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Burt v. James11/15/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
Adam and Susan Burt brought this action in April 2003 against Dr. Plas James and the Atlanta Spine Institute, P.C., the professional association that employed Dr. James (collectively "Dr. James"). They alleged medical malpractice and loss of consortium resulting from Dr. James's failure to properly diagnose and treat an infection that developed after Dr. James performed back surgery on Adam Burt in January 2001. The trial court granted summary judgment to Dr. James, finding that Burt did not suffer a "new injury" in April 2001 and that the Burts's action was therefore barred by the two year statute of limitation for medical malpractice. We agree with the trial court, and we therefore affirm the trial court's entry of summary judgment in favor of Dr. James.
Adam Burt (hereinafter "Burt") was a professional hockey player when he was thrown into the wall of the ice rink during a game in December 2000, injuring his back. Dr. James performed a microdiskectomy on January 5, 2001 to relieve the resulting back pain. It is undisputed that shortly after the surgery, Burt developed an infection at the incision site. He was seen on January 29, 2001 by Dr. Stephen Marlowe, an infectious disease specialist, who prescribed antibiotics.
Burt saw both Dr. James and Dr. Marlowe, as well as other doctors, several times during January and February. Both physicians noted redness, swelling, and purulence around the incision site, and they continued treating Burt with antibiotics. In early March 2001, Dr. James performed another surgery to drain fluid from Burt's back. By the end of March 2001, the doctors were noticing back swelling and residual weakness in Burt's foot. The last time Dr. James saw Burt, on April 3, 2001, he noted swelling at the operative site, but he noted that Burt was "improving."
Burt, however, continued to experience back pain. In Burt's words, his symptoms remained unchanged and were "pretty consistent," with swelling and pain radiating from the left side of the wound "down into my glute." Burt's wife also testified on her deposition that her husband's symptoms "from January until just before the third surgery were always similar." Burt was eventually diagnosed with staphylococcal septicemia, nerve compression, and osteomyelitis, necessitating a third back surgery, this time a spinal fusion, performed by Dr. Reg Haid on May 2, 2001. Although his back eventually healed, Burt is no longer a professional hockey player.
When this action was filed, to satisfy the requirements of OCGA § 9-11-9.1, the Burts attached an affidavit from Dr. James Aragona, an orthopedic surgeon. Dr. Aragona opined that Dr. James breached the applicable standard of care on January 30, 2001, by failing "to immediately ascertain the need for and perform surgery to treat Adam Burt's back infection" rather than treating Burt with antibiotics.
After discovery, Dr. James filed a motion for summary judgment. He contended that because the malpractice alleged was Dr. James's misdiagnosis and mistreatment of the infection, the statute of limitation commenced running on January 30, 2001, when the Burts alleged Dr. James had been negligent, and it expired on January 30, 2003. The Burts' position was that the statute of limitation did not begin running until April 21, 2001, when Burt suffered weight loss, osteomyelitis, knee and ankle swelling, and severe back pain, which constituted a "subsequent injury . . . manifested by new symptoms."
Summary judgment is appropriate when no genuine issue of material fact remains for the jury and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56. Summary adjudication is
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