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Burt v. James11/15/2005
proper if a defendant/movant shows that the evidence presented is insufficient to create a jury issue on at least one essential element of the plaintiff's case. Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). To avoid the entry of summary judgment, the plaintiff/respondent must come forward with evidence that rebuts the movant's evidence and is sufficient to create a jury issue. Id. In this case, the facts are undisputed. Resolution hinges on whether Dr. James is entitled to summary judgment as a matter of law because the action is barred by the expiration of the two-year limitation period for medical malpractice set forth in OCGA ยง 9-3-71 (a).
The statute provides that medical malpractice actions must be brought "within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." Id. In construing the statute, our courts have formulated a general rule for cases in which the plaintiff alleges misdiagnosis: In 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. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis." (Citations and punctuation omitted.) Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994).
As with most rules, at least one exception exists. In Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), a case involving a misdiagnosis by a pathologist, a tissue sample taken from the patient's mole was erroneously read as benign. The patient subsequently died when the cancer that had been present all along metastasized. The trial court denied the defendant pathologist's motion for summary judgment, which was brought on the ground that the statute of limitation began running on the date the misdiagnosis occurred, and its expiration barred the action. This court affirmed, acknowledging that in most cases the statute begins running on the date of the misdiagnosis, but because this particular plaintiff suffered no symptoms after the misdiagnosis until seven years later, the injury alleged was not the misdiagnosis, but the metastasis. Id. at 707. This exception to the general rule was stated as follows: "When an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered. [Cit.]" Id. at 708 (1).
In response to the defendants' motion for summary judgment, the Burts sought refuge in this exception. They claimed that Burt suffered a "subsequent injury" when in April 2001, he experienced severe back pain and was diagnosed with bacteremia, nerve compression, and osteomyelitis, necessitating spinal fusion surgery. They argued that this "subsequent injury" brought this action within the Whitaker exception, placing the beginning of the limitation period in April 2001 and making timely this action filed in April 2003. The trial court rejected this theory. The trial court reasoned that in Whitaker the patient was asymptomatic after the misdiagnosis; here, though, "the undisputed evidence," including Burt's own deposition testimony, is that Burt experienced ongoing symptoms from the time of the first surgery performed by Dr. James. Because Burt was not asymptomatic, the trial court ruled that the Whitaker exception did not apply, and the statute of limitation began running in January 2001, the date of the misdiagnosis. The Burts' action was therefore barred after the limitation period expired, in January 2003.
On appeal, the Burts advance the same theory the trial court rejected. Although they raise three enumera
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