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Burt v. James11/15/2005
tions of error, the contentions are so intertwined that we need only decide whether the exception carved out in Whitaker applies to the facts of this case.
The Burts "concede that the Whitaker exception is not always applicable in . . . misdiagnosis cases." They argue, however, that the trial court erred in stating that Whitaker applies only when the plaintiff is asymptomatic after the misdiagnosis. They contend that when a subsequent injury results from the misdiagnosis, the limitation period does not begin to run until symptoms of the new injury are manifest, even when the plaintiff has experienced symptoms after the initial misdiagnosis. In support of their position they rely principally on Walker v. Melton, 227 Ga. App. 149 (489 SE2d 63) (1997), and Zechmann v. Thigpen, 210 Ga. App. 726 (437 SE2d 475) (1993), both of which followed Whitaker. Both cases are easily distinguishable.
The Burts point to Walker as an example that demonstrates that the Whitaker exception applies even when the plaintiff has been experiencing symptoms following the misdiagnosis. But it is clear in Walker that even though the plaintiff experienced symptoms after the misdiagnosis for a brief period of time, those symptoms ceased and did not recur until more than 17 months later. Id at 149.When the plaintiff again sought treatment, it was discovered that his spine was broken and had continued to deteriorate. Id.
This court reversed the grant of summary judgment in favor of the doctor, finding that the doctor's failure to perceive the initial spinal problem on x-ray was not the cause of the later problem; the "new injury" probably would have occurred even with proper diagnosis and treatment. The fracture in Walker occurred at some time between the misdiagnosis and the correct diagnosis, when the plaintiff was not experiencing symptoms. Under the particular circumstances of that case, it was impossible to discern when the new injury occurred. This court therefore adapted the Whitaker exception and applied it. The Walker court held that if "a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitation runs from the date symptoms attributable to the new injury are manifest to the plaintiff. [Cits.]" Id. at 151.
Burt's situation is exactly opposite. With proper diagnosis and treatment, the resultant problems would not have occurred; here, the misdiagnosis and mistreatment were the cause of the "injury" for which Burt sought recovery.
In Zechmann, supra, 210 Ga. App. 726, an optometrist treated a child and discovered an optic nerve disease but failed to inform either the child or her parents. Id. About four years later, when the disease was discovered , the child had developed a painful form of glaucoma necessitating removal of the eye. Id. at 729 ( 3). We again acknowledged the general rule but applied the Whitaker exception. Even though the patient was asymptomatic for four years after the misdiagnosis, we held that the patient's suit against the optometrist was not time-barred. We reached that conclusion because the only new symptom the child experienced after the optometrist's misdiagnosis was eye pain, and the statute of limitation did not begin to run until the child felt and complained of that symptom. The suit, which was brought within two years from the time the new symptom experienced was therefore timely. Id.
Here, in contrast, Burt experienced and complained of redness, swelling, and pain at the incision site on his back shortly after his original surgery in January 2001, and it continued until April 2001. The symptoms Burt experienced may have been more painful, more extensive, and more debilitating in
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