The Defendant notes in his own brief that case law concerning the statute of limitations for misdiagnosis cases state that “the statute of limitations begins running when the injury occurs rather than on the date of the negligent act.” (See Brief in Support of the Motion for Summary Judgment of Defendant, hereinafter “Defendant’s Brief,” II, B, Π 1 citing Witherspoon v. Aranas, 254 Ga.App. 609 (2002)).
However, there are exceptions to this general rule such as the subsequent injury exception in misdiagnosis cases. Even as recent as the end of 2009, the Georgia Supreme Court reaffirmed and provided a very helpful analysis of this exception in McCord v. Lee, No. S08G1947 (2009). McCord cites Brown v. Coast Dental of Ga., which states that “misdiagnosis cases are useful in that, while they discuss an ‘exception’ to the two-year statute, they are simply applying the basic rule that the statute begins to run when the injury occurs, which is not necessarily the same time the malpractice is committed.” Brown, 275 Ga. App. 761, 767 (2005).
Therefore, in Plaintiff’s case, the “’operative question is: when did symptoms of the injury caused by the [alleged malpractice first manifest themselves’” to her? Brown at 767. In order for the new injury exception to apply, this question must then be followed by the questions of whether there is evidence of that the Plaintiff patient remained asymptomatic for a period of time following the misdiagnosis, which in Plaintiff’s case is evidenced by the lack of laboratory testing by Defendant or concern that the headaches may be related to kidney disease, and there is evidence that the Plaintiff developed a new injury, which is end-stage renal disease in Plaintiff’s case. Amu v. Barnes, 286 Ga.App. 725, 729 (2007).
- Plaintiff was asymptomatic from June 2, 2004 until December 3, 2008 as to the end-stage renal disease and therefore meets the first requirement of the new injury exception.
“In order for this exception to apply, not only must there be evidence that the [patient] developed a new injury, but [the Plaintiff] also must remain asymptomatic for a period of time following the misdiagnosis.” Amu v. Barnes, 286 Ga.App. 725, 729 (2007) citing Burt v. James, 276 Ga. App. 370, 374 (2005).In Amu v. Barnes, the Plaintiff sought treatment from the Defendant doctor for a specific purpose, rectal bleeding, and the Defendant failed to properly diagnose the Plaintiff for colon cancer. Amu at725. The Plaintiff experienced an asymptomatic period after the treatment and was treated by a variety of doctors afterward. Amu at 726. The Plaintiff then developed terminal colon cancer as a result of Plaintiff’s misdiagnosis. Id.
Similarly, Plaintiff first visited Defendant seeking treatment for a specific purpose, his elevated blood pressure, for which he was diagnosed with hypertension. See Complaint, ¶ . Plaintiff continued to see Defendant over the course of the next four and a half years, during which time the renal disease developed in Plaintiff, and Defendant failed to properly diagnose Plaintiff for renal disease, which was caused and worsened due to the blood pressure medications prescribed by Defendant, and could have been detected in the tests that should have been conducted due to the medications. During this time, Plaintiff was asymptomatic as to the renal disease; Plaintiff developed end-stage renal disease as a result of Defendant’s misdiagnosis, which is irreversible and progresses from acute renal disease, which is reversible. See Expert depo., 45:4-46:13.
If evidence does not establish, as a matter of law, that a certain symptom or symptoms experienced by a person are necessarily a symptom of a “new injury”, but that they could be attributable to other factors, the person is still in an asymptomatic period regarding the “new injury.” Cleaveland v. Gannon, 284 Ga. 376, 382 (2008). In Cleaveland v. Gannon, doctors failed to diagnose kidney cancer in a patient, which became metastatic. Cleaveland at 376. The Plaintiff and his wife filed suit on October 29, 2004, alleging that “had the cancer been diagnosed and treated before it metastasized, a complete recovery would have been likely.” Id. The Defendants filed motions for summary judgment on the ground that the original claim was barred by the two-year statute of limitations and that a wrongful death claim later added by the Plaintiff’s wife was barred by the five-year statute of repose. Id.
The Plaintiff invoked the “new injury” exception, arguing that the original condition was a treatable cancer confined to his kidney, and because it went undiagnosed the result was the metastasized untreatable cancer that moved outside the kidney. Cleaveland at 378. Although the Plaintiff was tested again for microscopic hematuria and again had positive results, it was not decisively a symptom of kidney or metastatic cancer. Cleaveland at 381. Additionally, the court found that the Plaintiff observing blood in his urine was not necessarily a symptom of metastatic cancer, as it could also be due to other causes or a symptom of a bladder infection. Cleaveland at 382. The Plaintiff also experienced “night sweats” which the court also found to not necessarily be a symptom of the cancer, as it could be related to many other causes. Id. The court found that despite these symptoms, during the time the Plaintiff was treated by the doctors he was asymptomatic of his “new injury”, metastatic cancer. Id.
The case at hand is factually analogous to Cleaveland v. Gannon. Defendant alleges that the high blood pressure, fatigue and continuous headaches that Plaintiff experienced from his first visit with Defendant on June 2, 2004 show that there were symptoms of the injury. However, at this point Plaintiff would have not had any renal disease or one at a very early stage, which would most likely have been treatable. See Expert depo. 52:1-5. In addition, these symptoms were nonspecific, and not necessarily the sign of renal disease, and Plaintiff attributed them, as did Defendant, to the hypertension that Plaintiff had been diagnosed with, or to stress. See Torres depo. 82:2-3; 149:11-14. The medications Defendant prescribed, in addition to the hypertension, resulted in the kidney damage, the beginning stages of which would have been detected through simple laboratory tests and diagnosed, but Defendant failed to have the tests conducted. Expert depo. 58:1-25. Plaintiff was asymptomatic until the gout and blood work done December, when he was formally diagnosed with end-stage renal disease on December 31, 2008.
- Acute renal failure, the subsequent injury, could not reasonably have been discovered by Plaintiff before the laboratory blood tests that established kidney failure.
In line with good case law, “when there has been a misdiagnosis of a medical condition, the tortious injury commences when the harm was discovered or reasonably should have been discovered.” Miller v. Kitchens, 251 Ga. App. 225, 226 (2001) citing Walker v. Melton, 227 Ga. App. 149, 150-151 (1997). In addition, case law states that, “[W]hen a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation[s] runs from the date symptoms attributable to the new injury are manifest to the plaintiff.” Walker v. Melton, 227 Ga. App. 149,151 (1997).
In the instant case, Dr. Torres failed to diagnose Plaintiff’s kidney disease over the course of time in which Plaintiff was a patient of Defendant’s, and the misdiagnosis ultimately led to Plaintiff having end-stage renal disease. The exact dates when the renal disease developed and when it worsened are impossible to tell. See Expert depo., 52:1-9. However, the symptoms attributable to the end-stage renal disease were not manifest to Plaintiff until the date he was diagnosed, December 30, 2008.
III. Under O.C.G.A. § 9-3-71(b), the five-year statute of repose on Plaintiff’s claims had not expired prior to the filing of the Complaint, as Defendant’s negligent act occurred in the five years prior to the filing of the Complaint.
“OCGA § 9-3-71 (b) does not provide that the period of repose commences on the date of the first ‘negligent . . . act or omission.’ It provides that the period commences on the date the negligent act or omission occurs, thus establishing the negligent act as the trigger for commencement of the period of repose without purporting to limit the number of separate negligent acts which may act as a trigger.” Schramm v. Lyon, 286 Ga. 72, 74 (2009). The negligent acts performed by Defendant which resulted in Plaintiff’s end-stage renal failure were the prescriptions written by Dr. Torres and the refills that followed thereafter. Expert depo. 57:1-24. Based on the law as decided in Schramm v. Lyon, the adding of additional prescriptions and the constant refills of each without performing laboratory tests on Plaintiff each count as new and separate instances of professional negligence.
On March 3, 2005, Plaintiff was prescribed the highest possible prescriptive amount of Lisiniopril, on March 7, 2005, Defendant added the prescription of Hydrochlothizide (HCTZ 20 QAM), and on July 254, 2005 Defendant added the prescription of Toprol XI 100 ZD. Complaint ¶¶ 4-7. Each of these instances represents a different point in which Defendant negligently prescribed medicine to Plaintiff, and negligently omitted to do any laboratory testing on Plaintiff, both of which fell below the standard of care. Each of these dates is within five years prior to the filing of the Complaint, and thus Plaintiff’s claims are not barred due to the five-year statute of repose.