COMES NOW the Georgia Trial Lawyers Association (GTLA), Amicus Curiae in this case, and files this Supplemental Brief in order to address issues raised at oral argument.

During argument Chief Justice Fletcher succinctly framed the issue that must be decided: In a misdiagnosis case, does the statute of limitation in OCGA § 9-3-71 (a) begin to run when the injury manifests or when the misdiagnosis occurs, even if the injury has not manifested? The answer is that the General Assembly intended for the statute of limitation in § 9-3-71 (a) to commence in all medical malpractice cases when the injury is ascertainable, that is when the injury is manifested by physical symptoms.⁽¹⁾ Miller v. Kitchens, 251 Ga. App. 225, ___ SE2d ___ (2001); Screven v. Drs. Gruskin & Lucas, 227 Ga. App. 756, 490 SE2d 422 (1997). The statute commences at no other time.⁽²⁾ There is no rational basis for applying a different rule to cases where the patient seeks treatment for an existing condition that is misdiagnosed and then treated on the basis of the wrong diagnosis. To do so is contrary to the General Assembly's intent in enacting OCGA § 9-3-71, as demonstrated by that statute's legislative history.

In Shessel v. Stroup, 253 Ga. 56, 316 SE2d 155 (1984), this Court declared former § 9-3-71, an act-triggered statute of limitation, unconstitutional as applied because it had the potential to cut off a plaintiff's cause of action before it accrued. This Court held in Shessel that "an action for personal injury does not 'accrue' until the tort is complete, and a tort is not complete until injury is sustained." 253 Ga. at 57. Stated another way, the injury must be "ascertainable" in order for the cause of action to accrue. Allrid v. Emory University, 249 Ga. 35, 285 SE2d 521 (1982). With this in mind, the General Assembly enacted § 9-3-71 (a), which commences the statute of limitation on the date of the injury "arising from" the defendant's wrongful conduct.

By carefully choosing the words "injury or death arising from" wrongful conduct as the triggering point for the statute, the General Assembly recognized that not every injury is contemporaneous with the negligent act or omission that gives rise to it, and that some injuries may "arise" months or even years after the negligent act has occurred. This was, of course, the situation in Shessel: a negligent act (failed tubal ligation) gave rise to an injury (pregnancy) three years after the wrongful conduct. The injury was not ascertainable until the pregnancy manifested physical symptoms.

Because an injury does not "arise" under § 9-3-71 (a) until it is ascertainable or manifested by physical symptoms, the General Assembly contemplated that there might be some injuries, like the one in Shessel, that would not be ascertainable for many years after the wrongful conduct giving rise to them. Concerned that this could lead to problems with proof of causation, the General Assembly enacted § 9-3-71 (b) to cut off causes of action in those cases in which the injury did not arise and suit was not filed within 5 years of the wrongful conduct.

Thus, to address Justice Carley's query at oral argument, the inescapable conclusion is that the General Assembly did enact OCGA § 9-3-71 (a) to address the very problem in this case: that a wrongful act (misdiagnosis of an existing condition or illness) could give rise to an injury (the worsening of the existing condition as a result of failure to treat or providing the wrong treatment) that is not immediately ascertainable by physical symptoms. The General Assembly intended that the statute of limitation not begin to run until the injury that worsened as a result of the misdiagnosis was manifested by physical symptoms, the same rule that is applied in all other medical malpractice cases. The rule that the "misdiagnosis is itself the injury", commencing the statute on the date of misdiagnosis, flies in the face of this clear legislative intent.

Shessel demonstrates the fallacy of the premise that the wrongful conduct can also be the injury where there are no physically manifested symptoms that reflect the consequences of the defendant's wrongful conduct on the plaintiff. In Shessel the defendant argued unsuccessfully that the negligent act---the failed operation-- was itself the injury. Former Chief Justice Clarke pointed out in his special concurrence that this argument "lacked validity" because an act of consented-to medical treatment with no ascertainable injury is not actionable. 253 Ga. at 59-60. Just as the failed tubal ligation was not the actionable injury in Shessel, an act of misdiagnosis that manifests no contemporaneous physical symptoms of injury cannot be an actionable injury.

Further, the potential for harm in applying the rule that the "misdiagnosis is itself the injury" is as great as the harm in Shessel v. Stroup that prompted the 1985 Amendment. The pre-1985 act-triggered statute of limitation potentially cut off a plaintiff's cause of action before it accrued. This Court held this result was constitutionally impermissible. The rule that the "misdiagnosis is itself the injury" creates the same mischief, commencing the limitation period of § 9-3-71 (a) at the time of the wrongful act, with the potential to cut off a plaintiff's cause of action before it has accrued. This is particularly true where the patient remains under the continuous, but erroneous, treatment of his physician, and through reliance on the presumptions that the physician properly exercises his skills until the contrary is shown, Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773, 278 SE2d 653 (1981) and that a patient has no duty to investigate or confirm the accuracy of the physician's representations to him, Oxley v. Kilpatrick, 225 Ga. App. 838, 840-841 (1997), rev'd on other grounds, Rossi v. Oxley, 269 Ga. 82 (1998), is unable to ascertain that his worsening condition is a "new injury"⁽³⁾ rather than the injury for which he sought treatment. It violates the General Assembly's intent that the focus of the 1985 Amendment be on the consequences of the defendant's wrongful conduct on the plaintiff, and not on the wrongful conduct itself. Walker v. Melton, 227 Ga. App. 149, 489 SE2d 63 (1997).

The GTLA respectfully urges this Court to hold that misdiagnosis cases must be treated the same as all other medical malpractice cases: the statute of limitation must run from the date of ascertainable injury and from no other date. The relief of the continuous treatment doctrine aids in fixing a bright-line date for ascertaining the injury in the cases at issue, on the last date of treatment for the illness or condition at issue. It does not toll the statute of limitation, but simply establishes the latest possible date a patient under the continuous treatment of his physician for a misdiagnosed condition may be deemed to have ascertained his injury. Should the patient ascertain the injury during treatment, the statute begins to run at that time. Williams v. Young, 247 Ga. App. 337, 340-341, 543 SE2d 737 (2000).

The GTLA notes that at oral argument this Court expressed some concern that deeming the date of ascertainable injury to be on the last date of treatment could result in a postponement of the statute of limitation if the physician continued to treat the patient for a different condition. However, the rule of continuous treatment applies to the last date of treatment "for the particular disease or condition involved." Williams v. Young, 247 Ga. App. 331, 340-341 (2000). That the physician might continue to treat the patient for an unrelated condition or illness would not extend the statute of limitation applicable to the misdiagnosed condition.

There was additional concern expressed by the Court that a physician might attempt to force the running of the statute by halting treatment of the patient. However, before a physician may withdraw from a case without liability, he must give the patient reasonable notice to enable the patient to seek other medical care or he must provide a competent physician to take his place. Allison v. Patel, 211 Ga. App. 376, 385, 438 SE2d 920 (1993). A physician who withdrew medical treatment from a patient solely to trigger the running of the statute of limitation would be liable for a dereliction of duty. Amicus also acknowledges this Court's concern in Hunter, MacLean &c. v. Frame, 269 Ga. 844, 848-849, 507 SE2d 411 (1998), that if a statute of limitation could be tolled in a professional malpractice case solely on the basis of the confidential relationship, the professional would be forced to sever ties with the plaintiff in order to trigger the statute. That concern is not present in this case. The relief sought by Amicus is not the tolling of the statute, nor is that relief predicated solely on a confidential relationship between the parties.

In a related issue the Court raised the question of whether adopting the relief of the continuous treatment doctrine in misdiagnosis cases would impact on the statute of limitation in legal malpractice cases. The answer is that it would not.

The relief of the continuous treatment rule sought by the GTLA neither extends nor tolls the statute of limitation in OCGA § 9-3-71 (a), but determines when the ascertainable injury arises. Its adoption would have no impact on legal malpractice cases where the statute of limitation runs from the date of the wrongful act, rather than from the date of ascertainable injury. Hunter, MacLean &c. v. Frame, 269 Ga. 844, 507 SE2d 411 (1998); Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804 (1980).

Further, this Court's decision in Hunter, MacLean, supra, will not be compromised if the relief sought by the GTLA is granted. The facts and reasoning in Hunter, MacLean, are distinguishable from the issue in this case. In Hunter MacLean the parties contracted to extend the legal malpractice statute of limitation and the plaintiffs found new legal counsel to represent them in their malpractice action. Even knowing all the facts necessary to establish a malpractice claim, the plaintiffs still slept on their rights and failed to timely file suit. They asked this Court to hold that the statute of limitation---which had been extended but not met---was nonetheless tolled because of their reliance on former counsel. This Court's holding that the confidential relationship between the parties would not, standing alone, toll the statute does not affect this Court's determination of when the ascertainable injury arises in a misdiagnosis case.

For the reasons advanced in this brief and the brief previously filed, the GTLA respectfully urges this Court to overturn the rule that the "misdiagnosis is itself the injury", adopt the relief of the continuous treatment rule in misdiagnosis cases, and affirm the judgment of the Court of Appeals.

Respectfully submitted, this 4^th day of December.

/s/Antoinette D. Johnson

1. The requirement that an injury be manifested by physical symptoms in order to commence the running of the statute does not mean that the injury must be "discovered" in the sense of a discovery rule. "The discovery rule means that the statute does not begin to run 'until the plaintiff has in fact discovered that he has suffered injury, or by the exercise of reasonable diligence should have discovered it.'" Shessel v. Stroup, 253 Ga. 56, 57, n.2, 316 SE2d 155 (1984). The requirement of physically manifested symptoms, on the other hand, means that the plaintiff must experience physical symptoms of his injury such as pain, Zechman v. Thigpen, 210 Ga. App. 726, 434 SE2d 475 (1993); Walker v. Melton, 227 Ga. App. 149, 489 SE2d 63 (1997); bleeding, Vitner v. Miller, 208 Ga. App. 306, 430 SE2d 671 (1993); or numbness, Henry v. Medical Center, Inc., 216 Ga. App. 893, 456 SE2d 216 (1995). That the plaintiff does not know these physical symptoms are related to an injury arising from the defendant's negligence does not prevent the statute from running. Henry v. Medical Center, supra; Bryant v. Crider, 209 Ga. App. 623, 434 SE2d 161 (1993).

2. The statute of limitation in § 9-3-71 (a) is not triggered when the plaintiff's condition is diagnosed. Bryant v. Crider, 209 Ga. App. 623, 626-627, 434 SE2d 161 (1993); Henry v. Medical Center, Inc., 216 Ga. App. 893, 456 SE2d 216 (1995). It is not triggered on the date that the physician fails to diagnose an illness that goes untreated and does not manifest physical symptoms until years later. Instead, it is triggered on the date those physical symptoms manifest. Zechman v. Thigpen, 210 Ga. App. 726, 434 SE2d 475 (1993); Walker v. Melton, 227 Ga. App. 149, 489 SE2d 63 (1997); Vitner v. Miller, 208 Ga. App. 306, 430 SE2d 671 (1993); Staples v. Bhatti, 220 Ga. App. 404, 469 SE2d 490 (1996). It is not triggered on the date of the negligent act in non-misdiagnosis cases if the injury is not ascertainable on that date. Screven v. Drs. Gruskin & Lucas, 227 Ga. App. 756, 490 SE2d 422 (1997); Henry v. Medical Center, Inc., 216 Ga. App. 893, 456 SE2d 216 (1995); Jones v. Lamon, 206 Ga. App. 842, 426 SE2d 657 (1992). In fact, except in misdiagnosis cases where the patient presents with an existing illness or condition for treatment, the statute of limitation in OCGA § 9-3-71 (a) is triggered only when the plaintiff ascertains the injury that arises from the negligent act by physically manifested symptoms.

3. In cases where there is a failure to diagnose a condition that worsens over time, but no continuous treatment, the worsened condition is designated the "new injury" and the statute of limitation does not begin to run until the new injury is ascertained by physically manifested symptoms. Walker v. Melton, 227 Ga. App. 149, 489 SE2d 63 (1997). This rule should be applied to all misdiagnosis cases.