Dowling v. Lopez

• Decision Date: 03 December 1993
• Docket Number: No. A93A1695,A93A1695
• Parties: DOWLING v. LOPEZ.
• Court: Georgia Court of Appeals

Page 205

440 S.E.2d 205

211 Ga.App. 578

DOWLING v. LOPEZ.

No. A93A1695.

Court of Appeals of Georgia.

Dec. 3, 1993.

Reconsideration Denied Dec. 20, 1993.

Certiorari Denied Feb. 22, 1994.

Sutton & Associates, Berrien L. Sutton, Homerville, Hallman & Associates, Ronald W. Hallman, Claxton, for appellant.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, Valdosta, for appellee.

McMURRAY, Presiding Judge.

On April 24, 1988, Carla Kiser ("the decedent") died of metastatic carcinoma and was survived by her two-year-old child, Brandis Swails. On February 6, 1989, Viola Dowling (plaintiff) was appointed executrix of the decedent's estate and on January 4, 1991, she filed a medical malpractice action on behalf of the estate and as next friend of Brandis Swails, alleging the decedent endured unnecessary pain and suffering and died prematurely as a result of misdiagnosis by the decedent's physician, Frank Lopez (defendant). Defendant denied the material allegations of the complaint and moved for summary judgment, arguing that the estate's survival action is barred by the two-year statute of limitation and that the minor child's wrongful death claim cannot stand because any failure in diagnosing the decedent's cancer was not the proximate cause of her death.

The undisputed evidence reveals that defendant is a physician specializing in diseases of the stomach and intestines; that defendant began treating the decedent on November 19, 1987, for severe abdominal pain and that defendant concluded the decedent had "ileocolitis" or Crohn's disease, an inflammation of the bowels. It is also undisputed that the decedent was under defendant's care until February 7, 1988; that defendant noted "a sausage-shaped ..." mass in the decedent's lower abdomen during physical examinations on December 4, 11, 15, 21 and 28, 1987, and that the decedent was hospitalized on three separate occasions while under defendant's care for physical complications he attributed to Crohn's disease.

On February 22, 1988, a team of surgeons discovered that the decedent had terminal cancer which originated in her bowels. The decedent died on April 24, 1988.

This appeal followed an order granting defendant's motion for summary judgment. Held:

1. Plaintiff contends the trial court erred in granting summary judgment as to the estate's survival action, arguing the two-year statute of limitation prescribed in OCGA § 9-3-71(a) tolled pursuant to OCGA § 9-3-90 because the decedent was mentally incapacitated after the alleged malpractice. Plaintiff apparently reasons the decedent did not regain capacity until plaintiff's appointment as executrix of the estate on February 6, 1989, and, as a consequence filing of the survival action on January 4, 1991, preceded expiration of the statute of limitation on February 6, 1991. This contention is without merit.

Assuming, without deciding, the decedent was mentally incapacitated after the alleged malpractice, the tolling provision of OCGA § 9-3-90 during periods of legal incapacity does not apply in actions for medical malpractice. OCGA § 9-3-73(b); Kumar v. Hall, 262 Ga. 639, 640(1), 423 S.E.2d 653. Further, assuming the statute of limitation began upon discovery of the alleged misdiagnosis by defendant on February 22, 1988, see Bryant v. Crider, 209 Ga.App. 623(3), 434 S.E.2d 161, the statute of limitation as to the survival action expired on December 6, 1990, two years after the alleged medical malpractice plus 288 days allowed by tolling of the statute of limitation between the decedent's death on April 24, 1988, and appointment of the executrix of the decedent's estate on February 6, 1989. OCGA § 9-3-92. Notwithstanding, plaintiff argues that OCGA § 53-7-92 tolled the statute of limitation for an additional six months after her appointment as executrix of the decedent's estate, thus extending the time for filing the survival action beyond January 4, 1991. This argument is without merit. OCGA § 53-7-92 does not toll the statute of limitation for survival actions accruing at or before the decedent's death. This Code section tolls the statute of limitation for the commencement of actions against the estate within six months after appointment of an administrator of the estate. Deller v. Smith, 250 Ga. 157, 158(1b), 160, 162, 296 S.E.2d 49; Cannon v. Tant, 229 Ga. 771, 772(1), 195 S.E.2d 15.

2. Next, plaintiff contends the trial court erred in granting summary judgment as to the surviving child's wrongful death claim, arguing that genuine issues of material fact remain regarding the proximate cause of the decedent's death.

Georgia's Wrongful Death statutes give a right of action not available at common law and must be limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms. Miles v. Ashland Chem. Co., 261 Ga. 726, 728, 410 S.E.2d 290. OCGA § 51-4-2(a) provides that a child may recover the full value of a parent's life where there is evidence that the parent's death was a homicide, i.e., the result of the wrongful act, default or negligence of another. OCGA § 51-4-1(2). Neither this Code subsection, nor any other provision in Georgia's Wrongful Death statutes provides for recovery where a defendant's wrongful act or negligence did not result in death. Nonetheless, the dissent suggests that genuine issues of material fact remain as to the wrongful death action because there is evidence that the decedent's life could have been prolonged (rather than saved) had it not been for defendant's alleged malpractice. This view fails to recognize the fundamental distinction between statutorily prescribed wrongful death claims and claims associated with loss of chance of survival, e.g., pain and suffering, loss of consortium, loss of enjoyment of life. See Martin J. McMahon, Annot., Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance, 81 ALR4th 485. While the loss and damages suggested by the dissent may be available in a cause of action outside Georgia's Wrongful Death statutes, OCGA § 51-4-2(a) simply does not provide for recovery for loss of chance of extended survival. In fact, this Code subsection only provides damages for the full value of the decedent's life. (It does not provide for recovery for whatever remains of a decedent's life because of misdiagnosis in a case of terminal illness.) See Michael P. Sullivan, Annot., Recovery in Death Action for Failure to Diagnose Incurable Disease Which Caused Death, 64 ALR4th 1232.

It thus follows that negligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient " ' "proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient." Maddox v. Houston County Hospital Auth., 158 Ga.App. 283, 284 (279 SE2d 732) (1981).' Hawkins v. Greenberg, 166 Ga.App. 574, 575(1a) (304 SE2d 922)." Goggin v. Goldman, 209 Ga.App. 251, 253, 433 S.E.2d 85. Further, there can be no recovery in a wrongful death action based on medical negligence where there is no showing to any reasonable degree of medical certainty that the patient's death could have been avoided. See Goggin v. Goldman, 209 Ga.App. 251, 252, 433 S.E.2d 85, supra; Parrott v. Chatham County Hosp. Auth., 145 Ga.App. 113, 115, 243 S.E.2d 269.

In the case sub judice, Emmett L. Dupree, Jr., one of the surgeons who discovered the decedent's cancer, concluded that the decedent never had Crohn's disease; that defendant failed to exercise the requisite degree of skill in diagnosing the decedent and that defendant's improper diagnosis caused the decedent unnecessary pain and suffering and resulted in premature death. ¹ Dr. Dupree further testified that he had treated patients with symptoms similar to those presented by the decedent in November 1987 and that he had successfully extended their lives "for six or seven or eight years [and] sometimes ... a lot longer." However, neither Dr. Dupree nor any other physician deposed by the parties was able to testify with any degree of medical certainty that the decedent did not have terminal cancer when defendant treated her in November 1987. In fact, while there is evidence that the decedent's cancer may have been curable if it had been detected before metastasis, there is no proof that the decedent did not have terminal cancer when defendant first treated the decedent. On the contrary, Robert Carter Davis, Jr., a gastroenterologist experienced in detecting inflammatory bowel disease, testified that the decedent "at the time of presentation, in all likelihood, [had] a terminal cancer that presented with all the symptoms of Crohn's disease."

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c).... A defendant who will not bear the burden of proof at trial need...