Zechmann v. Thigpen

• Decision Date: 14 October 1993
• Docket Number: No. A93A0886,A93A0886
• Citation: Zechmann v. Thigpen, 437 S.E.2d 475, 210 Ga.App. 726 (Ga. App. 1993)
• Parties: ZECHMANN v. THIGPEN et al.
• Court: Georgia Court of Appeals

Page 475

437 S.E.2d 475

210 Ga.App. 726

ZECHMANN v. THIGPEN et al.

No. A93A0886.

Court of Appeals of Georgia.

Oct. 14, 1993.

Reconsideration Denied Nov. 3, 1993.

Certiorari Denied Jan. 21, 1994.

Dillard, Bower & East, Terry A. Dillard, Bryant H. Bower, Jr., Waycross, for appellant.

Hallman & Associates, Ronald W. Hallman, Clayton, Sutton & Associates, Berrien L. Sutton, Homerville, for appellees.

BEASLEY, Presiding Judge.

Defendant optometrist Zechmann was granted interlocutory appeal from the denial of his motion for summary judgment in this professional negligence suit brought by plaintiffs Mr. and Mrs. Thigpen, individually and as parents and next friends of their minor daughter, Rachel. The issues are whether the statute setting limitation and repose for medical malpractice actions involving a minor, OCGA § 9-3-73, is applicable and whether it is a bar to suit.

The evidence construed favorably for the non-movant plaintiffs when conflicting, together with the undisputed facts, showed the following. Rachel, born July 6, 1980, was examined by Zechmann during three office visits, on April 23, 1985, June 3, 1985, and January 29, 1986. Mrs. Thigpen took Rachel for the initial visit within a week after noticing that Rachel's left eye was "dragging." At that first visit, Zechmann informed Mrs. Thigpen that Rachel had a "lazy eye," i.e., amblyopia, and recommended putting a patch over the child's good right eye for an hour a day in order to force the use of the problem eye. The patching did not work and it became obvious to Mrs. Thigpen that Rachel could not see out of her left eye. At the next visit, Zechmann prescribed eyeglasses. On the third and last office visit on January 29, 1986, Zechmann informed the mother that the blood vessels in the back of Rachel's left eye had not developed because she had been a premature baby, that there was nothing that could be done about it, and that the child would be blind in that eye for the rest of her life. Zechmann noted on Rachel's chart, "congenital nerve defect or optic nerve disease." Zechmann did not tell Mrs. Thigpen that optic nerve disease was the other possible cause of Rachel's problem. Had he done so the mother would have asked for further treatment and referral to a specialist.

The child's left eye became painful in February 1990, and Mrs. Thigpen took her to see another optometrist. That optometrist quickly referred them to an ophthalmologist, whom they saw the next day, February 16. The ophthalmologist immediately diagnosed that Rachel was suffering from Coats' disease, a serious and progressive eye disorder, and referred the child to a ophthalmologist, whom she visited on February 21. The ophthalmologist confirmed Coats' disease, which at that point had led to neovascular glaucoma. The painful glaucoma required the surgical removal of the child's left eyeball on April 24.

The specialist's opinion was that Rachel likely had Coats' disease when she was seen by Zechmann in 1985; the exotropia, i.e., abnormal turning of the eye, at that time was from the Coats' disease; a dilated fundoscopic examination at that time would have led to a correct diagnosis; instead no treatment was afforded the unrecognized Coats' disease which over a period of time led to neovascular glaucoma requiring enucleation; had a correct and prompt diagnosis been made and timely treatment given it is probable the eye would have been saved.

Plaintiffs filed the complaint for damages on January 6, 1992 with expert affidavit per OCGA § 9-11-9.1, alleging that Zechmann deviated from the standard of care of his profession generally by failing to detect the Coats' disease due to inadequate history and examination and by failing to refer the child to an ophthalmologist for treatment despite symtomology, resulting in the eye loss. They further alleged that Zechmann fraudulently failed to disclose to them the condition of Rachel's left eye and falsely represented facts to them about the eye and its prognosis. Pearle Vision Center, Inc. was originally named as a co-defendant but was later voluntarily dismissed without prejudice from the suit.

1. OCGA § 9-3-73 applies to the alleged professional negligence by the optometrist.

For purposes of the article governing limitations for medical malpractice actions, OCGA § 9-3-70 defines "action for medical malpractice" in part as "any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service...." This article, which in OCGA § 9-3-71 limits medical malpractice actions to two years, is in derogation of the common law. Thus, it must be narrowly construed. Redwine v. Arvaniti, 83 Ga.App. 203, 206, 63 S.E.2d 222 (1951). However, its language plainly encompasses more than the practice of medicine. See Faser v. Sears, Roebuck & Co., 674 F.2d 856 (11th Cir.1982), which discerned that "the practice of medicine" in OCGA § 43-34-20(3) for purposes of licensing and registration is narrow whereas the meaning of "medical malpractice" in OCGA § 9-3-70 for purposes of limitation of actions is broad. It held that the two-year medical malpractice statute of limitation applied to pharmacists.

Inasmuch as plaintiffs contend that Rachel's injury arose from the health or medical service, diagnosis, and/or care which the optometrist rendered to her, their suit is subject to the limitations for malpractice actions prescribed by Article 4, chapter 3, title 9 of the Code of Georgia.

OCGA § 43-30-1(2)(A) declares optometry to be the "learned profession" of "the art and science of visual care" and describes its practice in part as "the diagnosis and interpretation of the visual behavior of the human organism by the employment of any means other than the use of drugs, medicine, or surgery." The statutory subsection also provides that as to certified and pharmacologically trained optometrists, nothing in the chapter would prohibit the "use, administration, or prescription of pharmaceutical agents topically applied to the eye for diagnostic purposes and treatment of ocular disease." Zechmann testified that optometrists dealt not only with problems that could be corrected by refraction but also with pathological diagnosis. Other than what is described in the definition of optometry in OCGA § 43-30-1(2), an optometrist is prohibited from practicing medicine in any manner as defined by Georgia law. OCGA § 43-30-13. It is not alleged that Zechmann practiced medicine illegally in connection with the child but rather that he negligently practiced optometry.

2. The next question is whether the old or the new tolling provisions in Article 4 apply to this case.

OCGA § 9-3-73, which relates to the tolling of medical malpractice claims, originally gave the same tolling privilege to such actions as was provided generally for actions in contract under Article 5. Ga.L.1976, p. 1363, § 1. It was substantially amended in 1987 to limit the time in which a cause of action by or on behalf of a minor or certain other disadvantaged persons could be filed. Ga.L.1987, p. 887, § 2. It even applies to causes of action arising before the passage of the amendment but specifically provides a two-year grace period for the initiation of such proceedings. See OCGA § 9-3-73(g); Mansfield v. Pannell, 261 Ga. 243, 245, 404 S.E.2d 104 (1991). " 'A statute of limitation is remedial in nature. The legislature can constitutionally provide for the retrospective application of a remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights.' [Cit.]" Allrid v. Emory Univ., 249 Ga. 35, 37(1)(b), 285 S.E.2d 521 (1982).

Whether plaintiffs' cause of action is deemed to have arisen at the times of Zechmann's attendance in 1985 or 1986 or later in 1990 when the child's undiagnosed Coats' disease resulted in neovascular glaucoma and enucleation of the eyeball, the amended OCGA § 9-3-73 applies. The complaint was filed after July 1, 1987, the effective date of the statutory amendment, so no question of retroactivity arises. See Mansfield v. Pannell, 194 Ga.App. 549, 550, 390 S.E.2d 913 (1990), aff'd 261 Ga. 243, 404 S.E.2d 104, supra, citing Hunter v. Johnson, 259 Ga. 21, 22, 376 S.E.2d 371 (1989), and LFE Corp. v Edenfield, 187 Ga.App. 785, 788, 371 S.E.2d 435 (1988).

3. Plaintiffs' suit is not time-barred by the statute of limitation in OCGA § 9-3-73(b).

Plaintiffs' case involves misdiagnosis. In most such 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. [Cit.] The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. [Cit.]' [Cit.]" Surgery Associates, P.C. v. Kearby, 199 Ga.App. 716, 717, 405 S.E.2d 723 (1991). This is not always the case. Whitaker v. Zirkle, 188 Ga.App. 706, 374 S.E.2d 106 (1988).

The injury in this case was the development of the neovascular glaucoma necessitating enucleation of the child's eyeball. As in Whitaker, plaintiffs are not alleging that Zechmann's misdiagnosis and failure to disclose and refer her to an ophthalmologist caused the child to have Coats' disease; plaintiffs' evidence shows that she had it all along or at least during the time of the ministrations by Zechmann. Nor are plaintiffs complaining about the loss of vision in the eye because the vision was significantly impaired by the time of Zechmann's initial examination and the child was virtually blind in that eye by the time of the last office visit.

The gravamen of the complaint is the development of the painful glaucoma, approximately four years after Zechmann's last contact with the child, which ultimately required the...