Cleaveland v. Gannon

• Decision Date: 22 September 2008
• Docket Number: No. S08G0721.,No. S08G0713.,S08G0721.,S08G0713.
• Citation: 667 S.E.2d 366,284 Ga. 376
• Parties: CLEAVELAND v. GANNON et al. Entrekin et al. v. Gannon et al.
• Court: Georgia Supreme Court

667 S.E.2d 366

284 Ga. 376

CLEAVELAND v. GANNON et al.

Entrekin et al. v. Gannon et al.

No. S08G0721.

No. S08G0713.

Supreme Court of Georgia.

September 22, 2008.

Martin Snow, Richard A. Epps, Jr., Robert R. Gunn II, Macon, for appellants (case no. S080G0713).

Owen, Gleaton, Egan, Jones & Sweeney, Rolfe M. Martin, Mark D. Meliski, H. Andrew Owen, Jr., Atlanta, for appellant (case no. S08G0721).

Maniklal & Dennis, Preyesh K. Maniklal, Charles M. Cork III, Warshauer, Poe & Thornton, James M. Poe, Christopher J. McFadden, Bobby-Thompson, Chudi Aniekwu, Duluth, for appellees.

Peters & Monyak, Robert P. Monyak, Jeffrey S. Bazinet, Donald J. Palmisano, Jr., Henry, Spiegel, Fried & Milling, Harvey R. Spiegel, Pope & Howard, J. Marcus Edward Howard, Atlanta, for amici curiae.

CARLEY, Justice.

In June of 2000, William Gannon underwent an appendectomy. In connection with that procedure, a CT scan was performed which showed two masses in his left kidney. Urinalysis also revealed that he had microscopic hematuria, which is blood in the urine that is only visible with a microscope. He was referred to Dr. Lynwood Cleaveland for urological consultation. Dr. Cleaveland told Mr. Gannon that he had a small cyst in his kidney which was common and did not need treatment, but that he should see his primary care physician regarding the hematuria.

When Mr. Gannon followed up with his doctors at Internal Medicine Associates of Rockdale, PC (IMA), another urinalysis was performed which confirmed microscopic hematuria. However, Dr. John Entrekin did not diagnose a particular cause, because that condition is not uncommon and there were multiple explanations for why Mr. Gannon exhibited it. Mr. Gannon also received treatment from Dr. Deborah Goodrich, but she too failed to diagnose or attempt to diagnose the precise cause of his microscopic hematuria. On October 31, 2002, Mr. Gannon first noticed a suspicious lump in his neck. A biopsy of that lump showed that he had kidney cancer which had become metastatic.

On October 29, 2004, Mr. Gannon and his wife (Appellees) filed suit against Dr. Cleaveland, IMA, Dr. Entrekin and Dr. Goodrich (Appellants), claiming negligent failure to diagnose his kidney cancer which then later metastasized. In support of their claim, Appellees presented expert opinion testimony that the masses initially detected in Mr. Gannon's kidney in 2000 were cancerous, that the cancer later spread and that, had the cancer been diagnosed and treated before it metastasized, a complete recovery would have been likely. When Mr. Gannon died from complications of his kidney cancer, his wife amended the complaint to allege a wrongful death claim. After discovery, Appellants IMA, Dr. Entrekin and Dr. Goodrich and Appellant Dr. Cleaveland filed separate motions for summary judgment, on the ground that the original claim against them was barred by the two-year statute of limitations and that the subsequent wrongful death claim was barred by the five-year statute of repose. The trial court denied the motions, and the Court of Appeals granted Appellants' applications for interlocutory review. In a whole court decision, the denial of summary judgment was affirmed. Cleaveland v. Gannon, 288 Ga.App. 875, 655 S.E.2d 662 (2007). Appellants filed separate applications for certiorari, which were granted in order to address the continued viability of the 34;subsequent" or "new injury" exception to the general rule that, when the patient's medical malpractice claim is based upon negligent misdiagnosis, the statutes of limitations and repose commence to run immediately. See also Amu v. Barnes, 283 Ga. 549, 662 S.E.2d 113 (2008) (certiorari granted to address the same issue). The two appeals have been treated as companion cases, and are hereby consolidated for disposition in this single opinion.

1. As explained by the Court of Appeals, the "new injury" exception

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. [Cits.] 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.

Cleaveland v. Gannon, supra at 878(1), 655 S.E.2d 662. Appellants urge that this "new injury" exception conflicts with the recent holding in Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007), and that Whitaker and its progeny must, therefore, be overruled.

Kaminer, supra at 835(1), 653 S.E.2d 691, holds that

"[t]he General Assembly has determined that medical malpractice actions must be filed within two years of the occurrence of injury or death arising from a negligent or wrongful act or omission. (Cit.) The legislatively-prescribed statute of limitation(s) does not provide for the commencement of the period of limitation (at any other point), and the judicial branch is not empowered to engraft such a provision on to what the legislature has enacted. [Cit.]"

In Amu, however, we also recognized that the "new injury" exception is consistent with the statutory requirement that the statute of limitations on a medical malpractice claim commence on the date of "injury." The exception comports with OCGA § 9-3-71(a) because, when the misdiagnosed and, consequently, untreated precursor condition subsequently develops into a more serious and debilitating medical condition, the patient experiences "a `new injury' which did not exist at the time of the original misdiagnosis, but which is a proximate result of [the physician's] negligence. [Cits.]" Amu v. Barnes, supra at 552, 662 S.E.2d 113.

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.

Amu v. Barnes, supra at 551-552, 662 S.E.2d 113.

The holdings in Kaminer and Amu are not inconsistent, but result from the differing facts upon which each respective malpractice claim was based. Kaminer, supra at 837(2), 653 S.E.2d 691, clearly noted that the "new injury" exception did not apply under the facts of that case. Instead, the patient there continued to suffer from exactly the same AIDS condition that his doctors originally failed to diagnose. Therefore, as a result of a lack of treatment, he did not develop any new and more deleterious underlying condition in addition to AIDS, and only experienced symptoms that were attributable to the worsening of that same condition. The patient's AIDS was no less treatable at the time suit was eventually filed than it had been treatable at the time it was misdiagnosed. There is a significant legal distinction between a patient's development of an entirely new medical condition, and his experiencing the proximate symptomatic consequences of the original misdiagnosis. "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). Had the proper diagnosis been reached in Kaminer, the patient could have been treated earlier, and thereby possibly avoided experiencing subsequent symptoms attributable to AIDS. However, he could not claim that he suffered any pain or economic loss other than that proximately caused by his unchanged AIDS condition.

Here, unlike in Kaminer, but as in Amu, the allegation is that Mr. Gannon suffered from an undiagnosed precursor condition, which was treatable cancer confined to his kidney, and that he thereafter experienced a "new injury," which is metastasized untreatable cancer that is no longer confined to the kidney. Thus, insofar as the existence of a "new injury" is concerned, this case is factually analogous to Amu and distinguishable from Kaminer. Mr. Gannon did not merely experience subsequent symptoms of a worsening of his misdiagnosed, but treatable, kidney cancer. Compare Kaminer v. Canas, supra. At some point, the magnitude of his undiagnosed condition evolved into a "new injury" in which other internal organs, that were unaffected at the time of the misdiagnosis, were compromised and the cancer became life-threatening.

In one respect, however, Appellants are correct that Whitaker is in seeming conflict with Kaminer. According to Whitaker, supra at 708(1), 374 S.E.2d 106, "[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation[s] commences from the date the injury is discovered. [Cit.]" In Kaminer, supra at 832(1), 653 S.E.2d 691, however, we held that,

[b]ecause OCGA § 9-3-71(a) provides that the period of limitation begins to run at the time of injury, "initiating the period of limitation in a medical malpractice action (at some other point, such as) when the alleged negligence is first discovered would be contrary to the plain language of" the statute. [Cit.]

Thus, although Whitaker correctly articulated a "new injury" exception, the commencement of the applicable period of limitations was misstated as the date of "discovery" of that injury. The true rule is that, "[w]hen a...