Stafford-Fox v. Jenkins, No. A06A1090.

• Decision Date: 01 December 2006
• Docket Number: No. A06A1091.,No. A06A1090.
• Parties: STAFFORD-FOX v. JENKINS et al. Jenkins et al. v. Stafford-Fox.
• Court: Georgia Court of Appeals

639 S.E.2d 610

STAFFORD-FOX v. JENKINS et al.

Jenkins et al. v. Stafford-Fox.

No. A06A1090.

No. A06A1091.

Court of Appeals of Georgia.

December 1, 2006.

Jonathan J. Wade, Webb & Lindsey, James H. Webb, Michele M. Bradley, Webb, Lindsey & Wade, Peachtree City, for Appellant.

Terrell W. Benton III, Jack G. Slover, Jr., David J. Lee, Hall, Booth, Smith & Slover, P.C., Atlanta, for Appellees.

JOHNSON, Presiding Judge.

These appeals concern a medical malpractice action alleging that an injury arose from the misdiagnosis of a vitamin B-12 deficiency — and a subsequent amendment to the complaint adding claims for ordinary negligence and breach of fiduciary duty — filed by Diane Stafford-Fox against Lonnie C. Jenkins, M.D. and his professional corporation, Lonnie C. Jenkins, M.D., P.C. In Case No. A06A1090, Stafford-Fox appeals from the portion of the trial court's order granting summary judgment in favor of Jenkins and the professional corporation on the ordinary negligence and breach of fiduciary duty claims. In Case No. A06A1091, Jenkins and the professional corporation cross-appeal, (a) from the portion of the trial court's order denying their motion seeking partial summary judgment on medical malpractice claims, and (b) from partial denial of their motion seeking summary judgment on the ordinary negligence claims.

1. In the cross-appeal in Case No. A06A1091, Jenkins and the professional corporation¹ contend that the trial court erred by denying their motion for partial summary judgment asserting that the two-year statute of limitation in OCGA § 9-3-71(a) had expired on the medical malpractice claims related to misdiagnosis.²

Stafford-Fox alleged in her complaint filed on May 1, 2002, that she sustained an injury which arose from the misdiagnosis of a vitamin B-12 deficiency. She alleged that when Jenkins treated her during a series of office visits beginning in January 1999, and ending on May 1, 2000, he negligently failed to diagnose that she was suffering from a B-12 deficiency, and that his failure to diagnose and treat the deficiency caused it to worsen and rendered her permanently disabled. Expert evidence showed that the B-12 deficiency at issue causes anemia, and that left untreated the deficiency progressively worsens and can become so severe that it causes neurological damage that is permanent and disabling. The record shows that Stafford-Fox exhibited symptoms consistent with a moderate untreated B-12 deficiency during the entire period of time she was seen by Jenkins in 1999 and 2000. Her symptoms included numbness and tingling in her fingertips, general itching, joint pain, and difficulty with her balance. Expert evidence showed that when Stafford-Fox was seen by Jenkins in May 2000, she was already displaying neurologic symptoms of a spinal cord condition know as subacute combined degeneration caused by the B-12 deficiency. Nevertheless, at that time, the deficiency was not severe, she had not suffered any irreversible neurological damage, and she could walk on her own. On May 15, 2000, Stafford-Fox underwent gall bladder surgery unrelated to the B-12 deficiency. Expert evidence showed that the stress of the surgery and the use of nitrous oxide anesthesia during the surgery accelerated and worsened the B-12 deficiency by depleting the moderately low B-12 level to a severely low level. As a result of the severe B-12 deficiency she experienced after the May 15, 2000 surgery, Stafford-Fox suffered permanent neurological damage that rendered her unable to walk without a cane, walker, or leg braces.

Stafford-Fox contends that the misdiagnosis left her with an untreated moderate B-12 deficiency, and that the subsequent surgery further depleted her B-12 level, so that the misdiagnosis and the surgery combined to cause a severe B-12 deficiency that rendered her permanently disabled. She contends that her complaint filed on May 1, 2002, was within the two-year limitation period of OCGA § 9-3-71(a) because she seeks to recover for an injury — the permanent disability — which arose from the misdiagnosis but did not occur and manifest itself to her until after the surgery she underwent on May 15, 2000.

In an order dated August 21, 2003, the trial court granted a motion for partial summary judgment on the misdiagnosis claims in favor of Jenkins and the professional corporation on the basis that Stafford-Fox failed to file her complaint within the two-year limitation period set forth in OCGA § 9-3-71(a). The trial court ruled that, because the evidence showed Stafford-Fox manifested symptoms of B-12 deficiency after the misdiagnosis, and no later than April 14, 2000, that was the date on which an injury arising from the misdiagnosis occurred and the two-year limitation period commenced to run. Accordingly, the trial court found that the limitation period expired before the complaint was filed on May 1, 2002.

Based on additional expert evidence produced in the case, Stafford-Fox subsequently filed a motion requesting that the trial court reconsider its August 21, 2003 ruling, and on October 6, 2004, the trial court entered an order granting the motion for reconsideration and finding that a factual issue existed as to whether the statute of limitation had expired on the misdiagnosis claims. As the basis for this ruling, the trial court found that, even though the evidence established that Stafford-Fox manifested symptoms of a moderate but treatable B-12 deficiency no later than April 14, 2000, other evidence showed that the deficiency did not become severe and cause permanent disability until after the May 15, 2000 surgery. The trial court found that a factual issue was presented as to whether the severe B-12 deficiency and resulting permanent disability was an injury which arose from but occurred subsequent to the misdiagnosis. Because the May 1, 2002 complaint was filed less than two years after Stafford-Fox manifested symptoms of the severe B-12 deficiency that caused permanent disability, the trial court vacated its earlier ruling that the two-year statute of limitation had expired.

At issue on these facts is when did the cause of action for medical malpractice accrue and when did the two-year limitation period in OCGA § 9-3-71(a) commence to run. Under OCGA § 9-3-71(a), medical malpractice actions must be brought "within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." This Court has consistently held that 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).³

In the present case, the record clearly shows that Stafford-Fox suffered an injury arising out of the misdiagnosis in January 1999, when she was first seen in Jenkins' office manifesting continuous symptoms of a moderate B-12 deficiency, and Jenkins failed to make the diagnosis and provide treatment.

The injury at the time of the misdiagnosis was that Stafford-Fox continued to suffer from an undiagnosed and untreated B-12 deficiency that continued to slowly progress and worsen. Clearly, Stafford-Fox's injury had occurred, and her cause of action had accrued, in 1999. The fact that she did not know the medical cause of these symptoms does not affect the applicability of OCGA § 9-3-71(a). In addition, the fact that these symptoms worsened and resulted in permanent disability does not lead to a different result, as the subsequent disability was directly related to the initial symptoms and misdiagnosis.⁴ The two-year statute of limitation in OCGA § 9-3-71(a) commenced to run on Stafford-Fox's medical malpractice action alleging misdiagnosis of her B-12 deficiency from the date of her injury in 1999 and expired prior to the date she filed her complaint on May 1, 2002. The trial court erred in denying the motion for partial summary judgment on the medical malpractice claims related to misdiagnosis.

The special concurrence discusses in great detail lines of cases in which this Court has recognized two principles related to the application of the statute of limitation in medical malpractice cases. It argues that the cases in which these two doctrines have been recognized and applied should be overruled. However, these principles, which have come to be referred to as the "discovery rule" and the "continuous treatment doctrine," are not in any way implicated in this case under the particular fact situation presented. Therefore, this case does not present the Court with an appropriate vehicle to address the concerns expressed in the special concurrence.

2. After alleging only professional negligence against Jenkins and the professional corporation in her original complaint, Stafford-Fox amended the complaint to add claims alleging simple negligence and breach of fiduciary duty. In Case No. A06A1090, Stafford-Fox contends the trial court erred by partially granting summary judgment in favor of Jenkins on these claims, and in Case No. A06A1091, Jenkins and the professional corporation contend the trial court erred by partially denying their motion for summary judgment on the same claims.

The amendment added Counts 3 and 4 to the complaint. Amended Count 3 alleged that Jenkins and the professional corporation, acting by and through various agents and employees, breached duties to exercise ordinary care to ensure that Jenkins was made aware of lab reports or other documents that could have enabled him to diagnose Stafford-Fox's B-12 deficiency, and that, as a result, Stafford-Fox was not promptly diagnosed and treated for the B-12 deficiency. Amended Count 4...