁽⁷⁾

Instead, every patient who is being treated by a physician has the right to rely on "[t]he presumption of law in this state is that a physician exercises his skills in the medical and surgical field in an ordinary skillful manner (reasonable degree of skill) until a want of such care and skill has been shown." Stephen W. Brown Radiology Associates v. Gowers, 157 Ga. 770, 773, 278 SE2d 653 (1981). A defendant physician in a medical malpractice case is entitled to have this presumption charged to the jury,⁽⁸⁾ but it is no less applicable when the health and rights of a patient are at issue. Thus until a want of care is demonstrated, the patient has no reason to question the physician's diagnosis of condition or method of treatment. Because of this presumption and the confidential nature of the relationship between physician and patient, "a patient has the right to believe what he is told by his medical doctors about his condition." Hill v. Fordham, supra, 186 Ga. App. 355. A patient has "no duty to investigate or confirm the truth or accuracy" of the physician's representations. Oxley v. Kilpatrick, supra, 225 Ga. App. at 840-841.⁽⁹⁾ Indeed, were the law to impose a duty on a patient to seek confirmation of or challenge a physician's diagnosis or recommended course of treatment, the confidential relationship would be destroyed and managed care would be in chaos.⁽¹⁰⁾ A patient should not be required to sue his physician during treatment as a precaution to keep the statute of limitation from expiring. To the contrary, it has been noted that "it would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician." Wright v. Sharma, 956 SW2d 191, 193 (Ark. 1997), quoting 1 D. Louisell and H. Williams, Medical Malpractice, § 13.08 (1982).

Further, in the era of HMO's and managed care it is no longer possible for a patient to obtain a second medical opinion at will. In most cases even if the patient is dissatisfied or wishes to challenge treatment, he lacks independence to effect a change.

It is because a patient under continuous treatment based on a misdiagnosis relies on these legal presumptions and principles that he is not likely to ascertain that his worsening condition is a "new injury" arising out of the negligent act of misdiagnosis. The law instructs the patient that negligence may not be presumed from the unfavorable results of treatment and that his physician may not be able to effect a cure. Thus while under the continuous care of his physician, the patient is not likely to ascertain physical symptoms of a "new injury," particularly where the law encourages him to believe that his worsening condition is unrelated to improper treatment. It is generally only when treatment terminates, either by the physician's decision that a cure cannot be effected, or by the patient's frustration with the inability to get relief, that there is an opportunity for the patient to ascertain the "new injury" that is the consequence of the physician's negligence because at that point the patient is no longer receiving treatment to which the illness or condition is not responding. Separated from medical treatment the patient has the opportunity to ascertain that there is a "new injury" distinguishable from the "original injury" with which he or she presented for treatment. In sum, it is at the end of treatment that the consequence of the physician's act of misdiagnosis and negligent treatment that allowed the injury to worsen may be known. Application of relief of the continuous treatment rule places these misdiagnosis patients on equal footing with "subsequent injury" misdiagnosis patients who have the opportunity to ascertain a "new injury" by subjective indicia such as pain and bruising.

If the statute of limitation commences at the time of misdiagnosis, the patient may be deprived of the opportunity to ascertain the "new injury" altogether. The continuous treatment rule affords the proper relief: if the patient ascertains the "new injury" during the course of treatment, the statute of limitation commences at that time. If not, the statute of limitation commences at the time treatment terminates when the patient is no longer relying to his detriment on legal presumptions that obscure his ability to ascertain the "new injury" and the consequence of the physician's acts on him.

II. Georgia is the only state that has judicially rewritten its medical malpractice statute of limitation to commence on the date of misdiagnosis in continuous treatment misdiagnosis cases, allowing the statute to expire before the cause of action accrues.

Eighteen states and the District of Columbia have adopted the continuous treatment doctrine in medical malpractice cases.⁽¹¹⁾ (See Appendix I to this brief.) Twenty-eight of the remaining states have a statutory or common law discovery rule providing that the statute of limitation does not begin to run in a medical malpractice case until the plaintiff discovers or with reasonable diligence could have discovered the injury. (See Appendix II to this brief.) As to misdiagnosis cases this demonstrates a consensus of the difficulty of ascertaining when the actionable injury arises. Idaho,⁽¹²⁾ Arizona, and New Mexico are the only states other than Georgia that have neither of these rules, and it appears that they have not addressed the issue before this Court.⁽¹³⁾ All other states recognize that, at the earliest, the cause of action of a patient who is under continuous medical treatment based on a misdiagnosis accrues, and the statute of limitation begins to run, on the last date of treatment unless the patient discovers the injury and negligence during treatment. Georgia, on the other hand, has rewritten its statute of limitation, commencing it on the date of misdiagnosis in cases where there is continuous treatment, thus potentially and impermissibly cutting off a patient's cause of action before it accrues. Application of the relief provided by the continuous treatment rule places Georgia patients on equal footing with patients in virtually every other state regarding when the statute of limitation commences in a continuous treatment misdiagnosis case.

III. Adoption of the continuous treatment rule is consistent with the objectives of the statute of limitation in OCGA § 9-3-71 (a).

Adoption of the continuous treatment rule is consistent with the objectives for which a statute of limitation is enacted, to "promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Allrid v. Emory University, 249 Ga. 35, 36 (1982). Because the statute of limitation begins to run on the last date of treatment, there is no concern that evidence will be lost, memories will fade, or witnesses will disappear. In fact, there is less opportunity for these occurrences upon application of the continuous treatment doctrine than in subsequent injury misdiagnosis cases in which the patient usually has little contact with the physician following misdiagnosis, but is permitted to file suit years later when the injury that has developed from the misdiagnosis physically manifests itself.

IV. Adoption of the continuous treatment rule will not result in the dire consequences predicted by either the dissent in Williams v. Young, or the Petitioners.

The rule of continuous treatment adopted in Williams v. Young is narrow. It applies

only to misdiagnosis cases in which there is there is treatment of the condition or illness based on the misdiagnosis;

where the physician is under a duty to render treatment for the condition or illness; and

where the treatment is substantially uninterrupted for the condition or illness.

application of the continuous treatment rule will not affect the statute of repose of OCGA § 9-3-71 (b). 247 Ga. App. at 341; 342.

Adoption of the continuous treatment rule will require few, if any, cases to be overruled.

Because the continuous treatment rule adopted in Williams v. Young applies only to misdiagnosis cases, it was not necessary to overrule Crawford v. Spencer, 217 Ga. App. 446, 457 SE2d 711 (1995), which rejected the doctrine. See 247 Ga. App. at 342. Crawford was not a misdiagnosis case. ("Appellant correctly contends that this is not an action for medical malpractice based on misdiagnosis." 217 Ga. App. at 447.)

Amicus further submits that it was not necessary to overrule Ford v. Dove, 218 Ga. App. 828, 463 SE2d 351 (1995), in which the Court of Appeals declined to adopt the continuous treatment doctrine. See 247 Ga. App. at 342. It is not clear from that opinion that the plaintiff in Ford was under continuous treatment for the condition misdiagnosed, or that if suit had been filed within two years of the last date of treatment it would have been timely.

Contrary to the dissent in Williams v. Young, neither this Court's decision in Crowe v. Humana, Inc., 263 Ga. 833, 439 SE2d 654 (1994), nor its decision in Hunter, Maclean &c., P.C. v. Frame, 269 Ga. 844, 507 SE2d 411 (1998) bars adoption of this narrow rule of continuous treatment. The continuous treatment rule urged herein is not in conflict with Crowe which did not involve a claim of misdiagnosis. Further, the rule of continuous treatment does not, as Judge Andrews maintains, violate this Court's holding in Crowe that "initiating the period of limitation in a medical malpractice action when the alleged negligence is first discovered would be contrary to the plain language of §§ 9-3-71 and 9-3-73." 263 Ga. at 834. Application of the rule to these misdiagnosis cases only determines when the injury occurred, not when the negligence was discovered.

In Hunter, Maclean this Court rejected the "continuous representation" doctrine in a legal malpractice case, analogizing to the earlier rejection of continuous treatment by the Court of Appeals in Ford v. Dove, and Crawford v. Spencer, supra. However, this Court's statements in Hunter Maclean regarding the doctrine of continuous treatment did not form the basis of the holding in that case. Rather, this Court referred to continuous treatment as an example of an "undesirable anomaly that could result from the Court of Appeals' ruling" that the confidential relationship between attorney and client is alone sufficient to toll the statute of limitation in a claim for legal malpractice. 269 Ga. at 848-849. Adoption of continuous treatment rule in this case is not premised solely on the confidential relation between physician and patient. The rule is necessary in continuous treatment misdiagnosis cases to ensure that the statute of limitation commences on the date of the plaintiff's ascertainable injury. This has no bearing on a claim for legal malpractice which runs from the date of the negligent act. Hunter Maclean, supra, 269 Ga. at 845; Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 (1980). Further, a client dissatisfied with his attorney's services has greater freedom to switch attorneys than a patient under the continuous treatment of a physician and the yoke of managed care.

Decisions of the appellate courts regarding when the injury arises in continuous treatment misdiagnosis cases have rewritten OCGA § 9-3 -71 (a) contrary to the General Assembly's intent. Application of the relief afforded by the continuous treatment rule rights this wrong. For this reason and all other reasons urged in this brief, the GTLA respectfully requests that this Court affirm the Court of Appeals' decision in Williams v. Young.

Respectfully submitted, this 17^th day of August, 2001.

/s/ Antoinette Johnson

Alabama Moore v. Averi, 534 So. 2d 250 (1988).

Arkansas Wright v. Sharma, 956 SW2d 191 (1997).

Colorado Comstock v. Collier, 737 P2d 845 (1987).

Connecticut Sherwood v. Danbury Hospital, 746 A2d 730 (1999).

Indiana Ferrell v. Geisler, 505 NE2d 137 (1987).

Maryland Hill v. Fitzgerald, 501 A2d 27 (1985).

Michigan (statutory) Mich. Comp. Laws §§ 600.5805; 600.5838.

Minnesota Fabio v. Bellomo, M.D., 504 NW2d 758 (1993).

Missouri Green v. Washington University Medical Center, 761 SW2d 688 (1988).

Nebraska Ames v. Hehner, M.D., 435 NW2d 869 (1989).

New York (statutory) N.Y. Civ. Prac. L.& R. § 214-a.

North Carolina Callahan v. Rogers, 365 SE2d 717 (1988).

Ohio Wells v. Johenning, 578 NE2d 878 (1989).

South Dakota Liffengren v. Bendt, M.D., 612 NW2d 629 (2000).

Texas Slater v. National Medical Enterprises, Inc., 962 SW2d 228 (1998).

Virginia Justice v. Natvig, 381 SE2d 8 (1989).

Washington Caughell v. Group Health Coop. of Puget Sound, 876 P2d 898 (1994).

Wyoming Metzger v. Kalke, 709 P2d 414 (1985).

District of Columbia Anderson v. George, 717 A2d 876 (1998).

Alaska Pedersen v. Zielski, 822 P2d 903 (1991).

California Cal. Civ. Proc. Code § 340.5.

Delaware Del. Code Ann. tit. 18, § 6856.

Florida Fla. Stat. Ann. § 95-11.

Hawaii Hawaii Rev. Stat. § 657-7.3.

Illinois Ill. Rev. Stat. ch. 735, § 13-212.

Iowa Iowa Code § 614.1 (a).

Kansas Kan. Stat. Ann. § 60-513.

Kentucky Ky. Rev. Stat. § 413-140.

Louisiana La. Rev. Stat. Ann. ch. 9, § 5628.

Maine Bolton v. Caine, 541 A2d 924 (1988) (adopted in misdiagnosis cases only)

Massachusetts Mass. Ann. Laws ch. 260, § 4.

Mississippi Miss. Code Ann. § 15-1-36 (2) (2000).

Montana Mont. Code Ann. § 27-2-205

Nevada Nev. Rev. Stat. § 41A.097.

New Hampshire N.H. Rev. Stat. 508:4.

New Jersey N.J. Stat. Ann. § 2A: 14-2.

North Dakota Schanile v. Grad Forks Clinic, Ltd., 599 NW2d 253 (1999).

Oklahoma Okla. Stat. tit. 76, § 18.

Oregon Or. Rev. Stat. § 12.110 (4).

Pennsylvania Murphy v. Saavedra, M.D., 746 A2d 92 (2000).

Rhode Island R.I. Gen. Laws § 9-1-14.1 (2).

South Carolina S.C. Code Ann. § 15-3-545.

Tennessee Tenn. Code Ann. § 29-26-116.

Utah Utah Code Ann. § 78-14-4.

Vermont Vt. Stat. Ann. tit. 12, § 521.

West Virginia W. Va. Code § 55-7B-4

Wisconsin Wis. Stat. § 893.55

1. Suit was timely filed in this case because it fell within the grace period of the statute of repose. OCGA § 9-3-71 (b).

2. See also, Oliver v. Sutton, 246 Ga. App. 436 (2000); Charter Peachford Behavioral Health Sys., Inc. v. Kohout, 233 Ga. App. 452 (1998); Ford v. Dove, 218 Ga. App. 828 (1995); Frankel v. Clark, 213 Ga. App. 222 (1994); Stone v. Radiology Servs. P.A., 206 Ga. App. 851 (1992); Surgery Assoc. P.C. v. Keaby, 199 Ga. App. 716 (1991), in which this rule has been recited.

3. As discussed infra, the rule that the statute of limitation begins to run at misdiagnosis has never been applied to the detriment of any plaintiff. Perhaps this is due to the acknowledged "harsh result" of the rule. Williams v. Young, supra, 247 Ga. App. at 340. However, there is no question that under this rule the statute of limitation commences no later than the act of misdiagnosis. In holding that the continuous treatment doctrine was necessary to ameliorate the harshness of this rule, the Court of Appeals noted in Williams that there were two points at which the statute of limitation could have begun to run: 1) the misdiagnosis, or 2) when the symptoms of the injury with which the patient presented first manifested themselves. Id. "The record is clear that the symptoms existed in September, 1995, the date of Williams' first visit to Dr. Young for foot discomfort. If we were to interpret the alleged malpractice as "occurring' when the symptoms manifested themselves to Williams, the statute of limitation would have expired before her complaint was filed on October 28, 1998. Similarly, if we use the first date of Dr. Young's alleged misdiagnosis of Williams' condition, again September, 1995, as the date on which the statute began running, the statute of limitation expired before she filed suit." Id. (Emphasis supplied.) The GTLA respectfully submits with regard to the former situation that if the statute commenced running when the symptoms of foot discomfort first manifested themselves to Williams, not only would the statute of limitation have expired, the plaintiff's cause of action would have, impossibly, accrued prior to the act of malpractice--the misdiagnosis. This cannot be. The symptoms of pain with the a patient presents for medical treatment cannot, as a matter of law, be the "ascertainable injury" that triggers the statute of limitation because until there is a misdiagnosis, there is no negligent act out of which the actionable injury may arise. OCGA § 9-3-71 (a). In accordance with the intent of the General Assembly, the actionable injury arises out of the negligent act. The negligent act does not trail behind the actionable injury.

With regard to the latter situation, the GTLA submits that the misdiagnosis is not the actionable injury, but the negligent act, and it cannot trigger the statute of limitation.

4. The exceptions are 1) cases alleging fraudulent concealment where, because the physician induces the plaintiff to refrain from seeking other medical care or from making further inquiries into his condition, the statute of limitation runs only from the time of the plaintiff's discovery of the existence of the negligence. Oxley v. Kilpatrick, 225 Ga. App. 838 (1997), reversed on other grounds in Rossi v. Oxley, 269 Ga. 82 (1998); Bynum v. Gregory, 215 Ga. App. 431, 450 SE2d 840 (1994); see also, OCGA § 9-3-96; and 2) where a foreign object is left in a patient's body. In this situation the statute of limitation of § 9-3-71 does not apply, but instead OCGA § 9-3-72 provides that the "action shall be brought within one year after the date the negligent or wrongful act or omission is discovered."

5. Edmonds clearly states that the 1976 version of OCGA § 9-3-71 applied, thus running the statute of limitation from the date of the negligent act--the misdiagnosis. 178 Ga. App. at 70, n. 1. There was no claim in Daughtery that the grace period of the 1985 amendment applied, and that decision focused solely on the date of the physician's negligence--the misdiagnosis--without mention of the plaintiff's injury or when it occurred.

6. However, suit was barred because it was not filed within two years of this date.

7. For example, whether a physician has breached the duty of care owed the patient cannot be legally opined by the patient or any other layperson; only another medical expert can determine whether the standard of care has been breached. Ketchup v. Howard, supra, 247 Ga. App. at 59. Accordingly, at the time a plaintiff files a medical malpractice action, he must file with it the affidavit of an expert competent to testify at trial as to at least one deviation from the standard of care. OCGA § 9-11-9.1. At trial, the plaintiff must produce expert medical testimony to establish the standard of care and that it has been breached. Minnix v. DOT, 272 Ga. 566, 572, 533 SE2d 75 (2000).

8. The pattern charge is "[t]he presumption in such cases is that the services were performed in an ordinary skillful manner, and the burden is on one claiming injury to show a lack of due care and skill", citing Washington v. City of Columbus, 136 Ga. App. 682 (1975). Suggested Patter Jury Instructions, Civil Cases, Vol I, Section XXXII, Torts, CC, Skill Required of Physician.

9. The GTLA acknowledges that these rules are most often cited in cases involving fraudulent concealment. However, they apply equally to every patient under the care of a physician.

10. The GTLA is not arguing that the confidential relationship between physician and patient tolls the statute of limitation. Compare, Hunter, Maclean &c. v. Frame, 269 Ga. 844 (1998). The GTLA's position is that the relief provided by the continuous treatment rule assists in ascertaining the actionable injury rather than tolling the statute of limitation.

11. Further, a number of federal courts have applied the continuous treatment doctrine to cases brought under the Federal Tort Claims Act. See, Miller v. U.S., 932 F2d 301 (4^th Cir. 1991); Ulrich v. Veterans Admin. Hosp., 853 F2d 1078 (2d Cir. 1988); Brown v. U.S., 353 F2d 578, 580 (9^th Cir. 1965); Stephenson v. U.S., 2001 U.S. Dist. LEXIS 8953 (2001).

12. The Idaho legislature abrogated that state's common law discovery rule with the enactment of Idaho Code § 5-219.

13. While it is has not specifically addressed the issue in this case, the Arizona Supreme Court has held that the Arizona statute of limitation in a medical malpractice case, which runs from the date of injury, is not triggered by the act of misdiagnosis, but by the "damaging effect" of the "wrongful act." DeBoer, M.D. v. Brown, 673 P2d 912 (Sct Ariz 1983). This is consistent with the position advanced by the GTLA that in a continuous treatment case, the consequences of the physician's treatment based on the misdiagnosis cannot be known until the last date of treatment.