Ford v. Dove

• Decision Date: 12 October 1995
• Docket Number: No. A95A1987,A95A1987
• Citation: Ford v. Dove, 463 S.E.2d 351, 218 Ga.App. 828 (Ga. App. 1995)
• Parties: FORD v. DOVE et al.
• Court: Georgia Court of Appeals

Page 351

463 S.E.2d 351

218 Ga.App. 828

FORD v. DOVE et al.

No. A95A1987.

Court of Appeals of Georgia.

Oct. 12, 1995.

Reconsideration Denied Oct. 26, 1995.

Certiorari Denied Jan. 26, 1996.

Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, J. Ralph Beaird, Amy L. King, and Milton F. Eisenberg II, Athens, for appellant.

Robert C. Koski, Decatur, for appellees.

BIRDSONG, Presiding Judge.

Appellant/defendant William C. Ford, M.D. was granted an interlocutory review of the order of the superior court denying his motion for partial summary judgment.

On March 5, 1993, appellee/plaintiff Hester Dove, as administratrix of the estate of Robert L. Dove and as deceased's surviving spouse, filed suit for medical malpractice; the complaint alleged one cause of action on behalf of the estate and a wrongful death claim on behalf of appellee surviving spouse. Appellee asserts that appellant misdiagnosed deceased's kidney cancer (initial misdiagnosis being some four years prior to the filing of suit) and therefore had engaged in medical negligence in his treatment of deceased. Appellant answered denying the claims and filed a motion for partial summary judgment as to the estate claims on the ground that suit was barred by expiration of the applicable statute of limitation; the motion was denied.

The expert affidavit filed in support of the complaint asserts appellant was negligent, inter alia, on March 6, 1989, in failing to take an x-ray of Mr. Dove's kidney "to rule out kidney cancer at the time occult blood in urine was first noted with associated lower back pain" and in negligently failing to take any follow-up urinalysis for two years after the occult blood was first noticed in Mr. Dove's urine. It is also opined in the expert's affidavit that "the failure of Dr. Ford to exercise the [requisite] standard of care in treating Mr. Dove ... directly and proximately caused Mr. Dove to die as a result of a metastasized cancerous left kidney tumor which could have been removed without complications had a timely diagnosis been made." (Emphasis supplied.) Appellant's sole enumeration is that the trial court erred in denying appellant's motion for partial summary judgment as to the estate claims based upon the running of the statute of limitation, as appellee filed suit more than two years after the date on which appellee contends the symptoms of kidney cancer were physically manifested to the deceased. Held:

1. The applicable summary judgment standard where appellant is the movant/defendant is that of Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. However, where the party opposing the motion presents contradictory testimony for which no reasonable explanation is provided, the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 applies. Appellees/plaintiffs presented the medical opinion of their expert in affidavit form that, on March 6, 1989, the deceased's cancer had not metastasized and was curable if timely treated and that the cancer did not metastasize until a period of months or even more than a year from that date. However, the medical expert gave unexplained contradictory testimony by way of deposition admitting that he could not make an assessment of the size and extent of the deceased's tumor in March 1989 and that he did not know when the tumor started. He further conceded that there was no way to assess the size of the cancer in 1989 when the deceased was found to have an abnormal urinalysis and that he did not know if there was any nodal involvement or distant seeding at that time. This deposition testimony contradicts the opinion expressed in the expert's affidavit that the deceased's cancer had not metastasized and was curable on March 6, 1989. Applying the rule of Prophecy Corp., supra, we conclude that the viable evidence at best establishes that a tumor of unknown size and indeterminable extent existed in the deceased in March 1989.

2. We decline to apply the continuous tort theory in this case so as, in essence, to extend the date when the statute of limitation under OCGA § 9-3-71(a) would commence to run; "application of such a theory would appear to thwart the intent of the legislature in amending OCGA § 9-3-71(a) in 1985." Crawford v. Spencer, 217 Ga.App. 446, 449(3), 457 S.E.2d 711. We further decline to adopt any theory of "continuous treatment" as a vehicle for judicially legislating a change to the applicable statute of limitation. Id.

3. OCGA § 9-3-71(a) requires 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. See Crowe v. Humana, 263 Ga. 833(1), 439 S.E.2d 654. "[I]nitiating the period of limitation in a medical malpractice action when the alleged negligence is first discovered would be contrary to the plain language of §§ 9-3-71 and 9-3-73." Id. at 834, 439 S.E.2d 654. As a general rule, 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. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis' "; thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of OCGA § 9-3-71(a) (Frankel v. Clark, 213 Ga.App. 222, 223, 444 S.E.2d 147). However, an exception to the general rule was created in Whitaker v. Zirkle, 188 Ga.App. 706, 374 S.E.2d 106 where, after misdiagnosis of the presence of cancer in a mole on Mrs. Zirkle's back, no additional symptoms were manifested until some seven years after the initial misdiagnosis, which was shortly before the cancer was properly diagnosed and after metastasis had occurred of cancerous cells which remained at the site of the removed...