Schramm v. Lyon
| Citation | 673 S.E.2d 241,285 Ga. 72 |
| Decision Date | 23 February 2009 |
| Docket Number | No. S08G1418.,No. S08G1391.,S08G1391.,S08G1418. |
| Parties | SCHRAMM et al. v. LYON et al. (two cases). |
| Court | Georgia Supreme Court |
Greenberg Traurig, Lori G. Cohen, Thomas J. Mazziotti, John B. Merchant III, Michael J. King, Peters & Monyak, Jonathan C. Peters, Jeffrey S. Bazinet, Atlanta, for appellants.
Ragland & Jones, Daniel A. Ragland, Henry, Spiegel, Fried & Milling, Philip C. Henry, Harvey R. Spiegel, Wendy G. Huray, Atlanta, for appellees.
Brinson, Askew, Berry, Seigler & Richardson, Robert L. Berry, Jr., Norman S. Fletcher, Ansel F. Beacham III, Rome, Pope & Howard, J. Marcus Edward Howard, Warshauer, Poe & Thornton, Lyle G. Warshauer, Atlanta, amici curiae.
In 1982, Betty Lyon had her spleen removed as a result of injuries she received in an automobile accident. In September 2004, Lyon developed overwhelming post-splenectomy infection (OPSI), a condition which resulted in significant physical injuries, including the amputation of parts of her arms and legs.
Lyon filed a medical malpractice action on August 29, 2006, against eight physicians and their practices who had treated her in the five years prior to the filing of the action. The complaint as subsequently amended alleged that each doctor failed to advise and warn her about the risk of developing OPSI, failed to inform her of preventative measures she should have taken to reduce the risk of developing OPSI, and failed to prescribe appropriate medications and vaccinations which would have prevented infections that can lead to OPSI.
Three defendants, Doctors Schramm, Barnes and Sharon, each of whom Lyon had first seen prior to August 29, 2001, moved to dismiss the claims against them on the basis of the statute of repose, OCGA § 9-3-71(b), which provides 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." The trial court granted the motion, holding that the statute of repose began to run from the date the doctors first provided medical care to Lyon regardless of whether they committed subsequent negligent acts. The Court of Appeals reversed, Lyon v. Schramm, 291 Ga.App. 48, 661 S.E.2d 178 (2008), and this Court granted certiorari to the Court of Appeals to consider whether the relevant claims were barred by the five-year statute of repose. For the reasons that follow, we find the claims are not barred by the statute of repose and we affirm.
1. Under Georgia law, an action for medical malpractice must be brought within five years from the date on which the negligent or wrongful act or omission occurred. OCGA § 9-3-71(b). Unlike cases involving the medical malpractice statute of limitation, see OCGA § 9-3-71 (a), our focus in this case is on the date or dates on which appellants may have committed acts of professional negligence.1 The test for determining when OCGA § 9-3-71(b)'s period of repose begins is based on the determination of when the negligent act causing the injury occurred.
In this case, the complaint alleges and Lyon's experts aver that within the five-year period prior to the filing of the complaint appellants committed separate acts of professional negligence by failing to warn, treat, and advise Lyon when she presented for the treatment of new medical conditions not related to the condition for which she first sought treatment. Accordingly, we agree with the Court of Appeals that the complaint alleges appellants committed subsequent negligent acts causing new injuries which are subject to separate periods of repose.2 See Lyon, supra, 291 Ga.App. at 50, 661 S.E.2d 178. See also Eyzaguirre v. Baker, 260 Ga. App. 53(1), 579 S.E.2d 47 (2003); Oliver v. Sutton, 246 Ga.App. 436, 540 S.E.2d 645 (2000); Allen v. Belinfante, 217 Ga.App. 754(3), 458 S.E.2d 867 (1995).
Appellants argue that the statute of repose commenced to run on the date they each first treated Lyon, that any subsequent negligent acts were part of their continuing treatment of Lyon, and therefore, her claims are barred by the five-year statute of repose. We find, and appellants have offered, no legal authority or justification for barring Lyon's claims solely because appellants may also have been negligent at an earlier time. Although chronologically appellants' initial consultation with Lyon may have constituted their first negligent act or omission, OCGA § 9-3-71 (b) does not provide that the period of repose commences on the date of the first "negligent ... act or omission." It provides that the period commences on the date the negligent act or omission occurs, thus establishing the negligent act as the trigger for commencement of the period of repose without purporting to limit the number of separate negligent acts which may act as a trigger. As this Court has recognized, multiple breaches of the standard of care may constitute new and separate instances of professional negligence and more than one negligent act may contribute to a plaintiff's injury. Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691 (2007). Appellants' argument ignores both these maxims and the allegations of Lyon's complaint specifying that within the five-year period prior to filing her complaint she consulted with appellants for the treatment of new medical conditions and that during the same time period recommended medical protocols for treating post-splenectomy patients had changed. Based on these allegations, the complaint cannot properly be characterized as...
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