Harrison v. Daly, A04A0565.
| Decision Date | 01 July 2004 |
| Docket Number | No. A04A0565.,A04A0565. |
| Citation | 601 S.E.2d 771,268 Ga. App. 280 |
| Parties | HARRISON v. DALY et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
David Sapp, Newman & Sapp, Atlanta, for Appellant.
John Train, Chloe Dallaire, Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, James Looper, Hall Booth Smith & Slover, Atlanta, for Appellee.
Sandra D. Harrison appeals the orders granting summary judgment to the defendants in this medical malpractice action. We affirm because the trial court correctly ruled that the statute of limitation expired prior to the filing of suit.
In determining whether the trial court properly granted summary judgment to the defendant physicians, this Court reviews the record de novo, construing the evidence and the inferences drawn from it most strongly in favor of the nonmoving party.1 So viewed, the record shows that Harrison, who was born in 1962, had performed breast self-examinations monthly since she was 20 yearsold. Harrison deposed that during such an examination in June 1995, she discovered a "huge mass of lumps" in her right breast, accompanied by occasional short pains. She made an appointment for her annual Pap smear with her primary care physician, defendant Sylvia Johnson, M.D., an employee of Southeastern Health Services, the predecessor in interest to defendant Meridian Medical Group, P.C. ("Meridian").
Harrison was seen by a nurse midwife employed by Meridian. Harrison, whose aunts had suffered from breast cancer, reported her concerns and family history to the midwife. According to Harrison, the midwife conducted a physical examination, concluded that the lumps were fibroids, and did not recommend any diagnostic procedures, despite the fact that Harrison had never had a mammogram. Rather, the midwife instructed Harrison to call back in six months. During that time, the lumps became harder, larger, and more painful.
Harrison deposed that she called Johnson's office in January 1996 to report her worsened symptoms. Harrison expected an appointment but was told that, because her symptoms were caused by fibroids, she needed to wait a few months. However, during the following month, the dimensions of the lump changed, so Harrison called Johnson's office and requested an appointment.
Harrison was examined by a nurse midwife, Linda McCann, on March 29, 1996. McCann deposed that, after detecting the lump, she consulted with Johnson and ordered an ultrasound. The radiology report from that procedure contained a diagnosis of probable fibroadenoma, but the radiologist noted echoing features and recommended a biopsy and a mammogram. After reviewing the report, McCann referred Harrison to a surgeon, defendant John P. Daly, M.D. In addition, Harrison underwent a mammogram on April 17, 1996.
Harrison presented to Daly on April 30, 1996, and he performed a needle biopsy. The pathology report noted "marked nuclear atypia," and the pathologist recommended an excisional tissue biopsy to rule out carcinoma. Daly deposed that he scheduled Harrison for the biopsy at Northside Hospital on May 20, 1996. However, during a preparatory procedure, a radiologist aspirated the lesion, and it disappeared. Therefore, the biopsy was not performed, but the fluid removed from the lesion was sent to pathology. According to the report, the fluid was suspicious for carcinoma. Therefore, on June 27, 1996, Daly performed a Tru-cut biopsy, removing a core of breast tissue. The pathologist found "no significant epithelial hyperplasia or evidence of malignancy" in the tissue. Daly deposed that, based on the pathologist's report and the results of additional mammography and ultrasound, he concluded that Harrison did not have breast cancer. However, he testified that he remained concerned due to the presence of atypical cells. Therefore, during a visit with Harrison on July 2, 1996, he recommended close follow-up care, including a repeat mammogram and needle biopsy in four or five months. He did not see her again until October 31, 1997.
On September 13, 1996, Harrison underwent another mammogram, which was unremarkable. Harrison deposed that when she spoke with Johnson about the results, Harrison relayed Daly's instructions for follow-up care and inquired about a referral to Daly for a needle biopsy. According to Harrison, Johnson stated that the procedure was unnecessary, that Harrison was "fine," and that she should return in one year for a mammogram. Harrison relied upon Johnson's advice and assurances. Although she saw Johnson several times during the following year concerning fertility issues, Johnson never performed a breast examination, and Harrison did not raise the matter again.
When Harrison underwent her next mammogram on October 3, 1997, the test revealed a suspicious cluster of microcalcifications in her right breast. Harrison was referred to Daly. After examining her on October 31, 1997, Daly scheduled a sterotactic biopsy, which was performed on November 12, 1997. The pathology report revealed infiltrating ductile carcinoma of the right breast. Two weeks later, Harrison underwent a partial mastectomy and axillary dissection. Three of the eleven lymph nodes removed contained tumor cells, meaning that the cancer had metastasized. As a result, Harrison required chemotherapy and radiation, which were successful. She has not suffered a recurrence.
On September 4, 1998, Harrison filed suit against Daly, alleging that he breached the standard of care by failing to perform a complete history and physical examination on May 10, 1996; failing to perform an open surgical biopsy instead of a Tru-cut biopsy on June 27, 1996, so that sufficient tissue could be removed to detect the cancer; and failing to utilize an appropriate follow-up protocol. The complaint further alleged that Daly's failure to follow up, diagnose and treat Harrison in a timely manner allowed the cancer to remain undetected and reduced her chances of survival. Her expert, Daniel W. Davis, M. D., opined that Harrison "almost assuredly" had cancer on May 20, 1996, when her lesion was aspirated, and that Daly was negligent in failing to detect the disease.
One year later, on September 13, 1999, Harrison amended her complaint to add Johnson and her employer, Meridian, as defendants. Harrison contended that Johnson breached the standard of care by failing to examine her, to follow up with her, or to consult with Daly within six months after the diagnosis of atypia. The defendants moved for summary judgment, arguing that Harrison's suit was barred by the two-year statute of limitation, OCGA § 9-3-71(a). Daly maintained that the statute commenced running on Harrison's claims against him no later than July 2, 1996, and expired on July 2, 1998. Johnson and Meridian asserted that the statute on the claims against them began to run, at the latest, on September 13, 1996, the date on which Johnson advised Harrison not to follow Daly's instructions regarding follow-up care, so that the limitation period expired on September 13, 1998. The trial court agreed and granted summary judgment to the defendants. Harrison argues that the trial court erred in failing to rule that the statute of limitation commenced running from the date her cancer was discovered. We cannot agree.
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