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Dr. failed to tell pt. of cancer: 'limited exception' to limitations applied.

ANNE WARD HAD A ROUTINE MAMMOGRAM PERFORMED IN 1998. It indicated that there were some abnormalities in one of her breasts. Her physician referred her to Dr. William Bergen, who performed a biopsy. The pathology report showed that the patient had low-grade, intraductal carcinoma in situ ("DCIS"), localized precancerous growths in the milk ducts of the breast. According to the patient, however, Dr. Bergen failed to tell her of this diagnosis and, in fact, never said the word "carcinoma" or used the term DCIS. Instead, Dr. Bergen informed Mrs. Ward that she had abnormal calcifications in her breast that were benign but might increase her risk of developing breast cancer later in life. Dr. Bergen did not suggest any further treatment, but only recommended that Mrs. Ward get regular mammograms in the future. Mrs. Ward moved to New York and began seeing a different physician. She had a mammogram in 1999, which showed the same abnormalities as in the 1998 mammogram. She told the radiologist at she had a biopsy and that she had been told the abnormalities were benign. Another mammogram in 2000 yielded similar results, showing no changes from the two previous mammograms. Based upon Dr. Bergen's characterization of the abnormalities as benign, Mrs. Ward and her physicians took no additional action to biopsy or treat the abnormalities following the 1999 or 2000 mammograms. According to Mrs. Ward, she did not notice any changes during her regular breast self-examinations from 1998 through August 2002. She did not have any pain or other symptoms that indicated a problem in her breast. Her physicians did not detect any different abnormalities during their examinations. In August 2002, another routine mammogram showed changes in the breast tissue. In November 2002, a physician performed a biopsy, which revealed that Mrs. Ward had developed invasive breast cancer that had metastasized to her lymph nodes. As a result, she underwent a mastectomy, chemotherapy, and radiation therapy. In July 2003, the Wards sued Dr. Bergen and his medical practice group alleging that Dr. Bergen failed to communicate an accurate diagnosis and to recommend proper treatment for the DCIS. The wards alleged that proper treatment would have eliminated need for the DCIS. They contended that as a result of Dr. Bergen's failure, Mrs. Ward developed an invasive cancer. Dr. Bergen's motion for summary judgment on the grounds that Georgia's two year statute had run was granted. The Wards appealed.

THE COURT OF APPEALS OF GEORGIA REVERSED THE JUDGMENT OF THE TRIAL COURT. The court held, inter alia, that while ordinarily, Georgia's two-year statute of limitations applies in medical malpractice cases, it would not apply in this case. Generally, in malpractice cases involving a misdiagnosis that results in the failure to properly treat a condition, the "injury" occurs at the time of the misdiagnosis. This is because the patient usually continues to experience pain, suffering, or economic loss from the time of the misdiagnosis to until the medical problem is properly diagnosed and treated. Under these circumstances, "the misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis." However, the court noted that in Georgia the courts had carved out a "limited exception" in cases in which a misdiagnosis and failure to provide proper treatment results in the development of a new and different injury than that which existed at the time of the misdiagnosis.

THE COURT HELD THAT IN 'LIMITED EXCEPTION' CASES, THE STATUTE OF LIMITATIONS RUNS FROM THE DATE THE INJURY IS 'DISCOVERED.' When a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitations runs from the date the symptoms attributable to the new injury are manifested to the plaintiff. The court noted that it had previously applied the 'limited exception' to cases involving the subsequent metastasis of an existing cancerous condition, most notably in the case of Whitaker v. Zirkle, 188 Ga. App. at 707-708(1) in which, the defendant physician allegedly failed to properly diagnose and treat a patient's cancerous mole. The patient experienced no new symptoms for seven years after the misdiagnosis, but then was diagnosed with metastatic cancer after developing nodules and bruises. The patient sued the physician, claiming that her injury was the metastatic cancer and that the metastasis would not have occurred if the cancerous mole had been properly diagnosed and treated at the time of the original biopsy. The court, in affirming denial of a defendant's motion for summary judgment on statute of limitations grounds, held that the injury complained of was the metastasis which would not have occurred if the cancer had been properly diagnosed and treated at the time of the original biopsy. Ward v. Bergen. No. A05A1688(Ga. App. 01/19/2006) S.E.2d--GA

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Feb 1, 2006
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