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Kane v. Shoup3/4/2003
Joseph W. Kane, and his parents, Joe Kane and Mary Kane, filed a malpractice lawsuit against Dr. Greg A. Shoup and Pickron Orthodontic Care, P. C. alleging misdiagnosis and mistreatment in connection with J. W.'s orthodontic treatment. The Kanes appeal the trial court's grant of summary judgment to Dr. Shoup and Pickron. Because we find that summary judgment was proper, we affirm.
Joe and Mary Kane brought J. W. to Dr. Shoup, who was then a solo practitioner, for treatment of an overbite, resulting, at least in part, from a small lower jaw. Dr. Shoup began treatment of J. W.'s condition in April 1992. In November 1995, Dr. Shoup joined Pickron and began practicing out of a Pickron office. After the move, J. W. was seen by Dr. Shoup and later by other Pickron orthodontists. The Kanes assert that throughout their son's treatment, they were assured that he was making progress and that the orthodontic treatment was effective. The last day Dr. Shoup saw or treated J. W. was in September 1997.
In November 1998, the Kanes' family dentist made a mold of J. W.'s teeth and, without the family's knowledge, sent it Dr. J. W. Haddad, an oral surgeon, for his opinion on the effectiveness of Dr. Shoup's treatment. In a letter dated December 17, 1998, Dr. Haddad gave the opinion that J. W. demonstrated poor occlusion and that surgery might be required to correct the problem. The dentist showed Dr. Haddad's letter to Mary Kane in December 1998. The Kanes then took J. W. to Dr. Lynwood Williams, a new orthodontist, for treatment. Dr. Williams also believed that the treatment J. W. had received from Dr. Shoup had not corrected his condition, and that J. W. would need surgery to correct the problem, along with additional periods of bracing.
1. The Kanes filed their complaint on November 1, 2000, more than three years after Dr. Shoup's last treatment of J. W., but less than two years after the Kanes learned of the problem with their son's teeth in December, 1998. They assert that the trial court erred in finding that the statute of limitations had run on their claims before their suit was filed. They argue that the limitations period did not begin to run until they read Haddad's letter in December 1998 because that is the first time they learned that J. W.'s condition had not been corrected.
In Georgia, "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." OCGA § 9-3-71. Thus, the limitation period for medical malpractice claims runs from the date of injury. Young v. Williams, 274 Ga. 845, 846 (560 SE2d 690) (2002). The Kanes describe their action as one for misdiagnosis and continued mistreatment of J. W.'s condition, which they contend resulted in a progressive worsening of that condition. With allegations of misdiagnosis, the date of injury is generally considered to be the date of the misdiagnosis:
n general, 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; thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of OCGA §§ 9-3- 71(a). (Citations omitted.) Williams v. Young, __ Ga. App. __ (Case No. A00A1393, decided November 18, 2002).
But Georgia courts have carved out a limited exception in misdiagnosis cases when an injury occurs subsequent to the date of medical treatment, in which case
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