Cochran v. Bowers

Decision Date01 February 2005
Docket NumberNo. A05A0110.,A05A0110.
PartiesCOCHRAN et al. v. BOWERS et al.
CourtGeorgia Court of Appeals

Hatcher, Stubbs, Land & Hollis, Robert C. Martin, Jr., Columbus, Owen, Gleaton, Egan, Jones & Sweeney, H. Andrew Owen, Jr., Toni Castel, Atlanta, for appellants.

Webb, Lindsey & Wade, James H. Webb, Jr., Jonathan J. Wade, Peachtree, for appellees.

BARNES, Judge.

Thomas A. Cochran, M.D., and Columbus Plastic and Cosmetic Surgery Clinic, P.C., appeal the trial court's denial of their motion to dismiss a medical malpractice complaint filed by Deborah Lee Bowers, individually and in her capacity as executrix of the Estate of Michael A. Bowers. Because the trial court did not err in denying Cochran's motion to dismiss, we affirm the trial court.

The question in this case is whether former OCGA § 9-11-9.1(b)'s provision allowing an additional 45 days to file an expert affidavit under certain circumstances applies to complaints filed just before the statute of repose runs as well as to complaints filed just before the statute of limitation has run. The parties agree that defendant Cochran, a plastic surgeon, examined Michael Bowers on February 4, 1999, and removed a mole from his neck. The plaintiff contends that Cochran sent the specimen to a laboratory for a pathology report, which indicated on February 8, 1999, that the lesion was malignant melanoma in situ with unclear margins. Although Cochran subsequently initialed the lab report, he never told Bowers that the mole was malignant melanoma, even when he saw Bowers again in February 2000 for another skin condition. Bowers subsequently received no follow-up care for the malignancy. The plaintiff further contends that, after experiencing sudden seizures in July 2003, Bowers discovered that the cancer had metastasized throughout his body. He died a few weeks later.

On February 5, 2004, Mrs. Bowers filed her medical malpractice complaint against Cochran. She asserted that

the statute of limitations will expire within ten days of the date of filing of this Complaint and that because of such time constraints, an affidavit of an expert could not be prepared. Plaintiff, therefore, invokes the protection of OCGA § 9-11-9.1(b) in order that she may have an additional 45 days after the filing of this Complaint to supplement these pleadings with the affidavit.

On March 1, 2004, Mrs. Bowers amended her complaint to include her expert's affidavit. The expert concluded that, in his opinion, "Dr. Cochran deviated from the standard of care by failing to notify Mr. Bowers of the report of malignancy and by failing to have him come in for further excision to assure that the margins of the malignant melanoma-in-situ were clear." The expert also asserted that, because of this deviation, "Bowers died from the metastasis of inadequately treated malignant melanoma-in-situ" instead of being cured.

Cochran answered and denied liability. In his first defense, he noted that Bowers' complaint was filed without the affidavit required by OCGA § 9-11-9.1 and was therefore subject to dismissal. As to Bowers' invocation of the protection of OCGA § 9-11-9.1(b), Cochran submitted that, given Bowers' death subsequent to July 2003, the statute of limitation as to both the wrongful death and estate claims "could run no sooner that July of 2005 and therefore it is patently incorrect that the statute of limitations will expire within ten days of the filing of the Complaint. Plaintiff could not possibly have any good faith belief that it would, and the Plaintiff is therefore not entitled" to an additional 45 days to file a supporting affidavit, he concluded. Cochran repeated this argument in his motion to dismiss, adding that the statute of limitations for Bowers' wrongful death would expire two years from July 2003, and the estate's claim was two years from the date the executrix was appointed. The only period set to expire, Cochran noted, "was the statute of repose applicable to Plaintiff's claims, which was five (5) years from the date the wrongful diagnosis or tortuous [sic] claims occurred." Because OCGA § 9-11-9.1(b) applies only to the statute of limitation and not to the statute of repose, and no case law has held otherwise, Cochran argued, the trial court should dismiss the claim.

After Mrs. Bowers responded and the trial court held a hearing, the court denied the motion, holding:

The purpose of the Statute of Repose in medical malpractice cases is to reduce the uncertainties and costs related to malpractice litigation long after the medical services have been rendered. [Cit.] In this case, a suit was filed and the Defendants put on notice of the claim within five years of the rendering of the service. The purpose of the statutory requirement that an affidavit accompany a malpractice claim is to reduce the number of frivolous malpractice suits being filed. [Cit.] In this case the Plaintiff produced an affidavit within 45 days of the filing of the suit. The Defendants' Motion to Dismiss is denied.

1. OCGA § 9-11-9.1(a) directs that, in any action for damages alleging professional malpractice, the plaintiff must file with the complaint an expert affidavit setting forth the factual basis for at least one negligent act or omission. Subsection (b) provides that

[t]he contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.

(Emphasis supplied.)

Cochran argues on appeal that the "period of limitation" in subsection (b) refers only to the statute of limitation. Bowers argues that it includes both the statute of limitation and the statute of repose. We have found no cases that directly address the point, and the statute itself is not explicit. We must therefore construe the statute and consider its legislative intent to determine whether it allows additional affidavit filing time for a plaintiff who believes that the statute of repose is about to expire.

A statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose, and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. However, when reasonably possible, the court should interpret a statute to give meaning to all parts of the statute and not to make any portion surplusage, unless no other construction is possible.

Glisson v. Hosp. Auth. of Valdosta, etc., 224 Ga.App. 649, 653(1), 481 S.E.2d 612 (1997). OCGA § 1-3-1(a) directs us to "look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy."

Moreover, statutory construction must square with common sense and sound reasoning, and courts may decline to construe an act so that it will defeat its purpose or attribute an unreasonable intent to the General Assembly. Tuten v. City of Brunswick, 262 Ga. 399, 404, 418 S.E.2d 367 (1992).

In enacting OCGA § 9-11-9.1, the legislature intended "to reduce the number of frivolous malpractice suits being filed" by requiring a plaintiff to include in his complaint the affidavit of an expert testifying to at least one act of professional negligence in contravention of the professional standard of care. 0-1 Doctors etc., Co. v. Moore, 190 Ga.App. 286, 288(1), 378 S.E.2d 708 (1989). Thus, the "evil" was an excessive number of frivolous malpractice suits, and the "remedy" was the inclusion of an affidavit that established a prima facie case of professional negligence.

In considering whether the legislature intended in OCGA § 9-11-9.1 to allow plaintiffs an additional 45 days to file an expert affidavit if they believed the statute of repose would soon expire, we note that it used the phrase "period of limitation," not "statute of limitation." Further, the chapter, article, and statute titles setting out the specific limitations confirm the legislature's intention to use "limitations" to cover both deadlines. OCGA § 9-3-71 includes both the statutes of limitation and of repose, and is set in Title 9 (Civil Practice), Chapter 3 (Limitations of Actions), Article 4 (Limitations for Malpractice Actions), and the statute is further captioned "General Limitations." In OCGA § 9-3-71(a) and (b), the legislature delineated two periods of limitations for medical malpractice actions, allowing two years "after the date on which an injury or death arising from a negligent or wrongful act or omission occurred," but not "more than five years after the date on which the negligent or wrongful act or omission occurred." OCGA § 9-3-72 provides that "[t]he limitations of Code Section 9-3-71 shall not apply where a foreign object has been left in a patient's body" (emphasis supplied), but that an action must be brought within one year of discovering the foreign object. In considering whether "the limitations" of OCGA § 9-3-72 include both the statute of limitation and the statute of repose, this court held that "the language of OCGA § 9-3-72 stating that `the limitations' of OCGA § 9-3-71 shall not apply refers to two periods of time in OCGA § 9-3-71 which generally limit...

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    ...language is clear, we conclude that the term to which it applies – "limitations period" – is ambiguous. See Cochran v. Bowers , 274 Ga. App. 449, 452-453 (1), 617 S.E.2d 563 (2005) (ambiguous phrase "period of limitation" in medical malpractice statute encompassed both the statute of limita......
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