Georgia fails to recognize `discovery' exception to limitations. (Rx for Physicians Caveat).
ISSUE: One of the most basic and fundamental principles in medical malpractice defense law is the statute of limitations. All counsel are aware of the importance of the statute of limitations defense. However, there are exceptions to it. One of the most common exceptions, recognized in most states, is the "Discovery" exception. However, in this unusual Georgia case, the court refused to recognize the Discovery exception. Is Georgia behind the rest of the country in this regard?
CASE FACTS: On December 6, 1999, John Miller sued Dr. Stephen Kitchens and his professional group Coastal Surgeons, Ltd., for malpractice prior to and during an operation on October 2, 1997. The operation was performed to repair a hiatal hernia with gastroesophageal reflux. The plaintiff alleged that Dr. Kitchens proceeded with surgery before attempting medical therapy; failed to assess pulmonary function in relation to the risk of surgery; failed to make any attempt to reduce the risk of surgery, failed to switch to an open procedure during surgery after technical difficulties caused some delay in finishing the operation; failed to close ports cut in the diaphragm by sutures, placed a stitch inadvertently into the patient's stomach; failed to determine the situs of unknown bleeding prior to reconstructive surgery; left a blunt needle in his stomach; failed to determine the plaintiffs's respiratory status; and caused injury to the patient's liver which required reparative surgery. All of the alleged acts occurred prior to October 7, 1999. Dr. Kitchens answered the complaint and raised the affirmative defense that the statute limitations had run prior to October 7, 1997. Dr. Kitchens' initial motion for summary judgment was denied. He renewed his motion. The trial court granted Dr. Kitchens' second motion for summary judgment. The patient appealed.
COURT'S OPINION: The Court of Appeals of Georgia affirmed the judgment of the lower court. The court held, inter alia, that the statute' of limitations commences to run in a medical malpractice case upon injury caused by an act or omission in deviation from the standard of care and runs out after two years from such date and not from the date of the "discovery of the injury." However, the court, in its decision indicated that where there has been a misdiagnosis of a medical condition, the time to sue commences when the harm is discovered or reasonably should have been discovered. The court cited a case involving a foreign body, to wit, a blunt needle in the patient's body and cited the fact that the statute of limitations began to run one year after the "discovery" of the foreign body. However, the court found that the October 1997 date was the date when the plaintiffs injury occured. The suit was not commenced until December 6, 1999, which was more than two years after the injury. Thus, according to the court, Dr. Kitchens made out a prima facie affirmative defense for the running of the statute of limitations. Under the court's rationale, the duty to come forward with some evidence to create a material issue of fact, then shifted to the plaintiff. The court rejected the contention that the statute of limitations was tolled by fraud, because Dr. Kitchens failed to disclose the patient's injuries to him in violation of his fiduciary duties as the patient's treating physician and that thus the statute of limitations should run from the "discovery" of the injury by the plaintiff. Actual fraud through nondisclosure of a known injury by a physician (and through acts to conceal the injury, which deter the bringing of suit) tolls the running of the statute until the discovery of the fraud. The court ruled that such fraud that would toll the statute of limitation requires: (1) actual fraud involving moral turpitude on the part of the defendant; (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action; and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure of the patient to discover it within the statutory period.
LEGAL COMMENTARY: The court rejected the plaintiffs contention that on a motion for summary judgment based on the affirmative defense of the running of the statute of limitations the moving party has the burden not only to prove the running of the statute, but also to prove that the statute has not been tolled. However, the court ruled that the moving party only has the burden to prove an affirmative defense of the running of the statute of limitations and is not required to establish the absence of facts showing the tolling. The court concluded that the plaintiff erroneously maintained that Georgia courts adopted the discovery rule. The court found that the plaintiff misplaced his reliance upon language in a Georgia case regarding a misdiagnosis which applied to an injury which, in fact, was the misdiagnosis itself. The court distinguished this case by noting that the court adopted the "continuous treatment doctrine" in misdiagnosis cases.
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|Author:||Tammelleo, A. David|
|Publication:||Medical Law's Regan Report|
|Article Type:||Brief Article|
|Date:||Nov 1, 2001|
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