Georgia Appellate Court Finds “New Injury” In Reviving Cancer Misdiagnosis Medical Malpractice Case

The Court of Appeals of Georgia applied the “new injury” exception to Georgia’s two-year statute of limitations in medical malpracice cases in allowing a cancer malpractce case to proceed.

Georgia’s Two-Year Medical Malpractice Statute Of Limitations

OCGA § 9-3-71 (a) requires 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.” In cases where the allegedly tortious conduct was a failure to correctly diagnose a patient’s medical condition, the “injury” referenced by OCGA § 9-3-71 (a) generally occurs at the time of misdiagnosis. In such cases, the misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis and the two-year statute of limitations begins to run simultaneously on the date that the doctor negligently failed to diagnose the condition.

“New Injury” Exception

A “new injury” exception to the general rule applies, however, in cases in which the patient’s injury arising from the misdiagnosis occurs subsequently, generally when a relatively benign or treatable precursor condition, which is left untreated because of the misdiagnosis, leads to the development of a more debilitating or less treatable condition. Thus, the deleterious result of a doctor’s failure to arrive at the correct diagnosis in these cases is not pain or economic loss that the patient suffers beginning immediately and continuing until the original medical problem is properly diagnosed and treated. Rather, the injury is the subsequent development of the other condition. The trigger for commencement of the statute of limitations is the date that the patient received the ‘new injury,’ which is determined to be an occurrence of symptoms following an asymptomatic period.

In the case the Court of Appeals of Georgia was deciding, a woman went to her OB/GYN in August 2013 for abnormal bleeding and a large fibroid mass in her uterus. The OB/GYN referred the woman to the defendant physician for evaluation of whether the woman was a good candidate for a robotic hysterectomy. The defendant physician advised that there was a very low suspicion that the woman’s fibroids were malignant. Based on that opinion, the OB/GYN performed a robotic hysterectomy in December 2013 during which the woman’s uterus and fibroids were cut up (morcellated) rather than removed intact. An analysis of samples obtained during the surgery identified grade three leiomyosarcoma, a form of soft tissue cancer.

Following the surgery, and for several months thereafter, CT and PET scans were negative for cancer. On October 24, 2014, however, a screening showed the presence of pelvic tumors, and a biopsy confirmed a recurrence of high grade leiomyosarcoma. The woman died of metastatic uterine cancer on May 19, 2015.

The woman’s estate filed a Georgia medical malpractice wrongful death lawsuit against the defendant physician and others on December 9, 2015. The plaintiff’s medical malpractice expert, a physician board certified in gynecology and gynecologic oncology, testified in an affidavit that morcellating of the woman’s uterus caused the spillage and spread of her malignancy throughout her abdominal-pelvic cavity, whereas the cancer had previously been localized within her uterus.

The trial court granted the defendant’s partial motion for summary judgmnet, finding that the “new injury” exception did not apply and the limitation period was not tolled under OCGA § 9-3-32. The plaintiff appealed.

Court Of Appeals Of Georgia Opinion

The Court of Appeals of Georgia stated that there was evidence that the plaintiff’s metastatic cancer did not manifest until October 24, 2014, and that the defendant physician’s misdiagnosis in November 2013 contributed to the improper treatment of the woman’s condition and thereby to the development of a more debilitating or less treatable condition. The Court of Appeals of Georgia held: “Accordingly, the trial court erred in finding that, as a matter of law, the new injury exception did not apply.”

OCGA § 9-3-92 (Tolling Provision)

OCGA § 9-3-92 provides, in applicable part: “The time between the death of a person and the commencement of representation upon his estate . . . shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years.”

The Court of Appeals of Georgia stated that even if the plaintiff hired a lawyer and consulted with experts beforehand, he was not, in fact, appointed administrator until December 9, 2015, at which time the statute of limitation on the estate’s malpractice claim, which had been tolled upon the woman’s death, began to run anew. The Court of Appeals of Georgia held: “It follows that the trial court erred in finding that OCGA § 9-3-92 “does not apply” to this case.”

Source Hayes v. Hines, A18A0863.

If you or a family member may be the victim of cancer misdiagnosis in Georgia or in another U.S. state, you should promptly consult with a Georgia medical malpractice lawyer or a medical malpractice lawyer in your state who may investigate your cancer malpractice claim for you and represent you or your family member in a cancer medical malpractice case, if appropriate.

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This entry was posted on Tuesday, November 6th, 2018 at 5:21 am. Both comments and pings are currently closed.

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