Cleaveland v. Gannon

• Decision Date: 30 November 2007
• Docket Number: No. A07A0837.,No. A07A0838.,A07A0837.,A07A0838.
• Citation: 288 Ga.App. 875,655 S.E.2d 662
• Parties: CLEAVELAND v. GANNON et al. Entrekin et al. v. Gannon et al.
• Court: Georgia Court of Appeals

655 S.E.2d 662

288 Ga.App. 875

CLEAVELAND v. GANNON et al.

Entrekin et al. v. Gannon et al.

No. A07A0837.

No. A07A0838.

Court of Appeals of Georgia.

November 30, 2007.

Certiorari Granted January 28, 2008.

Reconsideration Denied December 14, 2007.

Owen, Gleaton, Egan, Jones & Sweeney, Rolfe M, Martin, Atlanta, for appellant (Case No. A07A0837).

Martin Snow, Robert R. Gunn II, Richard A. Epps, Jr., Macon, for appellants (Case No. A07A0838).

Maniklal & Dennis, Preyesh K. Maniklal, Atlanta, Charles M. Cork III, Macon, for appellees.

ELLINGTON, Judge.

William and Jane Gannon filed this medical malpractice action against Lynwood Cleaveland, M.D., John Entrekin, M.D., Deborah G. Goodrich, D.O., and Internal Medicine Associates of Rockdale, P.C., claiming that the appellants negligently failed to diagnose and treat Mr. Gannon's kidney cancer, which later metastasized. Mr. Gannon died while the suit was pending, and Ms. Gannon amended the complaint to include a wrongful death claim. The appellants moved for summary judgment on the grounds that the personal injury claims the Gannons asserted in the original complaint were barred by the statute of limitation and that Ms. Gannon's wrongful death claim was barred by the statute of repose. The trial court denied the motions, and the appellants appeal.¹ For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Murray v. Fitzgerald Convenient Centers, 239 Ga.App. 799, 521 S.E.2d 915 (1999). Defendants who move for summary judgment based on an affirmative defense such as the statute of limitation cannot rely on the absence of evidence in the record disproving the affirmative defense. OCGA § 9-11-8(c); Porex Corp. v. Haldopoulos, 284 Ga.App. 510, 511, 644 S.E.2d 349 (2007).

Viewed in the light most favorable to the Gannons, the evidence shows the following. In June 2000, Mr. Gannon was admitted to the hospital with appendicitis and had surgery to remove his appendix. A CT scan performed during the hospitalization showed two masses in Mr. Gannon's left kidney. A urinalysis also showed that Mr. Gannon had microscopic hematuria, that is, blood in the urine which is visible only under the microscope. Mr. Gannon was referred to Dr. Cleaveland for a urological consultation regarding the hematuria.

Dr. Cleaveland met with Mr. Gannon at the hospital on June 24, 2000, the day after his surgery. Dr. Cleaveland reviewed the CT scan as well as a renal ultrasound. According to Mr. Gannon, Dr. Cleaveland told him that he had a small cyst in his kidney, which was common, and there was no need to follow up on the cyst, but that he should see his primary care physician about the hematuria after he got out of the hospital. During the consultation, Dr. Cleaveland noticed that Mr. Gannon's records indicated that Mr. Gannon had demonstrated hematuria since at least 1999, and that he had several problems that could cause hematuria, including renal insufficiency, hypertension, and gout.

Mr. Gannon followed up with his physicians at Internal Medicine Associates in July 2000. A urinalysis performed at that time showed microscopic hematuria. Dr. Entrekin did not diagnose a specific cause of the hematuria because the condition was a common problem and Mr. Gannon had multiple possible causes for the condition, including medicines he was taking and gout. Dr. Goodrich, another doctor at Internal Medicine Associates, began treatment of Mr. Gannon in April 2001, but also failed to diagnose or attempt to diagnose the precise cause of the microscopic hematuria.

During the period from July 2000 until October 31, 2002, Mr. Gannon had no pain when urinating, nor pain in his back or side. In August 2002, he saw a small amount of blood in his urine on one occasion. Ms. Gannon, who was a nurse, thought the blood might indicate an infection, so she gave Mr. Gannon an antibiotic. He took the medicine for a few days, and he did not see any blood in his urine again. Mr. Gannon also had instances of "night sweats," beginning up to five months before November 1, 2002. When asked about Mr. Gannon's night sweats, Ms. Gannon admitted that her husband had them, and could not say for how long, but she noted that Mr. Gannon had started a new job and was working late around this time.

On October 31, 2002, Mr. Gannon noticed a suspicious lump in his neck. A subsequent biopsy of the lump in his neck showed that Mr. Gannon was suffering from kidney cancer that had become metastatic.

The Gannons filed this action on October 29, 2004. In support of their complaint, the Gannons offered the testimony of one medical expert who opined that the masses detected in Mr. Gannon's kidney in June 2000 were cancerous; the cancer later progressed and metastasized; and, had the cancer been diagnosed at or before its metastasis, Mr. Gannon would have likely recovered completely. In addition, two other medical experts opined that the appellants' treatment of Mr. Gannon fell below the appropriate standard of care.

Mr. Gannon died from complications of his metastatic kidney cancer on July 9, 2005. Ms. Gannon amended the original complaint on September 7, 2005, to add a wrongful death claim.

In ruling on the appellants' motion for summary judgment, the trial court concluded that the Gannons' personal injury claims and Ms. Gannon's wrongful death claim were all timely filed both in terms of the applicable statute of limitation and the statute of repose.

1. The appellants contend that the Gannons filed their original complaint more than two years after they were injured by the appellants' alleged medical negligence and, therefore, that the trial court erred in denying the appellants' motions for summary judgment based on the medical malpractice statute of limitation.

Under OCGA § 9-3-71(a), a plaintiff must file a medical malpractice action "within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred."

Generally, in malpractice cases involving a misdiagnosis that resulted in a failure to properly treat a condition, the "injury" referred to in OCGA § 9-3-71(a) occurs at the time of the misdiagnosis. This is because the patient usually continues to experience pain, suffering, or economic loss from the time of the misdiagnosis until the medical problem is properly diagnosed and treated.

(Citations omitted.) Ward v. Bergen, 277 Ga.App. 256, 258, 626 S.E.2d 224 (2006), cert. denied, May 18, 2006. See also Kaminer v. Canas, ___ Ga. ___(1), 653 S.E.2d 691, (2007) (accord). Consequently, the limitation period usually runs from the date of the misdiagnosis, not from the subsequent discovery of the proper diagnosis. Kaminer v. Canas, ___ Ga. at ___(1), 653 S.E.2d 691; Harrison v. Daly, 268 Ga.App. 280, 283, 601 S.E.2d 771 (2004). According to the Gannons' complaint, the appellants negligently failed to diagnose Mr. Gannon's kidney cancer when they examined and treated him in 2000 and 2001, more than three years before the Gannons filed their complaint.

Ms. Gannon contends that the complaint was nonetheless timely filed under the "subsequent injury" exception that originated with Whitaker v. Zirkle, 188 Ga.App. 706, 374 S.E.2d 106 (1988). This limited exception to the general rule applies in cases in which the patient's injury arising from the misdiagnosis occurs subsequently, generally when a relatively benign or treatable precursor condition, which is left untreated because of the misdiagnosis, leads to the development of a more debilitating or less treatable condition.² Thus, the deleterious result of a doctor's failure to arrive at the correct diagnosis in these cases is not pain or economic loss that the patient suffers beginning immediately and continuing until the original medical problem is properly diagnosed and treated. Rather, the injury is the subsequent development of the other condition. When we apply OCGA § 9-3-71(a) to such a subsequent injury case, the result is that a plaintiff must file his or her medical malpractice action within two years after the date on which the more debilitating or less treatable condition actually arises.³ Amu v. Barnes, 286 Ga. App. 725, 730(1), 650 S.E.2d 288 (2007). The date when such a subsequent injury occurs, however, is often difficult, if not impossible, to calculate precisely. Id. at 729-730(1), 650 S.E.2d 288. Because of this, under Whitaker v. Zirkle and its progeny, "[w]hen a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation runs from the date symptoms attributable to the new injury are manifest to the plaintiff." (Citations omitted.) Walker v. Melton, 227 Ga.App. 149, 151(1)(b), 489 S.E.2d 63 (1997).⁴

As in Whitaker v. Zirkle, the injury complained of in this case is the metastasis of a cancer that allegedly would not have occurred if the cancer had been properly diagnosed and treated at the time of the alleged negligence. 188 Ga.App. at 706, 374 S.E.2d 106.⁵ In moving for summary judgment, the appellants bear the burden of coming forward with evidence establishing their affirmative defense that the Gannons' complaint was untimely under OCGA § 9-3-71(a). Ward v. Bergen, 277 Ga.App. at 260, 626 S.E.2d 224. As a result, they are entitled to summary judgment only if the undisputed evidence shows that Mr. Gannon experienced symptoms of his subsequent injury (that is, cancer that had metastasized and invaded organs or tissues other than his kidney) more than two years before the Gannons filed their malpractice suit on October 29, 2004. Id. The appellants contend the metastasis of...