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Georgia Appellate Court Reaffirms New Injury Exception to the Misdiagnosis Exception to the Statute of Limitations for Medical Malpractice Claims

Posted by Jarome Gautreaux | Aug 11, 2017 | 0 Comments

Physicians are humans, and humans err in their judgment. But when it's your life at stake, errors are unacceptable. If a physician negligently misses or delays diagnosis, and as a result, you don't get the treatment you should have that would have prevented serious harm, or worse, death, then you have a right (or your immediate family) to sue. In fact, misdiagnosis tops the list of the most common reasons for medical malpractice lawsuits. Though every case must be analyzed individually, generally, in Georgia, you have two years from the date of the injury to file a lawsuit, but misdiagnosis cases can sometimes be an exception to the rule. Rather than the date of injury, which would have been the date the doctor either misdiagnosed or failed to diagnose a condition, the statute may, in some cases, only start to run until the date of discovery of the injury.

An Example of the Misdiagnosis Exception

For example, you had a rash that simply would not go away. It was itchy and oozy. You never had eczema in your life. You go to the doctor and he diagnoses it as eczema. You put the cream on that the doctor prescribed. Then a few months later, you start to lose weight and are tired all the time. It turns out you have cancer. You could have a claim against the doctor, and the statute of limitations may possibly not start to run until the symptoms of the cancer appeared. If you file your claim within two years of discovery, then you are probably within the allowable time to sue the physician or the facility. If you, however, fail to file timely, then you may be barred from recovering damages. This is a very complicated and factually sensitive issue, so each case must always be carefully examined on its own facts.

The Exception to the Exception

There is, however, an exception to this exception: new and different injury. This exception to the misdiagnosis exception of the statute of limitations for medical malpractice claims was in question before the Georgia Court of Appeals. In Spell et al. v. Fender et al., the Court of Appeals reaffirmed the new injury exception. In this case, Mr. Fender, a 53-year-old male, was admitted to the hospital after waking up with high blood pressure, blurred vision, and dizziness. A sonographer conducted a carotid ultrasound on him at the hospital, and Dr. spell interpreted the results. Mr. Fender was told everything was “normal” though some plaque was noticed, and he was discharged May 19, 2009. He was instructed to follow-up with his primary physician and an ophthalmologist, both of which he did.

Symptoms soon abated, but one year later, on April 7, 2010, Mr. Fender collapsed suddenly; he suffered a massive stroke. An ultrasound imaging showed complete obstruction of his carotid artery, which was in the same location as the plaque shown in May 2009. The family filed a suit against the doctor and hospital on April 2, 2012, which was less than 2 years since the 2010 stroke but more than 2 years from the initial, alleged misdiagnosis. A summary of judgment was filed, claiming that the statute of limitations had expired. The Court decided otherwise, and at the end of June 2017, reaffirmed the exception to the exception: the stroke in 2010 constituted a new and different injury that may possibly have been prevented but for the misdiagnosis.

Generally speaking, statutes of limitations are good public policy because it encourages claimants to file timely. But the exceptions, even exceptions to the exceptions, are also just as important to public policy because the consequences or occurrence of a misdiagnosis may not materialize until much later, and even then, it may take some investigation to determine what exactly happened and who exactly is at fault. Therefore, the Appellate Court's reaffirmation of the new injury exception to the misdiagnosis exception to the statute of limitations for medical malpractice claims is an important decision for Georgia citizens.

About the Author

Jarome Gautreaux

Jarome Gautreaux is a personal injury trial lawyer who represents people in Macon, and across the State of Georgia and other states, who have been seriously injured, as well as the families of people killed because of carelessness or negligence.  Jarome has successfully recovered for his clients over 100 million dollars in a variety of personal injury cases.  He is often asked by other lawyers to become involved in complex personal injury litigation.

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