Williams v. DEVELL R. YOUNG

• Citation: 543 S.E.2d 737,247 Ga. App. 337
• Decision Date: 01 December 2000
• Docket Number: No. A00A1393.,A00A1393.
• Court: United States Court of Appeals (Georgia)
• Parties: WILLIAMS v. DEVELL R. YOUNG, M.D., P.C. et al.

543 S.E.2d 737

247 Ga. App. 337

WILLIAMS v. DEVELL R. YOUNG, M.D., P.C. et al.

No. A00A1393.

Court of Appeals of Georgia.

December 1, 2000.

Reconsideration Denied December 14, 2000.

Greer, Klosik, Daugherty & Swank, Frank J. Klosik, Jr., Robert J. McCune, Atlanta, Jason R. Manton, for appellant.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, Albany, Charles K. Wainright II, for appellees.

POPE, Presiding Judge.

In this medical malpractice action, the trial court granted summary judgment to defendants Devell R. Young, M.D., and Devell R. Young, M.D., P.C., on the ground that the statute of limitation had expired before plaintiff Margaret Williams filed her lawsuit. Williams appeals. For reasons stated below, we have decided to adopt the "continuous treatment" doctrine with respect to our statute of limitation for appropriate medical malpractice actions. Following the newly adopted "continuous treatment" doctrine, we conclude that there was a factual issue regarding the statute of limitation on Williams' lawsuit, and we reverse the decision of the trial court.¹

Viewed most favorably to Williams, the evidence shows that Williams first sought treatment from Dr. Young on September 29, 1995, complaining of swelling and pain in her left ankle and foot. Williams reported that she was a diabetic and also complained of proteinuria (presence of protein in urine), elevated blood glucose and retinopathy (vision problem associated with diabetes). Dr. Young did not observe any swelling in Williams' foot, although he testified that the absence of swelling at any given moment was not unusual, because proteinuria was a condition which could show evidence of swelling one day, then none the next. Williams went to see Dr. Young repeatedly between September 29, 1995, and September 30, 1996, with complaints about her left foot and leg. Dr. Young treated her with antibiotics and with various medications for diabetes.

At some point in January 1996, Williams told Dr. Young that the pain had increased in her foot. She claimed that she told Dr. Young that she started having additional pain after she took an awkward step in December 1995. Williams went to Dr. Young's office repeatedly between March and June 1996, complaining of continuing problems with her left foot, including severe swelling which expanded at times to her groin area.

In June 1996, Dr. Young prescribed a lymph edema foot pump. Williams did not experience relief by using the pump. At a September 30, 1996 appointment, Williams asked again about her foot. Dr. Young replied: "[t]hat is just lymph edema. That is just a condition you have to live with." He told Williams to return for an office visit in January, 1997. The next day, October 1, 1996, Williams contacted another physician, Dr. Daniel Rhoads, and made an appointment to see him on November 4, 1996.

On November 4, 1996, Dr. Rhoads x-rayed Williams' foot and ankle and diagnosed a dislocation of her talonavicular joint. After leaving Dr. Rhoads' office, Williams called Dr. Young's office, but she did not speak to him. Later, Williams called again to inform Dr. Young of Dr. Rhoads' diagnosis—that she had three dislocated bones in her foot. Williams testified that Dr. Young said that he did not believe the diagnosis.

On December 10, 1996, Dr. Rhoads performed surgery on Williams' foot to repair the dislocated bones. During Williams' subsequent hospitalization, Dr. Young saw her in consultation for her diabetes. As of January 1998, Dr. Rhoads opined that the long-term prognosis for Williams' foot was not good.

On October 28, 1998, Williams filed the instant action, alleging that Dr. Young committed malpractice when he failed to diagnose the dislocated bones in her foot. Williams' complaint also set forth various other claims, including that Dr. Young failed to properly educate her about her diabetic condition; that he failed to obtain a necessary EKG on her and that he failed to properly document his treatment of her. Defendants filed a motion for summary judgment, arguing that Williams' action was barred by the two-year statute of limitation, OCGA § 9-3-71(a). The trial court granted summary judgment for the defendants.

In her sole enumeration of error, Williams argues that the trial court erred in granting the motion. She argues that the telephone consultations with Dr. Young and his continued course of treatment of her extended beyond October 28, 1996, and that therefore her complaint was timely filed. We agree that summary judgment was improper, and we reverse.

OCGA § 9-3-71(a) provides that "an action for medical malpractice shall 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 statute, enacted in 1985, changed earlier law by beginning the running of the statute of limitation on the date the injury "occurred" rather than on the date of the negligent act. Jones v. Lamon, 206 Ga. App. 842, 845(1), 426 S.E.2d 657 (1992). This change was in accord with general tort law which holds that the tort of negligence is not complete until an injury occurs. Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984).

Lawsuits alleging negligence by misdiagnosis come in two varieties, ones in which the symptoms of the injury, usually pain, exist before the misdiagnosis and those in which the symptoms manifest themselves to the patient days or even years after the mistaken, and allegedly negligent, misdiagnosis. Compare Charter Peachford Behavioral Health System v. Kohout, 233 Ga.App. 452, 504 S.E.2d 514 (1998) (physical precedent); Frankel v. Clark, 213 Ga.App. 222, 444 S.E.2d 147 (1994); Surgery Assoc. v. Kearby, 199 Ga.App. 716, 405 S.E.2d 723 (1991); with Walker v. Melton, 227 Ga.App. 149, 150(1)(b), 489 S.E.2d 63 (1997); Staples v. Bhatti, 220 Ga.App. 404(1), 469 S.E.2d 490 (1996); Zechmann v. Thigpen, 210 Ga.App. 726, 728(3), 437 S.E.2d 475 (1993).

"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." (Citations and punctuation omitted.) Walker v. Melton, 227 Ga.App. at 150(1)(b), 489 S.E.2d 63. See also Daughtry v. Cohen, 187 Ga.App. 253(1), 370 S.E.2d 18 (1988). Nevertheless, "[t]his is not always the case." Walker v. Melton, 227 Ga.App. at 150, 489 S.E.2d 63. Thus:

[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. See Zechmann, [210 Ga.App.] at 729; see generally Staples, [220 Ga.App.] at 405-406(1). See also Whitaker [v. Zirkle, 188 Ga.App. 706, 708(1), 374 S.E.2d 106 (1988)]: "When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered."

Walker v. Melton, 227 Ga.App. at 151, 489 S.E.2d 63. See, e.g., Ford v. Dove, 218 Ga. App. 828, 463 S.E.2d 351 (1995), overruled in part on other grounds, Ezor v. Thompson, 241 Ga.App. 275, 526 S.E.2d 609 (1999), aff'd, Thompson v. Ezor, 272 Ga. 849, 536 S.E.2d 749 (2000); Crawford v. Spencer, 217 Ga.App. 446, 447(3), 457 S.E.2d 711 (1995); Knight v. Sturm, 212 Ga.App. 391(1), 442 S.E.2d 255 (1994). The rule that the injury "occurs" when its symptoms manifest themselves to the patient applies even if the patient is not aware of either the cause of the pain or of the connection between the symptoms and the negligent act or omission. Henry v. Med. Center, 216 Ga.App. 893, 894(2), 456 S.E.2d 216 (1995); Bryant v. Crider, 209 Ga.App. 623(3), 434 S.E.2d 161 (1993); Jones v. Lamon, 206 Ga.App. at 846, 426 S.E.2d 657.

A harsh result can occur when the symptoms manifest themselves at or before misdiagnosis, but the patient is not aware until sometime later that the diagnosis was erroneous.² That is the situation in this case in which the symptoms—pain and swelling in Williams' leg—manifested themselves before Dr. Young made his diagnosis of lymph edema. The record is clear that the symptoms existed in September 1995, the date of Williams' first visit to Dr. Young for foot discomfort. If we were to interpret the alleged malpractice as "occurring" when the symptoms manifested themselves to Williams, the statute of limitation would have expired before her complaint was filed on October 28, 1998. Similarly, if we use the first date of Dr. Young's alleged misdiagnosis of Williams' condition, again September 1995, as the date on which the statute began running, the statute of limitation expired before she filed suit.

Yet there is evidence that Williams continued under Dr. Young's care until at least November 1996, when in a telephone conversation Dr. Young explicitly rejected Dr. Rhoads' diagnosis of her foot. And there is expert evidence in the record that these telephone consultations were part of Dr. Young's medical treatment of Williams.

Williams urges us to read the statute of limitations expansively by holding that the alleged negligence continues, for purposes of calculating the running of the statute, as long as the plaintiff remains in "continuous treatment." Although in the past this court has declined to adopt this doctrine, see Ford v. Dove, 218 Ga.App. at 828, 463 S.E.2d 351; Crawford v. Spencer, 217 Ga.App. at 449, 457 S.E.2d 711; we conclude that the better course is to adopt the doctrine in appropriate medical malpractice cases alleging misdiagnosis.

The continuing treatment doctrine provides:

If the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuous treatment and care, the statute does not

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