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Burt v. James11/15/2005
April than in January, but that was a matter of degree. Burt's insistence that the symptoms he experienced in April were a "subsequent injury" is simply belied by the record. As discussed above, Burt and his wife both testified that his condition remained fairly constant from January to April 2001.
Using various arguments, plaintiffs have attempted unsuccessfully to place the facts of their cases within the Whitaker exception, but the general rule has been applied consistently since its announcement. . See, e.g., Kane v. Shoup, 260 Ga. App. 723, 725 (1) (580 SE2d 555) (2003) (no subsequent injury when braces and surgery recommended three years after orthodontist failed to properly correct lower jaw condition); Williams v. Devell R. Young, MD., P.C., 258 Ga. App. 821, 824 (575 SE2d 648) (2002) (no subsequent injury because plaintiff experienced symptoms continuously throughout doctor's treatment); Hughley v. Frazier, 254 Ga. App. 544, 547-548 (1) (562 SE2d 821) (2002) (physical precedent) (incontinence resulting from surgery was part of course of treatment for original condition, not new injury); Stone v. Radiology Svcs., 206 Ga. App. 851- 853 (2) (426 SE2d 663) (1992) (physical precedent) (no new injury because unlike Whitaker plaintiff, plaintiff was already suffering from effects of brain tumor when misdiagnosed).
Our courts have been reluctant to invoke the Whitaker exception except in the most extreme circumstances. Moreover, this court has held explicitly that "the limited exception for subsequent injury cases, which was created by Whitaker v. Zirkle, is confined to those in which the plaintiff remains asymptomatic for a period of time following the misdiagnosis." (Citation and footnote omitted.) Harrison v. Daly, 268 Ga. App. 280, 284 (601 SE2d 771) (2004). The trial court properly applied that holding. The misdiagnosis was the injury, and the trial court correctly concluded that the Whitaker exception did not apply.
Judgment affirmed. Ellington and Adams, JJ., concur.
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