Whitaker v. Zirkle

• Decision Date: 20 September 1988
• Docket Number: 76821,Nos. 76820,s. 76820
• Citation: 374 S.E.2d 106,188 Ga.App. 706
• Parties: WHITAKER et al. v. ZIRKLE et al.
• Court: Georgia Court of Appeals

Page 106

374 S.E.2d 106

188 Ga.App. 706

WHITAKER et al. v. ZIRKLE et al.

Nos. 76820, 76821.

Court of Appeals of Georgia.

Sept. 20, 1988.

Rehearing Denied Oct. 6, 1988.

Certiorari Denied Nov. 23, 1988.

Lynn A. Downey, Russell B. Davis, Marietta, for appellants.

Terrence J. Paulk, John T. Croley, Jr., Fitzgerald, for appellees.

POPE, Judge.

In May 1978, Sarah E. Zirkle became suspicious of a mole on her back and visited her physician to have it removed and analyzed. The tissue was examined by Dr. James Q. Whitaker, a pathologist, who diagnosed it to be non-malignant. In reliance upon the favorable diagnosis, Mrs. Zirkle sought no further treatment. The record shows Mrs. Zirkle remained free of any cancer symptoms until May or June of 1985 when she noticed bruises and nodules on her body. A biopsy of tissue from the affected area revealed metastatic cancer. A re-examination of the tissue sample taken in 1978 revealed the presence of malignant melanoma cancer cells. Mrs. Zirkle's treating physician diagnosed her condition as metastatic melanoma originating from the site of the mole removed in 1978. Mrs. Zirkle underwent treatment for the cancer but eventually died.

On May 7, 1986, within one year from the diagnosis of cancer, Mrs. Zirkle and her husband, Raymond Zirkle, filed separate actions for alleged medical malpractice against Dr. Whitaker, the professional association of which he is a member, the Hospital Authority of Houston County and The Medical Center of Houston County. After Mrs. Zirkle's death her complaint was amended to substitute as plaintiff Raymond Zirkle, individually and as Executor of the Estate of Sarah E. Zirkle. Mr. Zirkle's separate complaint, which originally alleged loss of consortium, was amended to add a claim for wrongful death. All defendants jointly filed a motion for summary judgment in the action brought on behalf of the estate (Case No. 76821) on the ground the claim for the decedent's pain and suffering was barred by the applicable statute of limitation. An identical motion for partial summary judgment was filed in the action brought by Raymond Zirkle (Case No. 76820) in regard to the claim for loss of consortium. Defendants did not assert a statute of limitation defense to that action's claim for wrongful death. The Medical Center of Houston County (hereinafter "Hospital") filed a motion for summary judgment in both actions contending it was not liable for the acts or omissions of Dr. Whitaker because he was not an agent or employee of the Hospital. All motions were denied and defendants brought these appeals, which were consolidated for consideration.

1. At the time Mrs. Zirkle's cancer was diagnosed, Georgia law permitted a patient to bring a medical malpractice claim within two years from the date of the injury caused by an alleged negligent act. See Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984). Subsequently, the applicable period of limitation was changed by the legislature to include a period of ultimate respose for medical malpractice claims beyond which no action may be brought. Pursuant to OCGA § 9-3-71(b), no action for medical malpractice may be brought after five years from the date of the alleged negligent act even if the injury arising from that act did not occur within five years. However, in the non-codified Section 3 of the 1985 Act amending the applicable statute of limitation, the legislature provided a grace period for existing actions which would otherwise be cut off by the statute in order to save it from the prohibition against retrospective application. "No action for medical malpractice which, prior to July, 1985, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act. No action for medical malpractice which would be barred before July 1, 1986, by the provisions of this Act but which would not be so barred by the provisions of Title 9 in force immediately prior to July 1, 1985, shall be barred until July 1, 1986." Ga.L.1985, pp. 556, 557 § 3. Thus, the plaintiffs involved in these appeals would be permitted to bring an action for medical malpractice until July 1, 1986, provided their claim was not already barred by the previous law. See Hill v. Fordham, 186 Ga.App. 354(2), 367 S.E.2d 128 (1988).

The critical issue is when did Mrs. Zirkle's injury occur. 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. See Edmonds v. Bates, 178 Ga.App. 69, 342 S.E.2d 476 (1986). The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. See Daughtry v. Cohen, 187 Ga.App. 253(1), 370 S.E.2d 18 (1988). However, in this case the plaintiff suffered no further symptoms of cancer until shortly before cancer was properly diagnosed in 1985, some seven years after the initial misdiagnosis. Plaintiffs do not allege the misdiagnosis caused Mrs. Zirkle to have cancer; the basis of plaintiffs' claims is that she had cancer all along. The 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...