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Court Sides with Plaintiff on Med-Mal Statute of Limitations

State supreme court justices reaffirm 20-year-old precedent that creates exception for ‘new injury’ in misdiagnosis cases.

In the face of arguments that the case had been filed too late, the state Supreme Court on Monday unanimously upheld an $800,000 verdict in a medical malpractice lawsuit alleging a doctor missed a cancer diagnosis. The decision reaffirmed a 20-year-old precedent on which lawyers for medical malpractice plaintiffs have relied in navigating the statute of limitations.

But the court also had to distinguish the case from a decision it issued last year, a 4-3 ruling against a young AIDS patient whose doctors allegedly misdiagnosed his condition for years. Justice George H. Carley’s attempts to draw a line between the two cases failed to satisfy Chief Justice Leah Ward Sears, leading to her to write a concurrence saying the AIDS case was an even stronger one for allowing an exception to the statute of limitations.

Although Sears’ concurrence suggests the law on statute of
limitations is murky, the decision was a clear win for plaintiff Wilbert Barnes, who is represented by Warshauer Poe & Thornton partner James M. Poe.

Barnes sued physician C. Bato Amu and his employer, Atlanta Medical Care. According to Monday’s opinion, Barnes visited Amu in January 2000, complaining of rectal bleeding. Amu diagnosed a hemorrhoid condition and prescribed suppositories, and the bleeding went away within two weeks.

In 2004, the bleeding came back, along with other symptoms. Another doctor diagnosed Barnes with colon cancer classified as terminal. Barnes’ suit said that Amu should have conducted a colonoscopy and diagnosed the cancer when it might have been curable.

The doctor’s lawyers argued the two-year statute of limitations had expired before Barnes and his wife filed their suit in December 2004. Fulton County State Court Judge Myra H. Dixon allowed the case to proceed, and a jury awarded Barnes $800,000.

A panel of the state Court of Appeals—Presiding Judge G. Alan Blackburn and Judges Debra Bernes and John H. Ruffin Jr.—upheld the verdict. The panel acknowledged the general rule that the injury that starts the statute of limitations clock in a misdiagnosis case occurs at the time of the misdiagnosis. But, citing the Court of Appeals’ 1988 decision in Whitaker v. Zirkle, 188 Ga. App. 706, the panel said an exception applied in Barnes’ case—when a misdiagnosis results in subsequent injury that is difficult to date precisely, the statute of limitation runs from the date symptoms attributable to the new injury are known to the plaintiff.

The Whitaker decision had been applied for nearly two decades, but after the Court of Appeals issued its decision in Barnes’ case, the Supreme Court issued an opinion in the AIDS case that went against the plaintiffs on a statute of limitations issue. In Kaminer v. Canas, 282 Ga. 830, the state high court ruled that the two-year statute of limitations barred the malpractice suit by parents of a young man who may have contracted HIV as a result of an infant blood transfusion, even though the suit was filed less than a year after doctors diagnosed him with AIDS. Citing the Kaminer decision, all of the justices agreed to grant Amu’s request that the court look at the case.

Monday’s decision was a relatively speedy one, as the case was argued less than five weeks ago.

Interestingly, Carley wrote both Monday’s opinion and the majority opinion in Kaminer. He justified both on the grounds of deference to the Legislature.

In Kaminer, Carley had written that the General Assembly had a right to set even those statutes of limitations that are “extremely harsh” in their application. Monday’s opinion says that to change course from the 1988 Whitaker decision and its progeny—given that “the General Assembly has acquiesced in [that] long series of cases”—would essentially amount to a change in the law by the courts that is properly left to the Legislature.

A key in Barnes’ case was that he was asymptomatic for a period following the misdiagnosis. Carley wrote that the difference between Kaminer and Barnes’ case was that in Kaminer, the patient did not develop a new condition after his AIDS was misdiagnosed but simply experienced worsening symptoms.

“The evidence here shows that Mr. Barnes did experience such a ‘new injury’ when, as a consequence of the misdiagnosis, he did not seek treatment for the pre-malignant polyp or very early malignancy from which he suffered in January of 2000 and subsequently developed metastatic colon cancer which spread to his lymph nodes and liver,” wrote Carley. “His metastatic cancer is a ‘new injury’ which did not exist at the time of the original misdiagnosis, but which is a proximate result of Dr. Amu’s negligence.”

Justice Harold D. Melton wrote separately to emphasize that for the “new injury” exception to apply, the patient must have experienced an asymptomatic period between the initial misdiagnosis and the onset of new symptoms. He said the Barnes case and the Kaminer case differed on that point.

Sears apparently didn’t buy the distinction, although she wrote that she agreed with the outcome in the Barnes case. “In fact,” she wrote, “Kaminer is the stronger case for application of the new injury rule.” AIDS patients develop a variety of illnesses, and any of those would fall within the court’s definition of “new injury,” wrote Sears, who dissented from the ruling against the plaintiffs in Kaminer (the other dissenters in that case were Presiding Justice Carol W. Hunstein and Justice Hugh P. Thompson.)

Poe, who won Monday’s case, said the law wasn’t muddled before Monday’s decision. “But,” he said, “I think it makes absolutely clear that when you have someone who’s totally asymptomatic, that their rights can’t disappear before they even know they’ve been injured.”

Barnes got help from the Georgia Trial Lawyers Association, which filed an amicus brief in the case. GTLA’s amicus committee chairman, J. Marcus Edward “Marc” Howard, said the court didn’t enter uncharted territory but simply beat back efforts by defense lawyers to close the courthouse doors to suits. “The courts said, ‘no, the door is still open,’” said Howard.

The Medical Association of Georgia filed an amicus brief on the side of the defense; MAG’s general counsel Donald J. Palmisano Jr. was traveling Monday and couldn’t be reached.

Decatur appellate lawyer Christopher J. McFadden argued for Amu, contending that the 20-year-old Whitaker decision goes against the Legislature’s intent. McFadden said Monday that the decision in his case does not answer the question he invited the court to consider—what the Legislature could have said differently if it had wanted the statute of limitations to begin to run with the onset of an injury, as opposed to the discovery of the injury or discovery of the cause of the injury.

McFadden said the holding of the Supreme Court is best understood to mean that the statute of limitations begins to run with the discovery of an injury.

McFadden also noted that Amu is a good, very well respected doctor and that his “No. 1 argument” to the Court of Appeals was not the question taken up by the Supreme Court. At the Court of Appeals, Amu also argued that Barnes’ injury was better explained by Barnes’ failure to obtain routine medical care after last seeing Amu or Barnes’ next doctor’s failure to give him a colonoscopy after Barnes turned 50.

The case was Amu v. Barnes, No. S07G1818.

McFadden is running for an open spot on the state Court of Appeals, and his campaign treasurer, Charles M. Cork III, is on the plaintiff’s side in a pair of misdiagnosis cases that could clarify the law on statute of limitations. While those cases involving a kidney cancer diagnosis, Entrekin v. Gannon, No. S08G0713, and Cleaveland v. Gannon, No. S08G0721, were argued before the state Supreme Court the same day as Barnes’ case, the court has yet to rule on them.

By Alyson M. Palmer , Fulton County Daily Report

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