SMITH Et Al. v. DANSON Et Al.

WHOLE COURT

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

November 20, 2015

In the Court of Appeals of Georgia
A15A1085. SMITH et al. v. DANSON et al.

MCFADDEN, Judge.

Dominique J. Smith, MD, and her obstetrics and gynecology practice, Premier

Women’s Healthcare, LLC (collectively, “Smith”), appeal from the trial court’s denial

of Smith’s motion for summary judgment on Laura Woodley Danson’s complaint for

medical malpractice.1 That claim arose out of a surgical procedure in which Danson

was injured. Smith argues that Danson’s complaint was filed after expiration of the

two-year statute of limitations for medical-malpractice claims and that the trial court

erred by holding otherwise.

1
Danson’s husband also made a claim for loss of consortium. Neither the
parties on appeal nor the trial court’s order discuss his claim.
 It is undisputed that the claims arising out of the surgery itself, which Danson

asserted in her original complaint, are time barred. But Danson has abandoned those

claims. She now asserts only a claim for a subsequent misdiagnosis and takes the

position that the injury she suffered during surgery was not the result of negligence

but rather a known risk of the procedure. Because the claim she now asserts is a

timely free-standing misdiagnosis claim, it is not time barred as a matter of law.

Accordingly, we affirm.

Viewed in the light most favorable to Danson as the nonmovant, see, e.g.,

Torrance v. Morris Pub. Group LLC, 281 Ga. App. 563, 566 (1) (636 SE2d 740)

(2006) (citation omitted), the record shows that on February 28, 2011, she underwent

a laparoscopic complete hysterectomy performed by Smith. Upon waking from the

procedure, Smith told Danson that her stomach was hard because the surgical team

used “too much gas,” which we presume to mean gas injected into the abdomen to

inflate the area during the laparoscopic procedure. Danson was discharged from the

hospital a day or two later and was scheduled for her first post-operative appointment

with Smith on March 16, 2011.

Although Danson initially felt “okay,” approximately three days after being

discharged she noticed that she lacked an appetite. And when she tried to eat, she had

2
the feeling of already being full. Danson also had pain “in [her] stomach,” which

“was feeling a little hard.” Additionally, she noticed a burning sensation when she

urinated. Notwithstanding these symptoms, Danson did not call Smith or any other

doctor, attributing her ailments to just having had surgery.

At the first post-operative appointment on March 16, 2011, Smith removed

Danson’s bandages, and Danson informed Smith that she was experiencing painful

urination, that her stomach felt hard and hurt, and that she was having difficulty

swallowing. Thereafter, Smith prescribed Danson an antibiotic to treat a probable

bladder infection and attributed the other symptoms to using “too much gas” during

the procedure. Before leaving Smith’s office, Danson scheduled a second post-

operative appointment for April 6, 2011.

In the time between her first and second appointments, Danson’s symptoms

worsened (although the painful urination ceased after taking the prescribed

medication). Nevertheless, she did not call Smith or otherwise seek medical

assistance during this time period. But at the second post-operative appointment with

Smith, Danson discussed her bloated, hard stomach and her worsening pain and

difficulty swallowing. Smith then performed an internal examination of Danson,

during which she placed her hand on Danson’s stomach. After completing this

3
examination and telling Danson that she was free to go, Danson asked Smith, “[W]hat

are we going to do about the gas in my stomach?” In response, Smith asked Danson

whether she had made any dietary changes and recommended trying probiotics to

relieve symptoms of gas.

Danson tried probiotics and other over-the-counter remedies for gas relief for

several weeks before seeking medical assistance elsewhere for her worsening

symptoms, which eventually came to include vomiting. In the end, following

examinations by multiple doctors other than Smith and a hospital stay, it was

discovered that Danson had an obstruction of her kidney, which in turn caused urine

to collect internally in her abdomen. According to Danson, when the obstruction was

discovered, the diagnosing physician told her that she “had obstruction to [her]

kidney . . . during surgery, which was caused during surgery, during the

hysterectomy, and [Smith] had clamped down on [Danson’s] kidney.” Danson

claimed that she was also told that Smith had “nicked” her bladder and “messed up.”

Danson then underwent further surgical treatment to resolve her condition.

4
 On March 14, 2013, Danson filed suit against Smith.2 In the factual allegations

of her complaint, Danson claimed, among other things, that Smith, “[d]uring the

surgery . . . placed surgical clapped, [sic] to move Plaintiff’s . . . bladder out of the

way so Defendant Smith could get to Plaintiff’s . . . uterus.” She then made a claim

for “medical malpractice and negligence,” which she supported with allegations that

Smith “failed to give informed consent of the risks of the procedure of hysterectomy”;

“injured [Danson’s] right ureter during the hysterectomy procedure”; “failed to

diagnose [Danson’s] right ureter injury postoperatively”; and “failed to recognize

[Danson’s] abdominal distention was due to development of ascites.”

Smith answered Danson’s complaint, raising the affirmative defense that

Danson failed to comply with the two-year statute of limitations for medical-

malpractice claims, OCGA § 9-3-71 (a) (“Except as otherwise provided in this article,

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.”). She moved to dismiss and/or for summary judgment on the same basis.

2
Danson originally sued other medical professionals with regard to the care she
received in the weeks between her last visit with Smith and her eventual diagnosis,
but these defendants were either dismissed by consent or are not parties to this appeal.

5
 In a response brief, Danson admitted that her complaint was filed outside of the

two-year limitations period, but claimed for the first time that Smith had also

committed fraud by “continuously telling [her] that what she was experiencing was

merely gas.” Thus, Danson contended that the statute of limitations had been tolled

by this alleged fraud. See OCGA § 9-3-96 (“If the defendant or those under whom he

claims are guilty of a fraud by which the plaintiff has been debarred or deterred from

bringing an action, the period of limitations shall run only from the time of the

plaintiff’s discovery of the fraud.”).

In response to Smith’s limitations-period defense, Danson also filed an

amended complaint that, in addition to the original claim for medical

malpractice/negligence, added a claim for fraud and misrepresentation. She supported

this claim with allegations that Smith “knew that the hardening of Plaintiff’s abdomen

was not caused by gas but by something she did during the surgery” and “knew when

she made said statements that they were false and made the same for the purpose of

inducing Plaintiff to continue to take the medication for gas and think that her health

issues were not related to anything . . . Smith had done during the surgery.”

(Emphasis omitted).

6
 Smith answered Danson’s amended complaint, again raising the affirmative

defense that Danson failed to comply with the two-year statute of limitations. Smith

also responded to Danson’s brief in opposition to the motion for summary judgment,

asserting that Danson’s new claim of fraud could not salvage the belatedly filed

complaint because there was no evidence to support such a claim.

Danson then filed a second brief in response to Smith’s motion, contending that

the statute of limitations began to run on March 16, 2011, when Smith failed to

diagnose anything other than gas, so her complaint was not time barred. Danson

clarified that she was “not seeking to recover damages for the injury of the bladder

but the delay in diagnosis or the misdiagnosis of the bladder injury . . . .” She

alternatively argued that Smith’s fraud had tolled the running of the limitations period

when Danson “was defrauded by Dr. Smith in an effort to prevent [her] from

uncovering the errors that Dr. Smith had made will [sic] performing the hysterectomy

procedure.”

Danson also amended her complaint for a second time, removing from the

medical-malpractice/negligence claim the allegation that Smith failed to give

informed consent. Danson continued to allege that Smith “injured [Danson’s] right

ureter during the hysterectomy procedure.” She then alleged that Smith “either failed

7
to diagnose [Danson’s] right ureter injury postoperatively or purposely

misrepresented the cause of [Danson’s] complaints” and “either failed to recognize

or purposely misrepresented [that Danson’s] abdominal distention was due to

development of ascites.” Finally, Danson continued to maintain the prior allegations

for her claim of fraud.

The trial court conducted a hearing on Smith’s motion. The hearing was not

transcribed, and accordingly no transcript was transmitted to this court. Following the

hearing, Danson took Smith’s deposition before both parties filed supplemental briefs

on the motion. In Danson’s supplemental brief, she pointed to Smith’s deposition

testimony to support her argument that she did not, in fact, assert a claim for medical

malpractice related to the surgery because Smith’s testimony established that internal

injuries, including to ureters, are a reasonable, possible complication in surgery.

After all of the foregoing transpired, the trial court ruled upon Smith’s motion,

concluding that, because there was no evidence of fraud and the complaint had been

filed outside of the two-year statute of limitations, the complaint should be dismissed.

Danson then filed a motion for reconsideration, which the trial court granted in part.

As to the claim for fraud, which Danson continued to maintain, the trial court denied

the motion to reconsider and maintained the grant of summary judgment to Smith.

8
But as to a claim for misdiagnosis occurring on March 16, 2011, the trial court

granted the motion, determining that Danson made no claim for medical malpractice

as it related to the injury allegedly sustained during surgery on February 28, 2011. In

so ruling, the court noted that

Defendant Dr. Smith’s contention that the injury to the ureter was a
known risk of surgery in the absence of negligence is agreed to. And her
contention that there was no negligence in the course of the surgery is
unrebutted. So in this case, the issue posed is whether a non-negligent
injury may cause the statute of limitations period to run.

In making this partial reversal of the prior decision, the trial court issued a certificate

of immediate review, and we granted Smith’s application for interlocutory appeal.

Smith contends on appeal that the trial court erred in granting Danson’s motion

for reconsideration by concluding that the statute of limitations began to run on

March 16, 2011, as opposed to February 28, 2011. We disagree.

To begin with, in most cases of negligent treatment, the negligent treatment is

the injury and the statute of limitations begins to run at the time of treatment. McCord

v. Lee, 286 Ga. 179, 180 (684 SE2d 658) (2009). In such cases, a subsequent

misdiagnosis by the party that provided the negligent treatment is not a separate

injury; and the limitations period for a claim arising from such a misdiagnosis runs

9
from the date of the original injury. See Kaminer v. Canas, 282 Ga. 830, 834 (1) (653

SE2d 691) (2007) (physicians’ failure to rediagnose plaintiff’s condition was a failure

to mitigate damages, not an act inflicting new harm); Smith v. Harris, 294 Ga. App.

333, 337-338 (2) (a) (670 SE2d 136) (2008). Cf. Amu v. Barnes, 283 Ga. 549 (662

SE2d 113) (2008) (explaining the new injury exception to this rule). But as to claims

of free-standing misdiagnosis, the injury is the misdiagnosis, and, in most cases, the

limitations period runs from the time of the misdiagnosis. McCord, 286 Ga. at 180.

In this case, Danson initially alleged that her surgery was negligently

performed but has now disavowed that claim. The trial court correctly found that

disavowal effective, so that the statute of limitations began running at the time of the

alleged misdiagnosis.

The dissent would hold that Danson never effectively disavowed her claim that

Smith committed medical malpractice while performing the surgical procedure. This

is so, the dissent reasons, because the alleged misdiagnosis is inextricably linked to

the injury she claims to have sustained during surgery, both in how she pleaded the

claim and as a matter of fact. Consequently, the dissent would hold, the statute of

limitations began running at the time of the surgery.

10
 We disagree. “A party may amend his pleading as a matter of course and

without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-

15 (a). As she had the right to do, Danson amended her complaint to remove her

former claim that Smith committed malpractice during the surgery. It is irrelevant to

our analysis that her amended complaint contradicts her initial complaint. Id. Indeed

under some circumstances, when their understanding of the evidence changes, parties

should reverse themselves.

The dissent characterizes Danson’s amendment as an attempt to “salvage her

complaint.” To the extent that that characterization implies disapproval, we disagree.

It is not our place, at least under these facts, to judge a party’s tactics.

As the dissent argues, Danson still alleges in her second amended complaint

that Smith injured her during the surgical procedure. But this allegation does not

mean that Smith alleged the injury amounted to malpractice. The fact that a plaintiff

suffers an unintended injury, particularly one that is a known risk such as the injury

here, does not amount to medical malpractice, absent a breach of the standard of care.

See Zarate-Martinez v. Echemendia, 332 Ga. App. 381, 387-388 (3) (772 SE2d 826)

(2015).

11
 Danson’s intent to abandon the claim that Smith was negligent during the

surgery is clear. In the amended brief Danson filed in opposition to the defendants’

motion to dismiss or for summary judgment, Danson expressly disavows that she is

asserting malpractice for the surgical injury. Treating Danson’s pleadings with

“considerable indulgence” as we must given that she is the nonmovant, Gentile v.

Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996), we conclude that Danson

effectively amended her complaint to remove the claim that Smith committed medical

malpractice during the surgery, despite her allegation that Smith injured her during

surgery. See Smith v. Morris, Manning & Martin, 264 Ga. App. 24 (589 SE2d 840)

(2003) (physical precedent only on other grounds) (plaintiff properly amended

complaint to remove claims of malpractice that would otherwise be barred for lack

of malpractice affidavit and to substitute claims of intentional misconduct). See also

Stith v. Hudson, 231 Ga. 520, 525 (2) (202 SE2d 392) (1973) (a party may amend the

complaint by striking all of the original pleadings and asserting new claims).

Instead, Danson alleges as the first act of negligence that Smith failed to

diagnose the cause of her symptoms. Because this was the first time Danson

experienced an “injury . . . arising from a negligent or wrongful act or omission,”

Danson had to bring her action for medical malpractice within two years of that date.

12
OCGA § 9-3-71 (a). And since Danson filed her complaint within two years of this

alleged failure to diagnose, it follows that her complaint is timely.

Judgment affirmed. Barnes, P. J., Ellington, P.J., and Phipps, P. J., concur.

Dillard and Ray, JJ., dissent. McMillian, J., concurs in the judgment only of the

dissent.

13
 A15A1085. SMITH et al. v. DANSON et al.

DILLARD, Judge, dissenting.

I respectfully dissent. The majority holds that Danson has abandoned her time-

barred claim for medical malpractice related to the surgery performed on February 28,

2011. I disagree. And because Danson filed her complaint more than two years after

the date that her complained-of injury occurred, her claims were time-barred as a

matter of law. Thus, summary judgment should have been granted to Smith, and the

trial court erred in granting Danson’s motion for reconsideration from its initial

dismissal of the complaint.

The majority opinion correctly recites the allegations made in Danson’s initial

pleadings, the arguments in Smith’s motion for summary judgment, and the various

responses. Nevertheless, the majority is untroubled by the repeated contradictions

within Danson’s pleadings and responses. Indeed, in Danson’s second brief in
response to Smith’s motion for summary judgment, Danson contends that the statute

of limitation began to run on March 16, 2011, when Smith failed to diagnose anything

other than gas. But notwithstanding Danson’s supposed clarification that she was “not

seeking to recover damages for the injury of the bladder but the delay in diagnosis or

the misdiagnosis of the bladder injury . . . ,” she inexplicably admits, yet again, that

the complaint was filed outside of the two-year statute of limitation period. And

Danson then reprises her argument that Smith’s fraud tolled the running of the

limitation period when she “was defrauded by Dr. Smith in an effort to prevent [her]

from uncovering the errors that Dr. Smith had made will [sic] performing the

hysterectomy procedure.”1

Additionally, in Danson’s second amended complaint, in which she removes

the allegation that Smith failed to give informed consent, she continues to allege in

her medical-malpractice/negligence claim that Smith “injured [her] right ureter during

the hysterectomy procedure.” Danson also alleges that Smith “either failed to

diagnose [Danson’s] right ureter injury postoperatively or purposely misrepresented

the cause of [Danson’s] complaints” and “either failed to recognize or purposely

misrepresented [Danson’s] abdominal distention was due to development of ascites.”

1
Emphasis supplied.

2
And, of course, in this complaint, Danson continues to maintain the prior allegations

for her claim of fraud.

Then, following the untranscribed hearing on Smith’s motion, Danson took

Smith’s deposition before both parties filed supplemental briefs on the motion.

Smith’s supplemental brief represents that “[a]t the hearing, [Danson] argued that the

deposition of Dr. Smith was needed in order to defend against the [m]otion, primarily,

to prove fraud in order to avoid dismissal due to the filing after the expiration of the

statute of limitation.”2 And Danson did not respond to or counter this assertion in her

supplemental brief, which was filed over one week later.

Despite these rampant contradictions and repeated allegations of an injury

sustained during surgery, the majority believes the trial court properly granted

Danson’s motion for reconsideration by concluding that the statute of limitation

began to run on March 16, 2011, as opposed to February 28, 2011. I disagree.

To begin with, the purpose of a statute of limitation is “to limit the time period

in which certain types of actions may be brought and thereby provide a date certain

after which potential defendants can no longer be held liable for claims brought in

2
Emphasis supplied.

3
such actions.”3 In this respect, a statute of limitation serves “the legitimate public

policy goal of promoting justice and furthering the certainty of time limitations while

preventing unfair surprise”;4 and prescribing these periods of limitation is, of course,

“a legislative, not a judicial, function[.]”5

OCGA § 9-3-71 contains the relevant limitation period for actions for medical

malpractice, providing that such actions “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.”6 In Georgia an “action for medical malpractice” is any claim for damages

that result from “the death of or injury to any person arising out of[ ] . . . [h]ealth,

medical, dental, or surgical service, diagnosis, prescription, treatment, or care

3
U.S. Fid. & Guar. Co. v. Rome Concrete Pipe Co., Inc., 256 Ga. 661, 662
(353 SE2d 15) (1987); see also Young v. Williams, 274 Ga. 845, 847 (560 SE2d 690)
(2002).
4
Martin v. Herrington Mill, Inc., 316 Ga. App. 696, 701 (730 SE2d 164)
(2012) (punctuation omitted); accord Walker v. Brannan, 243 Ga. App. 235, 239 (533
SE2d 129) (2000).
5
Young, 274 Ga. at 847; see also Kaminer v. Canas, 282 Ga. 830, 838 (4) (653
SE2d 691) (2007) (“We find OCGA § 9-3-71 (a) to be an extremely harsh limitation
in application because it has the effect, in many cases, . . . of cutting off rights before
there is any knowledge of injury. Nonetheless, the legislature has the power, within
constitutional limitations, to make such provisions.” (punctuation omitted)).
6
OCGA § 9-3-71 (a).

4
rendered by a person authorized by law to perform such services or by any person

acting under the supervision and control of a lawfully authorized person . . . .”7

In most cases of negligent treatment or misdiagnosis, “the statute of limitation

for medical malpractice will begin running at the time of the treatment or

misdiagnosis.”8 Thus, in cases of alleged negligent treatment, “the statute of

limitation for medical malpractice will begin running at the time of the treatment,”9

which is “the time that the injury generally occurs.”10 But in cases of misdiagnosis,

“the two-year statute of limitation[ ] and the five-year statute of repose begin to run

simultaneously on the date that the doctor negligently failed to diagnose the condition

and, thereby, injured the patient.”11 In sum, our Supreme Court has concluded that

7
OCGA § 9-11-8 (a) (1) (A).
8
McCord v. Lee, 286 Ga. 179, 180 (684 SE2d 658) (2009).
9
Beamon v. Mahadevan, 329 Ga. App. 685, 687 (1) (766 SE2d 98) (2014)
(punctuation omitted) (quoting McCord, 286 Ga. at 180).
10
Id. (punctuation omitted) (quoting McCord, 286 Ga. at 180).
11
Kaminer, 282 Ga. at 832 (1); see also id. at 831-32 (1) (holding that in cases
of misdiagnosis, “the injury begins immediately upon the misdiagnosis due to pain,
suffering, or economic loss sustained by the patient from the time of the misdiagnosis
until the medical problem is properly diagnosed and treated” and that “[t]he
misdiagnosis itself is the injury and not the subsequent discovery of the proper
diagnosis” (punctuation omitted)); Frankel v. Clark, 213 Ga. App. 222, 223 (444
SE2d 147) (1994).

5
“[t]he true test to determine when the cause of action accrued is to ascertain the time

when the plaintiff could first have maintained his action to a successful result.”12

Here, Smith presented evidence that Danson’s medical-malpractice claim was

time-barred when Danson filed suit for medical malpractice on March 14, 2013, and

repeatedly supported her claim by asserting that, in addition to later failing to

diagnose the error, Smith injured Danson during surgery on February 28, 2011. In

response to Smith’s assertion that the claims were time-barred, Danson initially

attempted to show that the statute of limitation had been tolled by fraud when she

asserted that Smith knew she had injured Danson during surgery but concealed her

error by continuously diagnosing Danson with gas. Then, Danson later attempted to

salvage her complaint by contending that it did not contain an allegation of

malpractice based upon an injury sustained during surgery but instead only made a

claim for misdiagnosis. But notwithstanding this contention, Danson continued to

maintain that Smith committed fraud, which tolled the statute of limitations. Thus,

Danson’s argument on appeal, which the majority accepts, is belied by the allegations

contained in every single one of her complaints and subsequent filings.

12
Kaminer, 282 Ga. at 833 (1) (punctuation omitted); accord Beamon, 329 Ga.
App. at 687 (1).

6
 Indeed, under the Civil Practice Act, “any pleading which sets forth a claim for

relief . . . shall contain[ ] . . . [a] short and plain statement of the claims showing that

the pleader is entitled to relief . . . .”13 Additionally, all averments of a claim must be

made in numbered paragraphs, “the contents of each of which shall be limited as far

as practicable to a statement of a single set of circumstances.”14 And each claim that

is “founded upon a separate transaction or occurrence . . . shall be stated in a separate

count . . . whenever a separation facilitates the clear presentation of the matters set

forth.”15 Here, in each of her three complaints, Danson asserts a claim for medical

malpractice supported by averments that Smith injured Danson’s right ureter during

the hysterectomy.16

13
OCGA § 9-11-8 (a) (2) (A).
14
OCGA § 9-11-10 (b).
15
Id. (emphasis supplied).
16
Cf. Johnson v. Jones, 327 Ga. App. 371, 375-76 (2) (759 SE2d 252) (2014)
(holding that trial court properly found that claim was time-barred when the gravamen
of claim for breach of fiduciary duties was an alleged failure to correctly read an
ultrasound and reach proper diagnosis, and accordingly, the claim “amounted to a
claim of negligence that went to the propriety of [the defendant’s] medical skill and
judgment”).

7
 The trial court, in granting Danson’s motion for reconsideration and denying

summary judgment to Smith on the claim for medical malpractice, appears to have

concluded that Danson’s complaint did not assert a claim for malpractice based upon

anything that occurred during the surgery. And, of course, the majority reaches this

same conclusion. For its part, the trial court’s order noted that Danson’s expert-

affidavit17 did not “state that the injury to the ureter was negligent” and that Smith’s

“contention that there was no negligence in the course of the surgery is unrebutted.”

But these are different considerations from whether or not Danson, in her complaint,

asserted a claim of medical malpractice for an injury allegedly sustained during the

surgery.18 Nevertheless, the majority maintains that “[t]he fact that a plaintiff suffers

17
See OCGA § 9-11-9.1 (a) (“In any action for damages alleging professional
malpractice . . . the plaintiff shall be required to file with the complaint an affidavit
of an expert competent to testify, which affidavit shall set forth specifically at least
one negligent act or omission claimed to exist and the factual basis for each such
claim.”).
18
See OCGA § 9-11-9.1 (e) (“If a plaintiff files an affidavit which is allegedly
defective, and the defendant to whom it pertains alleges, with specificity, by motion
to dismiss filed on or before the close of discovery, that said affidavit is defective, the
plaintiff’s complaint shall be subject to dismissal for failure to state a claim . . . .”);
OCGA § 9-11-56 (c) (“The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law; but nothing in
this Code section shall be construed as denying to any party the right to trial by jury

8
an unintended injury, particularly one that is a known risk such as the injury here,

does not amount to medical malpractice, absent a breach of the standard of care.” But

a review of Danson’s expert-affidavit, which largely tracked the exact language of the

complaint, shows that the affiant opined, inter alia, that Smith “injured [Danson’s]

right ureter during the hysterectomy procedure on February 28, 2011” and then

“failed to diagnose [Danson’s] right ureter injury post operatively.”

In conclusion, it is manifestly evident from a review of each of Danson’s

complaints that she made (and continued to make) a claim for medical malpractice

based upon allegations that Smith injured her during the February 28, 2011 surgery.

Thus, the statute of limitation had already expired when she filed her initial complaint

on March 14, 2013—two years and eleven days after the date that she sustained the

injury.19 Danson’s assertion of a claim for medical malpractice based upon a failure

to diagnose the injury she received during the surgery could not salvage her

complaint. Indeed, her claim as to an alleged misdiagnosis is inextricably linked to

where there are substantial issues of fact to be determined. A summary judgment may
be rendered on the issue of liability alone although there is a genuine issue as to the
amount of damage.”).
19
See OCGA § 9-3-71 (a) (“[A]n 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.”).

9
the injury she claims to have sustained during surgery—both in terms of how she

singularly pleaded the claim20 and as a matter of fact.21 And as our Supreme Court has

explained, “the statute of limitations on a medical malpractice claim . . . begins on the

date of the patient’s injury.”22

20
See OCGA § 9-11-10 (b) (providing that “[e]ach claim founded upon a
separate transaction or occurrence and each defense other than denials shall be stated
in a separate count or defense whenever a separation facilitates the clear presentation
of the matters set forth”).
21
Cf. Deen v. Pounds, 312 Ga. App. 207, 211 (1) (718 SE2d 68) (2011)
(holding that there was “no evidence in the record to support [appellant’s] contention
that [the doctor] committed a separate act of negligence by continuing to prescribe
Reglan” and that “[the doctor’s] alleged failure to correct any previous negligence
does not constitute additional acts of negligence” (punctuation omitted)); Goodman
v. Satilla Health Servs., 290 Ga. App. 6, 8 (658 SE2d 792) (2008) (holding that there
was “no evidence in the record to support [appellant’s] contention that [the doctor]
committed a separate act of negligence by continuing to prescribe Coumadin” and
that “[the doctor’s] alleged failure to correct any previous negligence does not
constitute additional acts of negligence”).
22
Kaminer, 282 Ga. at 834 (1) (citation omitted) (emphasis supplied); see also
Young, 274 Ga. at 847 (“While Georgia had such a medical malpractice statute of
limitation from 1976-1985, the period of limitation under the current statute begins
with the occurrence of an injury, not the performance of a negligent act.”). Cf. Lyon
v. Schramm, 291 Ga. App. 48, 49 (661 SE2d 178) (2008) (“[U]nlike the statute of
limitation, the [medical malpractice] statute of repose begins to run when an act of
negligence is committed.”), affirmed by Schramm v. Lyon, 285 Ga. 72 (673 SE2d
241) (2009).

10
 Accordingly, for all of the foregoing reasons, I would reverse the trial court’s

grant of Danson’s motion for reconsideration and direct the court to grant summary

judgment in favor of Smith.

I am authorized to state that Judge Ray joins in this dissent and Judge

McMillian concurs in the judgment only of this dissent.

11
 A15A1085. SMITH et al. v. DANSON et al.

MCMILLIAN, Judge, concurring in the judgment only of the dissent.

Although I agree with the result reached by Judge Dillard in his dissenting

opinion, I cannot agree with all that is said and thus concur in the judgment only to

that opinion.1 See Court of Appeals Rule 33 (a).

1
The judgment line “concurring in the judgment only of the dissent” first
appeared in our cases in 1980 and has been used occasionally since that time. See
Ellis v. Dalton, 194 Ga. App. 114 (389 SE2d 797) (1989); Harvey Freeman & Sons,
Inc. v. Stanley, 189 Ga. App. 256 (375 SE2d 261) (1988); Travillian v. Ga. Farm
Bureau Mut. Ins. Co., 182 Ga. App. 241 (355 SE2d 677 (1987); Howard v. Superior
Contractors, 180 Ga. App. 68 (348 SE2d 563) (1986); Menchio v. Rymer, 179 Ga.
App. 852 (348 SE2d 76) (1986); Johnson v. Amerson, 179 Ga. App. 75 (345 SE2d
94) (1986); Taylor v. Greiner, 156 Ga. App. 663 (275 SE2d 737) (1980).