Charter Peachford Behavioral v. Kohout

• Decision Date: 15 July 1998
• Docket Number: No. A98A1503-A98A1506.
• Citation: 233 Ga. App. 452,504 S.E.2d 514
• Parties: CHARTER PEACHFORD BEHAVIORAL HEALTH SYSTEM, INC. et al. v. KOHOUT. VARGAS v. KOHOUT. CPC PARKWOOD HOSPITAL v. KOHOUT. COBIELLA v. KOHOUT.
• Court: Georgia Court of Appeals

504 S.E.2d 514

233 Ga. App. 452

CHARTER PEACHFORD BEHAVIORAL HEALTH SYSTEM, INC. et al. v. KOHOUT.

VARGAS v. KOHOUT.

CPC PARKWOOD HOSPITAL v. KOHOUT.

COBIELLA v. KOHOUT.

Nos. A98A1503-A98A1506.

Court of Appeals of Georgia.

July 15, 1998.

Certiorari Denied November 20, 1998.

Alston & Bird, Lawrie E. DeMorest, Cari K. Dawson, Atlanta, for appellants (case no. A98A1503).

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder Jr., Linda J. Pollock, Atlanta, for appellant (case no. A98A1504).

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Daniel J. Huff, Cameron P. Turner, Atlanta, for appellant (case no. A98A1505).

Downey & Cleveland, Y. Kevin Williams, W. Curtis Anderson, Marietta, for appellant (case no. A98A1506).

Goetz, Tibbs & Zahler, Charles M. Goetz, Jr., Philippa V. Tibbs, Scott M. Zahler, Atlanta, for appellee. ELDRIDGE, Judge.

This malpractice case involves mental health issues and the statute of limitation as to such actions. All appeals raise such issues of the statute of limitation but state the issues, in a number of different ways. Case Nos. A98A1503, A98A1504, and A98A1505 raise exclusively such issues, while Case No. A98A1506 raises additional issues that will not be reached. Ms. Kohout has a history of mental health illness dating to 1987, which history pre-dates treatment by the defendants, of an eating disorder, depression, suicidal ideation, auditory hallucination, and reported sexual abuse by her father. In June 1990, plaintiff was diagnosed by Dr. Ann Gustin, a psychologist, as having multiple personality disorder ("MPD"), and Dr. Gustin treated the plaintiff for MPD in 1990. While in therapy with Dr. Gustin, plaintiff engaged in physical abuse of herself, including cutting her body.

In August 1990, plaintiff began therapy at the same time with defendant Dr. Donna Ulrici, a psychologist, who is not a defendant-appellant. Dr. Ulrici learned of Dr. Gustin's diagnosis of MPD and concurred in the diagnosis. Plaintiff terminated her treatment with Dr. Gustin.

In March 1991, Dr. Ulrici admitted plaintiff to the Eating Disorder Unit at Charter Peachford Hospital ("Charter") where she remained until August 1991. Plaintiff alleges that Charter, Christine Engstrom, Dr. Grace Cobiella, and Dr. Fiameta Vargas, defendants-appellants, forced her through therapy to believe that she had a MPD with dozens of "altered personalities"; that she had been sexually abused by family members; and that such abuse occurred during satanic cult ceremonies. Plaintiff contends this is a misdiagnosis. Plaintiff alleges that Dr. Ulrici, with the assistance of the other defendants, used improper therapy or used therapy in an improper way through "memory work," "guided imagery," "body memories," and hypnosis, as well as drug therapy, resulting in recovered memory and causing plaintiff to believe that she had been abused sexually by her family during satanic rituals and that she had a MPD as a result. Thus, using improper therapy, plaintiff recovered "repressed" memories of sexual and satanic ritual abuse, which eliminated any doubts that she had as to her diagnosis through the institutionalized nature of Charter's therapy.

From August 21, 1991 until August 26, 1991, plaintiff was admitted to CPC Parkwood Hospital ("Parkwood"). Plaintiff alleges that Parkwood negligently accepted the admission diagnosis of Dr. Ulrici and the other defendants without performing available and competent tests to independently establish the nature of plaintiff's mental condition.

From December 1991 until February 1992, plaintiff was again hospitalized at Charter and underwent the same treatment as during previous hospitalizations.

Subsequently, plaintiff intentionally cut herself, requiring 40 stitches. She was hospitalized at Parkwood from August 5, 1992 until September 3, 1992, and then again from October 8, 1992 until October 12, 1992.

In November 1992, plaintiff began work as a full-time nanny for Dr. Elizabeth Goey until August 1994. From August 1994 until December 1994, plaintiff worked full-time as a nanny for Ms. Lauretta Russell.

From August 17, 1994 until August 19, 1994, plaintiff was again hospitalized at Parkwood. However, other than such hospitalization, plaintiff had no further treatment or clinical care from the defendants-appellants except Dr. Ulrici. In February 1995, plaintiff discontinued her treatment with Dr. Ulrici.

On November 25, 1995, plaintiff filed her original complaint alleging medical malpractice in misdiagnosing and treating her. On March 25, 1996, plaintiff filed her amended complaint against the defendants and added Parkwood. The defendants-appellants filed their motions for summary judgment based upon the running of the statute of limitation. The trial court entered an order denying all summary judgment motions. The defendants-appellants applied for a discretionary appeal which was applied for and granted. Dr. Ulrici did not seek a discretionary appeal.

All the defendants-appellants, in various ways, contend that the trial court erred in not finding that the statute of limitation barred plaintiff's action against them. We agree that summary judgment on the running of the statute of limitation should have been granted to the defendants-appellants as to injuries arising on or before October 12, 1992.

(a) OCGA § 9-3-70(1) and (2) defines an "action for medical malpractice" so broadly for purposes of the statute of limitation that the defendant medical doctors, psychologists, mental hospitals, and the dietician all come within the act. See Bradway v. American Nat. Red Cross, 263 Ga.19, 426 S.E.2d 849 (1993); Zechmann v. Thigpen, 210 Ga. App. 726, 727(1), 437 S.E.2d 475 (1993); Allrid v. Emory Univ., 166 Ga.App. 130, 131(1), 303 S.E.2d 486 (1983), aff'd, 251 Ga. 367, 306 S.E.2d 905 (1983). OCGA § 9-3-71(a) mandates that a medical malpractice action must be brought "within two years after the date on which an injury ... arising from a negligent or wrongful act or omission occurred."

In this case, plaintiff's alleged misdiagnosis and treatment, including the representations that she had been sexually abused by a family member and that the sexual abuse was part of a satanic ritual, were injuries that occurred and became manifested at the same time of the defendants' acts or omissions, were manifested prior to the running of the statute. Plaintiff in her complaint and amended complaint seeks to recover for mental pain and suffering from the inception of the misdiagnosis and treatment, as well as for special damages for unnecessary, improper treatment and hospitalizations, which means that damages, i.e., general, special, or nominal, occurred and became manifested at the time of the misdiagnosis. See Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984); Everhart v. Rich's, Inc., 229 Ga. 798, 802, 194 S.E.2d 425 (1972); Oxley v. Kilpatrick, 225 Ga.App. 838, 839-840, 486 S.E.2d 44 (1997), rev'd on other grounds, Rossi v. Oxley, 269 Ga. 82, 495 S.E.2d 39 (1998).

"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. [Cit.] The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. [Cit.]" Whitaker v. Zirkle, 188 Ga.App. 706, 707(1), 374 S.E.2d 106 (1988); see Jones v. Lamon, 206 Ga.App. 842, 846(1), 426 S.E.2d 657 (1992); Stone v. Radiology Svcs., P.A., 206 Ga.App. 851, 852, 426 S.E.2d 663 (1992). Thus, in this case, plaintiff suffered mental pain and suffering from the inception of the misdiagnosis, if not physical pain and suffering as well, and special damages from the alleged needless hospitalizations and therapy sessions. This is not a situation where the injury was concealed but was revealed to plaintiff at the time of the act or omission by the disclosure of the diagnosis to her, because the consequences to plaintiff were ascertainable and known to her from the inception of the wrongful acts or omissions, whether or not she appreciated the medical cause. Allrid v. Emory Univ., 249 Ga. 35, 36, 285 S.E.2d 521 (1982); Everhart v. Rich's, Inc., supra at 802, 194 S.E.2d 425; Bryant v. Crider, 209 Ga.App. 623, 434 S.E.2d 161 (1993).

While plaintiff may have later learned that defendant's diagnosis and treatment was made in error, causing her mental pain and suffering at that time in 1995, plaintiff and plaintiff alone was always in the unique position of knowing from the commencement of treatment and the alleged misdiagnosis (despite the suggestions, hypnosis, or influence of the defendants) whether she had been sexually abused by a family member and if the abuse came from satanic practices, as evidenced by the fact that she later came to reject such diagnosis. Plaintiff had mental suffering at the time of the misdiagnosis in 1990 from the belief that she had a MPD and had been abused as a child by family members during satanic rituals; at that time, she suffered isolation and alienation from her family as a consequence of the misdiagnosis and therapy.

Damages, i.e., manifested compensable injuries, whether general, special, or nominal damages, begin the running of the statute of limitation in misdiagnosis cases, and the failure to know the medical cause of the damage until later does not give rise to the application of the "discovery rule," where damages occurred concurrently with the wrongful acts or omission so that the cause of action then accrued. OCGA § 9-3-71(a); Ford v. Dove, 218 Ga.App. 828, 831(3), 463 S.E.2d 351 (1995); Henry v. Medical Center, 216 Ga.App. 893, 894(2), 456 S.E.2d 216 (1995); Crawford v. Spencer, 217 Ga.App. 446, 448(3), 457 S.E.2d 711 (1995); Frankel v. Clark, 213 Ga.App. 222, 223, 444 S.E.2d 147 (1994); Bryant v. Crider, supra at 626(3), 434 S.E.2d 161; Jones v. Lamon, supra at 846, 426 S.E.2d 657. ...