Georgia courts continue to struggle with the question of when the statute of limitations commences in medical malpractice cases involving a misdiagnosis. Generally, a plaintiff must bring an action for medical malpractice within two years after the date on which an “injury” or death arising from a negligent or wrongful act or omission occurred.1 In most medical malpractice cases in which a patient alleges a negligent failure to diagnose and treat (i.e., a misdiagnosis), the “injury” begins immediately upon the misdiagnosis. However, Georgia courts have interpreted a “new injury” exception into this general rule.2 The “new injury” exception typically applies in situations where a patient’s relatively benign or treatable “injury”, which is left untreated because of the misdiagnosis, leads to the development of a more debilitating or less treatable condition. Lately, Georgia courts have struggled with situations in which to apply the “new injury” exception, but two recent Georgia Supreme Court rulings have shed some light on the answer to this question.
As noted above, in misdiagnosis medical malpractice actions, Georgia courts have historically interpreted an “injury” to occur upon a physician’s initial misdiagnosis. For example, in Bousset v. Walker3, the Court held that the statute of limitations commenced when the physician initially misdiagnosed the plaintiff’s infected tooth, and the subsequent spread of the infection to her sinus cavity did not constitute a “new injury.” Additionally, in Kaminer v. Canas4, the Georgia Supreme Court ruled that the statute of limitations barred a suit on behalf of a patient who was diagnosed with AIDS nearly 10 years after a blood transfusion that resulted in the patient contracting AIDS. The Kaminer court refused to apply the “new injury” exception, reasoning that even though the plaintiff’s symptoms worsened over time, he never suffered a “new injury” following the initial misdiagnosis. To hold otherwise, said the Court, “would represent an adoption by the judiciary of the continuing treatment doctrine that was rejected by the General Assembly.”5
Recently, the Georgia Supreme Court has provided some guidance on situations where the “new injury” exception is applicable. For instance, in Amu v. Barnes6, the Court found that a patient’s claim accrued at the time his colon cancer symptoms actually manifested, not four years earlier when a doctor misdiagnosed the cause of his rectal bleeding. TheAmu court concluded that the “new injury” (i.e., untreatable colon cancer) was different in nature from the originally diagnosed condition (i.e., treatable colon cancer). The fact that the patient was asymptomatic for a period following the misdiagnosis was pivotal to the result in Amu. According to Justice George H. Carley, who wrote the majority opinion, the difference between the Kaminer and Amu case was that in Kaminer, the patient did not develop a new condition after his AIDS was misdiagnosed, but simply experienced worsening symptoms. Furthermore, in Cleaveland v. Gannon7, the Georgia Supreme Court recently reaffirmed the “new injury” exception holding that the limitations period did not bar a lawsuit filed against physicians who allegedly were negligent in failing to diagnose a man’s kidney cancer that subsequently spread to the rest of his body. The Cleaveland court recognized the difficulty of specifying the exact date a “new injury” occurs. As such, the Court affirmed that when a misdiagnosis results in a “new injury” that is difficult or impossible to date, the statute of limitations runs from the date symptoms attributable to the “new injury” manifest itself to the patient.
As noted above, the continued viability of the “new injury” exception was questioned after the Kaminer court rejected the argument that increased symptoms of AIDS constituted a “new injury” because the disease was no less treatable when the suit was filed than when the misdiagnosis occurred. However, both the Amu and the Cleaveland cases reaffirmed the continued viability of the “new injury” exception, and likewise offered insight into the interpretation of what constitutes a “new injury.” Additionally, the reaffirmation of the “new injury” exception begs the question as to whether Georgia courts have attempted to revive the continuing treatment doctrine, previously rejected by the General Assembly. In summary, the courts seem to have narrowed their focus in “new injury” misdiagnosis cases—not on the date that a physician may have committed an act of medical malpractice—but on the date that a patient actually suffered an “injury” as a result of professional negligence.
1O.C.G.A. 9-3-71(a)
2Whitaker v. Zirkle, 188 Ga. App. 706, 374 S.E.2d 106 (1988)
3Bousset v. Walker, 285 Ga. App. 102, 645 S.E.2d 593 (2007
4Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007)
5Id. at 835.
6Amu v. Barnes, 283 Ga. 549, S.E.2d 113 (2008)
7Cleaveland v. Gannon, Ga., No. S08G0721, 9/22/08