Ward v. Bergen

• Decision Date: 19 January 2006
• Docket Number: No. A05A1688.,A05A1688.
• Citation: 626 S.E.2d 224,277 Ga. App. 256
• Parties: WARD et al. v. BERGEN et al.
• Court: Georgia Court of Appeals

277 Ga. App. 256

626 S.E.2d 224

WARD et al. v. BERGEN et al.

No. A05A1688.

Court of Appeals of Georgia.

January 19, 2006.

Bird & Mabrey, William Q. Bird, John G. Mabrey, Carla R. Johnson, Bondurant, Mixson & Elmore, Michael B. Terry, Frank M. Lowrey IV, Atlanta, for appellants.

Love, Willingham, Peters, Gilleland & Monyak, Robert P. Monyak, Atlanta, Stacey A. Carroll, Brunswick, R. Keith Whitesides, Atlanta, for appellees.

ELLINGTON, Judge.

Anne and William Ward, plaintiffs in the court below, appeal from the grant of summary judgment to William S. Bergen, M.D., and Eagle's Landing Surgery, P.C., in this medical malpractice case. The Wards contend the trial court erred by construing the evidence against them and misapplying the law when it determined that the cause of action was barred by the two-year statute of limitation. We agree and reverse the grant of summary judgment.

Summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). Our review of a grant of summary judgment is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation omitted.) Walker v. Melton, 227 Ga.App. 149, 489 S.E.2d 63 (1997).

So viewed, the record shows that Mrs. Ward had a routine mammogram in 1998. The mammogram indicated that there were some abnormalities in one of her breasts, and her physician referred her to Dr. Bergen, who performed a surgical biopsy. The pathology report showed that Mrs. Ward had low-grade, intraductal carcinoma in situ ("DCIS"), localized precancerous growths in the milk ducts of the breast. According to Mrs. Ward, however, Dr. Bergen failed to tell her of this diagnosis and, in fact, never said the word "carcinoma" or used the term "DCIS." Instead, Dr. Bergen informed Mrs. Ward that she had abnormal calcifications in her breast that were benign but might increase her risk of developing breast cancer later in life. Dr. Bergen did not suggest any further treatment, but only recommended that Mrs. Ward get regular mammograms in the future.

Shortly thereafter, Mrs. Ward moved to New York and began seeing a different physician. Mrs. Ward had a mammogram in 1999 which showed the same abnormalities as in the 1998 mammogram. Mrs. Ward told the radiologist that she had had a biopsy and that she had been told the abnormalities were benign. Because there had been no change in the mammograms, the radiologist told Mrs. Ward that her mammogram was "okay." Another mammogram in 2000 yielded similar results, showing no changes from the two previous mammograms. Based upon Dr. Bergen's characterization of the abnormalities as benign, Mrs. Ward and her physicians took no additional action to biopsy or treat the abnormalities following the 1999 or 2000 mammograms. According to Mrs. Ward, she did not notice any changes during her regular breast self-examinations from 1998 through August 2002, she did not have any pain or other physical symptoms that indicated a problem was developing in her breast, and her physicians did not detect any different abnormalities during their examinations.

In August 2002, another routine mammogram showed changes in Mrs. Ward's breast tissue. A physician performed a biopsy in November 2002, which revealed that Mrs. Ward had developed invasive breast cancer that had metastasized to her lymph nodes. As a result, Mrs. Ward had a mastectomy, chemotherapy, and radiation therapy.

In July 2003, the Wards sued Dr. Bergen and his medical practice, Eagle's Landing Surgery, P.C. (collectively, "Dr. Bergen") for medical malpractice.¹ In their complaint, the Wards claim Dr. Bergen failed to communicate to Mrs. Ward an accurate diagnosis and to recommend proper treatment for the DCIS. They claim that proper treatment, such as complete surgical removal of the growths or radiation therapy, would have eliminated the DCIS. The Wards also contend that, as a result of Dr. Bergen's failure to recommend proper treatment for the DCIS, Mrs. Ward developed an invasive, metastasized cancer of the breast and lymph nodes and that she now has a 30 percent chance of dying from breast cancer. According to the Wards, the alleged injury in this case is not the DCIS, but the invasive cancer that developed later as a result of the untreated DCIS. Dr. Bergen filed a motion for summary judgment, claiming the two-year statute of limitation barred the Wards' claims.

The trial court granted the motion for summary judgment, finding the limitations period began in 1998, when Dr. Bergen failed to tell Mrs. Ward that she had DCIS and failed to recommend appropriate treatment. The court also found that Mrs. Ward "remained symptomatic following her misdiagnosis and mistreatment," referring to her 1999 mammogram which showed the same abnormalities as the 1998 mammogram. Because the Wards did not sue Dr. Bergen until 2003, the trial court found the two-year statute of limitation barred their claims.

On appeal, the Wards contend that the trial court failed to construe the record in a light most favorable to them, as the nonmovants, when deciding Dr. Bergen's motion for summary judgment and that the trial court improperly made findings on disputed issues of fact when it concluded that the two-year statute of limitation had expired.² They rely on Georgia cases which provide that, when a health professional misdiagnosis or improperly treats a problem, and that problem later develops into a new and different medical condition, the statute of limitation period does not begin to run until the patient experiences symptoms of the new condition. Based upon our review of this case, we agree with the Wards' argument and reverse the trial court's grant of summary judgment to Dr. Bergen.

Under OCGA § 9-3-71(a), a plaintiff must file a medical malpractice action "within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." Generally, in malpractice cases involving a misdiagnosis that resulted in a failure to properly treat a condition, the "injury" referred to in OCGA § 9-3-71(a) occurs at the time of the misdiagnosis. Whitaker v. Zirkle, 188 Ga. App. 706, 707(1), 374 S.E.2d 106 (1988). This is because the patient usually continues to experience pain, suffering, or economic loss from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. Id. Under these circumstances, "the misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis." (Citation omitted.) Id. Therefore, the limitation period usually runs from the date of the misdiagnosis. Brown v. Coast Dental of Ga., 275 Ga.App. 761, 766(1), 622 S.E.2d 34 (2005).

Georgia's appellate courts, however, have carved out a "limited exception" in cases where a misdiagnosis and failure to provide proper treatment results in the development of a new and different injury than that which existed at the time of the misdiagnosis. Brown v. Coast Dental of Ga., 275 Ga.App. at 766(1), 622 S.E.2d 34. In those cases, "the focus of OCGA § 9-3-71(a) is not [on] the date of the negligent act but the consequence of the defendant's acts on the plaintiff. The result is that when an injury occurs subsequent to the date of [the] medical treatment, the statute of limitation commences from the date the injury is discovered." (Citations and punctuation omitted.) Sidlow v. Lewis, 271 Ga.App. 112, 116(2), 608 S.E.2d 703 (2004). Further, "[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." (Citations omitted.) Walker v. Melton, 227 Ga.App. at 151(1)(b), 489 S.E.2d 63.

This Court has previously applied this "limited exception" to cases involving the subsequent metastasis of an existing cancerous condition, most notably in Whitaker v. Zirkle, 188 Ga.App. at 707-708(1), 374 S.E.2d 106. In Whitaker, the defendant physician allegedly failed to properly diagnose and treat a patient's cancerous mole. Id. at 706, 374 S.E.2d 106. The patient experienced no new symptoms for seven years after the misdiagnosis, but then was diagnosed with metastatic cancer after developing nodules and bruises. Id. The patient sued the physician claiming that her injury was the metastatic cancer and that the metastasis would not have occurred if the cancerous mole had been properly diagnosed and treated at the time of the original biopsy. Id. at 707(1), 374 S.E.2d 106. The physician moved for summary judgment, contending the statute of limitation barred the claim. Id. In affirming the denial of summary judgment to the physician, this Court recognized that

[t]he injury complained of is the subsequent metastasis of cancerous cells which remained at the site where the mole was removed. The subsequent metastasis allegedly would not have occurred if the cancer had been properly diagnosed and treated at the time of the original biopsy. When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered.

(Citation omitted.) Id. at 708(1), 374 S.E.2d 106. The Court held that, because the plaintiff experienced no symptoms indicating that the cancer had metastasized, there was a jury issue as to when the metastasis occurred. Id. Therefore, the trial court properly refused to find, as a matter of law, that the statute of limitation barred the plaintiff's claim. Id.

This Court subsequently found that the Whitaker exception applied to facts that were remarkably similar to the instant case. In Staples v. Bhatti, 220 Ga.App. 404, 405, 469 S.E.2d 490 (1996), a physician's office failed to notify a patient that her mammogram indicated the possibility of cancer. Three years later, the patient discovered a...