Amu v. Barnes

• Decision Date: 02 June 2008
• Docket Number: No. S07G1818.,S07G1818.
• Citation: 283 Ga. 549,662 S.E.2d 113
• Parties: AMU et al. v. BARNES et al.
• Court: Georgia Supreme Court

662 S.E.2d 113

283 Ga. 549

AMU et al. v. BARNES et al.

No. S07G1818.

Supreme Court of Georgia.

June 2, 2008.

Bobby-Thomson Chudi Aniekwu, Bobby C. Aniekwu & Associates, Atlanta, Christopher J. McFadden, Decatur, for Appellants.

James M. Poe, Washauer, Poe, & Thornton, P.C., Atlanta, for Appellee.

Donald J. Palmisano, Jr., Medical Assn. of Georgia, Atlanta, Robert P. Monyak, Jeffrey S. Bazinet, Peters & Monyak, LLP, Atlanta, amicus appellant.

J. Marcus Howard, Pope & Howard, Harvey R. Spiegel, Henry, Spiegel, Fried & Milling, LLP, amicus appellee.

CARLEY, Justice.

On January 12, 2000, Wilbert Barnes visited his physician, Dr. Chuckwudi Bato Amu, with a complaint of rectal bleeding. Dr. Amu diagnosed a hemorrhoid condition and prescribed suppositories to relieve the discomfort. Within two weeks, the bleeding stopped completely. Believing that the hemorrhoid condition diagnosed by Dr. Amu had resolved itself, Mr. Barnes never again consulted that physician. In 2002, Mr. Barnes began to see Dr. Bruce Ramsdell as his primary care physician. Over the next year, he had several appointments with Dr. Ramsdell, none of which revealed the existence of a colon problem.

In the Spring of 2004, Mr. Barnes began to have episodes of abdominal cramping, nausea and dizziness. In June, those episodes became more severe, and were accompanied by a recurrence of rectal bleeding. Blood work revealed that Mr. Barnes had severe anemia, and Dr. Ramsdell referred him to a gastroenterologist who performed a colonoscopy. In the course of that procedure, a large tumor was discovered which was determined to be cancerous. The cancer discovered in Mr. Barnes' colon had spread, and was classified as terminal.

In December of 2004, Mr. Barnes and his wife (Appellees) filed a medical malpractice action against Dr. Amu and his employer, Atlanta Medical Care, PC (Appellants), alleging a claim for negligent misdiagnosis. Appellants answered and raised the statute of limitations as an affirmative defense. They did not formally move to dismiss on that ground. At trial, however, they filed a motion in limine, contending that the applicable two-year period of limitations began to run from the date of the alleged misdiagnosis in January of 2000 and, thus, had expired prior to the initiation of the lawsuit. The trial court denied the motion and allowed the trial to proceed, concluding that the statute of limitations commenced when the symptoms of metastatic colon cancer first manifested themselves to Mr. Barnes in 2004.

At trial, Mr.

Barnes' experts opined that Dr. Amu should have had a sigmoidoscopy or colonoscopy performed on [Mr.] Barnes within a few months of the January 12 appointment. They further opined to a reasonable degree of medical certainty that if Dr. Amu had complied with the standard of care, the visual inspection of the colon would have revealed either a pre-malignant polyp or a very early malignancy that had not yet spread to the lymph nodes and liver, which could have been successfully removed surgically without any further complications.

Amu v. Barnes, 286 Ga.App. 725, 727-728, 650 S.E.2d 288 (2007). The jury returned a verdict for Appellees, and the trial court entered judgment against Appellants.

On appeal, Appellants raised the statute of limitations issue. The Court of Appeals recognized that, as a general rule, the period of limitations begins to run immediately on the date of the alleged negligent misdiagnosis. Nevertheless, the trial court's ruling was affirmed, based on

a limited exception to this general rule which provides that "(w)hen a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation[s] runs from the date symptoms attributable to the new injury are manifest to the plaintiff." [Cits.] This is known as the "subsequent injury" or "new injury" exception. [Cits.]

Amu v. Barnes, supra at 729(1), 650 S.E.2d 288. Appellants' application for certiorari was granted, in order to address the continued viability of the "new injury" exception in light of our recent decision in Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007).

"[A]n 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 act or omission occurred." OCGA § 9-3-71(a). Thus, the focus in this case is not on the date that Dr. Amu may have committed an act of medical malpractice, but on the date that Mr. Barnes suffered an "injury" as a result of that professional negligence. As the Court of Appeals correctly observed,

"[t]his is a case of misdiagnosis. `In most such cases, the injury begins immediately upon the misdiagnosis due to pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.' (Cit.)" [Cit.] Thus, in most misdiagnosis cases, the two-year statute of limitations ... begin[s] to run simultaneously on the date that the doctor negligently failed to diagnose the condition and, thereby, injured the patient.

Kaminer v. Canas, supra at 831-832(1), 653 S.E.2d 691. Dr. Amu failed to diagnose Mr. Barnes' condition in January of 2000. Therefore, the statute of limitations ran in January of 2002 as to the pain, suffering, or economic loss that Mr. Barnes suffered as a result of the misdiagnosis of his condition as it had existed two years earlier. This is true even though Mr. Barnes may have had no knowledge of his actual medical condition during the limitations period. Frankel v. Clark, 213 Ga.App. 222, 223-224, 444 S.E.2d 147 (1994).

However, a statute of limitations "is `a procedural rule limiting the time in which a party may bring an action for a right which has already accrued.' [Cit.]" (Emphasis supplied.) Young v. Williams, 274 Ga. 845, 847, 560 S.E.2d 690 (2002). "`(T)he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.' [Cits.]" Allrid v. Emory Univ., 249 Ga. 35, 36(1)(a), 285 S.E.2d 521 (1982). "[A]n action for personal injury does not `accrue' until the tort is complete, and a tort is not complete until injury is sustained. [Cit.]" Shessel v. Stroup, 253 Ga. 56, 57, 316 S.E.2d 155 (1984). Thus, OCGA § 9-3-71(a) would not bar Mr. Barnes' pursuit of an additional claim if, subsequent to January 2000, he suffered another "injury" as a proximate result of the original misdiagnosis. The statute establishes the occurrence of an "injury" as the trigger for commencement of a medical malpractice claim, but does not purport to limit the number of "injuries" that may result from the negligent act or omission. The "new injury" exception is an attempt to reconcile the statute's requirement that the period of limitations commence on the date of the patient's "injury," on the one hand, with a recognition, on the other, that not all "injuries" are necessarily the immediate consequence of a physician's negligent misdiagnosis.

As the Court of Appeals noted, the "new injury" exception "has been part of our settled jurisprudence for almost 20 years and has been applied or referred to in myriad cases. [Cit.]" Amu v. Barnes, supra at 730(1), 650 S.E.2d 288. It is not applicable when the "evidence demonstrates only that [the patient's] existing condition was misdiagnosed and mistreated, and that condition was the same one that existed at the time [he or she] first sought treatment from [the doctor]." (Emphasis supplied.) Kane v. Shoup, 260 Ga.App. 723, 725(1), 580 S.E.2d 555 (2003). "If [the patient's subsequent] symptoms were symptoms of the same injury that existed at the time of the alleged misdiagnosis, then the claim is barred by the two-year limitation[s] period." Kitchens v. Brusman, 280 Ga.App. 163, 165(2), 633 S.E.2d 585 (2006). See Kaminer v. Canas, supra at 837(2), 653 S.E.2d 691 ("new injury" exception does not apply where, after patient's AIDS condition was misdiagnosed, he did not develop any new condition and experienced only symptoms otherwise attributable to the worsening of that condition). The "new injury" exception applies only "in the most extreme circumstances." Burt v. James, 276 Ga.App. 370, 374, 623 S.E.2d 223 (2005). "In order for this exception to apply, not only must there be evidence that the [patient] developed a new injury, but [he or she] also must `remain() asymptomatic for a period of time following the misdiagnosis.' [Cit.]" Amu v. Barnes, supra at 729(1), 650 S.E.2d 288.

A patient suffers a "new injury" if he or she has a relatively benign and treatable precursor medical condition which, as a proximate result of being misdiagnosed, is left untreated and subsequently develops into a much more serious and debilitating condition. See Whitaker v. Zirkle, 188 Ga.App. 706, 707(1), 374 S.E.2d 106 (1988) (mole, which was removed, but negligently misdiagnosed as non-malignant, developed into metastatic cancer). Compare Kaminer v. Canas, supra (patient never developed new medical condition, but only experienced worsening symptoms of his originally misdiagnosed AIDS condition). The evidence here shows that Mr. Barnes did experience such a "new injury" when, as a consequence of the misdiagnosis, he did not seek treatment for the pre-malignant polyp or very early malignancy from which he suffered in January of 2000 and subsequently developed metastatic colon cancer which spread to his lymph nodes and liver. His metastatic cancer is a "new injury" which did not exist at the time of the original misdiagnosis, but which is a proximate result of Dr. Amu's negligence. See Whitaker v. Zirkle, supra. Compare Kaminer v. Canas, supra (patient had same AIDS condition before and after misdiagnosis, and only the symptoms of that condition worsened).

The evidence also shows that, after being...