IN THE COURT OF APPEALS OF GEORGIA

Williams v. Young

BRIEF OF THE AMICUS CURIAE COMMITTEE

GEORGIA TRIAL LAWYERS ASSOCIATION

COMES NOW the Georgia Trial Lawyers Association (GTLA) and pursuant to Georgia Court of Appeals Rule 25 files this Amicus Curiae brief in response to the decision of the Supreme Court of Georgia in Young v. Williams, S01G0589 (Decided March 11, 2002), remanding that case to this Court to determine when an injury arises in a misdiagnosis case within the meaning of OCGA § 9-3-71 (a).

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 a neutral Amicus Curiae in various matters before the appellate courts of Georgia, as well as before the federal courts. The intent of the GTLA is not to support either the Appellant or the Appellee 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.

SUMMARY OF PROCEEDINGS AND ARGUMENT

Following the grant of certiorari to Williams v. Young, 247 Ga. App. 337, 543 SE2d 737 (2000), the GTLA filed an amicus brief in the Supreme Court of Georgia, urging that this Court's decision be affirmed. The GTLA's position was that the relief offered by the continuous treatment doctrine was necessary to counteract the effect of the erroneous rule that in the majority of misdiagnosis cases the act of "misdiagnosis itself is the injury" which will trigger the statute of limitation in OCGA § 9-3-71 (a). Williams, 247 Ga. App. at 339. Although the Supreme Court rejected the adoption of the continuous treatment doctrine, it remanded the case for this Court to determine when the actionable injury arises in a misdiagnosis case within the meaning of OCGA § 9-3-71 (a). The GTLA files its brief to address this issue.

In Young v. Williams, supra, the Supreme Court concluded that the continuous treatment doctrine was inconsistent with the General Assembly's intent that OCGA § 9-3-71 (a) "begins with the occurrence of an injury, not the performance of a negligent act." (Slip op. at 5.) In a written concurrence, Justices Carley, Sears and 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." (Id., at 7-8; 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)." Id.; emphasis supplied.

The GTLA is a neutral amicus. Its purpose in filing this brief is not to take a position regarding the outcome of this particular case, but to urge this Court to overturn the erroneous rule that an act of misdiagnosis can itself be the injury that commences the statute of limitation in a medical malpractice action. As Justice Carley has succinctly stated, 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." Young v. Williams, supra, slip op. at 7-8; emphasis supplied. The rule that the misdiagnosis itself is the injury 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. The rule 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. The rule commences the statute of limitation on the date of the negligent act rather than on the date the injury arises from that act, and therefore has the potential to impermissibly cut off the plaintiff's cause of action before it ever accrues.

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).

Therefore the GTLA respectfully requests that this Court overturn the rule that the misdiagnosis itself is the injury in the majority of misdiagnosis cases, and apply OCGA § 9-3-71 (a) to misdiagnosis cases in the manner it is applied to all other medical malpractice cases.

 

 

ARGUMENT AND CITATION OF AUTHORITY

 

I. In medical malpractice cases in which the patient presents for treatment of an existing illness or condition that the physician misdiagnoses, this Court has held that the misdiagnosis itself is the injury that will trigger the statute of limitation. This rule has improperly rewritten OCGA § 9-3-71 (a) to commence the statute of limitation on the date of the negligent act, rather than on the date of the injury as the General Assembly intended.

 

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, the Supreme Court of Georgia 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 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." (Emphasis supplied.) 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, 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. Young v. Williams, S01G0589 (March 11, 2002). 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" 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 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, a different set of rules has been applied.

"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). This rule has been cited by this Court in numerous cases. Walker v. Melton, 227 Ga. App. 149 (1997); Zechman v. Thigpen, 210 Ga. App. 726 (1993); 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). It has recently been applied to bar the plaintiff's claim in Hughley v. Frazier, A01A2462, A01A2463 (March 27, 2000). There are, however, no cases in which the Georgia Supreme Court has endorsed this rule.

The distinction 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." However, in every misdiagnosis case the actionable injury "begins" at misdiagnosis in the sense 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 which are the "ascertainable injury." But 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 misdiagnosis that will give rise to a claim for damages and trigger OCGA § 9-3-71 (a).

In latent injury or "subsequent injury" cases this Court has recognized the actionable injury is that which develops over time and reflects the consequence of the physician's negligence on the patient. The actionable injury is a "new injury," distinct from the latent condition that was misdiagnosed, Walker v. Melton, supra, or that the physician failed to diagnose, Staples v. Bhatti, 220 Ga. App. 404, 469 SE2d 490 (1996). This Court 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 v. Young, 247 Ga. App. at 339. "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 which 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. This Court 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. This Court's reasoning was correct because the plaintiff's "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; Walker v. Melton, supra.

However, a contrary rule 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. In all other misdiagnosis cases the original injury 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 injury in both groups of misdiagnosis cases is the same: the original injury worsens over time. Nonetheless, the rules applied to these cases are different. While in the "subsequent injury" cases the focus is on the consequence of the physician's negligence on the patient as the General Assembly intended, all other misdiagnosis cases focus solely on the date of the physician's diagnostic error. In the "subsequent injury" cases this Court 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 this Court has held that "the symptoms of the injury, usually pain, exist before the misdiagnosis." Williams v. Young, 247 Ga. App. at 339. The GTLA respectfully submits that as a matter of law the injury that exists before misdiagnosis cannot become the actionable injury merely by the pronouncement of misdiagnosis because there are no damages at that time and the original injury does not reflect the consequence of the physician's negligence.

However, according to the rule made by this Court, 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 "new injury" that develops as a result of the misdiagnosis physically manifest themselves. 247 Ga. App. at 339. 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 the Supreme Court has stated, "begins with the occurrence of an injury, not the performance of a negligent act," and it improperly focuses "on the adverse consequences of the allegedly negligent acts without regard to when the negligent act occurred." Young v. Williams, supra, S01G0589, Slip op. at 5; 7-8. Further, as this Court has recognized, application of this rule has the potential to impermissibly cut off the patient's cause of action before the "new injury" is ascertainable. Stone v. Radiology Services, PA, 206 Ga. App. 851, 854, SE2d 663 (1992); Hughley v. Frazier, A01A2462, A01A2463 (March 27, 2000) (physical precedent); Williams v. Young, 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.

The GTLA respectfully submits that the rule that the "misdiagnosis itself is the injury" cannot stand for a number of reasons.

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. At most, the act of misdiagnosis gives rise to a threat of future harm which is not actionable.

2. By focusing on the act of misdiagnosis rather than on an ascertainable "new 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. (For applications of this rule to facts, see, Williams v. Young, 247 Ga. App. 337, 340, 543 SE2d 737 (2000); Hughley v. Frazier, A01A2462, A01A2463 (Decided March 27, 2002) (physical precedent).) 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 potentially allows the statute of limitation to expire before the cause of action accrues.

3. 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.(1) 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. 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.

4. 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.

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.(2) Therefore neither case is authority for the proposition that the misdiagnosis itself is the injury.

The disparate treatment afforded these classifications of misdiagnosis cases is inequitable and impermissible. The "subsequent injury" misdiagnosis cases 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. But a plaintiff who submits for treatment of a 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, A01A2462, A01A2463 (March 27, 2002) (physical precedent). Thus, the plaintiff in who seeks treatment of an existing condition that is misdiagnosed is unfairly penalized. 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 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); Young v. Williams, S01G0589 (March 11, 2002). Further, this Court adopted the continuous treatment doctrine in Williams v. Young, supra, 247 Ga. App. 337, to ameliorate the harshness of this very rule. Abolishing this rule will result in misdiagnosis cases being treated the same as all other medical malpractice cases.

 

II. The Supreme Courts of other states with injury-triggered medical malpractice statutes of limitation have held that a misdiagnosis cannot be the injury that gives rise to a claim for damages and will commence running of the statute.

 

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,(3) 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 the 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--was 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.

"Here we have a case wherein the alleged negligence and the resulting injury did not occur concurrently. The alleged negligence--the failure to correctly diagnose the source of Jennifer's headaches, preceded the resulting injury--the rupture of the AVM and subsequent hemorrhaging. [Dr.] Skemp effectively contends that the negligence and injury occurred simultaneously, as evidenced by Jennifer's continued headaches. However, Jennifer's headaches were the condition that existed both before and after Skemp examined and diagnosed her. Consequently, Skemp's failure to properly diagnose the headaches could not have caused those headaches."

625 NW2d at 866.

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.

"[I]f 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... Until there is any injury, any damages sought would be speculative."

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 which metastasized and was no longer completely curable. The plaintiff's 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. "Where a medical malpractice claim is based on a misdiagnosis or a failure to diagnose a condition, the 'injury' is not the mere undetected existence of the medical problem at the time the physician misdiagnosed or failed to diagnose it. Nor is the 'injury' the mere continuance of the same problem in substantially the same state or the leaving of the patient 'at risk' of developing a more serious condition. Rather, the '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." 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 "new 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 itself is not an ascertainable, actionable injury. Nor can the condition for which the patient sought diagnosis and treatment be the actionable injury. 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. The only injury that will commence OCGA § 9-3-71 (a) in a misdiagnosis case is the "new 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. Nonetheless this law has not been uniformly applied in misdiagnosis cases.

 

III. The rule that the "misdiagnosis is itself the injury" is inconsistent with Georgia's public and legal policies.

 

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 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).(4)

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 this presumption charged to the jury,(5) 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 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). 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.(6) 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.

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 tells him that he 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 lacks independence to effect a change. Thus the rule that the misdiagnosis itself is the injury places a patient in an untenable position. As this Court recognized in Williams v. Young, supra, 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 the 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, and in Hughley v. Frazier, A01A2462, A01A2463 (March 27, 2002), 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 misdiagnosis to trigger the statute of limitation.

Examining the rule 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.

CONCLUSION

The rule that the misdiagnosis itself is the injury contravenes the General Assembly's intent in enacting OCGA § 9-3-71 (a). 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 inflates medical expenses.

The GTLA respectfully submits that the rule should be abolished and that OCGA § 9-3-71 (a) should 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 25th day of April, 2002.

/s/Antoinette D. Johnson

1. 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), rev'd 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."

2. 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.

3. Wisconsin's limitation period based on discovery was not at issue in this case.

4. 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).

5. 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.

6. 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.