Georgia Court of Appeals Holds that Statute of Repose Prevents Adding New Doctor to Case

The Georgia Court of Appeals has held that a doctor could not be added to an existing lawsuit filed against her practice group and a physician in her practice group more than five years after the date of the negligent act or omission. In Preferred Women’s Healthcare v. Sain, the plaintiff originally sued an obstetrician and the group for malpractice arising out of an alleged failure to diagnose a malignancy on ultrasound. The ultrasounds allegedly showing the malignancy were performed in April 2012. The patient died of cancer in December 2013.

Plaintiff filed the original lawsuit in 2014 and only named one obstetrician and the practice group. In February 2017, Plaintiff deposed the ultrasound technologist, who testified that a second doctor’s “squiggly line” mark appeared on the ultrasound reports. In May 2017, Plaintiff deposed the second doctor, who confirmed that she provided care in April 2012 and reviewed the reports.

In June 2017, Plaintiff moved to add the second doctor. The second doctor opposed and claimed that the case against her was barred by expiration of the five year statute of repose. The trial court granted the motion to add and this appeal followed. The Court of Appeals reversed the trial court, holding that the five year statute of repose “destroys” the cause of action against the second doctor and that the otherwise liberal rules for adding parties and relation back of amendments do not apply once the statute of repose has expired.

Take-home: the statute of repose has always been a hard stopping point for medical malpractice claims and this case reaffirms this principle. The decision is timely as other cases support the notion that parties and claims may be added at various points before expiration of the statute of repose.

The case is Preferred Women’s Healthcare v. Sain, 2019 Ga. App. LEXIS 30 (Ga.Ct.App. Jan. 28, 2019

Georgia Court of Appeals Holds that Metastatic Cancer is New Injury

The Georgia Court of Appeals has held that metastatic cancer constitutes a “new injury” for purposes of calculating the statute of limitations. Plaintiff went to an obstetrician/gynecologist in August 2013 with complaints of abnormal bleeding from a large uterine fibroid mass. Plaintiff and the doctor discuss treatment options, including robotic hysterectomy. The doctor then referred the patient to a gynecological oncologist.

The oncologist examined the patient and reviewed films. In November 2013, the oncologist reported to the obstetrician that there was a “very low suspicion” for malignancy. The obstetrician proceeded with the robotic procedure on December 13, 2013 based on the oncologist’s report. During the procedure, the fibroids were cut (“morcellated”) and not removed intact. Pathology reports showed the fibroids were cancerous. Post-operative CT and PET scans were negative until October 24, 2014, when the patient presented with pelvic tumors. The patient passed away on May 19, 2015.

On December 9, 2015, the patient’s husband was appointed administrator of her estate. He then filed suit against the obstetrician, the practice group (Wellstar Physicians), and named several “John Doe” defendants. In April 2017, plaintiff filed an amended complaint to name the oncologist and substitute him in for one of the John Doe defendants.

The oncologist moved to dismiss on the grounds of expiration of the two year statute of limitations. The trial court converted the motion to a partial motion for summary judgment and held that the “new injury” exception to the statute of limitations did not apply.

The Court of Appeals reversed, holding the evidence showed the “new injury” exception did apply.  The general rule in misdiagnosis cases is that the misdiagnosis is the injury because the plaintiff suffers pain and incurs medical expenses from that point forward. In some cases, however, when the injury from the misdiagnosis is relatively benign or treatable but then develops into a more debilitating or “less treatable” condition, the injury is the “subsequent development of the other condition.” In this case, the Court held that the metastasis led to “a substantially reduced likelihood of her survival” and was a result of the morcellation, rather than removal of the fibroids intact.

The Court also held that the statute of limitations was tolled until the administrator was appointed and that the amendment related back to the filing of the original complaint.

The case is Hayes v. Hines, 2018 Ga. App. LEXIS 615 (Oct. 26, 2018).

Georgia Court of Appeals Reverses Summary Judgment on Misdiagnosis Statute of Limitations

The Georgia Court of Appeals has reversed the grant of summary judgment to the defendants on expiration of the statute of limitations in a misdiagnosis case. Plaintiff was a doctor who began suffering neurological symptoms in January 2013. She presented to one of her partners for workup and was referred to another physician. The two treating defendants did not order an echocardiogram to determine whether she was experiencing a cardiac condition that could be causing her to suffer neurological symptoms from transient ischemic attacks.

Plaintiff suffered a stroke in September 2013. She sued her treating physicians, claiming they should have ordered an echocardiogram to determine the cause of her symptoms before she suffered the stroke. The defendants moved for summary judgment, arguing their alleged misdiagnosis occurred more than two years before Plaintiff filed suit, thereby triggering the statute of limitations. The trial court granted the motion.

In reversing, the Court of Appeals concluded that Defendants had not carried their summary judgment burden of showing the undisputed facts demanded a finding as a matter of law. The Court held that Defendants failed to show that their misdiagnosis caused the symptoms Plaintiff was experiencing between January and September, as opposed to some other cause. In otherwords, while Defendants were admitting they misdiagnosed the condition during that time frame, they failed to prove that their misdiagnosis was the only cause of the symptoms, thereby precluding summary judgment.

The case is Adams v. McDonald, 2018 Ga.App. LEXIS 401 (June 21, 2018).

Georgia Court of Appeals Reinstates Claims Against Corporate Psychiatric Providers

The Georgia Court of Appeals has reversed the dismissal of certain counts of a third renewal complaint against two corporate psychiatric services providers. In Curles v. Psychiatric Solutions, the Court held that Plaintiffs had stated claims for negligence per se and ordinary negligence, not professional negligence, and that those claims related back to an original complaint for purposes of statutes of limitation and repose.

Plaintiffs are the estates and wrongful death claimants of two people killed by Amy Kern, a patient at a private psychiatric facility. Ms. Kern had been committed involuntarily to the facility on three occasions for psychotic episodes and violent tendencies. Twelve days after her last discharge, she killed her grandmother and her grandmother’s boyfriend.

Plaintiffs filed an original complaint against the corporate defendants and individual providers, alleging breach of the duty to exercise reasonable care to control Amy, consistent with the Bradley Center case. They also filed an expert affidavit. Plaintiffs dismissed the corporate defendants from the original complaint without prejudice. Plaintiffs then filed a “renewal complaint” against the corporate defendants with the same allegations and moved to consolidate the “renewal complaint” with the original complaint. The trial court granted the motion and added the corporate defendants back to the case. Plaintiffs then filed second and third amended complaints, which the corporate defendants moved to dismiss.

In the first part of the decision, the Court of Appeals held that Plaintiffs stated a claim against the corporate defendants for negligence per se based on the statutes requiring notice of discharge following involuntary commitment. The Court also held that Plaintiffs stated a claim for ordinary negligence against the corporate defendants because they alleged the decision to discharge Ms. Kern was based on the fact her insurance had run out, not on professional judgment.

In ruling the claim was viable under the Bradley Center/control test, the Court held that although Bradley Center involved specific threats against specific people, the control principle is not so limited. Rather, the duty to control is to protect third parties generally, not specific third parties only. The Court re-emphasized the underlying principle that knowledge of threats generally is the key element in a case based on Bradley Center, distinguishing the Baldwin v. Hosp. Auth. of Fulton County case in which there was no evidence of actual or threatened harm prior to discharge. Lastly, the Court held that the non-professional malpractice claims were similar enough to the allegations in the original complaint, such that they would relate back.

The take-home messages are (1) allegations of ordinary negligence or negligence per se will relate back, (2) dropped defendants can be added back into a case, and (3) a control claim under Bradley Center can be brought by injured third parties generally and is not limited to specific third parties targeted by the injuring party.

Georgia Court of Appeals Allows Late Addition of “Simple Negligence” Claim

In the case of Thomas v. Atlanta Medical Center, the Georgia Court of Appeals reversed the dismissal of a “simple negligence” claim based on expiration of the statute of limitations. The case arose out of the alleged failure to diagnose a neck fracture and improper spine clearance in the emergency department. Plaintiff alleged the hospital was vicariously liable for the emergency physician and interpreting radiologist. The hospital denied and claimed they were independent contractors. During discovery, an alleged conflict in the evidence arose as to whether the emergency physician and nurse followed hospital protocol for removal of the cervical collar following radiological clearance. Plaintiff amended her complaint to add a claim for “simple negligence” against the hospital and nurse for failure to follow the protocol. The hospital moved to dismiss the claim based on expiration of the statute of limitations and the case of Thomas v. Medical Center of Central Georgia. The trial court granted the motion.

On appeal, the Court of Appeals further limited the application of the Thomas v. Medical Center of Central Georgia case. The Court distinguished that case because it was decided on application of the affidavit statute, not the relation back statute. The Atlanta Medical Center case represents a further erosion of the Medical Center of Central Georgia case and strengthens the ability of claimants to add claims even though the statute of limitations has expired, especially if the claims are couched as non-professional malpractice claims.