Georgia Court of Appeals Renews Medical Malpractice Claim in Divided Decision


Georgia law imposes a strict two-year statute of limitations on medical negligence claims. Indeed, many potentially viable malpractice claims have been lost because the plaintiff has failed to file a timely complaint. However, as a recent decision from the Georgia Court of Appeals shows, clever pleading can, at least in some instances, help preserve a plaintiff’s day in court.

The case, Smith v. Danson, arose from an alleged act of medical negligence that occurred in February 2011. At that time, the plaintiff in this action underwent a laparoscopic hysterectomy, which was performed by the defendant physician. Following the procedure, the defendant allegedly told the plaintiff that her stomach was firm because excess gas had been pumped into her stomach during the procedure. The plaintiff was discharged two days later and was scheduled for an initial post-operative checkup on March 16, 2011. The plaintiff alleges that she initially felt fine following the procedure but that she began to experience deleterious symptoms shortly thereafter. The plaintiff went back to the defendant for her checkup and after the examination asked what she should do about the gas in her stomach. The defendant suggested changes in diet, including an increased intake of probiotics. The plaintiff’s symptoms continued to worsen, and she soon sought medical treatment from other health care providers. The plaintiff ultimately discovered that she had a kidney obstruction that was likely caused when the kidney was clamped down during the surgery. The plaintiff also alleged she was told that her bladder had been nicked during the procedure. The injuries had caused urine to build up in her abdomen, and the plaintiff had to undergo several corrective surgical procedures.

The plaintiff  brought suit on March 14, 2013. The initial complaint alleged, inter alia, medical malpractice related to the defendant’s performance of the surgery and failure to diagnose the complications.  The defendant moved to dismiss, arguing that the claim was brought more than two years after the performance of the surgery and thus was time-barred under Georgia law. In response, the plaintiff amended her complaint, altering her theory of medical negligence. The plaintiff now asserted that she was no longer seeking to recover damages for the injury to her bladder during the surgery but instead solely for the misdiagnosis that occurred at the follow-up. Since the misdiagnosis occurred on March 16, it fell within the two-year statute of limitations period. The trial court ultimately ruled that the misdiagnosis claim did fall within the statute of limitations period and denied the defendant’s motion for summary judgment with respect to this claim. The defendant then brought the current appeal.

In a divided opinion, the Georgia Court of Appeals affirmed the trial court’s denial of summary judgment. Under Georgia law, a subsequent misdiagnosis by a physician who provided negligent treatment is not a separate claim for medical negligence, and the two-year statute of limitations begins to run from the moment of initial negligent treatment.  See, e.g., Kaminer v. Canas, 282 Ga. 830, 834 (1) (2007). However, free-standing misdiagnosis claims begin to run from the moment of the misdiagnosis. See, e.g., McCord v. Lee, 286 Ga. 179, 180 (2009). In this case, the Court of Appeals held that the misdiagnosis claim could stand independently because the plaintiff disavowed any negligence related to the underlying surgical procedure. However, two judges dissented from this ruling. The main dissenting opinion found the distinction advanced by the majority to be formalistic, since the plaintiff still contended that she was injured during the initial surgery. Therefore, in the dissent’s view, the misdiagnosis flowed from the initial treatment. However, the majority noted that the plaintiff no longer claimed that the initial treatment was negligent, and thus the alleged negligence giving rise to the claim did not occur at the time of surgery, but instead at the time of diagnosis.

Although much of the confusion presented by this case could have been avoided had the plaintiff taken timely action, Danson demonstrates that creativity in pleading can be useful in certain circumstances. Understanding how to artfully plead one’s claims is not a simple task, and many litigants, especially those facing possible statute of limitations hurdles, should consider consulting experienced counsel before taking legal action. The Georgia wrongful death attorneys at Christopher Simon Attorney at Law have many years of experience with medical negligence claims, and we are proficient in dealing with the various procedural obstacles that can arise in the course of litigation. Indeed, if you believe you have a possible medical negligence claim and are curious about its viability, do not hesitate to contact us to schedule a free case consultation.

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