Dowling v. Lopez

Blackburn, Judge,

concurring in part and dissenting in part.

I concur with Division 1 of the majority opinion, regarding the application of the statute of limitation to the estate’s survival action. However, with regard to the wrongful death action, I believe that jury questions exist as to whether the defendant physician was negligent and whether that negligence constituted the proximate cause of the decedent’s death. For that reason, I dissent from Division 2.

As noted by the majority opinion, in order to recover for a wrongful death in a medical malpractice action, the plaintiff must show negligence which constituted the proximate cause of the death. See Goggin v. Goldman, 209 Ga. App. 251 (433 SE2d 85) (1993). Contrary to the majority’s conclusion, the evidence in this regard was conflicting.

The plaintiff’s expert witness, Dr. Emmett Dupree, Jr., testified that in his opinion, the defendant physician misdiagnosed the decedent’s ailment as Crohn’s disease in November 1987, and failed to arrange the proper diagnostic procedures to rule in or out that disease at that time. Had the defendant done so in November 1987, Dr. Dupree felt that in all likelihood, surgery and other cancer treatment would have prolonged the decedent’s life by six to eight years. He recounted how such timely treatment of other patients who presented *583symptoms similar to those complained of by the decedent in November 1987 had prolonged those patients’ lives by that range of years. Dr. Dupree’s opinion was based upon his review of the medical records and his personal familiarity with the decedent’s case gained from his participation in the exploratory surgery on the decedent in February 1988 that revealed the terminal cancer.

Decided December 3, 1993 Reconsideration denied December 20, 1993 Sutton & Associates, Berrien L. Sutton, Hallman & Associates, Ronald W. Hallman, for appellant. Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. *584Coleman, Edward F. Preston, for appellee.

*583The defendant’s expert witness, Dr. Robert Carter Davis, Jr., based his opinion solely upon his review of the medical records of the decedent’s treatment. He concluded that in November 1987, in all likelihood, the decedent’s cancer had already reached an incurable stage. However, Dr. Davis did not state that the decedent’s condition was untreatable, or that appropriate treatment would not have extended her life. Even one who has an incurable illness is entitled to receive an appropriate diagnosis and treatment for the condition, where it is shown that such treatment could reasonably extend the life of such person.

Dr. Dupree’s opinion established jury questions in the wrongful death action, on the dispositive issues of negligence and proximate cause of the death of the decedent at the time of her demise. Cf. Richmond County Hosp. Auth. &c. v. Dickerson, 182 Ga. App. 601 (1) (356 SE2d 548) (1987). Although it may be true that the decedent ultimately would have died of cancer, the evidence is sufficient to raise a jury question as to whether the defendant’s negligence deprived her of additional years of life and resulted in her untimely death from cancer. Where it can be shown that the defendant’s negligence was the proximate cause of the decedent’s death, a wrongful death cause of action results, even if the decedent was destined to succumb to the disease at some point in the future. The existence of the terminal condition would be a factor in calculating damages, but it would not preclude a wrongful death action. A jury would be authorized to conclude that because of the defendant’s negligence, the decedent would not have died when she did, and that the plaintiff is entitled to recover appropriate damages.

Accordingly, for the foregoing reasons, I would reverse the trial court’s grant of summary judgment for the defendant on the wrongful death claim.