Hughley v. Frazier, No. A01A2462

• Decision Date: 27 March 2002
• Docket Number: No. A01A2462, No. A01A2463.
• Citation: 254 Ga. App. 544,562 S.E.2d 821
• Parties: HUGHLEY v. FRAZIER et al. Frazier v. Hughley.
• Court: Georgia Court of Appeals

562 S.E.2d 821

254 Ga. App. 544

HUGHLEY v. FRAZIER et al.

Frazier v. Hughley.

Nos. A01A2462, A01A2463.

Court of Appeals of Georgia.

March 27, 2002.

W. Dent Acree, Atlanta, for appellant.

McLain & Merritt, M. David Merritt, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Mary K. Greene, Michael A. Stickland, Atlanta, for appellees.

SMITH, Presiding Judge.

Austin Hughley brought this medical malpractice action against Dr. Mary Frazier and Dr. Raymond Rubin alleging that as a result of their misdiagnosis of his medical condition, surgery was required, which rendered him permanently incontinent. Both defendants moved for summary judgment on the ground that the two-year statute of limitation had run on Hughley's claims. The trial court granted Dr. Rubin's motion but denied that of Dr. Frazier, concluding that under the "continuous treatment" doctrine discussed in Williams v. Young, 247 Ga.App. 337, 543 S.E.2d 737 (2000), questions of fact existed as to whether Frazier's treatment of Hughley was terminated within the applicable statute of limitation. In Case No. A01A2462, Hughley appeals from the grant of Dr. Rubin's motion for summary judgment, and in Case No. A01A2463, Frazier appeals from the denial of her motion. Because Hughley failed to bring his action against Dr. Rubin within two years from the date of his injury as required by OCGA § 9-3-71(a), we affirm the trial court's grant of summary judgment to him. As for Dr. Frazier's motion, however, although the "continuous treatment" doctrine was struck down in Young v. Williams, 274 Ga. 845, 560 S.E.2d 690 (2002), we conclude that she failed to pierce the pleadings with respect to Hughley's claim that she committed fraud that tolled the statute of limitation. We therefore affirm the denial of summary judgment to Dr. Frazier.

Sometime in March or April 1996, Hughley sought treatment from Dr. Frazier for rectal complaints. The parties dispute the dates of treatment concerning those complaints. Frazier testified by affidavit, and Hughley's medical records show, that she first treated this condition on April 29, 1996. Hughley testified, however, that on April 1, 1996, Dr. Frazier examined him and diagnosed him as having "`external hemorrhoids' with large rectal opening" and began treatment for that condition. On April 11, Hughley was referred to Dr. Rubin, a gastroenterologist who performed various tests on that date and again on May 2 and diagnosed Hughley as having internal and external hemorrhoids, without any thrombosis. Dr. Rubin testified that he performed no further examinations after May 2, 1996.

Meanwhile, according to Hughley, Dr. Frazier examined him on April 29 and May 9. At both visits, Dr. Frazier diagnosed his condition as hemorrhoid-related. Dr. Frazier testified that she examined Hughley on May 7 and May 9 and that Hughley cancelled a scheduled appointment for May 16. It appears to be undisputed that on May 16, Hughley was examined by Dr. Earl Pennington, a proctologist. Dr. Pennington allegedly diagnosed Hughley with an "anal fistula and chronic abscess" and immediately referred him to a surgeon, Dr. Oscar Grablowsky. Dr. Grablowsky examined Hughley on May 20 and on May 21 performed a surgical procedure. Hughley testified that Dr. Grablowsky informed him that this condition had been present for many months and that the size of the fistula and abscess required the division "of the internal and external sphincter muscles." Hughley believed that this surgical procedure "directly caused [him] unnecessarily to become permanently incontinent." His complaint in this case alleges that the

size of the fistula and abscess was proximately and directly caused by the failure of defendants to timely properly diagnose, treat and/or surgically remove it and refer plaintiff to a proctologist for this purpose, when its size and deepness during their course of treatment would not have required such division of the internal and external muscles posteriorly, but could have been successfully treated and/or removed without such division being necessary.

This complaint was originally filed on May 18, 1998, but was later dismissed. The action was refiled as a renewal action on April 17, 2000. The central issue on appeal is whether the original action was filed against Dr. Frazier and Dr. Rubin within the two-year statute of limitation for medical malpractice actions.

1. We first address Hughley's contention that the action was timely filed against Dr. Rubin under the "continuous treatment" doctrine adopted in Williams, supra. In Williams, we concluded that if misdiagnosis occurred during a continuous course of examination and treatment of a particular condition, the two-year statute of limitation for medical malpractice claims began to run on the date the course of examination or treatment for the condition terminated. Id. at 341, 543 S.E.2d 737. But Williams was recently reversed. In Young, supra, the Supreme Court of Georgia found that Williams erroneously modified the legislatively prescribed two-year statute of limitation by adoption of the continuous treatment doctrine, stating that "the judicial branch is not empowered to engraft such a provision on to what the legislature had enacted." Id. at 848, 560 S.E.2d 690. Therefore, in general,

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).

(Citations and punctuation omitted.) Ford v. Dove, 218 Ga.App. 828, 830(3), 463 S.E.2d 351 (1995), overruled in part on other grounds, Ezor v. Thompson, 241 Ga.App. 275, 279(1), 526 S.E.2d 609 (1999). See also Crawford v. Spencer, 217 Ga.App. 446, 448, 457 S.E.2d 711 (1995);¹ Frankel v. Clark, 213 Ga.App. 222, 223, 444 S.E.2d 147 (1994).

The record is undisputed that Rubin did not treat Hughley after May 2, 1996. "It is true that in ruling upon a motion for summary judgment, the court must construe all reasonable inferences in favor of the non-movant. Here, however, our search of this record discloses no specific fact other than general arguments that may lead to inferences favorable to [the non-movant]." (Citation and punctuation omitted.) Crown Ford, Inc. v. Crawford, 221 Ga.App. 881, 885(3), 473 S.E.2d 554 (1996). Dr. Rubin's alleged misdiagnosis, which occurred no later than May 2, 1996, occurred outside the two-year statute of limitation for medical malpractice claims, and the trial court correctly granted summary judgment to this defendant.

Hughley cites several cases in support of his argument that summary judgment was improperly granted to Dr. Rubin. But we find the facts and reasoning of those cases to be inapplicable. Relying on Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga.App. 770, 278 S.E.2d 653 (1981), and Whitaker v. Zirkle, 188 Ga.App. 706, 374 S.E.2d 106 (1988), Hughley contends that the confidential relationship between him and Dr. Rubin prevented him from discovering his injury until May 16, 1996. But Gowers was not a misdiagnosis case, and some evidence showed that defendants treated plaintiff within two years of plaintiff's filing of his lawsuit. Here, however, Dr. Rubin's treatment of Hughley ended May 2, 1996, outside the limitation period.

Whitaker, supra, can also be distinguished. In Whitaker, this court did create a limited exception to the general rule that a misdiagnosis constitutes the injury under OCGA § 9-3-71. We stated that "[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. [Cit.]" Id. at 708(1), 374 S.E.2d 106. But the facts of that case differ from those here. There, the record showed that defendants misdiagnosed the presence of cancer in a mole removed from plaintiff's back in 1978. Id. at 706, 374 S.E.2d 106. For approximately seven years, plaintiff remained free of cancer symptoms, but in 1985, a biopsy of tissue from the mole revealed the presence of cancer. Id. She filed suit against her doctor and others in May 1986, within a year of her diagnosis of cancer. Id. Noting that plaintiff suffered no symptoms of cancer for several years after the misdiagnosis, this court concluded that questions of fact existed as to whether the subsequent metastasis was a separate injury. Id. at 708(1), 374 S.E.2d 106. But here, Hughley had been continuously experiencing the effects of his condition when he was diagnosed by Dr. Rubin. In fact, his complaint alleges that the anal fistula existed before his first visit with Dr. Rubin. Therefore, any injury he may have sustained occurred at the time of the misdiagnosis.

Hughley also argues that the permanent incontinence occasioned by his subsequent surgery was a new injury. We first note that the surgery, and the allegedly resultant incontinence, was part of the course of treatment of his condition resulting from the alleged misdiagnosis and was not a new injury. See Surgery Assoc. v. Kearby, 199 Ga.App. 716, 718, 405 S.E.2d 723 (1991), citing Whitaker, supra; Stone v. Radiology Svcs., 206 Ga.App. 851, 852-853, 426 S.E.2d 663 (1992) (physical precedent only) (Whitaker not applicable because injury had manifested itself at time plaintiff examined by defendants). This case is also distinguished from Walker v. Melton, 227 Ga.App. 149, 489 S.E.2d 63 (1997), and Staples v. Bhatti, 220 Ga.App. 404, 469 S.E.2d 490 (1996), cited by Hughley. In Walker, manifestations of the plaintiff's injury subsided for a time after the misdiagnosis, so that the date of any "new injury" was impossible to determine. Id. at 150-151(1), 489 S.E.2d 63. Similarly, in Staple...