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GEORGIA SUPREME COURT LIMITS NEW INJURY EXCEPTION TO MEDICAL MALPRACTICE STATUTE OF LIMITATIONS

Posted by Jonathan A. Barash

An action for medical malpractice in Georgia must be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred. O.C.G.A. § 9-3-71(a). With some exceptions, this usually means the date of the allegedly negligent treatment.

A longstanding exception is in the misdiagnosis context when a “new injury” following misdiagnosis occurs. For purposes of this exception, a patient suffers a “new injury” if he or she has a relatively benign and treatable precursor medical condition which, as a proximate result of being misdiagnosed, is left untreated and subsequently develops into a much more serious and debilitating condition.

While small revisions and refinements have been made to the “new injury rule” rule by Georgia courts over the years, the Georgia Court of Appeals significantly expanded the rule 17 months ago in Lee v. McCord, 292 Ga. App. 707 (2008) where the rule was extended beyond the misdiagnosis context to a negligent treatment case as well. However, in McCord v. Lee, 2009 Ga. LEXIS 639 (2009), the Georgia Supreme Court reversed, again limiting the new injury rule only to cases where a misdiagnosis results in a significantly more serious medical condition.

Floyd Lee was diagnosed with prostate cancer in October 2001. One month later, radiation oncologist, Dr. Dale McCord, treated the cancer by implanting radioactive seeds in Lee’s prostate. Although the seeds were allegedly implanted improperly, Lee was symptom free until 2004 at which time Lee’s doctors determined that his cancer had metastasized. The following year, Lee filed a medical malpractice suit against McCord, but the the trial court granted summary judgment on statute of limitations grounds. The Court of Appeals reversed, reasoning that using the “new injury” test from misdiagnosis cases, a jury could conclude that that Lee was not “injured” from the improperly planted radioactive seeds until he began experiencing serious symptoms. The Georgia Supreme Court granted certiorari to determine whether “the Court of Appeals erred in utilizing the ‘new injury’ exception to the general rule for determining commencement of the limitations period in negligent misdiagnosis cases, even though this case does not involve a misdiagnosis.”

In its 5-2 opinion reversing the holding of the Court of Appeals, the Georgia Supreme Court characterized the lower court’s holding as “expanding the limited ‘new injury’ exception into a universal standard for medical malpractices cases;” something the majority of the Court was not prepared to do. In its decision, the Supreme Court stated that the rationale for the exception, which focuses on the point which a new injury becomes manifest, is that it is often impossible to pinpoint the date that the new injury actually arose other than at some point between the misdiagnosis and the correct diagnosis. However, in her dissent, Chief Justice Hunstein (joined by Justice Benham) contended that the same rationale underlying the exception in misdiagnosis cases would apply equally to Lee’s situation.