Georgia Court Reaffirms New Injury Exception To Two Year Medical Malpractice Statute of Limitations


Generally, a statute of limitations limits the time period in which an injured party may file suit against the party whom allegedly caused their injuries. In medical malpractice actions, OCGA §9-3-71(a) states that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” More specifically, in medical malpractice cases arising from a misdiagnosis that resulted in a failure to properly treat a condition, the “injury” referred in the above statute occurs at the time of the misdiagnosis. However, the proposition that the statute of limitations period runs from the date of the misdiagnosis is only “generally true,” as Georgia courts recognize an exception where misdiagnosis results in the development of a new and different injury than that which existed at the time of the misdiagnosis. In cases where the “new injury exception” applies, the limitation period begins to run from the date the symptoms attributable to the new injury first manifest.stock-photo-57229086-surgeons-operating-patient-in-surgery-room

This exception to the misdiagnosis exception to the medical malpractice statute of limitations was recently reaffirmed in a Georgia Appellate Court decision involving a 53 year-old male, Mr. Fender, who was admitted to the hospital after he woke up with disorientation, a headache, dizziness, extremely high blood pressure, and blurred vision. While at the hospital he underwent a carotid ultrasound, which is a diagnostic imaging tool used to evaluate carotid arteries for narrowing, or stenosis caused by plaque. His ultrasound was performed by a sonographer employed by the hospital and the results were then sent to Dr. Spell, an on-call radiologist, who interpreted the results as showing no significant stenosis (narrowing of the ventricle). Mr. and Mrs. Fender were told that the results of the ultrasound were “normal” and he was subsequently discharged from the hospital on May 19, 2009 with instructions to follow up with his primary care physician and an ophthalmologist.

Mr. Fender followed up with the primary care physician and ophthalmologist as recommended, and his primary care physician informed him that Mr. Fender had suffered a transient ischemic attack, which causes temporary systems that can resemble the symptoms of a stroke, but no additional ultrasounds were performed. Then, on April 7, 2010, Mr. Fender suddenly collapsed at his home and was unable to move or to speak, and he was unable to recognize his family. At the hospital, Mr. Fender was diagnosed with having suffered “a massive stroke,” and ultrasound imaging showed a complete obstruction of his carotid artery in the same location as the plaque shown in the May 2009, ultrasound.

Mr. Fender filed suit against the doctor and the hospital on April 2, 2012, less than two years after the 2010 stroke, but greater than two years the alleged misdiagnosis. In his claim he alleged that Dr. Spell had negligently interpreted the May 2009 ultrasound by failing to recognize, document, and diagnose the “significant visible stenosis caused by the large plaque formation, and failing to reproduce all appropriate images of the ultrasound. Dr. Spell and the hospital argued that the statute of limitations barred Mr. Fender’s claim, as he failed to file the claim within two years of the initial misdiagnosis, and filed a motion for summary judgment to that effect. However, due to the misdiagnosis “new injury exception,” the court denied the motion for summary judgment and allowed Mr. Fender’s claim to move forward.

In general, the misdiagnosis “new injury exception” is pragmatic from both a legal and public policy standpoint. Statutes of limitations operate as to encourage injured parties to bring claims in a timely manner. However, in the context of misdiagnosis, injured parties are often unaware of the consequences or occurrence of a misdiagnosis until years later. As such, it would be inequitable to permit parties who misdiagnose victims to be protected under a procedural rule at the expense of the injured party. This exception also operates as an incentive to doctors and hospitals to ensure that they properly diagnose patients no matter how minimal the initial symptoms may be, as if a doctor fails to properly diagnose a seemingly minor affliction, and the minor affliction subsequently causes a major ailment years later, the doctor and hospital will not be able to hide behind a statute of limitations as a defense to their liability for the misdiagnosis.

Please note that the Law Offices of Kevin C. Ford is currently accepting serious medical malpractice and wrongful death cases throughout the State of  Georgia. If you or a loved one has been injured as the result of the tortious conduct of a health care provider, then please contact me immediately, as time if of the essence and crucial information and evidence needs to be secured as soon as possible.  We have the necessary experience to help you!


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