Cleaveland v. Gannon

Ellington, Judge.

William and Jane Gannon filed this medical malpractice action against Lynwood Cleaveland, M.D., John Entrekin, M.D., Deborah G. Goodrich, D.O., and Internal Medicine Associates of Rockdale, P.C., claiming that the appellants negligently failed to diagnose and treat Mr. Gannon’s kidney cancer, which later metastasized. Mr. Gannon died while the suit was pending, and Ms. Gannon amended the complaint to include a wrongful death claim. The appellants moved for summary judgment on the grounds that the personal injury claims the Gannons asserted in the original complaint were barred by the statute of limitation and that Ms. Gannon’s wrongful death claim *876was barred by the statute of repose. The trial court denied the motions, and the appellants appeal.1 For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Murray v. Fitzgerald Convenient Centers, 239 Ga. App. 799 (521 SE2d 915) (1999). Defendants who move for summary judgment based on an affirmative defense such as the statute of limitation cannot rely on the absence of evidence in the record disproving the affirmative defense. OCGA § 9-11-8 (c); Porex Corp. v. Haldopoulos, 284 Ga. App. 510, 511 (644 SE2d 349) (2007).

Viewed in the light most favorable to the Gannons, the evidence shows the following. In June 2000, Mr. Gannon was admitted to the hospital with appendicitis and had surgery to remove his appendix. A CT scan performed during the hospitalization showed two masses in Mr. Gannon’s left kidney. A urinalysis also showed that Mr. Gannon had microscopic hematuria, that is, blood in the urine which is visible only under the microscope. Mr. Gannon was referred to Dr. Cleaveland for a urological consultation regarding the hematuria.

Dr. Cleaveland met with Mr. Gannon at the hospital on June 24, 2000, the day after his surgery. Dr. Cleaveland reviewed the CT scan as well as a renal ultrasound. According to Mr. Gannon, Dr. Cleave-land told him that he had a small cyst in his kidney, which was common, and there was no need to follow up on the cyst, but that he should see his primary care physician about the hematuria after he got out of the hospital. During the consultation, Dr. Cleaveland noticed that Mr. Gannon’s records indicated that Mr. Gannon had demonstrated hematuria since at least 1999, and that he had several problems that could cause hematuria, including renal insufficiency, hypertension, and gout.

Mr. Gannon followed up with his physicians at Internal Medicine Associates in July 2000. A urinalysis performed at that time showed microscopic hematuria. Dr. Entrekin did not diagnose a specific cause *877of the hematuria because the condition was a common problem and Mr. Gannon had multiple possible causes for the condition, including medicines he was taking and gout. Dr. Goodrich, another doctor at Internal Medicine Associates, began treatment of Mr. Gannon in April 2001, but also failed to diagnose or attempt to diagnose the precise cause of the microscopic hematuria.

During the period from July 2000 until October 31, 2002, Mr. Gannon had no pain when urinating, nor pain in his back or side. In August 2002, he saw a small amount of blood in his urine on one occasion. Ms. Gannon, who was a nurse, thought the blood might indicate an infection, so she gave Mr. Gannon an antibiotic. He took the medicine for a few days, and he did not see any blood in his urine again. Mr. Gannon also had instances of “night sweats,” beginning up to five months before November 1, 2002. When asked about Mr. Gannon’s night sweats, Ms. Gannon admitted that her husband had them, and could not say for how long, but she noted that Mr. Gannon had started a new job and was working late around this time.

On October 31, 2002, Mr. Gannon noticed a suspicious lump in his neck. A subsequent biopsy of the lump in his neck showed that Mr. Gannon was suffering from kidney cancer that had become metastatic.

The Gannons filed this action on October 29, 2004. In support of their complaint, the Gannons offered the testimony of one medical expert who opined that the masses detected in Mr. Gannon’s kidney in June 2000 were cancerous; the cancer later progressed and metastasized; and, had the cancer been diagnosed at or before its metastasis, Mr. Gannon would have likely recovered completely. In addition, two other medical experts opined that the appellants’ treatment of Mr. Gannon fell below the appropriate standard of care.

Mr. Gannon died from complications of his metastatic kidney cancer on July 9, 2005. Ms. Gannon amended the original complaint on September 7, 2005, to add a wrongful death claim.

In ruling on the appellants’ motion for summary judgment, the trial court concluded that the Gannons’ personal injury claims and Ms. Gannon’s wrongful death claim were all timely filed both in terms of the applicable statute of limitation and the statute of repose.

1. The appellants contend that the Gannons filed their original complaint more than two years after they were injured by the appellants’ alleged medical negligence and, therefore, that the trial court erred in denying the appellants’ motions for summary judgment based on the medical malpractice statute of limitation.

Under OCGA § 9-3-71 (a), a plaintiff must file a medical malpractice action “within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”

*878Generally, in malpractice cases involving a misdiagnosis that resulted in a failure to properly treat a condition, the “injury’ referred to in OCGA § 9-3-71 (a) occurs at the time of the misdiagnosis. This is because the patient usually continues to experience pain, suffering, or economic loss from the time of the misdiagnosis until the medical problem is properly diagnosed and treated.

(Citations omitted.) Ward v. Bergen, 277 Ga. App. 256, 258 (626 SE2d 224) (2006), cert. denied May 18, 2006. See also Kaminer v. Canas, 282 Ga. 830 (1) (653 SE2d 691) (2007) (accord). Consequently, the limitation period usually runs from the date of the misdiagnosis, not from the subsequent discovery of the proper diagnosis. Kaminer v. Canas, 282 Ga. at 831 (1); Harrison v. Daly, 268 Ga. App. 280, 283 (601 SE2d 771) (2004). According to the Gannons’ complaint, the appellants negligently failed to diagnose Mr. Gannon’s kidney cancer when they examined and treated him in 2000 and 2001, more than three years before the Gannons filed their complaint.

Ms. Gannon contends that the complaint was nonetheless timely filed under the “subsequent injury’ exception that originated with Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988). This limited exception to the general rule applies in cases in which the patient’s injury arising from the misdiagnosis occurs subsequently, generally when a relatively benign or treatable precursor condition, which is left untreated because of the misdiagnosis, leads to the development of a more debilitating or less treatable condition.2 Thus, the deleterious result of a doctor’s failure to arrive at the correct diagnosis in these cases is not pain or economic loss that the patient suffers beginning immediately and continuing until the original medical problem is properly diagnosed and treated. Rather, the injury is the subsequent development of the other condition. When we apply OCGA § 9-3-71 (a) to such a subsequent injury case, the result is that a plaintiff must file his or her medical malpractice action within two years after the date on which the more debilitating or less *879treatable condition actually arises.3 Amu v. Barnes, 286 Ga. App. 725, 730 (1) (650 SE2d 288) (2007). The date when such a subsequent injury occurs, however, is often difficult, if not impossible, to calculate precisely. Id. at 729-730 (1). Because of this, under Whitaker v. Zirkle and its progeny, “[w]hen a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation runs from the date symptoms attributable to the new injury are manifest to the plaintiff.” (Citations omitted.) Walker v. Melton, 227 Ga. App. 149, 151 (1) (b) (489 SE2d 63) (1997).4

As in Whitaker v. Zirkle, the injury complained of in this case is the metastasis of a cancer that allegedly would not have occurred if the cancer had been properly diagnosed and treated at the time of the alleged negligence. 188 Ga. App. at 706.5 In moving for summary *880judgment, the appellants bear the burden of coming forward with evidence establishing their affirmative defense that the Gannons’ complaint was untimely under OCGA § 9-3-71 (a). Ward v. Bergen, 277 Ga. App. at 260. As a result, they are entitled to summary judgment only if the undisputed evidence shows that Mr. Gannon experienced symptoms of his subsequent injury (that is, cancer that had metastasized and invaded organs or tissues other than his kidney) more than two years before the Gannons filed their malpractice suit on October 29, 2004. Id. The appellants contend the metastasis of Mr. Gannon’s kidney cancer became manifest to him when he experienced gross hematuria (visible blood in the urine) and night sweats, which appeared, respectively, in August 2002 and perhaps as early as June 2002. The record contains expert medical testimony, however, that these symptoms were attributable to his (premetastasis) kidney cancer or to unrelated medical conditions. Accordingly, the undisputed evidence does not show that Mr. Gannon experienced any symptom of his subsequent injury before he found the lump in his neck on October 31, 2002. Because the Gannons filed their complaint within two years after this symptom attributable to the metastatic cancer first appeared, the trial court correctly ruled that the appellants are not entitled to summary judgment on the basis of the statute of limitation. Ward v. Bergen, 277 Ga. App. at 258; Staples v. Bhatti, 220 Ga. App. 404, 405-406 (1) (469 SE2d 490) (1996).

2. The appellants contend that, because Ms. Gannon filed her wrongful death claim more than five years after the appellants’ alleged misdiagnoses in June and July 2000,* ****6 the trial court erred in failing to grant their motions for summary judgment based on the statute of repose.7 The premise that the medical malpractice statute *881of repose bars a claim for wrongful death in every case where the patient dies more than five years after the medical negligence that allegedly caused the death is defeated by our recent holding in Wesley Chapel Foot and Ankle Center v. Johnson, 286 Ga. App. 881 (650 SE2d 387) (2007), cert. denied October 29, 2007. As we explained in that decision, a medical malpractice wrongful death claim is timely under the medical malpractice statute of repose where (1) the plaintiff brings a timely medical malpractice action, that is, within five years after the negligent or wrongful act or omission and within two years after a resulting injury, and (2) the wrongful death claim, if not brought as part of the original action, is properly added to that same pending litigation. Id. at 885. As we noted in Wesley Chapel Foot and Ankle Center v. Johnson, this construction is consistent with the stated purposes of the medical malpractice statute of repose, including “preventing stale medical malpractice claims”8 in recognition of the fact that “time erodes evidence, memories, and the availability of witnesses.”9 Id.

In this case, it is undisputed that the Gannons filed their original complaint within five years after the negligent or wrongful acts and omissions and within two years after the resulting injury10 and that Ms. Gannon brought her wrongful death claim within two years after Mr. Gannon died, by filing an amendment to that pending action. Thus, Ms. Gannon’s wrongful death claim was timely filed both in terms of the statute of repose and the statute of limitation. The trial court correctly denied the appellants’ motions for summary judgment on Ms. Gannon’s wrongful death claim. Wesley Chapel Foot and Ankle Center v. Johnson, 286 Ga. App. at 885.

Judgment affirmed.

Barnes, C. J., Johnson, P. J., Blackburn, P. J., Miller, Adams and Bernes, JJ., concur. Phipps and Mikell, JJ., concur in part and dissent in part. Andrews, P. J., Smith, P. J., and Ruffin, J., dissent.

Following our grant of their applications for interlocutory appeal, Dr. Cleaveland appeals in Case No. A07A0837, and Dr. Entrekin, Dr. Goodrich, and Internal Medicine Associates appeal in Case No. A07A0838.

See, e.g., Walker v. Melton, 227 Ga. App. 149 (1) (489 SE2d 63) (1997), cert. denied January 8, 1998 (x-ray revealed a minor vertebral fracture, which doctor failed to diagnose and treat; patient sustained a subsequent injury under Whitaker v. Zirkle when a spinal ligament failed, causing destabilization of the spine); Zechmann v. Thigpen, 210 Ga. App. 726 (3) (437 SE2d 475) (1993), cert. denied January 21,1994 (examination revealed a minor eye condition which doctor failed to diagnose and treat; patient sustained a subsequent injury under Whitaker v. Zirkle when she developed neovascular glaucoma, causing destruction of the eye); Whitaker v. Zirkle, 188 Ga. App. at 706 (1) (after pathologist failed to properly diagnose patient’s malignant mole, patient sustained a subsequent injury when she developed metastatic melanoma); see also Kaminer v. Canas, 282 Ga. at 837 (2) (acknowledging, but distinguishing, this line of authority).

See Ward v. Bergen, 277 Ga. App. 256 (routine mammogram and biopsy revealed preoancerous lesions, which doctor failed to communicate to patient and to treat; patient sustained a subsequent injury under Whitaker v. Zirkle when she developed metastatic hreast cancer); Staples v. Bhatti, 220 Ga. App. 404 (1) (469 SE2d 490) (1996) (routine mammogram revealed possible hreast cancer, which doctor failed to diagnose and treat; patient sustained a subsequent injury under Whitaker v. Zirkle when the cancer later spread to a lymph node).

In his dissent, Presiding Judge Andrews supports Dr. Cleaveland’s position that we should overrule Whitaker v. Zirkle and eliminate the new injury exception, “to the extent Whitaker creates a discovery rule.” In Presiding Judge Andrews’ view, the new injury exception cannot he squared with the plain language of OCGA § 9-3-71 (a). See also Stafford-Fox v. Jenkins, 282 Ga. App. 667, 673-685 (639 SE2d 610) (2006) (Andrews, P. J., concurring specially). This Court has held otherwise for nearly 20 years. As we explained in Amu v. Barnes, 286 Ga. App. at 730 (1), in which we expressly declined to disavow the subsequent injury exception, the Whitaker v. Zirkle line of authority does not create a “discovery of the injury” rule in misdiagnosis cases. Rather,

the focus on manifested symptoms is intended to serve as a straightforward analytic tool for identifying the date when the new injury actually arose, given the difficulty, if not impossibility, in many cases of accurately pinpointing that date, given that the new injury arises at some time between the misdiagnosis and the correct diagnosis, when the patient (is) not experiencing symptoms. Hence, the subsequent injury exception does not disregard OCGA § 9-3-71 (a), but rather attempts to reconcile the statute’s “date of injur/’ language with the fact that it is often difficult or impossible in the misdiagnosis context to calculate precisely when the new injury arose.

Amu v. Barnes, 286 Ga. App. at 730 (1). Again, we decline to overrule Whitaker v. Zirkle and its progeny.

The appellants contend that the subsequent injury exception does not apply in this case because Mr. Gannon was never asymptomatic after the misdiagnosis but rather continued to display hematuria and other symptoms of kidney cancer. As the appellants argue, we have held that, “[i]n order for [the subsequent injury] exception to apply, not only must there be evidence that the plaintiff developed a new injury, but the plaintiff also must remain asymptomatic for a period of time following the misdiagnosis.” (Citations and punctuation omitted.) Amu v. Barnes, 286 Ga. App. at 729 (1). The question is not whether Mr. Gannon was asymptomatic for the kidney cancer that was present at the time of the misdiagnosis. The subsequent injury exception applies here because, for a period of time following the misdiagnosis, Mr. Gannon was asymptomatic for the metastatic cancer that constitutes his injury. If, on the other hand, symptoms attributable to the metastatic cancer had already been present at the time of the negligent misdiagnosis, then the subsequent injury exception would not apply. See Bousset v. Walker, 285 Ga. App. 102, 104 (2) (645 SE2d 593) (2007) (where the plaintiff continued to suffer *880pain from the time the defendant failed to diagnose an infection in a tooth until the time that the infection invaded her sinuses, plaintiff did not as a matter of law sustain a subsequent injury under Whitaker v. Zirkle); Stafford-Fox v. Jenkins, 282 Ga. App. at 667 (where the plaintiff continued to suffer from the effects of an untreated vitamin B-12 deficiency from the time of the misdiagnosis until the deficiency caused permanent neurological damage, plaintiff did not as a matter of law sustain a subsequent injury under Whitaker v. Zirkle); Burt v. James, 276 Ga. App. 370 (623 SE2d 223) (2005) (where the plaintiff experienced redness, swelling, and pain at the site of the allegedly negligent back surgery from the time of surgery until he was properly diagnosed and treated, plaintiff did not as a matter of law sustain a subsequent injury under Whitaker v. Zirkle); Harrison v. Daly, 268 Ga. App. at 280 (where the plaintiff experienced pain, lumps in her breast, and increasing breast size from the time of the defendant’s failure to diagnose breast cancer until the time of the correct diagnosis, plaintiff did not as a matter of law sustain a subsequent injury under Whitaker v. Zirkle).

We note that because Dr. Goodrich first treated Mr. Gannon in April 2001, Ms. Gannon filed her wrongful death claim within five years after Dr. Goodrich’s allegedly negligent act or omission.

The statute of repose, OCGA § 9-3-71 (b), requires the plaintiff to initiate legal proceedings within five years after the act or omission that constitutes medical negligence. The statute of limitation, OCGA§ 9-3-71 (a), requires the plaintiff to file each claim arising from the medical *881negligence within two years after the resulting injury (in the case of a claim for personal injury) or death (in the case of a claim for wrongful death).

OCGA§ 9-3-73 (f).

(Citations omitted.) Braden v. Bell, 222 Ga. App. 144, 148 (473 SE2d 523) (1996) (Beasley, C. J., concurring specially).

See Division 1, supra.