Exception to statute of limitations upheld in Georgia

The Georgia Supreme Court turned down physicians' request to overrule a long-standing exception to the statute of limitations for medical liability cases involving misdiagnoses.

Under Georgia law, plaintiffs generally have two years from the date of the alleged misdiagnosis to sue for an injury. But justices in June unanimously upheld a 20-year-old legal precedent that carved an exception to that rule.

Established under a 1988 appeals court ruling, the exception was intended to address cases where a patient develops a new, more serious condition allegedly stemming from a negligent diagnosis but symptoms do not show up until much later. In such cases, the clock starts ticking from the time signs of the new injury first appeared.

However, doctors say there has to be some finality to when plaintiffs can file claims. They fear the decision leaves them exposed to greater liability and could deter doctors from practicing at a time when the state is facing physician shortages.

"Our concern is this [ruling] is going to allow plaintiff attorneys to circumvent the intent of the Georgia Assembly and create liability at selective stages of the disease process," said Donald J. Palmisano Jr., general counsel to the Medical Assn. of Georgia. The organization filed a friend-of-the-court brief asking the Supreme Court to overturn the 1988 exception.

Justices determined the exception applied to a lawsuit Wilbert Barnes brought against Atlanta internist Chukwudi B. Amu, MD, in 2004 for allegedly misdiagnosing his colon cancer four years earlier.

Barnes saw Dr. Amu in 2000 for rectal bleeding. Dr. Amu treated Barnes for hemorrhoids and the bleeding went away. In 2004, Barnes saw another physician when the bleeding returned along with other symptoms. He was diagnosed with terminal metastatic colon cancer.

Affirming an $800,000 jury verdict, the Supreme Court said Barnes had the right to sue for a new injury based on several factors. Justices noted that Barnes' advanced cancer did not exist at the time of Dr. Amu's original diagnosis; Barnes went untreated after the alleged misdiagnosis; and he did not show signs of the disease for a while.

Disregarding medical science

But doctors say the legal standard disregards medical science. What the court defined as a new injury is an ongoing part of the disease process, Palmisano said.

The exception also focuses on symptoms, or lack thereof, which is only one component of a medical diagnosis, along with tests and studies, doctors argued in their brief.

"Now what you have is plaintiffs are allowed to control and direct medical malpractice claims" by choosing different points in the disease process and claiming them as a new injury, Palmisano said. "That's not what the statute of limitations was meant to be," he said, adding that it is up to the Legislature, not the courts, to decide such limits.

Dr. Amu's attorney could not be reached for comment.

Plaintiff attorneys, however, say the ruling reaffirms decades of case law upholding patients' rights to have their day in court. If the exception were overruled, it would close the door on some patients' claims before they knew they were harmed, said Harvey R. Spiegel, who helped author a friend-of-the-court brief filed by the Georgia Trial Lawyers Assn.

Such cases are rare, said James M. Poe, Barnes' attorney, and the decision is unlikely to have an additional impact on liability claims against doctors. He added that the exception applies narrowly. Poe said the high court distinguished its June opinion from one it issued in 2007.

In that case, justices concluded that the exception did not apply when, after an AIDS patient was misdiagnosed, his symptoms worsened over a period of more than 15 years.

In the June decision, the high court said the Amu v. Barnes case turned on the patient's lack of symptoms.

"The question is, should those people who had no symptoms and no reason to believe there was anything wrong with their medical care, should the court system say those people are flat out of luck?" Poe asked. "The court said for a period of time the courthouse doors are not nailed shut."