Abend v. Klaudt
| Decision Date | 16 March 2000 |
| Docket Number | No. A99A1862.,A99A1862. |
| Citation | 531 S.E.2d 722,243 Ga. App. 271 |
| Parties | ABEND et al. v. KLAUDT et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Alston & Bird, Lori G. Baer, Candice Stone, Atlanta, for appellants.
Cathey & Strain, Dennis T. Cathey, David A. Sleppy, Cornelia, for appellees.
This appeal arises from a medical malpractice action brought by Betty Klaudt against Dr. Melvin N. Abend.1 Dr. Abend contends that the trial court erred by denying his motion for summary judgment in which he claimed that the action is barred by the one-year statute of limitations in OCGA § 9-3-72, applicable to foreign objects left in a patient's body, and by the five-year statute of repose in OCGA § 9-3-71(b), applicable to medical malpractice actions.
We conclude that a jury issue remains as to whether Klaudt complied with the one-year limitation period of OCGA § 9-3-72 which requires that, where a foreign object is left in a patient's body, the action "shall be brought within one year after the negligent or wrongful act or omission is discovered." We further find as a matter of law that the five-year statute of repose in OCGA § 9-3-71(b) does not bar a foreign object medical malpractice action timely filed within the one-year period set forth in OCGA § 9-3-72. Accordingly, we affirm the denial of Dr. Abend's motion for summary judgment.
In 1987, Dr. Abend surgically inserted a catheter device into a large vein in Klaudt's chest leading to her heart in order to allow administration of chemotherapy for treatment of nonHodgkin's lymphoma. On March 2, 1989, after chemotherapy was completed, Dr. Abend performed surgery to remove the catheter. Over five years later, on April 17 or 18, 1996, Klaudt suddenly started to experience slurred speech, facial drooping, lack of physical coordination, and numbness. As a result, on April 23, 1996, Klaudt was admitted to a hospital and underwent an examination to determine the cause of these symptoms. The examination revealed that a five-inch portion of a catheter device was lodged in the left ventricle of Klaudt's heart. On April 24, 1996, Klaudt learned that the symptoms she first experienced on April 17 or 18 had been diagnosed at the hospital as embolic episodes to the brain caused by blood clots formed by the catheter penetrating her heart. Surgery was performed on the same day to remove the catheter. On April 21, 1997, less than one year after Klaudt was informed of the diagnosis, Klaudt sued Dr. Abend claiming that he negligently failed to remove all of the catheter device during the March 2, 1989 surgery and that the portion of the catheter he left in her body had moved through the vein into which it was inserted, lodged in her heart, and caused the injuries at issue.
1. It is undisputed that, since the medical malpractice action alleged that Dr. Abend negligently left a foreign object in Klaudt's body, the one-year limitation period of OCGA § 9-3-72 applies instead of the two-year limitation period of OCGA § 9-3-71(a). OCGA § 9-3-72 provides in relevant part as follows: "The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient's body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered."
Dr. Abend contends that Klaudt's action filed on April 21, 1997, is barred by the one-year limitation period of OCGA § 9-3-72 because it was filed more than one year after April 17 or 18, 1996, the date Klaudt first became aware of the injury she alleged was caused by his negligence. In other words, Dr. Abend contends that, under OCGA § 9-3-72, Klaudt discovered his alleged negligent act or omission when she first became aware of the injury on April 17 or 18, even though she was not informed until April 24, 1996, at the hospital, that a catheter lodged in her heart caused the earlier symptoms.
By requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga.App. 300, 302, 183 S.E.2d 605 (1971). Childers v. Tauber, 148 Ga.App. 157, 158, 250 S.E.2d 787 (1978); Dalbey v. Banks, 245 Ga. 162, 163, 264 S.E.2d 4 (1980). In Parker, we held that, where a surgeon negligently leaves a foreign object in a patient's body, this is a tort of a continuing nature which tolls the statute of limitation until the patient discovers or in the exercise of ordinary care should have discovered the object. Id. at 300-303, 183 S.E.2d 605; Everhart v. Rich's, Inc., 229 Ga. 798, 801-802, 194 S.E.2d 425 (1972); Dalbey, 245 Ga. at 163,264 S.E.2d 4; Williams v. Terry, 197 Ga.App. 209, 398 S.E.2d 239 (1990). Even though Klaudt became aware on April 17 or 18, 1996, that she was suffering from some kind of injury, the one-year limitation period of OCGA § 9-3-72 did not start to run until she knew or by the exercise of ordinary care should have learned that a foreign object was in her body which was causing the injury. See King v. Seitzingers, 160 Ga.App. 318, 287 S.E.2d 252 (1981); Waters v. Rosenbloom, 268 Ga. 482, 483, 490 S.E.2d 73 (1997). Whether Klaudt exercised ordinary care in discovering the catheter in her body on April 24, 1996, or whether ordinary care would have required her to discover it at an earlier date is a mixed question of law and fact for determination by a jury. Piedmont Pharmacy v. Patmore, 144 Ga. App. 160, 161-163, 240 S.E.2d 888 (1977); King, 160 Ga.App. at 320,287 S.E.2d 252. The trial court correctly denied Dr. Abend's motion for summary judgment claiming that the statute of limitations barred the action.
2. Dr. Abend also contends that the five-year statute of repose set forth in OCGA § 9-3-71(b) bars Klaudt's medical malpractice action filed on April 21, 1997, because the action, which alleges that Dr. Abend negligently left a foreign object in Klaudt's body during surgery on March 2, 1989, was brought more than five years after the alleged negligent act or omission occurred. We disagree and conclude that the legislature did not intend for the statute of repose in OCGA § 9-3-71(b) to bar foreign object medical malpractice actions timely brought within the one-year limitation period of OCGA § 9-3-72.
OCGA § 9-3-71 entitled "General limitation" provides for a two-year statute of limitation and for a five-year statute of repose as follows:
OCGA § 9-3-72 entitled "Foreign objects left in body" provides as follows: "The limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient's body, but in such a case an action shall be brought within one year after the negligent or wrongful act or omission is discovered."
Dr. Abend contends that the language of OCGA § 9-3-72 stating that "[t]he limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient's body ..." does not refer to the statute of repose in OCGA § 9-3-71(b) but means only that the two-year statute of limitation in OCGA § 9-3-71(a) does not apply. Accordingly, Dr. Abend asserts that a foreign object medical malpractice action brought more than five years after the alleged negligent act or omission occurred is barred by the five-year statute of repose in OCGA § 9-3-71(b) even if it is brought under OCGA § 9-3-72 within one year after the negligent or wrongful act or omission is discovered. We conclude, however, that the language of OCGA § 9-3-72 stating that "the limitations" of OCGA § 9-3-71 shall not apply refers to two periods of time in OCGA § 9-3-71 which generally limit when an action can be brought—the two-year statute of limitation and the five-year statute of repose. Accordingly, we find the legislature intended that neither the two-year statute of limitations nor the five-year statute of repose bars a foreign object medical malpractice action timely brought under OCGA § 9-3-72 within one year after the negligent or wrongful act or omission is discovered. In reaching this conclusion, we resolve any ambiguity in the language of the statute in favor of the statutory construction which determines that foreign object medical malpractice cases are governed solely by the limitation requirements of OCGA § 9-3-72.
First, the statutory construction concluding that the statute of repose in OCGA § 9-3-71 does not apply to actions brought under OCGA § 9-3-72 is consistent with the legislative intent expressed in OCGA § 9-3-73, where the legislature set forth a statute of limitations and a five-year statute of repose applicable to medical malpractice actions brought on behalf of legally incompetent persons and minors. After setting forth the statute of limitation in subsection (b) and the statute of repose in subsection (c), OCGA § 9-3-73(d) and (e) further provides as follows:
(d) Subsection (b) of this Code section is intended to create a statute of limitations and subsection ...
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