Article - Misdiagnosis



By Elizabeth Pelypenko
Pelypenko Law Firm, PC
Reprinted From Verdict Magazine Winter 2005

The Court of Appeals has recently revisited the issue of misdiagnosis cases in Georgia.  In Sidlow v. Lewis,[2] the latest pronouncement handed down by the Court of Appeals in a long line of inconsistent cases, the Court has tried to clarify and distinguish cases involving a misdiagnosis where the injury does not coincide temporally with the misdiagnosis/ negligence, focusing on whether the patient had symptoms when the misdiagnosis occurred.  It also addressed (and distinguished) the “continuous treatment” doctrine, rejected by Young v. Williams.[3] The rule remains, however, that a symptomatic patient who is misdiagnosed cannot rely on his doctor’s advice to decide a course of treatment without running the risk of having the statute of limitation run on his medical malpractice action.

A. Sidlow v. Lewis – An Introduction

Joe Lewis sued his podiatrist, Charles Sidlow, for improperly treating his foot condition subsequent to misdiagnosing it.  The improper treatment led to the amputation of Lewis’ leg on July 13, 2000.  Dr. Sidlow filed a motion for summary judgment arguing that the injury (i.e., Lewis’s Charcot’s arthropathy) manifested itself on March 6, 2000 , according to Lewis’s own expert, and thus the statute of limitation had run.  On Lewis’s March 6, 2000 visit with Sidlow (who had treated Lewis since 1996), Sidlow’s notes differed from previous notes, mentioning Lewis’s pulses and that he complained of his orthotic boot breaking down.  Lewis’ position was that the statute began running on June 1, 2000 , when Sidlow actually diagnosed his condition of Charcot’s foot and failed to treat it properly, and not on March 6, 2000when Sidlow misdiagnosed his foot.[4] According to Lewis’s expert, Sidlow testified that Lewis had no redness, swelling, or warmth on the March 6 visit or even on the June 1, 2000 visit, even though he made the Charcot’s foot diagnosis on June 1.  Lewis filed his complaint on June 19, 2002,[5] within two years of his last visit to Sidlow on June 1, 2000 , [6] and less than two years since the amputation.  The Court of Appeals determined that the continuous treatment doctrine did not apply, and that a genuine issue of material fact existed as to when the injury to the patient began, starting the running of the statute of limitations. The Court affirmed the denial of summary judgment because Sidlow had not established the absence of an issue of fact for a jury to determine as to whether he committed malpractice treating Lewis on March 6. Because it is the injury to the patient and not the misdiagnosis standing alone that started the statute of limitations running, and because Sidlow had not proven that the injury began in March of 2000, summary judgment to Sidlow was not warranted.

B. The Evolution of the “Misdiagnosis is the Injury” Rule in Symptomatic Patients

Looking at the case law in misdiagnosis cases as it stands today, notwithstanding the ruling in Breyne v. Potter,[7]which will be discussed infra, determining when the actionable injury arose is difficult in cases where the patient presents for treatment with an injury or illness manifested by pain or other physical symptoms and that condition is misdiagnosed.  It may be nearly impossible for the patient to separate the existing physical symptoms from subsequent physical symptoms that are the worsening of his original condition as the consequence of the physician’s misdiagnosis and failure to treat.  This is, however, no justification for the disparate legal treatment applied to these misdiagnosis cases. The only narrow exception to the rule that the statute begins running when a misdiagnosis occurs is when the patient shows no symptoms at that time, which rarely happens.

According to the rule espoused by the Court of Appeals, in some misdiagnosis cases, the cause of action accrues and the statute of limitation begins to run at the time of the act of misdiagnosis, regardless of when the symptoms of the “new injury” that develops as a consequence of the misdiagnosis physically manifest themselves.[8] This rule, that as long as the patient has some symptoms the statute runs, ignores the consequence of the physician’s negligence on the patient – the aggravation of the original condition as a result of erroneous treatment or no treatment based on the misdiagnosis.  It is in contravention of OCGA § 9-3-71(a), which as the Supreme Court has stated, “begins with the occurrence of an injury, not the performance of a negligent act,” and focuses “on the adverse consequences of the allegedly negligent acts without regard to when the negligent act occurred.”[9] Further, application of this rule has the potential to impermissibly cut off the patient’s cause of action before the “new injury” is ascertainable.[10] Such a result brings about the very injustice that the 1985 Amendment to OCGA §     9-3-71(a) was enacted to prevent.

By focusing on the symptoms at the time of the misdiagnosis rather than on the ascertainable “new injury” that develops over time and is the consequence of the physician’s negligence (such as metastasis that could have been prevented with proper diagnosis), this rule results in the accrual of the cause of action and the commencement of the statute of limitation at the latest on the date of the misdiagnosis – the negligent act or omission – rather than on the date of the injury arising from the negligent act.[11] The rule contravenes the General Assembly’s intent in amending OCGA §     9-3-71 (a) to commence the statute of limitation on the date of the injury rather than on the date of the negligent act.  It potentially allows the statute of limitation to expire before the cause of action accrues, violating equal protection.

The rule impermissibly treats misdiagnosis cases in which the plaintiff presents with an existing illness or condition differently not only from latent injury misdiagnosis cases, but differently from all other medical malpractice cases.  In medical malpractice cases alleging an overt act of negligence rather than misdiagnosis, the statute of limitation runs from the physically manifested or ascertainable injury arising from that act.  SeeVitner v. Miller[12] (plaintiff’s injury from negligently performed abortion did not arise until days later when “the injury manifested itself…[and the plaintiff] began to bleed and experience pain.”);  Shessel v. Stroup[13] (negligently performed tubal ligation did not become actionable until injury manifested itself two years later in the form of pregnancy).[14] This is correct because the focus of OCGA §   9-3-71(a) “is not on the date of the negligent act, but [on] the consequence of the defendant’s acts on the plaintiff.” [15] Yet, though it flies in the face of OCGA § 9-3-71 (a), in cases where the physician misdiagnoses an existing condition and erroneously treats the patient on the basis of the misdiagnosis, the focus is not on the consequence of the physician’s acts on the patient, but on the physician’s acts themselves.

In Stone v. Radiology Services, PA,[16] the plaintiff had a history of headaches, and had a CAT scan at Radiology Services in 1985 which were reviewed by physicians as showing no tumor.  Then, in December of 1988, an MRI performed at Radiology Services revealed a brain tumor.  In that case, the plaintiff’s lawsuit filed on December 11, 1990 was deemed untimely, based on the “misdiagnosis is the injury” rule discussed in that case.  In Stone, a visit subsequent to the misdiagnosis revealed the patient’s true condition.

Stone holds that, as a general rule, in most diagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated.  Ford v. Dove[17] and its progeny hold that a “subjective belief that symptoms were due to some other cause unrelated to the alleged negligence does not change the point at which the injury occurred.”  [18] This provides an escape clause for doctors who knowingly or unknowingly continue to misdiagnose an injury where symptoms are present.

Miller v. Kitchens, et al.,[19]discusses statutes of limitation in the various types of medical malpractice cases, including those with allegations of incorrect diagnosis:

The statute of limitation commences to run in a medical malpractice case upon injury caused by an act or omission in deviation from the standard of care and attaches after two years from such date and not from discovery of the injury.       OCGA § 9-3-71(a);  Shessel v. Stroup,253 Ga. 56, 57- 58, 316 S.E.2d 155 (1984).    However, when there has been a misdiagnosis of a medical condition, the tortious injury commences when the harm was discovered or reasonably should have been discovered.  Walker v. Melton, 227 Ga. App. 149, 150-151(1), 489 S.E.2d 63 (1997) . [20]

Miller v. Kitchens goes on to state in no uncertain terms that

The law as to medical malpractice arising from misdiagnosis, which was not involved in this [Miller v. Kitchens] case, holds that the statute of limitation commences to run from the discovery of the injury, i.e., misdiagnosis.  Whitaker v. Zirkle, 188 Ga. App. 706 (1) (374 SE2d 106)(1988); see also Walker v. Melton, 227 Ga.  App. at 150-151. [21]

However, in Breyne v. Potter,[22]the Court of Appeals held that:

“[p]atients are entitled to rely on their doctors’ diagnoses in deciding a course of treatment.  Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773(1) (278 SE2d 653)(1981).  If a doctor breaches the standard of care in making that diagnosis, a patient who suffers damages as a result may have a cause of action.” [23]

Can we make these two lines of reasoning jibe?  Apparently not, since the misdiagnosis rule seems to supersede such entitlement by the patient if the doctor persists in misdiagnosing the same symptoms.

It must be pointed out, and as has been reinforced by the decision of Kane v. Shoup,[24]that “Georgia courts have carved out a limited exception in misdiagnosis cases when an injury occurs subsequent to the date of medical treatment, in which case the statute of limitation commences from the date the injury is discovered.”[25][Emphasis added].

C. Improper Satisfaction of the Burden of Proof

Sidlow points out, “[b]ecause the statute of limitation is an affirmative defense, OCGA § 9-11-8(c), the burden was on [Sidlow] to show its applicability.”  [26] This meant that Sidlow had to show that Lewis suffered an injury in March 2000 that commenced the statute of limitations, which the Court of Appeals held that Sidlow failed to do, since he could not show that Lewis had any redness, swelling, or warmth then or even by the June 1, 2000 visit when Sidlow finally diagnosed the Charcot’s foot but failed to treat it.

The rule that the misdiagnosis itself is the injury when accompanied by symptoms improperly removes a physician’s burden of proof where OCGA § 9-3-71(a) is asserted as a defense.  Where a physician raises OCGA § 9-3-71(a) as an affirmative defense, he bears the burden of showing that suit was not filed within two (2) years of the injury that arises from the negligent act or omission.[27] Where the plaintiff has an existing illness that is misdiagnosed and is either wrongly treated or goes untreated, the rule that the misdiagnosis is itself the injury improperly satisfies the physician’s burden without requiring any proof of when the ascertainable injury that is the consequence of the physician’s negligence occurred.  [28] The physician is improperly allowed to rely solely on the date of misdiagnosis to trigger the statute of limitation.

D. Disparate Treatment is Inequitable and Violates Equal Protection

The most recent case on the issue of misdiagnosis cases decided 5 months prior to Sidlow was Harrison v. Daly,[29]discussed in Sidlow.  It reiterated that

in most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated.  The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis;  thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of OCGA § 9-3-71(a). [30]

The patient in Harrison attempted to argue that her case fit into the limited exception in misdiagnosis cases when the injury occurs subsequent to the date of the medical treatment, in which case the statute would commence from the date of discovery of the injury, citing Walker v. Melton and Whitaker v. Zirkle.  The Court of Appeals distinguished her case from the exception because she did not remain asymptomatic for a period of time following the misdiagnosis.  Because Harrison’s symptoms worsened over time, she was not barred from learning the cause of her suffering, though she continued to follow-up with her physicians and they continued to misdiagnose and improperly treat her and reassured her that she was fine!  This case cannot be read in concordance with Breyne v. Potter, wherein the Court of Appeals stated that a “[p]atients are entitled to rely on their doctors’ diagnoses in deciding a course of treatment.”

The disparate treatment afforded these classifications of misdiagnosis cases is inequitable and violates equal protection.  The “subsequent injury” misdiagnosis cases are treated the same as all other medical malpractice cases – the statute begins to run two years from the date of an ascertainable injury that is the consequence of the physician’s negligence.  But a symptomatic plaintiff who submits for treatment of an existing injury or condition that is misdiagnosed has but two years from the date of the misdiagnosis in which to file suit, regardless of whether there is an ascertainable injury caused by that misdiagnosis for which damages will lie.[31] Thus, the symptomatic plaintiff who seeks treatment of an existing condition that is misdiagnosed is unfairly penalized.   [32]

E. Conclusion

Sidlow has not really remedied the incongruity and the inherent injustice between the misdiagnosis rule and the patients’ right to rely on their doctors’ diagnosis to decide a course of treatment.  It has only clarified the existence of a narrow exception by pointing out that if there were a misdiagnosis and that no evidence existed that the patient had symptoms at that time, then the statute commences upon subsequent discovery of the injury.

In essence, an existing injury that is misdiagnosed is treated as a subsequent injury if neither the patient nor the doctor provides any evidence that there were symptoms of the injury at the time of the misdiagnosis. The court thus held that, because Lewis manifested no symptoms when Sidlow misdiagnosed him in March 2000, the statute of limitations did not begin running then.

Unfortunately, this ruling only provides a rare exception to the misdiagnosis rule, which is afforded only if the patient is asymptomatic.  It does little to rectify the incongruence between the misdiagnosis rule and the patients’ right to rely on their doctors’ diagnosis in deciding a course of treatment.  As it stands now, if a doctor continues to misdiagnose a patient’s symptoms for a period of two years and the misdiagnosis is discovered subsequently, the claim would still be barred.

A Motion for Reconsideration filed by Sidlow was denied on December 16, 2004, but he has since filed a Notice of Intent to file a Petition for Certiorari.  We will see in the coming months if it is granted.

[1] Copyright © Elizabeth Pelypenko 2005.  All rights reserved.

[2] Sidlow v. Lewis, 2004 WL 2786970 ( Ga. App.), ___ SE2d ___, A04A1437 (Dec. 1, 2004).

[3] 274 Ga. 845, 560 SE2d 690 (2002); Williams v. Young, 258 Ga. App. 821, 575 SE2d 648 (2002).

[4]As the opinion discusses, on June 8, 2000, Lewis was hospitalized for sepsis and placed on intravenous antibiotics, and on June 10, 2000, an MRI revealed the expected fractures and osteomyelitis (a bone infection) with Charcot’s arthropathy, which developed into gangrene and led to the amputation of Lewis’ right leg in July 2000.   In fact, Lewis’s expert testified that Sidlow violated the standard of care by his failure to treat Lewis on June 1, 2000 after diagnosing his Charcot’s foot on that date.

[5]and amended complaint on July 18, 2002.

[6]Footnote 3 of the dissent authored by Judge Mikell reveals that the trial court found, in denying a motion to dismiss filed by Sidlow, that the statute was tolled for 17 days by Sidlow’s untimely response to Lewis’s request for medical records.   The Court of Appeals did not address this issue because Sidlow did not challenge it.

[7] 258 Ga.App. 728, 574 SE2d 916(2002).

[8]Williams v. Young, 247 Ga. App. 337, 339, 543 SE2d 737 (2000).

[9]Young v. Williams, 274 Ga. 845, 560 SE2d 690 (2002).

[10]Stone v. Radiology Services, PA, 206 Ga. App. 851, 854, 426 SE2d 663 (1992); Hughley v. Frazier, 254 Ga. App. 544, 562 SE2d 821 (2002)(physical precedent); Williams v. Young, 247 Ga. App. at 339.

[11]For applications of this rule to facts, seeWilliams v. Young, 247 Ga. App. 337, 340, 543 SE2d 737 (2000);   Hughley v. Frazier, 254 Ga. App. 544, 562 SE2d 821 (2002)(physical precedent).

[12]208 GA. App. 306, 430 SE2d 671 (1993).

[13]253 Ga. 56, 59, 316 SE2d 155 (1984).

[14] The exceptions are cases alleging fraudulent concealment where, because the physician induces the plaintiff to refrain from seeking other medical care or from making further inquiries into his condition, the statue of limitation runs only from the time of the plaintiff’s discovery of the existence of the negligence.  Oxley v. Kilpatrick, 225 Ga. App. 838 (1997), rev’d on other grounds in Rossi v. Oxley, 269 Ga. 82 (1998); Bynum v. Gregory, 215 Ga. App. 431, 450 SE2d 840 (1994); see also OCGA § 9-3-96; and (2) where a foreign object is left in a patient’s body.  In this situation the statute of limitation of OCGA § 9-3-71 does not apply, but instead OCGA § 9-3-72 provides that the “action shall be brought within one year after the date the negligent or wrongful act or omission is discovered.”

[15] Vitner v. Miller, 208 Ga. App. 306, 307, 430 SE2d 671 (1993).

[16]206 Ga. App. 851, 426 SE2d 663 (1992).

[17]218 Ga. App. 828, 463 SE2d 351 (1995).

[18]Ford at 831 citing Bryant v. Crider, 209 Ga. App. 623, 626(3), 434 SE2d 161.

[19]251 Ga. App. 225, 553 SE2d 300 (2001).

[20][Emphasis added].   Miller, 251 Ga. App. at 225-226.

[21][Emphasis added].   Miller, at 228.

[22] 258 Ga.App. 728, 574 SE2d 916(2002).

[23][Emphasis added.]  Breyne v. Potter258 Ga.App. 728, 574 SE2d 916(2002).

[24]260 Ga. App. 723, 580 SE2d 555 (2003).

[26]Sidlow, 2004 WL 2786970 (Ga. App.), ___ SE2d ___, (Dec. 1. 2004), citing Walker v. Melton, 227 Ga. App. 149, 151(1)(b), 489 SE2d 63 (1997).

[27]Walker v. Melton, 227 Ga. App. 149, 151, 489 SE2d 63 (1997); OCGA § 9-11-8(c).

[28]SeeHughley v. Frazier, 254 Ga. App. 544, 562 SE2d 821 (2002)(physical precedent).

[29]268 Ga. App. 280, 601 SE2d 771 (2004).

[30] Harrison v. Daly, 268 Ga. App. 280, 601 SE2d 771 (July 1, 2004), as quoted in Sidlow v. Lewis, 2004 WL 2786970 (Ga. App.), ___ SE2d___ (Dec. 1, 2004).

[31] SeeHughley v. Frazier, 254 Ga. App. 544, 562 SE2d 821 (2002)(physical precedent).

[32]For an excellent discussion of this topic, See, Johnson, Antoinette (Toni), The Statute of Limitations in Misdiagnosis Cases in Georgia:  an Update, The Verdict, Winter, 2003, at 49.