Amu v. Barnes

• Citation: 286 Ga. App. 725,650 S.E.2d 288
• Decision Date: 02 July 2007
• Docket Number: No. A07A0811.,A07A0811.
• Parties: AMU et al. v. BARNES et al.
• Court: United States Court of Appeals (Georgia)

286 Ga. App. 725

650 S.E.2d 288

AMU et al. v. BARNES et al.

No. A07A0811.

Court of Appeals of Georgia.

July 2, 2007.

Reconsideration Denied July 23, 2007.

Christopher J. McFadden, Decatur, Bobby-Thompson C. Aniekwu, Atlanta, Susan M. Garrett, Decatur, for appellants.

Warshauer, Poe & Thornton, James M. Poe, Atlanta, for appellees.

BERNES, Judge.

In 2000, after experiencing repeated episodes of rectal bleeding, Wilbert Barnes saw his personal physician, Dr. Chuckwudi Bato Amu, who diagnosed him with hemorrhoids. In 2004, Barnes learned that he had terminal colon cancer. Barnes and his wife then brought this medical malpractice action against Dr. Amu and his medical practice based on the alleged failure to properly diagnose Barnes' medical condition. After a six-day trial, the jury returned a verdict in favor of Barnes. On appeal, Dr. Amu argues that Barnes' claim should have been dismissed because the statute of limitation had expired and because the negligence of Barnes and another treating physician were the intervening and superseding causes of Barnes' injury as a matter of law. We disagree and affirm.

"Where a jury returns a verdict, the same must be affirmed on appeal if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict." (Citation and footnote omitted.) R.O.C. v. Estate of Bryant, 279 Ga.App. 652, 653(1), 632 S.E.2d 429 (2006). So viewed, the evidence presented at trial reflects that on January 12, 2000, Barnes made an appointment and saw his primary care physician, Dr. Amu, because he had been passing bright red blood from his rectum with his bowel movements over the previous week. Barnes was not experiencing any other symptoms.

After speaking with Barnes about his rectal bleeding, Dr. Amu diagnosed the cause of Barnes' bleeding as internal hemorrhoids and prescribed a suppository to relieve any discomfort. According to Barnes, Dr. Amu did not perform a visual inspection of his anus or a digital rectal exam prior to diagnosing him with hemorrhoids. Dr. Amu's physician records for the January 12 appointment likewise do not note that a physical exam was ever performed on that date. Additionally, Dr. Amu did not recommend or schedule any additional procedures for Barnes, such as a colonoscopy or sigmoidoscopy,¹ in order to confirm the diagnosis. Nor did Dr. Amu recommend to Barnes that he return for a follow-up office appointment to specifically revisit the rectal bleeding issue.²

Barnes did not fill the prescription for suppositories, but within two weeks the bleeding completely stopped. Barnes testified that because the bleeding had stopped and Dr. Amu "had put [his] mind at ease by telling [him] it was hemorrhoids," he did not see a need to make a follow-up appointment with Dr. Amu or otherwise pursue the matter any further. In fact, Barnes never returned to Dr. Amu after the January 12, 2000 appointment.

In October 2002, Barnes began seeing a new primary care physician, Dr. Bruce Ramsdell. Over the course of 2002-2003, Barnes had five appointments with Dr. Ramsdell, none of which revealed any problems with his colon. During this period, Dr. Ramsdell did not recommend or schedule a colonoscopy for Barnes, although expert medical testimony at trial established that the recommended practice is for all patients over the age of 50 to have one performed in order to screen for colon cancer.

In the spring of 2004, Barnes began having episodes of abdominal cramping, nausea, and dizziness, which at first he attributed to food poisoning. Then, in approximately June 2004, Barnes began having much more severe episodes of abdominal cramping, nausea, and dizziness, accompanied by a recurrence of rectal bleeding. Barnes made an appointment with Dr. Ramsdell on July 9, 2004 to address these recent abdominal problems. Dr. Ramsdell performed a guaiac test to determine whether there was any blood in Barnes' stool, which came back positive. Dr. Ramsdell also ordered that blood work be performed, which showed that Barnes was severely anemic. Based on these test results, Dr. Ramsdell referred Barnes to a gastroenterologist.

The gastroenterologist performed a colonoscopy on August 2, 2004. The colonoscopy revealed a large tumor that was almost completely blocking Barnes' rectum. A biopsy confirmed that the tumor was cancerous. Although the tumor subsequently was removed from Barnes' colon, additional testing showed that the cancer had spread extensively into his surrounding lymph nodes and liver. Because Barnes' cancer had spread into a surrounding organ, it was classified as stage IV colon cancer, which is terminal. Normal life expectancy for stage IV colon cancer, even with chemotherapy, is approximately two years, with no more than a ten percent chance of survival beyond five years.

On December 22, 2004, Barnes and his wife filed the instant medical malpractice action against Dr. Amu in which they alleged that he had negligently misdiagnosed Barnes at the January 12, 2000 appointment. Dr. Amu asserted the affirmative defense of the statute of limitation in his answer and moved to dismiss the action on that ground at the pre-trial hearing. Dr. Amu argued at the hearing that the applicable two-year limitation period began to run on the date of Barnes' alleged misdiagnosis (January 12, 2000), and thus had expired prior to commencement of the case. The trial court denied Dr. Amu's motion. In reaching this result, the trial court reasoned that the limitation period did not begin to run until the date the symptoms of metastatic colon cancer manifested themselves to Barnes since the precise date of injury was difficult or impossible to determine, and that Barnes had presented evidence that symptoms did not manifest themselves until 2004.

At the ensuing trial, Barnes presented expert medical testimony that rectal bleeding in a middle-aged patient can be a sign of early colon cancer, and so colon cancer must be made part of the differential diagnosis.³ Thus, according to Barnes' experts, if a 48-year-old patient presents with complaints of rectal bleeding, the standard of care requires a visual inspection of the interior of the rectum and colon in order to rule out the possibility of colon cancer. Barnes' experts opined that in order to obtain such a visual inspection, the treating physician should have a sigmoidoscopy or colonoscopy performed on the patient shortly following the initial office appointment. They testified that one of these two procedures should be performed, even if the physician's initial rectal exam reveals hemorrhoids, in order to rule out the presence of a more serious growth in the colon.

Given this standard of care, Barnes' experts opined that Dr. Amu should have had a sigmoidoscopy or colonoscopy performed on 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.⁴

Following Barnes' case-in-chief, Dr. Amu moved for a directed verdict on the ground that Barnes' failure to get routine and preventive medical care from the time after his January 12, 2000 appointment until he began seeing Dr. Ramsdell in October 2002 was the intervening cause of his injury as a matter of law. Dr. Amu also argued as part of his motion that Dr. Ramsdell's failure to have a colonoscopy performed on Barnes during 2002-2003, although Barnes was over the age of 50 at the time, was the intervening cause of Barnes' injury as a matter of law. The trial court denied the motion, but specifically charged and submitted to the jury the issue of proximate cause and intervening act.

Based on the evidence presented, the jury found in favor of Barnes and awarded him $800,000 in damages. The trial court subsequently denied Dr. Amu's motion for new trial or judgment notwithstanding the verdict, which again raised the issue of intervening cause. This appeal followed.

1. Statute of Limitation. Under OCGA § 9-3-71(a), the two-year statute of limitation for medical malpractice cases starts to run "the date on which an injury or death arising from a negligent or wrongful act or omission occurred." Hence, "[t]he focus . . . is not the date of the negligent act but the consequence of the defendant's act[] on the plaintiff." (Citations and punctuation omitted.) Staples v. Bhatti, 220 Ga.App. 404, 405(1), 469 S.E.2d 490 (1996).

In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the 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 [coincident with the injury]. The general rule, therefore, is that in cases alleging failure to diagnose, the limitation period runs from the date of the misdiagnosis.

(Citations and punctuation omitted.) Brown v. Coast Dental of Ga., 275 Ga.App. 761, 766(1), 622 S.E.2d 34 (2005). This rule has been applied in many cases to foreclose a plaintiff's misdiagnosis claim, even where the plaintiff has no knowledge of his or her true medical condition during the limitation period. See, e.g., Williams v. Devell R Young, M.D., P.C., 258 Ga.App. 821, 823-824, 575 S.E.2d 648 (2002); Ford v. Dove, 218 Ga.App. 828, 830-831(3), 463 S.E.2d 351 (1995); Frankel v. Clark, 213 Ga.App. 222, 223-224, 444 S.E.2d 147 (1994); Jones v. Lamon, 206 Ga.App. 842, 844-846(1), 426 S.E.2d 657 (1992).

Notably, however, we have held that there is a limited exception to this general rule which provides that "[w]hen a misdiagnosis results in subsequent injury...