Eyzaguirre v. Baker
| Decision Date | 18 February 2003 |
| Docket Number | No. A02A1980.,A02A1980. |
| Citation | 260 Ga. App. 53,579 S.E.2d 47 |
| Parties | EYZAGUIRRE et al. v. BAKER et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Weinberg, Wheeler, Hudgins, Gunn & Dial, Johnathan T. Krawcheck, Atlanta, Melissa D. Peeler, for appellants.
Andrea R. Bennett, Atlanta, for appellees.
Charles S. Baker, individually and as executor of the estate of Robert B. Baker, Robert B. Baker, Jr., and Brooks S. Baker sued William A. Eyzaguirre and William A. Eyzaguirre, M.D., P.C. for medical malpractice. The appellants moved in limine to suppress certain evidence, arguing that the statute of repose barred the admission of such evidence in this medical malpractice action. After hearing argument, the trial court denied the motion, and this appeal followed. We conclude that appellees' complaint was time-barred by the applicable statute of repose and reverse.
In November 1992, Dr. Eyzaguirre diagnosed Robert Baker with deep vein thrombosis (blood clots) in his right leg. After treating Baker to break up the clot, Dr. Eyzaguirre prescribed Coumadin (an anti-clotting medication) and a regular check of Baker's prothrombin times (clotting times). The evidence showed that within a few weeks of his treatment, Baker apparently ceased taking the medication, and further did not have his prothrombin times checked. Baker continued to see Dr. Eyzaguirre in early 1993, and it was confirmed that Baker had stopped taking his medication. In June 1993, Baker was admitted to the hospital for shortness of breath and fainting and was discharged on June 14, 1993. He was treated by another physician during his stay. Baker died on July 24, 1993, from a deep vein thrombosis in his left leg, pieces of which had broken loose and moved through his circulatory system, resulting in his death.
Appellees sued the appellants on July 24, 1995, and although the record does not contain a copy of a dismissal, all parties agree that the suit was voluntarily dismissed on May 26, 1998. On July 10, 1998, the appellees refiled their suit, and the appellants subsequently moved for summary judgment on the basis that the complaint was filed more than five years from the alleged negligent act or omission of Dr. Eyzaguirre. After the trial court denied the motion for summary judgment, the appellants filed a motion in limine to exclude all evidence of alleged malpractice prior to July 10, 1993. The trial court also denied the motion in limine.
1. The "[a]dmission of evidence is within the sound discretion of the trial court and this [C]ourt will not interfere with that discretion absent abuse." (Citation omitted.) Union Planters Nat. Bank v. Crook, 225 Ga.App. 578, 582(2), 484 S.E.2d 327 (1997). Since the statute of repose barred the action filed by the appellees, we conclude that the trial court abused its discretion in denying the motion in limine.
Appellants correctly argue that the court erred in failing to grant the motion in limine because the complaint was not filed until July 10, 1998, and under the statute of repose, any evidence that Dr. Eyzaguirre committed medical negligence before July 10, 1993, must be excluded. The appellees argue that Dr. Eyzaguirre was negligent in failing to follow up with Baker's prescribed medication and treatment, resulting in an ongoing breach of care until the plan of treatment terminated (at Baker's death). Appellees further argue that each subsequent daily failure to implement the necessary treatment established a new tort.
Under OCGA § 9-3-71(a), "an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." OCGA § 9-3-71(b), the statute of repose, "attaches when an action filed within the statute of limitation is voluntarily dismissed and refiled more than five years after the alleged injury." (Citations omitted.) Miller v. Vitner, 249 Ga.App. 17, 546 S.E.2d 917 (2001). Subsection (b) states that "in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred." See Siler v. Block, 204 Ga.App. 672, 673(1), 420 S.E.2d 306 (1992).
The alleged negligent act or omission here was the failure on the part of Dr. Eyzaguirre to follow up on Baker's medication and treatment. Such alleged failure began sometime between November 1992 and February 1993, as the record reflects that Baker continued to see Dr. Eyzaguirre after Baker's November 1992 diagnosis. Appellees' argument that each day the failure to monitor constituted a new tort, or that the failure to continue...
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