Hayes v. Hines

• Decision Date: 26 October 2018
• Docket Number: A18A0863
• Parties: HAYES et al. v. HINES et al.
• Court: Georgia Court of Appeals

347 Ga.App. 802

821 S.E.2d 52

HAYES et al.

v.HINES et al.

A18A0863

Court of Appeals of Georgia.

October 26, 2018

C. Andrew Childers, Angela Rene Fox, Kurt G. Kastorf, Darren Summerville, Atlanta, Neil Thomas Edwards, for Appellant.

John E. Hall Jr., Beth Wendy Kanik, Atlanta, for Appellee.

Ellington, Presiding Judge.

In this medical malpractice action, the Appellees, Jeffrey Hines, M. D. ("Dr. Hines") and Wellstar Cobb Gynecologists, LLC, Wellstar Medical Group, LLC, and Wellstar Health System, Inc. ("Wellstar defendants"), moved to dismiss those claims raised by the Appellant, Michael Hayes, in his capacity as the administrator of the estate of Erika Hayes, his deceased wife.¹ The trial court, upon conversion of the motion to dismiss to a motion for partial summary judgment, granted partial summary judgment to Appellees on the ground that the estate's claims were barred by the statute of limitation. Appellant contends on appeal that the trial court erred in granting Appellees' motion for partial summary judgment because (1) the trial court erred in holding that Appellant could not show a "new injury" exception to the two-year statute of limitation established by OCGA § 9-3-71 (a), (2) the trial court erred in finding that the tolling provisions of OCGA § 9-3-92 did not apply to this case, and (3) the trial court erred in concluding that the claims against Dr. Hines, which Appellant raised in his second amended complaint, did not relate back to the filing of the original complaint by operation of OCGA § 9-11-15 (c).² We reverse for the reasons set forth below.

"The standard of review for an appeal from a grant of summary judgment is de novo, viewing the evidence in the light most favorable to the nonmoving party, to determine whether a genuine issue of material fact remains or whether the moving party is entitled to judgment as a matter of law." (Citation omitted.) Oller v. Rockdale Hospital, LLC , 342 Ga. App. 591, 592, 804 S.E.2d 166 (2017).

So viewed, the record shows the following. In August 2013, Erika Hayes ("Hayes") sought treatment from Dr. Vidya Soundararajan, an OB/GYN, for abnormal bleeding and a large fibroid

mass in her uterus. They discussed treatment options, including an abdominal hysterectomy

and a robotic hysterectomy. Dr. Soundararajan referred Hayes to gynecological oncologist Dr. Jeffrey Hines to evaluate whether the robotic procedure was appropriate for Hayes.

After Dr. Hines reviewed ultrasound and MRI reports and then personally met with Hayes on November 13, 2013, he reported to Dr. Soundararajan that he had a very low suspicion that the fibroids

were malignant. According to Dr. Soundararajan, if Dr. Hines had been concerned that the fibroids had been cancerous, he would have performed the surgery because "he's the cancer surgeon." Dr. Soundararajan was satisfied that Dr. Hines "sending the patient back to [her] ... was his way of saying do the hysterectomy as you choose fit."

On December 13, 2013, Dr. Soundararajan performed a robotic hysterectomy

on Hayes during which Hayes's uterus and fibroids were cut up, or "morcellated," rather than removed intact. An analysis of samples obtained during the surgery identified grade three leiomyosarcoma, a form of soft tissue cancer. Following the surgery, and for several months thereafter, CT and PET scans were negative for cancer. On October 24, 2014, however, a screening showed the presence of pelvic tumors, and a biopsy confirmed a recurrence of high grade leiomyosarcoma. According to the affidavit of Dr. Edmund S. Petrilli, a physician board certified in gynecology and gynecologic oncology, the morcellating of Hayes's uterus caused the spillage and spread of her malignancy throughout her abdominal-pelvic cavity, whereas the cancer had previously been localized within her uterus. Hayes died of metastatic uterine cancer on May 19, 2015.

Appellant was appointed by the probate court as administrator of Hayes's estate on December 9, 2015, and he filed the underlying lawsuit against Dr. Soundararajan and numerous other defendants that same day.³ Appellant asserted a wrongful death claim in his capacity as Hayes's surviving spouse, and he asserted the estate's claims for pre-death damages in his representative capacity. The original complaint named "John Does Nos. 1-5" as defendants but did not name Dr. Hines as a defendant. Appellant filed an amended complaint in March 2016, which continued to assert claims against the John Does.

Appellant filed a second amended complaint on April 21, 2017, which named Dr. Hines as a defendant and which substituted Dr. Hines for a John Doe. The second amended complaint also alleged that Dr. Hines was an employee and agent of the Wellstar defendants.

Attached to the amended complaint was the affidavit of William Irvin, M. D., a gynecologic oncologist, who opined that Dr. Hines violated the standard of care by, among other things, improperly classifying Hayes as a "very low suspicion for leiomyoma

sarcoma." Dr. Irvin was also of the opinion that, to a reasonable degree of medical certainty, Dr. Hines's "failures caused or contributed to the spread of Mrs. Hayes' occult malignancy and ultimate metastasis of her uterine cancer, thereafter leading to a substantially reduced likelihood of survival."

Following the filing of the second amended complaint, Appellees answered, asserted the affirmative defense that the estate's claims were barred by the two-year statute of limitation, and moved to dismiss the estate's claims on that ground.⁴ Appellant responded that the estate's claims were timely because (i) Hayes was asympotomatic of metastatic cancer

until October 24, 2014, and a "new injury" occurred at that time for purposes of the commencement of the statute of limitations, and (ii) by operation of OCGA § 9-3-32, the running of the statute was tolled between Hayes's death and Appellant's appointment as administrator of her estate, which placed the expiration of the statute of limitation in May 2017. Appellant also contended that, should the trial court disagree that the cause of action arose on October 24, 2014, the estate's claims were nevertheless timely because they related back to the date of filing of the original complaint upon application of OCGA § 9-11-15 (c).

Appellees' motion to dismiss was later converted to a motion for partial summary judgment with the consent of the Appellant. Following a hearing, the trial court found that (i) the "new injury" exception did not apply, (ii) the limitation period was not tolled under OCGA § 9-3-32, and (iii) the second amended complaint did not relate back to the date of the original complaint for purposes of OCGA § 9-11-15 (c). The trial court therefore granted Appellees' motion for partial summary judgment.

1. Appellant contends that the trial court erred in finding that, as a matter of law, he could not demonstrate a "new injury" that would provide an exception to the two-year statute of limitation. OCGA § 9-3-71 (a) requires that "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." In cases where the allegedly tortious conduct was a failure to correctly diagnose a patient's medical condition, the "injury" referenced by OCGA § 9-3-71 (a) generally occurs at the time of misdiagnosis. See Amu v. Barnes , 283 Ga. 549, 551, 662 S.E.2d 113 (2008). In such cases, "[t]he misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis [and] the two-year statute of limitations begins to run simultaneously on the date that the doctor negligently failed to diagnose the condition[.]" (Citation and punctuation omitted.) Id. A "new injury" exception to general rule applies, however,

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. 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.

(Citation and punctuation omitted.) Cleaveland v. Gannon , 284 Ga. 376, 377 (1), 667 S.E.2d 366(2008). "[T]he trigger for commencement of the statute of limitations is the date that the patient received the ‘new injury,’ which is determined to be an occurrence of symptoms following an asymptomatic period." Amu v. Barnes , 283 Ga. 549, 553, 662 S.E.2d 113 (2008). See Ward v. Bergen , 277 Ga. App. 256, 259, 626 S.E.2d 224 (2006) ("[W]hen a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation runs from the date symptoms attributable to the new injury are manifest to the plaintiff.") (citation and punctuation omitted). As the defense of the statute of limitation is an affirmative defense for purposes of OCGA § 9-11-8 (c), "at the summary judgment stage, the burden was on [Appellees] to come forward with evidence demonstrating as a matter of law that [Hayes's] injury occurred and manifested itself more than two years before [Appellant's] malpractice suit was commenced." (Citations and punctuation omitted.) Ward v. Bergen , 277 Ga. App. at 260, 626 S.E.2d 224.

Appellees argue that the new injury exception should not apply because Hayes's cancer

was not a benign or treatable condition in November 2013, and that she did not remain asymptomatic before the development of the alleged new injury. Hayes's condition was not benign as of November 13, 2013, but Appellees do not show that it was not then treatable, or that it was as or less treatable than the metastatic cancer

that she later developed.⁵ Rather,...