Tarver v. Sigouin

• Decision Date: 29 June 2021
• Docket Number: A21A0476
• Citation: 360 Ga.App. 627,860 S.E.2d 179
• Court: Georgia Court of Appeals
• Parties: TARVER et al. v. SIGOUIN et al.

360 Ga.App. 627

860 S.E.2d 179

TARVER et al.

v.SIGOUIN et al.

A21A0476

Court of Appeals of Georgia.

June 29, 2021

Reconsideration Denied July 13, 2021

Certiorari Denied January 11, 2022

Steel & Moss, John D. Steel, for Appellants.

Huff Powell Bailey, Michael Scott Bailey, Sharonda Helen Boyce, Max M. Wallace II, David Donald Mackenzie, Atlanta, for Appellee.

Doyle, Presiding Judge.

In this medical malpractice/wrongful death action, plaintiffRonnetta Tarver, as guardian and representative of two minor children and as administratrix of the estate of Patricia Tarver,¹ appeals from a superior court order granting summary judgment to defendantsAnne Sigouin, CNM, and Life Cycle OB/GYN LLC.Tarver contends that the trial court erred because (1) issues of fact remain as to the medical malpractice claim, and the two-year statute of limitation did not bar her medical malpractice claim under the "new injury" exception, and (2) the wrongful death count was timely filed, supported by the record, and not challenged at summary judgment.For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.²

So viewed, the record shows that on September 11, 2014, Patricia Tarver visited Atlanta Medical Center seeking treatment for vaginal bleeding aggravated by intercourse.She informed the medical staff that, "My period [has been] acting up – I'm late, but I don't think I'm pregnant ... I had an abnormal Pap smear [and pain] that felt like cramps but it [isn't] cramps."She was diagnosed with "dysfunctional uterine bleeding" and instructed to see a private physician within a few days.

Patricia scheduled a Pap smear at Life Cycle on September 22, 2014, but she cancelled that appointment, instead going on November 7, 2014.She was seen by Dr. Kevin Edmonds for "abnormal uterine bleeding."Because Patricia was bleeding at the appointment, Edmonds did not perform an exam or Pap smear ; instead he ordered a pelvic ultrasound and instructed Patricia to return in a week.

As part of the process of booking Patricia's appointment with Edmonds, Life Cycle had requested her medical records from Atlanta Medical Center, which faxed the record to Life Cycle shortly before Edmonds saw Patricia.Edmonds was not aware of the records at the time he saw Patricia, nor did he later consult the records, but the exam report from Atlanta Medical Center indicated that Patricia had disclosed the prior abnormal Pap smear at Atlanta Medical Center.

Six days after seeing Edmonds, Patricia returned to Life Cycle for the ultrasound on November 13, 2014.The ultrasound report stated that the indication was "long periods," the assessment revealed "bilateral ovaries with immature follicles," and the recommendation was "either follicular phase of cycle or PCOS; clinical correlation needed."Patricia later deposed that "the tech told me that I had too many eggs, and that's why I was bleeding.And they put me on birth control."

At the same visit, Patricia was examined by Sigouin, a certified nurse midwife.Patricia asked Sigouin about a white vaginal discharge she experienced, and she discussed questions about her anxiety and asthma inhaler.Sigouin performed a physical exam, examined the discharge under a microscope, and diagnosed Patricia with bacterial vaginitis ; she also documented that Patricia's cervix appeared normal with no bleeding, and she did not perform a Pap smear due to the discharge.Sigouin later deposed that she was not aware of Patricia's history of abnormal uterine bleeding, and she approached the visit as a "problem focused visit," as opposed to "an annual exam where you'd normally do a Pap smear."At that time, she did not review Patricia's records showing the bleeding history, the reported abnormal Pap smear, and the Pap smear that was scheduled for September 22 but not performed at the November 7 visit to Life Cycle.

Sigouin asked Patricia to return to Life Cycle in four weeks for a follow-up visit to review the ultrasound findings.Patricia did not return for that appointment, and she either cancelled or failed to attend appointments throughout 2015 and 2016 until November 30, 2016.At that visit, she complained of newly occurring pelvic pain and abnormal bleeding.She was examined and another ultrasound was ordered; no Pap smear was performed.

Patricia continued to experience intermittent abnormal uterine bleeding, but she did not follow up for examination or treatment at Life Cycle.By the summer of 2017, Patricia had moved to Tennessee, where she sought treatment for "right flank pain" at Blount Memorial Hospital.She was diagnosed with "acute uncomplicated cystitis."

In August and September 2017, Patricia sought care at Blount Memorial Hospital for abdominal pain and dysmenorrhea.On September 4, 2017, an ultrasound revealed a "suspicious uterine mass ... what certainly may be a uterine cancer."Patricia's bleeding was treated successfully at that visit, and she attended follow-up visits through November 2, 2017, when she was diagnosed with stage four cervical cancer and began chemotherapy.By that time, the cancer had spread to Patricia's lymph nodes and bones.She ultimately died of complications from the metastasized cancer on February 14, 2019.

Before she died, Patricia filed this action on June 22, 2018, against Debra Johnson-Jordan, D.O., Dr. Edmonds, Nurse Midwife Sigouin, and Life Cycle.The complaint asserted professional negligence claims based on the failure to conduct a Pap smear or other cervical cancer screening during the two November 2014 visits to Life Cycle.³It did not allege negligence at the November 2016 visit to Life Cycle.On July 24, 2019, Ronnetta Tarver, as guardian and representative of Patricia's minor children and as administratrix of Patricia's estate, amended Patricia's complaint to substitute herself as the plaintiff and add a wrongful death claim.

Following discovery, Sigouin and Life Cycle moved for summary judgment on the ground that the claims were barred by the two-year statute of limitation.⁴At oral argument, the defendants clarified that their statute of limitation argument went to the personal injury claim, not the wrongful death claim.Specifically, they argued that Patricia had never actually been diagnosed or mis-diagnosed in the November 2014 visits, so there could be no "new injury" arising from that alleged misconduct.In response, Patricia argued that the subsequent metastasis of the undiscovered cancer was a new injury that extended the statute of limitation, relying in part on Cleaveland v. Gannon ,⁵ a cancer-patient case stating that a new injury occurs "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."⁶She also pointed to expert testimony stating that it was a violation of the standard of care not to perform a Pap smear or other cancer screening at the November 2014 visits to Life Cycle, and this allowed the cancer to metastasize unabated.

Following the hearing, the trial court granted summary judgment to Life Cycle and Sigouin as to both claims.In its order, the trial court held that Edmonds and Sigouin had never made any diagnosis of Patricia, so she could not establish a "new injury" resulting from the November 2014 visits and extending the statute of limitation.Based on that ruling, the court likewise held that "the wrongful death claim is based on the allegation of medical malpractice, and the [c]ourt has ruled that there was no medical malpractice supported by the record in this case.

Therefore, the wrongful death claim is also subject to summary judgment in favor of" Sigouin and Life Cycle.Patricia now appeals.

1.Patricia argues that the trial court erred by ruling that the "new injury" exception did not apply to this case on the ground that the record lacks any evidence of a misdiagnosis or failure to diagnose that would support a finding of medical malpractice.We agree.

The trial court's order is predicated on its conclusion that "the record does not support a finding that there was a misdiagnosis, nor a failure to diagnose, Ms. Tarver's cervical cancer by these Defendants."The trial court explicitly ruled that "[t]here is simply no evidence in the record ... that a [P]ap smear on that appointment or [a] follow-up appointment ... would have shown the presence of cervical cancer."Based on this, the court ruled that there could be no new injury arising from the November 2014 visits that extended the statute of limitation.

As a threshold matter, we emphasize that at the summary judgment stage, "we do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution."⁷Similarly, ordinary questions of negligence and causation are "peculiarly questions for the jury except in clear, plain, palpable[,] and undisputed cases."⁸

(a)Evidence of breach of the standard of care by Edmonds.⁹

When viewed under the summary judgment standard, the record contains evidence that would support a finding that the standard of care was breached in each of the November 2014 visits.With respect to Edmonds, there is deposition testimony from Patricia's medical expert that he should have done a speculum exam on the November 7, 2014 visit, and a Pap smear procedure at that visit was "highly likely" to have returned an abnormal result.Further, there was testimony that Edmonds should have reviewed or requested Patricia's medical records showing that she had an abnormal Pap smear result in the past.

In addition to this, there was testimony that given...