POLIS et al.
LING et al.
MCFADDEN, P. J., RAY and RICKMAN, JJ.
McFadden, Presiding Judge.
appeal is from a trial court order granting summary judgment
to the defendants in a medical malpractice case on the ground
that the action was barred by the applicable two-year statute
of limitation. The undisputed evidence is that the
misdiagnosis, which is the basis of Polis's claim
occurred, at the latest, in June 2014. The complaint was
filed in December 2016. So, there is no genuine issue of
material fact, the defendants were entitled to judgment as a
matter of law, and we must affirm.
To prevail at summary judgment under OCGA § 9-11-56, the
moving party must demonstrate that there is no genuine issue
of material fact and that the undisputed facts, viewed in the
light most favorable to the nonmoving party, warrant judgment
as a matter of law. On appeal of a grant of summary judgment,
this [c]ourt reviews the evidence de novo to determine
whether a genuine issue of material fact exists or whether
the movant is entitled to judgment as a matter of law.
MacDowell v. Gallant, Ga.App. (Case No. A17A1864,
decided March 1, 2018) (citation omitted).
viewed, the evidence shows that on February 17, 2014, Sherry
Polis took her 16-year-old daughter J. B. to Newnan
Dermatology. On that date, physician assistant Elizabeth
Ahlstrom, who was supervised by Dr. Mark Ling, prescribed
triamcinolone acetonide cream for eczema on J. B.'s legs.
J. B. used the cream as directed. Near the end of April or
beginning of May 2014, she saw purple scar-like marks on her
thighs where she had applied the cream. On May 11, 2014, J.
B. showed the marks on her thighs to her mother. On June 3,
2014, Polis took J. B. back to Newnan Dermatology for an
assessment of the marks. On that date, Dr. Jill
Buckthal-McCuin diagnosed the marks as stretch marks typical
for girls of J. B.'s age, told J. B. that there was no
correlation between the cream and the marks, advised J. B. to
continue using the cream for eczema, but directed her not to
use it directly on the marks. The doctor also prescribed
another cream for treatment of the marks.
used the creams as directed, but the marks on her legs got
worse. On December 22, 2014, J. B and her mother consulted
with a dermatologist at the Emory Clinic, who said that the
marks were a known side effect of triamcinolone acetonide
cream and that J. B. should stop using it immediately.
Pursuant to that doctor's instructions, J. B. stopped
using the triamcinolone acetonide cream that day. The next
day, December 23rd, Polis spoke on the phone with a doctor at
Newnan Dermatology, who confirmed Dr. Buckthal-McCuin's
earlier instructions that J. B. should continue to use the
triamcinolone acetonide cream for the eczema, but not use it
directly on the marks.
December 16, 2016, Polis and J. B. filed a medical
malpractice complaint against Ling, Buckthal-McCuin,
Ahlstrom, and Newnan Dermatology. The complaint alleged in
pertinent part that the defendants were negligent in failing
to adequately assess and treat J. B.'s dermatological
condition on her thighs, in prescribing triamcinolone
acetonide cream, and in instructing her to continue using the
cream despite the development of the scar-like marks on her
thighs. A dermatologist's affidavit in support of the
medical malpractice complaint alleged that the defendants had
deviated from the standard of care by failing to adequately
assess and treat J. B.'s dermatological condition on her
defendants moved for summary judgment on the ground that the
plaintiffs' medical malpractice claims were barred by the
statute of limitation. After a hearing, the trial court
granted the motion. Polis and J. B. appeal from that summary
OCGA § 9-3-71 (a) provides: '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.' In most cases of
negligent treatment and in most cases of misdiagnosis, the
statute of limitation for medical malpractice will begin
running at the time of the treatment or misdiagnosis. That is
the time that the injury generally occurs.
McCord v. Lee, 286 Ga. 179, 180 (684 S.E.2d 658)
(2009) (citations and punctuation omitted). But with respect
to claims that the defendants negligently prescribed
triamcinolone acetonide cream, "the relevant date is
when [J. B.] developed [the marks on her thighs allegedly
caused by the cream], as that was the injury." Deen
v. Pounds, 312 Ga.App. 207, 210 (1) (718 S.E.2d
on the evidence, the precise date that the marks developed
"would be difficult, if not impossible, to pinpoint,
[but] the record shows that [J. B. first noticed the marks
around the end of April or beginning of May 2014, and showed
them to her mother on May 11, 2014.]" Id. Thus,
for purposes of our statute of limitation analysis, the
record shows that the marks developed no later than May 11,
2014. Since the plaintiffs' medical malpractice action
was filed in December 2016, more than two years after the
date of the injury, the claims that the defendants
negligently prescribed the cream are barred by the statute of
any misdiagnosis claims, the latest date upon which a
misdiagnosis could have occurred was June 3, 2014, when Dr.
Buckthal-McCuin told J. B. that the marks on her thighs were
stretch marks typical for girls her age, that there was no
correlation between the cream and the marks, and that J. B.
should continue using the triamcinolone acetonide cream for
The law is well established that in most misdiagnosis cases,
the injury begins immediately upon the misdiagnosis; 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 her suffering does
not affect the applicability of OCGA § 9-3-71 (a). The
true test to determine when the cause of action accrued is to
ascertain the time when the plaintiff could first have
maintained [her] action to a successful result. [Moreover,
our Supreme Court] has rejected [the] argument that after an
initial misdiagnosis, a doctor's continued failure to
recognize the patient's problem constitutes a continuing
tort. In addition, there is no evidence in the record to
support [any] contention that [the defendants] ...