Jones v. Lamon

McMurray, Presiding Judge,

dissenting.

In 1976, the General Assembly enacted legislation which classified medical malpractice actions separately from other tort actions for statute of limitation purposes. The 1976 statute provided that: “Except as otherwise provided in this chapter, an action for medical malpractice shall be brought within two years after the date on which the *848negligent or wrongful act or omission occurred.” Ga. L. 1976, pp. 1363, 1364, § 1. In Allrid v. Emory Univ., 249 Ga. 35, 37 (1a) (285 SE2d 521), the Supreme Court acknowledged this language “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.” Shortly thereafter, the Supreme Court held that the 1976 statute of limitation violated the Equal Protection Clause in those medical malpractice actions in which the alleged negligence produced no injury until more than two years after such alleged negligence occurred. Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155); Clark v. Singer, 250 Ga. 470 (298 SE2d 484).

In 1985, the 1976 statute of limitation for medical malpractice claims, by then contained in OCGA § 9-3-71, was amended by Georgia Laws 1985, p. 556, § 1. The 1985 amendment added a five-year statute of ultimate repose as paragraph (b) while paragraph (a) inserted in lieu of the 1976 language provides that: “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 omission occurred.” See Quinn v. Stafford, 257 Ga. 608, 610 (5) (362 SE2d 49). This change in the statutory language was apparently intended to cure the constitutional deficiency noted in such cases as Shessel v. Stroup, 253 Ga. 56, supra, and Clark v. Singer, 250 Ga. 470, supra.

The question as to whether the 1985 amendment also altered the substance of the 1976 law as applied after the Shessel and Clark decisions appears to have been answered by our decision in Whitaker v. Zirkle, 188 Ga. App. 706, 707 (1) (374 SE2d 106) which, in reference to the 1976 statute, states that: “At the time [plaintiff] Zirkle’s cancer was diagnosed [in May or June 1985], Georgia law permitted a patient to bring a medical malpractice claim within two years from the date of the injury caused by an alleged negligent act. See Shessel v. Stroup, [supra].” As this statement of the construction of the 1976 medical malpractice statute of limitation after the Clark and Shessel decisions is indistinguishable from the language of paragraph (a) of the 1985 amendment which became effective on July 1, 1985, and which is applicable to this case, it is my view that paragraph (a) of the 1985 statute was not a substantive change of the statute of limitation as construed following Clark and Shessel, but was enacted solely to remove the constitutional faults of the 1976 language. The importance of this conclusion is that the decisions in Whitaker, as well as Shessel, may clearly be recognized as controlling authority on the issues present in the present appeal and may not be distinguished as relating only to statutory language which has now been superseded.

As in Whitaker, the case sub judice involves an injury which occurs subsequent to the date of medical treatment or negligence. *849“When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. Shessel v. Stroup, supra.” Whitaker v. Zirkle, 188 Ga. App. 706, 708 (1), supra.

The alleged negligence in the case sub judice is Dr. Lamon’s prescribing Coumadin without patient monitoring. The resulting injury was the adverse reaction to Coumadin. Thus, the statute of limitation commences from the date of discovery of symptoms of an adverse reaction to Coumadin. Discovery of an injury relates to plaintiff Bettye Jones’ actual discovery that an injury has been suffered or where by the exercise of reasonable diligence plaintiff Bettye Jones should have discovered it. Shessel v. Stroup, 253 Ga. 56, 57, fn. 2, supra. In the case sub judice, a question remains for the jury as to when plaintiff Bettye Jones actually discovered or should have discovered her injury. When viewed in the light most favorable to the plaintiffs as the parties opposing the motion for summary judgment, the evidence shows that there was no discovery of the adverse reaction to Coumadin until August 28, 1989, the date of Bettye Jones’ readmission to the hospital. This action having been filed within two years of that date, the superior court erred insofar as its grant of summary judgment was based on a conclusion that plaintiffs’ actions were barred by the statute of limitation. I would hold that the grant of summary judgment in favor of defendant Lamon was reversible error.

The majority opinion devotes considerable effort to the question of when a medical malpractice action accrues without ever reaching a clear conclusion. While the majority advances an hypothesis in favor of the point II date of injury, it acknowledges the holding in Whitaker applying the point III date the injury is discovered. The majority then proceeds to avoid the obvious issue as to which should be applied in the case sub judice by purporting to distinguish Whitaker through its construction of the facts in the case sub judice. While the majority maintains that “the evidence in the case sub judice establishes uncontrovertedly that appellant was aware of her injury (point III) at least by August 26, the date on which she contacted appellee Lamon because she was and had been experiencing nausea and the other symptoms of the internal hemorrhaging from which she was suffering,” this entirely disregards the evidence via expert affidavit noted earlier in the majority opinion that Ms. Jones, like any medically unsophisticated lay person, could reasonably have interpreted the symptoms to indicate a stomach or bowel upset and that physicians could not be certain of the problem without examination and laboratory studies so that it could not have been known that Ms. Jones was suffering from the effects of improperly administered Coumadin until her admission to the hospital on August 28, 1989. In my view, the evidence would not permit an equating of the ambiguous *850symptoms suffered by Ms. Jones on August 26 with actual or constructive knowledge of the injury she had suffered. Since Ms. Jones had no knowledge of her injury until August 28, application of the holding in Whitaker would require that the period of limitation began to run on that day. Contrary to the majority’s view, I see the Whitaker case, not as abolishing the differences between OCGA §§ 9-3-71 and 9-3-33, but as being the only decision from either of the Georgia appellate courts which was decided under the current version of OCGA § 9-3-71 and directed to the issues on appeal, therefore I would follow this precedent.

I am authorized to state that Judge Pope joins in this dissent.