COMES NOW the Georgia Trial Lawyers Association (GTLA) and pursuant to Supreme Court of Georgia Rule 23 files its Amicus Curiae brief to address the question posed by this Court’s grant of certiorari to Williams v. Young, 258 Ga. App. 821, 575 SE2d 648 (2002). This Court granted certiorari to consider:

In Williams, 258 Ga. App. 821, the Court of Appeals answered that question by applying its erroneous "general rule" that in a medical malpractice case alleging misdiagnosis the statute of limitation in OCGA § 9-3-71 (a) begins to run on the date of the act of misdiagnosis, rather than when the injury "arises from" the negligent act or omission of misdiagnosis, as § 9-3-71 (a) specifically requires. Since the decision in Williams v. Young, the Court of Appeals has applied this so-called "general rule" to bar the plaintiffs’ claim in Kane v. Shoup, (A02A1786), __ Ga. App. __, 580 SE2d 555 (March 4, 2003). The GTLA files its amicus brief to urge this Court to abolish the misdiagnosis rule created and applied by the Court of Appeals, and to hold that in misdiagnosis cases, the statute of limitation begins to run when an injury arises from the wrongful act.

The GTLA is a voluntary organization comprised of over 2400 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 a neutral Amicus Curiae in various matters before the appellate courts of Georgia, as well as before the federal courts. As Amicus Curiae the GTLA does not support either the Petitioner or Respondent in this case. Rather, the GTLA’s interest in this case is to ensure that the statute of limitation in OCGA § 9-3-71 (a) is properly construed and uniformly applied in all medical malpractice cases, so that it will effect the intent of the General Assembly in enacting it.

SUMMARY OF PROCEEDINGS AND ARGUMENT

The issue before this Court is the propriety of the so-called "general rule," created and applied solely by the Court of Appeals, that an act of "misdiagnosis itself is the injury" that will trigger the medical malpractice statute of limitation in OCGA § 9-3-71 (a). See, Williams v. Young, , 258 Ga. App. 821, 575 SE2d 648 (2002). The GTLA respectfully submits that this rule is erroneous. The unambiguous language of OCGA § 9-3-71 (a) provides that the statute does not begin to run until there is an injury "arising from" the wrongful act, and this Court has unanimously recognized that this "statute begins with the occurrence of an injury, not the performance of a negligent act." Young v. Williams 274 Ga. 845, 847, 560 SE2d 690 (2002). Further, as the concurrence to Young v. Williams aptly pointed out, "the focus of [OCGA § 9-3-71 (a)] is on the adverse consequences of the allegedly negligent acts without regard to when the negligent act occurred…" 274 Ga. at 848.

The Court of Appeals has recognized the severity of its self-made rule that the "misdiagnosis itself is the injury" that will trigger OCGA § 9-3-71 (a), and in Williams v. Young, 247 Ga. App. 337, 543 SE2d 737 (2000) (hereinafter referred to as Williams I), it adopted the continuous treatment doctrine to lessen the harshness of that rule. This Court granted certiorari to Williams I and the GTLA filed an amicus brief arguing that an act of misdiagnosis cannot be the injury that will trigger OCGA § 9-3-71 (a). The GTLA additionally argued that the relief afforded by the continuous treatment doctrine was necessary to overcome the error of the Court of Appeals’ misdiagnosis rule. Because this Court rejected the adoption of the continuous treatment doctrine as judicial legislation, the majority opinion did not specifically address the GTLA’s argument. Young v. Williams, 274 Ga. 845 (2002) (hereinafter referred to as Williams II.)

However, the concurrence to Williams II, authored by Justice Carley and joined by Presiding Justice Sears and Justice Hunstein, recognized that the period of limitations in OCGA § 9-3-71 (a) "starts on the date that the injury or death occurs. Thus the focus of current law is on the adverse consequences of the allegedly negligent acts without regard to when the negligent act occurred, the ensuring course of treatment, or discovery by the patient." 274 Ga. at 848; emphasis supplied. The concurrence expressly pointed out that the Supreme Court was not affirming the trial court’s grant of summary judgment "based on a proper analysis under OCGA § 9-3-71 (a). Instead, we are remanding the case for ‘further proceedings consistent with this opinion.’ Upon remand, the Court of Appeals must, therefore, determine when the statute of limitations began to run on Ms. Williams’ misdiagnosis claim and whether she filed her action within two years of that date. See Walker v. Melton, 227 Ga. App. 149, 150 (1) (b) (489 SE2d 63) (1997)." Williams II, 274 Ga. at 848; emphasis supplied.

Despite the direction from this Court that a negligent act cannot be the injury that triggers the statute of limitation, on remand the Court of Appeals reaffirmed its rule that the act of "misdiagnosis itself is the injury" that will commence OCGA § 9-3-71 (a), applied that rule to this case, and rejected the GTLA’s argument that its "misdiagnosis rule" is in error. Williams v. Young, 258 Ga. App. 823, n.1 (hereinafter referred to as "Williams III.") The propriety and applicability of the misdiagnosis rule is now squarely before this Court. The rule is not academic. The Court of Appeals continues to recite the rule as the law, and has in the last year applied it to at least two cases other than the one before this Court.

The rule that a "misdiagnosis itself is the injury" is wrong because it improperly shifts the focus from the consequences of the physician’s negligence on the patient---the injury that will trigger the statute of limitation---to the negligent act itself, in violation of this Court’s decision in Williams II, 274 Ga. 845. The rule transforms OCGA § 9-3-71(a) into an act-triggered statute of limitations as it is applied to misdiagnosis cases and thus directly contravenes the General Assembly’s intent in amending the statute of limitation in 1985 from an act-triggered statute to one that commences "on the date on which an injury or death arising from a negligent act or omission occurred." 1985 Ga. Laws, p. 556, § 1; emphasis supplied. It ignores the fact that at the moment of misdiagnosis the plaintiff’s cause of action has not accrued because there are no damages for which a medical malpractice claim will lie. Because the rule improperly commences the statute of limitation on the date of the negligent act rather than on the date the injury arises from that act, it has the potential to impermissibly cut off the plaintiff’s cause of action before it ever accrues, violating equal protection of the law. Further, it impermissibly lessens the burden of proof of a physician who raises the affirmative defense of the statute of limitation: that physician is only required to prove when the act of misdiagnosis occurred, not when the plaintiff’s injury arose from that act.

The GTLA’s position that the misdiagnosis itself cannot be the injury that commences OCGA § 9-3-71 (a) is consistent with the law in other jurisdictions with injury-triggered medical malpractice statutes of limitation that have addressed this issue. Paul v. Skemp, 242 Wis.2d 507, 625 NW2d 860 (2001); St. George v. Pariser, M.D., 253 Va. 319, 484 SE2d 888 (1997); DeBoer v. Brown, 138 Ariz. 168, 673 P2d 912 (1983). The GTLA has been unable to find any other jurisdiction with an injury-triggered statute of limitations that subscribes to the "general rule" adopted and applied by the Court of Appeals. To the contrary, the only jurisdictions that commence the statute of limitation on the date of misdiagnosis are those with act-triggered statutes of limitation. See, e.g., Hopster v. Burgeson , 750 N.E.2d 841 (Ind. App. 2001) (holding medical malpractice claim brought under I.C. § 34-18-7-1(b), an act-triggered statute, accrued at time of misdiagnosis of patient’s heart condition); and Humphreys v. Roche Biomedical Lab, Inc., 990 F2d 1078, 1080 (8^th Cir. 1993) (holding that Ark.Code Ann. § 16-114-203(a), (b) (1987), which provides the cause of action accrues on "the date of the wrongful act complained of and no other time", commenced when the plaintiff’s Pap smear was misdiagnosed).

Therefore the GTLA respectfully requests that this Court abolish the Court of Appeals’ rule that the act of misdiagnosis itself is the injury that will commence the statute of limitation, and hold that OCGA § 9-3-71 (a) applies to misdiagnosis cases in the same manner it is applied to all other medical malpractice cases.

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 for these decisions was that a statute of limitation cannot bar a cause of action before it accrues, i.e., before there is ascertainable injury. Id.; Williams II, 274 Ga. at 846, n. 2.

In 1985 the General Assembly amended OCGA § 9-3-71 (a) to remove these constitutional infirmities. Subsection (a) now requires that

The clear intent of this amendment is to prevent the statute of limitation from expiring before the cause of action accrues. Thus, as a matter of law, and as this Court has held, the cause of action in a medical malpractice case cannot accrue and the statute of limitation cannot run until there is an injury resulting from the negligent act or omission. Williams II, 274 Ga. at 847.

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 until the patient "reasonably 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), rev’d on other grounds, 269 Ga. 82 (1998); Miller v. Kitchens, 251 Ga. App. 225, 228, 553 SE2d 300 (2001). This construction of "injury," as Justice Carley recognized in his concurrence to Williams II, 274 Ga. at 848, 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 I, 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 enactment of § 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 cause of action accrues and the statute of limitation begins to run. In cases where the negligent act and resulting injury are concurrent, such as a surgeon’s amputation of the wrong limb, there is little difficulty in determining the ascertainable injury that will trigger the statute of limitation. The consequence of the physician’s negligence on the patient is immediately known. However, in cases alleging misdiagnosis, the Court of Appeals has created and applied a different, and the GTLA asserts, inequitable set of rules.

Williams I, 247 Ga. App. at 339 (emphasis supplied). This rule has been cited by the Court of Appeals in numerous cases. Price v. Currie, 260 Ga. App. 526(2), 580 SE2d 299 (2003); Lorelli v. Sood, 259 Ga. App. 166, 576 SE2d 565 (2002); Oliver v. Sutton, 246 Ga. App. 436 (2000); Charter Peachford Behavioral Health Sys., Inc. v. Kohout, 233 Ga. App. 452 (1998); Walker v. Melton, 227 Ga. App. 149 (1997); ); Ford v. Dove, 218 Ga. App. 828 (1995); Frankel v. Clark, 213 Ga. App. 222 (1994); Zechman v. Thigpen, 210 Ga. App. 726 (1993); Stone v. Radiology Servs. P.A., 206 Ga. App. 851 (1992); Surgery Assoc. P.C. v. Keaby, 199 Ga. App. 716 (1991).

In addition to the case before this Court, the rule was applied in Kane v. Shoup, (A02A1786), __ Ga. App. __, 580 SE2d 555 (2003) and Hughley v. Frazier, 254 Ga. App. 544, 562 SE2d 821 (2002) with the ultimate result that the plaintiffs’ claim were barred. There are, however, no cases in which this Court has endorsed this rule.

The distinction the Court of Appeals has made between the two groups of misdiagnosis cases appears to turn on the idea that where the patient presents for treatment of an existing condition that is misdiagnosed the injury "begins" at the time of misdiagnosis, and therefore "the misdiagnosis itself is the injury." In a broad sense the actionable injury in every misdiagnosis case "begins" at the time of misdiagnosis in that the physician’s failure to treat or improper treatment based on the misdiagnosis causes the original condition to worsen and eventually produce those physical symptoms that are the consequence of the physician’s negligence and the "ascertainable injury." But as this Court has recognized, it is the consequence of the physician’s misdiagnosis--the worsening of the plaintiff’s original condition into an actionable injury--rather than the beginning of this injury at the moment of misdiagnosis that will give rise to a claim for damages and trigger OCGA § 9-3-71 (a). Williams II, 274 Ga. at 848.

In latent injury or so-called "subsequent injury" cases the physical symptoms of the injury that arises from the misdiagnosis often do not manifest until days, weeks or even years after the misdiagnosis or failure to diagnose. In these "subsequent injury" cases Court of Appeals has recognized the actionable injury is that which develops over time and reflects the consequence of the physician’s negligence on the patient. The Court of Appeals has held that the actionable injury is a "new injury," distinct from the latent condition that was misdiagnosed, Walker v. Melton, 227 Ga. App. at 149-150, or that the physician failed to diagnose, Staples v. Bhatti, 220 Ga. App. 404, 469 SE2d 490 (1996). The Court of Appeals has correctly held that the statute of limitation begins to run in these "subsequent injury" cases when "the symptoms attributable to the new injury are manifest to the plaintiff." Williams I, 247 Ga. App. at 339 (emphasis supplied); Kane v. Shoup, (A02A1786) __ Ga. App. __, 580 SE2d 555, 558 (2003). "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); 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" developed into a far worse injury as a result of the misdiagnosis and failure to treat, and was the consequence of the physician’s negligence.

For example, in Staples v. Bhatti, supra, the plaintiff’s mammogram indicated a cancerous mass that the physician failed to diagnose. Theoretically her injury "began" at the time of misdiagnosis because the cancer was left untreated, metastasized and spread to her lymph nodes. Had it been properly diagnosed and treated, her original condition would not have worsened. However, the actionable injury that triggered OCGA § 9-3-71 arose years after the misdiagnosis when the plaintiff experienced pain in her breast. The Court of Appeals held that the cause of action did not accrue and the statute of limitation did not commence until symptoms of this "new injury" were physically manifested. The reasoning of the Court of Appeals was correct because the plaintiff’s "new injury" was the consequence of the defendant’s negligence in misdiagnosing and failing to treat the condition. See also, Vitner v. Miller, 208 Ga. App. at 307; Walker v. Melton, 227 Ga. App. at 151. And yet the Court of Appeals held that this correct application of OCGA § 9-3-71 (a) to "subsequent injury" cases is "a limited exception to the general rule that in misdiagnosis cases the injury is the misdiagnosis itself." Williams III, 258 Ga. App. at 823; emphasis supplied. See also, Kane v. Shoup, (A02A1786),__ Ga. App. __, 580 SE2d 555, 557 (2003) ("Georgia courts have carved out a limited exception in misdiagnosis cases when an injury occurs subsequent to the date of medical treatment, in which the statute of limitation commences from the date the injured is discovered." Emphasis in original.)

The so-called "general rule" created by the Court of Appeals governs misdiagnosis cases such as the one before this Court. Where the patient presents for treatment of an existing condition that the physician misdiagnoses and either fails to treat or erroneously treats, the condition worsens, just as in the "subsequent injury" cases. In the latent injury or "subsequent injury" cases the injury worsens as a result of the failure to provide treatment and ultimately becomes the "new injury" that is actionable. In all other misdiagnosis cases the original injury or condition for which the patient seeks treatment worsens as a result of providing the wrong treatment or no treatment at all. The consequence of the physician’s negligence on the patient’s original condition in both groups of misdiagnosis cases is the same: the original injury worsens over time into an actionable injury. (See n. 5, supra.) Nonetheless, the rules applied to these cases are different. In the "subsequent injury" cases the focus is on the consequence of the physician’s negligence on the patient as the General Assembly intended because when physical symptoms of the injury that is caused by the failure to diagnose manifest, this so-called "new injury" triggers the statute of limitation. All other misdiagnosis cases focus solely on the date of the physician’s diagnostic error. In the "subsequent injury" cases the Court of Appeals has held that the statute of limitation does not begin to run until physical symptoms of the "new injury" manifest. But in all other misdiagnosis cases the Court of Appeals has held that because "the symptoms of the injury, usually pain, exist before the misdiagnosis," the misdiagnosis itself is the actionable injury. Williams I, 247 Ga. App. at 339; Williams III, 258 Ga. App. at 823; Kane v. Shoup, (A02A1786), __ Ga. App. ___, 580 SE2d 555 (2003). The GTLA respectfully submits that as a matter of law the "injury" or medical condition that exists before misdiagnosis cannot become the actionable injury merely by the pronouncement of the misdiagnosis because there are no damages at that time and the presenting condition or "injury" for which treatment is sought does not reflect the consequence of the physician’s negligence.

However, according to the "general rule" made by the Court of Appeals, in the "majority" of misdiagnosis cases the cause of action accrues and the statute of limitation begins to run at the time of the act of misdiagnosis regardless of when the symptoms of the actionable injury that develop as a result of the misdiagnosis physically manifest themselves. Williams I, 247 Ga. App. at 339; Williams III, 258 Ga. App. at 823; Kane v. Shoup, (A02A1786) 580 SE2d at 557.

The rule that "the misdiagnosis itself is the injury" ignores the consequence of the physician’s negligence on the patient--the aggravation of the original condition as a result of erroneous treatment or no treatment based on the misdiagnosis. It is in contravention of OCGA § 9-3-71 (a), which, as this Court has stated, "begins with the occurrence of an injury, not the performance of a negligent act" and focuses "on the adverse consequences of the allegedly negligent acts without regard to when the negligent act occurred." Williams II, 274 Ga. at 847, 848 (2002). Further, as the Court of Appeals has recognized, application of this rule has the potential to impermissibly cut off the patient’s cause of action before the actionable injury is ascertainable. Stone v. Radiology Services, PA, 206 Ga. App. 851, 854, SE2d 663 (1992); Hughley v. Frazier, 254 Ga. App. 544, 562 SE2d 82 (2002) (physical precedent); Williams I, 247 Ga. App. at 339. Such a result brings about the very wrong that the 1985 Amendment to § 9-3-71 (a) was enacted to prevent.

In order to put the inequitable distinction made by these rules in perspective, the GTLA asks this Court to consider the following example.

Isabelle and Anne are middle-aged friends. Isabelle is physically active, mindful of her health, and regularly performs breast self-examinations. Anne pays no attention to her health unless she becomes sick. However these women share a characteristic of which neither is aware: they are in an early, treatable stage of breast cancer.

Isabelle has a gynecological exam scheduled for January 3, 2001 and is concerned because she thinks she detected a small lump in her right breast. Isabelle’s discovery of a possible tumor makes Anne more concerned about her own health, and even though she has no physical symptoms prompting attention she also makes an appointment with her physician for January 3, 2001.

Isabelle tells her physician she thinks she found a tumor in her right breast. He palpates her breasts, makes an incorrect diagnosis that the lump is merely a fibrocystic breast change and tells her she has nothing to worry about. The suspicious mass on Isabelle’s mammogram is misread as benign and Isabelle’s physician orders no further tests.

Anne’s physician fails to discover her palpable tumor during the clinical breast exam and the suspicious mass on her mammogram is also misread as benign. Anne remains unaware of her tumor or cancer.

Isabelle does not schedule another gynecological examination until January 10, 2003. On that same date Anne experiences severe pain in her cancerous breast and persuades her physician to give her an immediate examination. On January 10, 2003 their physicians discover Isabelle’s and Anne’s cancer which has now metastasized. Had their respective cancers been properly diagnosed on January 3, 2001, their prognoses would have been favorable. Instead, the future is bleak for both of them. They consult their attorneys about the prospect of suing their physicians for misdiagnosing their cancer.

Isabelle learns that under the "general rule" the Court of Appeals has applied to misdiagnosis cases, the statute of limitation has likely run on her claim, while Anne has until around January 9, 2005 to file her claim.

Under the Court of Appeals’ "general rule" the statute began to run in Isabelle’s case on January 3, 2001 when she presented with the complaint of a possible tumor and her condition was misdiagnosed. And yet Isabelle had no injury on January 3, 2001 that was the consequence of her physician’s negligent act of misdiagnosis. Isabelle’s physician did not cause her cancer. Isabelle’s original condition—treatable cancer—worsened into metastasized, untreatable cancer because her physician failed to diagnose and treat it. It was the metastasized cancer that was the consequence of his negligence in failing to diagnose the tumor Isabelle complained of. Yet under the "general" misdiagnosis rule the statute began to run on the date of the negligent act and expired before Isabelle’s injury became ascertainable. That is, Isabelle’s cause of action expired before it ever accrued. This result is in direct contravention of the General Assembly’s intent in enacting OCGA § 9-3-71 (a), and is, the GTLA submits, a violation of equal protection of the law.

Anne fares better largely because of luck-- she was unaware of her tumor and had no physical symptoms at the time of her misdiagnosis. The statute of limitation did not begin to run in her case until January 10, 2003 when she experienced severe pain in her breast. We know this is correct because this is the result the Court of Appeals reached in Staples v. Bhatti, 220 Ga. App. 404, 469 SE2d 490 (1996), a so-called ‘subsequent injury" case identical in all critical respects to Anne’s situation, and discussed at page 11, supra. Commencing the statute of limitation on the date Anne felt pain is the correct application of OCGA § 9-3-71 (a) because her pain was a physical manifestation of her injury that was the consequence of her physician’s negligence in failing to diagnose and treat. That is, her injury became ascertainable and her cause of action accrued when she felt pain in her breast. This is, of course, consistent with the rule applied in every other medical malpractice case, except the "general" misdiagnosis cases. Shessel v. Stroup, 253 Ga. 56, 59, 316 SE2d 155 (1984); Allrid v. Emory University, 249 Ga. 35, 36, 285 SE2d 521 (1982); Oxley v. Kilpatrick, 225 Ga. App. 838, 840, 486 SE2d 44 (1997), rev’d on other grounds, 269 Ga. 82 (1998); Miller v. Kitchens, 251 Ga. App. 225, 228, 553 SE2d 300 (2001).

Kane v. Shoup, (A02A1786) __ Ga. App. __, 580 SE2d 555 (2003) illustrates the Court of Appeals’ most recent application of the so-called "general rule" in misdiagnosis cases. There the plaintiffs sued an orthodontist, alleging he misdiagnosed and mistreated their son’s overbite which, they alleged, "resulted in a progressive worsening of that condition." 580 SE2d at 557. The Court of Appeals characterized the plaintiffs’evidence as showing only that the child’s "existing condition was misdiagnosed and mistreated, and that condition was the same one that existed at the time the Kanes first sought treatment from Dr. Shoup." 580 SE2d at 558. The Court of Appeals held that the plaintiffs’ evidence did "not assert that any new injury occurred. Accordingly, this case falls under the general rule for misdiagnosis cases, and the date of injury must be considered to be the date of Dr. Shoup’s alleged misdiagnosis. The trial court, therefore, properly found that the Kanes’ claims were time-barred." Id.; emphasis supplied.

In Kane the orthodontist had treated the child for many years, repeating his misdiagnosis over time. Applying the misdiagnosis rule the Court of Appeals concluded that the statute of limitation began to run from the date of the final misdiagnosis of the treatment. That is, the last act of misdiagnosis was itself the injury. But in a case where there is only one act of misdiagnosis such as in the GTLA’s hypothetical, application of the rule would trigger the statute of limitation on that singular date of misdiagnosis.

1. It is the rare plaintiff who, at the moment of misdiagnosis, has sustained an actionable injury arising from that misdiagnosis. In the vast majority of cases in which the plaintiff presents for treatment with an existing illness or condition, the physician’s act or omission in failing to properly diagnose that condition does not immediately give rise to a claim for damages capable of enforcement. Damages are an essential element the plaintiff must establish to recover for an injury caused by the negligence of another. Johnson v. American National Red Cross , 276 Ga. 270, 272, 578 SE2d 106 (2003). At most, the act of misdiagnosis gives rise to a threat of future harm that is not actionable.

2. While in some factual situations the negligent act or omission and the resulting injury may be concurrent, they are not synonymous. The General Assembly recognized the legal distinction between a "wrongful act" and an "injury" by enacting OCGA § 9-3-71(a) to commence running of the statute when the injury arises from the wrongful act or omission. The rule that in the majority of misdiagnosis cases the injury is the act defies time-honored principles that statutes are to be construed "by reference to legislative intent," Abernathy v. City of Albany, 269 Ga. 88, 495 SE2d 13 (1998), and that construction of a statute "must square with common sense and sound reasoning." City of Atlanta v. Miller, 256 Ga. App. 819, 820, 569 SE2d 907 (2002); Tuten v. City of Brunswick, 262 Ga. 399, 404, 418 SE2d 367 (1992).

3. By focusing on the act of misdiagnosis rather than on an ascertainable injury that develops over time and is the consequence of the physician’s negligence, 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. The rule transforms OCGA § 9-3-71(a) into an act-triggered statute of limitation with respect to the "majority" of misdiagnosis cases. It 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. Further, it potentially allows the statute of limitation to expire before the cause of action accrues.

4. The rule impermissibly treats misdiagnosis cases in which the plaintiff presents with an existing illness or condition 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. 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). 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; Williams II, 274 Ga. at 848. However, in cases where the physician misdiagnoses an existing condition 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. Kane v. Shoup, (A02A1786), __ Ga. App. __, 580 SE2d 555 (2003).

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 correct: where an injury develops subsequent to and as a result of the misdiagnosis, the statute of limitation does not begin to run until physical manifestation of the injury. This is correct because the injury arose from the negligent act in accordance with OCGA § 9-3-71(a).

As authority for the rule that "the misdiagnosis itself is the injury" in the majority of cases, 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. Therefore neither case is authority for the proposition that the misdiagnosis itself is the injury.

6. The only jurisdictions outside of Georgia that have held the act of misdiagnosis can be the injury that triggers the statute of limitation have act triggered statutes of limitation. See, e.g., Hopster v. Burgeson , 750 N.E.2d 841 (Ind. App. 2001) (holding medical malpractice claim brought under I.C. § 34-18-7-1(b), an act-triggered statute, accrued at time of misdiagnosis of patient’s heart condition); and Humphreys v. Roche Biomedical Lab, Inc., 990 F2d 1078, 1080 (8^th Cir. 1993) (holding that Ark.Code Ann. § 16-114-203(a), (b) (1987), which provides the cause of action accrues on "the date of the wrongful act complained of and no other time", commenced when the plaintiff’s Pap smear was misdiagnosed).

The disparate treatment afforded the two classifications of misdiagnosis cases is inequitable and impermissible. Notwithstanding the Court of Appeals’ claim that "subsequent injury" cases are a "limited exception" to the general misdiagnosis rule, Williams II, 258 Ga. App. at 823; Kane v. Shoup, (A02A1786), 580 SE2d at 557, they are treated the same as all other medical malpractice cases--the statute begins to run two years from the date of an ascertainable injury that is the consequence of the physician’s negligence. That is, the statute begins to run when the injury arises from the negligent act or omission of misdiagnosis in accordance with OCGA § 9-3-71(a). But a plaintiff such as Isabelle who submits for treatment of an existing condition that is misdiagnosed has but two years from the date of the act of misdiagnosis in which to file suit, regardless of whether there is an ascertainable injury for which damages will lie. See, Hughley v. Frazier, 254 Ga. App. 544 (2002); Kane v. Shoup, (A02A1786), 580 SE2d at 557-558. Thus, the plaintiff who seeks treatment of an existing condition that is misdiagnosed is unfairly penalized. While the record in the case before this Court 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 any 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); Williams II, 274 Ga. 845 (2002). Abolishing this rule will result in misdiagnosis cases being treated the same as all other medical malpractice cases.

Perhaps the Court of Appeals created the "general" rule for misdiagnosis cases because it brings a sort of certainty, albeit erroneous, to determining when the injury arises from the misdiagnosis of an existing condition for which treatment is sought. It is often difficult to determine when many injuries "arise" from acts of medical negligence. And it may be particularly hard to do so where a patient presents for treatment of an existing medical condition that is misdiagnosed and that condition worsens as a result of negligent treatment. But the jury is completely capable of resolving any factual dispute regarding when the injury that is the consequence of the defendant’s medical negligence "arose" from that negligence.

Other states with injury-triggered medical malpractice statutes of limitation have uniformly rejected the argument that the act or omission of misdiagnosis can be the injury that triggers the statute. They have instead held that the plaintiff’s claim cannot accrue and the statute cannot begin to run until the plaintiff sustains an injury as a result of the misdiagnosis.

Paul v. Skemp, 242 Wis. 2d 507, 625 NW2d 860 (2001) best illustrates the GTLA’s position. Nineteen-year old Jennifer Paul first sought treatment for headaches from the defendant physician’s clinic when she was nine. For ten years she was diagnosed and treated by the defendant’s clinic for a sinus condition, but her headaches persisted. In November and December, 1994, Jennifer sought treatment from the defendant for headaches which were, once again, diagnosed and treated as sinus related. On May 22, 1995 Jennifer was taken to a hospital emergency room where it was determined that an arteriovenous malformation (AVM) in her right cerebellum had ruptured. She died the following day. Her parents filed suit against the defendant, alleging that he had misdiagnosed Jennifer’s headaches and had failed to diagnose the AVM.

Wisconsin’s medical malpractice statute of limitation requires an action to be filed within the later of 1) three years from the date of the injury or 2) one year from the date of discovery. Wis. Stat. § 893.55 (1). Dr. Skemp, the defendant, moved for summary judgment on the basis of the 3 year period of limitation, maintaining that the last alleged misdiagnosis on December 20, 1994 was Jennifer’s injury, and because suit was not filed within 3 years of that date, it was barred. Jennifer’s parents responded with the affidavit of a physician who averred that the ruptured blood vessel resulting from the AVM was the injury resulting from the misdiagnosis, and that had it been diagnosed at any time prior to May 1, 1995--approximately three weeks prior to rupture-- Jennifer would not have sustained this injury.

The Wisconsin Supreme Court rejected Dr. Skemp’s argument that his misdiagnosis was the injury on a number of grounds. It first pointed out that if the negligent omission--the failure to properly diagnose and treat--were deemed Jennifer’s injury, then the injury-triggered medical malpractice statute of limitation "would be changed into a negligence-based rule of accrual." 625 NW2d at 865. The Court recognized that the Wisconsin legislature did not intend for a medical malpractice action to accrue at the time of the negligent act or omission, but only at the time of an injury arising from an act or omission by a health care provider. Id., at 866. The Court noted that the Wisconsin statute of limitation recognizes that a tort claim is not capable of enforcement until there is both an act or omission and an injury resulting from that act or omission. The Court held that where the patient presents with a condition for medical treatment, the injury on which the cause of action is based "is not the original detrimental condition; it is the injury which later occurs because of the misdiagnosis and failure to treat." 625 NW2d at 872.

The Wisconsin Supreme Court concluded that an injury-triggered statute of limitation requires that "the negligence and its result--an injury--should be considered separately. The negligence must cause an injury before there is an accrual of a claim." Id., at 870. To hold otherwise would lead to an incongruous and inequitable end.

625 NW2d at 872.

The Supreme Courts of Virginia and Arizona, states with injury-triggered medical malpractice statutes, have reached the same conclusion. "In every misdiagnosis case, the patient has some type of medical problem at the time the physician is consulted. But the injury upon which the cause of action is based is not the original detrimental condition; it is the injury which later occurs because of the misdiagnosis and failure to treat." St. George v. Pariser, M.D., 253 Va. 319, 484 SE2d 888, 891 (1997). This is so because the physician’s negligent act or omission could not have been the cause of the presenting illness. In St. George, the physician failed to diagnose a cancerous mole that metastasized and was no longer completely curable. The plaintiff’s actionable injury did not occur when the physician failed to diagnose the cancer, but when the cancer metastasized and invaded other parts of her body. The injury that was the consequence of the physician’s negligence was the requirement of more extensive treatment and post-surgical monitoring.

Likewise in DeBoer v. Brown, 138 Ariz. 168, 673 P2d 912 , 914 (1983), the Supreme Court of Arizona rejected the argument that a misdiagnosis could be the injury that triggers the statute of limitation.

The Arizona Supreme Court’s analysis correctly recognized that the actionable injury is not the original injury or condition for which the patient sought treatment, but the injury that develops as a result of the misdiagnosis and improper treatment or failure to treat.

This authority supports the GTLA’s position that a misdiagnosis is an act that deprives the plaintiff of the opportunity to have the injury or condition properly treated before it develops into a condition that requires more extensive treatment or becomes untreatable. The act of misdiagnosis itself is not an ascertainable, actionable injury. Nor can the condition for which the patient sought diagnosis and treatment be the actionable injury within the meaning of OCGA § 9-3-71 (a). When the words of misdiagnosis are uttered, there are generally no injurious consequences to the plaintiff that could either give rise to an action for damages or trigger the statute of limitation. While it is true that the plaintiff’s original condition, if misdiagnosed and wrongly treated, may place the plaintiff at risk of developing a more serious condition, at the moment of misdiagnosis this is merely the threat of a future harm which is not actionable. Actual damages are an essential element of a medical negligence action. Johnson v. American National Red Cross, 276 Ga. at 272. As the General Assembly intended and as this Court has recognized, the only injury that will commence OCGA § 9-3-71 (a) in a misdiagnosis case is the injury that arises as a result of the negligent failure to diagnose and treat; only this injury reflects the consequence of the defendant’s negligence on the plaintiff. Williams II, 274 Ga. 845 (2002). Nonetheless the Court of Appeals has not uniformly applied this law in misdiagnosis cases.

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, 159 Ga. App. 80, 81, 282 SE2d 720 (1981). Further, under Georgia law neither the courts nor laypersons 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).

Instead, every patient who is being treated by a physician has the right to rely on "[t]he presumption of law in this state...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 the rebuttable presumption of due care charged to the jury, see, Beach v. Lipham, 276 Ga. 302, 578 SE2d 402 (2003), but the presumption 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 his 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, 186 Ga. App. 354, 367 SE2d 128 (1988). Further, the Court of Appeals has recently held that "[p]atients are entitled to rely on their doctors’ diagnoses in deciding a course of treatment." Breyne v. Potter, 258 Ga. App. 728, 731, 574 SE2d 916 (2002). 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. 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 health care costs would increase exponentially.

The actionable injury in a misdiagnosis case is the aggravation or prolonging of the patient’s existing condition because the patient relied on the physician’s negligent misrepresentation of that condition. The patient’s cause of action cannot accrue until the patient ascertains or reasonably should know that there is an injury distinct from the condition with which he or she presented for treatment. A patient cannot be expected to assert a claim for an injury arising from medical negligence until he or she has reason to know of the injury.

On the one hand the law and public policy of this State encourage a patient to rely on the diagnosis and course of treatment prescribed by his physician. They tell the patient that he or she has no duty to question either the diagnosis or treatment or to seek a second opinion. On the other hand, the rule that a misdiagnosis itself is the injury places on the patient a burden of investigating the accuracy of each medical diagnosis, because if it is wrong, the statute of limitation on the patient’s claim begins to run immediately and the cause of action may be extinguished before it ever accrues. As the Wisconsin Supreme Court succinctly stated, "if a misdiagnosis was an injury that would start the limitations period running, patients would have to obtain a second or third opinion or risk losing a claim for medical malpractice. The result would be to drive up health care costs." 625 NW2d at 872.

However, 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 or she lacks independence to effect a change. Thus the rule that the misdiagnosis itself is the injury places a patient in an untenable position. And, as the Court of Appeals recognized in Williams I, 247 Ga. App. 337, applying this rule is particularly harsh in cases where the patient submits to continuous treatment based on the misdiagnosis and because of reliance on the physician’s skill does not question the diagnosis or course of treatment.

The rule that the misdiagnosis itself is the injury also improperly removes a physician’s burden of proof where OCGA § 9-3-71 (a) is raised as a defense. Where the affirmative defense of OCGA § 9-3-71 (a) is asserted, the physician bears the burden of showing that suit was not filed within two years of the injury that arises from the negligent act or omission. Walker v. Melton, 227 Ga. App. 149, 151, 489 SE2d 63 (1997); OCGA § 9-11-8 (c). This defense is often asserted in a motion for summary judgment where the physician bears the burden of establishing when the injury occurred and that suit was not filed within 2 years of that date. In cases such as the one before this Court, Hughley v. Frazier, 254 Ga. App. 544, 562 SE2d 82 (2002) and Kane v. Shoup, 580 SE2d 555 (2003), where the plaintiff has an existing illness that is misdiagnosed and is either wrongly treated or goes untreated, the rule that the misdiagnosis is itself the injury improperly satisfies the physician’s burden without any proof of when the ascertainable injury that is the consequence of the physician’s negligence occurred. The physician is improperly allowed to rely on the date of the act of misdiagnosis to trigger the statute of limitation.

As the Virginia courts have held in construing their own injury-triggered medical malpractice statute of limitation, once the plaintiff alleges facts sufficient to place his or her misdiagnosis claim within the statute of limitation, the defendant has the burden to refute these alleged facts by proving "what date the plaintiff was injured by the misdiagnosis." Morton v. Gray, 2001 WL 34038046 (Circuit Ct. Norfolk, August 1, 2001), slip op. at 2, citing the Virginia Supreme Court’s decision in St. George v. Pariser, 484 SE2d 888 (1997).

Examining this issue from a different angle, the Wisconsin Supreme Court correctly recognized that if the act of misdiagnosis will trigger the statute of limitation, a physician who moves for summary judgment bears the burden of establishing a causal nexus between the act of misdiagnosis and the condition with which the patient presented for diagnosis, almost always a legal and factual impossibility. Paul v. Skemp, supra, 625 NW2d at 872.

The "general rule" that the misdiagnosis itself is the injury transforms OCGA § 9-3-71(a) into an act-triggered statute of limitation in contravention of the General Assembly’s intent in enacting that statute. Further, it improperly distinguishes between misdiagnosis cases, shortening the period of limitation in the majority of them and creating the real possibility that a patient’s cause of action may expire before there is ascertainable injury.

There are no laudable reasons for perpetuating this rule. It certainly does not lower medical costs. On the contrary, to the extent that it encourages or requires patients to seek a second diagnosis to protect their rights, it can needlessly inflate medical expenses.

The GTLA respectfully submits that this ‘general rule" in misdiagnosis cases should be abolished so that OCGA § 9-3-71 (a) will be applied uniformly to all medical malpractice cases, including misdiagnosis cases in which the plaintiff seeks a diagnosis of an existing condition or illness.

Respectfully submitted, this 14^th day of July 2003.

/s/ Antoinette D. Johnson

/s/ William S. Stone

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