Stafford-Fox v. Jenkins

These appeals concern a medical malpractice action alleging that an injury arose from the misdiagnosis of a vitamin B-12 deficiency — and a subsequent amendment to the complaint adding claims for ordinary negligence and breach of fiduciary duty — filed by Diane Stafford-Fox against Lonnie C. Jenkins, M.D. and his professional corporation, Lonnie C. Jenkins, M.D., P.C. In Case No. A06A1090, Stafford-Fox appeals from the portion of the trial court’s order granting summary judgment in favor of Jenkins and the professional corporation on the ordinary negligence and breach of fiduciary duty claims. In Case No. A06A1091, Jenkins and the professional corporation cross-appeal (a) from the portion of the trial court’s order denying their motion seeking partial summary judgment on medical malpractice claims, and (b) from partial denial of their motion seeking summary judgment on the ordinary negligence claims.

1. In the cross-appeal in Case No. A06A1091, Jenkins and the professional corporation1 contend that the trial court erred by denying their motion for partial summary judgment asserting that the two-year statute of limitation in OCGA§ 9-3-71 (a) had expired on the medical malpractice claims related to misdiagnosis.2

Stafford-Fox alleged in her complaint filed on May 1, 2002, that she sustained an injury which arose from the misdiagnosis of a vitamin B-12 deficiency. She alleged that when Jenkins treated her during a series of office visits beginning in January 1999, and ending on May 1, 2000, he negligently failed to diagnose that she was suffering from a B-12 deficiency, and that his failure to diagnose and treat the deficiency caused it to worsen and rendered her permanently disabled. Expert evidence showed that the B-12 deficiency at issue causes anemia, and that left untreated the deficiency progressively worsens and can become so severe that it causes neurological damage that is permanent and disabling. The record shows that Stafford-Fox exhibited symptoms consistent with a moderate untreated B-12 deficiency during the entire period of time she was seen by Jenkins in 1999 and 2000. Her symptoms included numbness and tingling in her fingertips, general itching, joint pain, and difficulty *668with her balance. Expert evidence showed that when Stafford-Fox was seen by Jenkins in May 2000, she was already displaying neurologic symptoms of a spinal cord condition known as subacute combined degeneration caused by the B-12 deficiency. Nevertheless, at that time, the deficiency was not severe, she had not suffered any irreversible neurological damage, and she could walk on her own. On May 15, 2000, Stafford-Fox underwent gall bladder surgery unrelated to the B-12 deficiency. Expert evidence showed that the stress of the surgery and the use of nitrous oxide anesthesia during the surgery accelerated and worsened the B-12 deficiency by depleting the moderately low B-12 level to a severely low level. As a result of the severe B-12 deficiency she experienced after the May 15, 2000 surgery, Stafford-Fox suffered permanent neurological damage that rendered her unable to walk without a cane, walker, or leg braces.

Stafford-Fox contends that the misdiagnosis left her with an untreated moderate B-12 deficiency, and that the subsequent surgery further depleted her B-12 level, so that the misdiagnosis and the surgery combined to cause a severe B-12 deficiency that rendered her permanently disabled. She contends that her complaint filed on May 1, 2002, was within the two-year limitation period of OCGA § 9-3-71 (a) because she seeks to recover for an injury •— the permanent disability — which arose from the misdiagnosis but did not occur and manifest itself to her until after the surgery she underwent on May 15, 2000.

In an order dated August 21, 2003, the trial court granted a motion for partial summary judgment on the misdiagnosis claims in favor of Jenkins and the professional corporation on the basis that Stafford-Fox failed to file her complaint within the two-year limitation period set forth in OCGA § 9-3-71 (a). The trial court ruled that, because the evidence showed Stafford-Fox manifested symptoms of B-12 deficiency after the misdiagnosis, and no later than April 14, 2000, that was the date on which an injury arising from the misdiagnosis occurred and the two-year limitation period commenced to run. Accordingly, the trial court found that the limitation period expired before the complaint was filed on May 1, 2002.

Based on additional expert evidence produced in the case, Stafford-Fox subsequently filed a motion requesting that the trial court reconsider its August 21, 2003 ruling, and on October 6, 2004, the trial court entered an order granting the motion for reconsideration and finding that a factual issue existed as to whether the statute of limitation had expired on the misdiagnosis claims. As the basis for this ruling, the trial court found that, even though the evidence established that Stafford-Fox manifested symptoms of a moderate but treatable B-12 deficiency no later than April 14, 2000, other evidence showed that the deficiency did not become severe and cause *669permanent disability until after the May 15, 2000 surgery. The trial court found that a factual issue was presented as to whether the severe B-12 deficiency and resulting permanent disability was an injury which arose from but occurred subsequent to the misdiagnosis. Because the May 1,2002 complaint was filed less than two years after Stafford-Fox manifested symptoms of the severe B-12 deficiency that caused permanent disability, the trial court vacated its earlier ruling that the two-year statute of limitation had expired.

At issue on these facts is when did the cause of action for medical malpractice accrue and when did the two-year limitation period in OCGA § 9-3-71 (a) commence to run. Under OCGA § 9-3-71 (a), medical malpractice actions 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.” This Court has consistently held 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).3

In the present case, the record clearly shows that Stafford-Fox suffered an injury arising out of the misdiagnosis in January 1999, when she was first seen in Jenkins’ office manifesting continuous symptoms of a moderate B-12 deficiency, and Jenkins failed to make the diagnosis and provide treatment.

The injury at the time of the misdiagnosis was that Stafford-Fox continued to suffer from an undiagnosed and untreated B-12 deficiency that continued to slowly progress and worsen. Clearly, Stafford-Fox’s injury had occurred, and her cause of action had accrued, in 1999. The fact that she did not know the medical cause of these symptoms does not affect the applicability of OCGA § 9-3-71 (a). In addition, the fact that these symptoms worsened and resulted in permanent disability does not lead to a different result, as the subsequent disability was directly related to the initial symptoms and misdiagnosis.4 The two-year statute of limitation in OCGA *670§ 9-3-71 (a) commenced to run on Stafford-Fox’s medical malpractice action alleging misdiagnosis of her B-12 deficiency from the date of her injury in 1999 and expired prior to the date she filed her complaint on May 1,2002. The trial court erred in denying the motion for partial summary judgment on the medical malpractice claims related to misdiagnosis.

The special concurrence discusses in great detail lines of cases in which this Court has recognized two principles related to the application of the statute of limitation in medical malpractice cases. It argues that the cases in which these two doctrines have been recognized and applied should be overruled. However, these principles, which have come to be referred to as the “discovery rule” and the “continuous treatment doctrine,” are not in any way implicated in this case under the particular fact situation presented. Therefore, this case does not present the Court with an appropriate vehicle to address the concerns expressed in the special concurrence.

2. After alleging only professional negligence against Jenkins and the professional corporation in her original complaint, Stafford-Fox amended the complaint to add claims alleging simple negligence and breach of fiduciary duty. In Case No. A06A1090, Stafford-Fox contends the trial court erred by partially granting summary judgment in favor of Jenkins on these claims, and in Case No. A06A1091, Jenkins and the professional corporation contend the trial court erred by partially denying their motion for summary judgment on the same claims.

The amendment added Counts 3 and 4 to the complaint. Amended Count 3 alleged that Jenkins and the professional corporation, acting by and through various agents and employees, breached duties to exercise ordinary care to ensure that Jenkins was made aware of lab reports or other documents that could have enabled him to diagnose Stafford-Fox’s B-12 deficiency, and that, as a result, Stafford-Fox was not promptly diagnosed and treated for the B-12 deficiency. Amended Count 4 alleged that Stafford-Fox was not promptly diagnosed and treated for her B-12 deficiency because Jenkins breached a fiduciary duty he owed to tell her: (a) that he suspected during the entire course of her treatment that she might have a B-12 deficiency, and (b) that a lab test he ordered on her B-12 level showed she had a B-12 deficiency.

Jenkins and the professional corporation moved for summary judgment on the amended counts, and the trial court entered an order partially granting and partially denying the motion. The trial court granted the motion to the extent it sought dismissal of the ordinary *671negligence claims against Jenkins and the professional corporation and the breach of fiduciary claim against Jenkins. The trial court denied the motion “to the extent that non-professional employees of [the professional corporation] are alleged to have contributed to the loss or failure to consider the B-12 test.” The trial court ruled that “this claim may be maintained in simple negligence.”

We find no error in the trial court’s order granting summary judgment and dismissing the ordinary negligence and breach of fiduciary claims against Jenkins and the professional corporation. Although complaints against professionals may state claims based on ordinary as well as professional negligence, where the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional’s area of expertise, the action states professional negligence.5 The claim in Count 3 alleging that Jenkins was negligent because he failed to diagnose and treat the B-12 deficiency stated a cause of action for medical malpractice under OCGA § 9-3-70 for damages arising out of acts or omissions involving his medical skill and judgment. Allegations that Jenkins negligently failed to implement or follow proper procedures to insure that he saw and acted upon test results showing that Stafford-Fox had a B-12 deficiency are not purely administrative acts, but involve the exercise of medical knowledge, skill or judgment in diagnosing a medical condition and rendering appropriate treatment.6 It follows that there was no claim for ordinary negligence against Jenkins, and no claim against the professional corporation on the basis of respondeat superior for acts of ordinary negligence by Jenkins.

Similarly, the claim that Jenkins breached a fiduciary duty by failing to inform Stafford-Fox about her B-12 deficiency stated a claim for medical malpractice.7 To the extent the ordinary negligence or breach of fiduciary claims duplicated the medical malpractice claims on which the statute of limitation expired, the trial court correctly dismissed them for the reasons stated in Division 1, supra. To the extent the breach of fiduciary duty claim in Count 4 restated a medical malpractice claim which was not addressed on summary judgment — the claim that Jenkins breached a duty to inform Stafford-Fox of her condition8 — the trial court properly dismissed Count 4 as duplicative, but the substance of the claim remains in the case as part of the surviving medical malpractice claim.

*672The trial court erred to the extent it found that an ordinary or simple negligence claim was stated in Count 3 against the professional corporation based on allegations that nonprofessional staff employees of the professional corporation “contributed to the loss or failure to consider the B-12 test.” There is evidence that ordinary negligence of nonprofessional staff employees of the professional corporation, who failed to place B-12 test results in Stafford-Fox’s chart or otherwise bring information to the attention of Jenkins, contributed to Jenkins’ failure to diagnose and treat the B-12 deficiency. Although this is a claim against the professional corporation based on ordinary negligence of its nonprofessional employees, the claimed damages still arose out of the misdiagnosis by Jenkins involving the exercise of medical skill and judgment.9 Under OCGA § 9-3-70 (1) an “action for medical malpractice” is defined as

any claim for damages resulting from the death of or injury to any person arising out of. . . [h]ealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person. . . .

(Emphasis supplied.) Under this definition, even though the claim asserted ordinary negligence, it was “an action for medical malpractice” and was subject to the same two-year statute of limitation in OCGA§ 9-3-71 (a).10 Accordingly, the statute of limitation expired on this claim for the reasons set forth in Division 1, supra.

Finally, there is no merit to Stafford-Fox’s contention that nonprofessional employees who worked in Jenkins’ office were his personal employees and agents, and that Jenkins was personally liable for their ordinary negligence on the basis of respondeat superior. To the contrary, Stafford-Fox has asserted and the record shows that these employees were employed by the professional corporation. The trial court correctly dismissed any claims that Jenkins was personally liable for ordinary negligence on the basis of respondeat superior.

Judgment affirmed in Case No. A06A1090. Judgment reversed in Case No. A06A1091.