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Adams v. McDonald

Court of Appeals of Georgia, Fifth Division

June 21, 2018

ADAMS et al.
v.
McDONALD et al.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          RAY, JUDGE.

         Physician Kelly Adams and her husband, Joseph Daniel Adams, Jr. (collectively "Kelly Adams"), brought a medical malpractice action against Dr. Edward F. McDonald, The Longstreet Clinic, P. C., Dr. Laroy P. Penix, Northeast Georgia Physicians Group, Inc., and Northeast Georgia Medical Center (collectively the "Appellees").[1] Kelly Adams alleges that the Appellees were negligent and deviated from the standard of care. She argues that the Appellees failed to order an echocardiogram and misdiagnosed her with, inter alia, migraine headaches, when in actuality she had a benign heart tumor. Because the tumor was not promptly identified and treated, she alleges that she ultimately suffered a stroke, brain damage, and partial vision loss, all as a proximate result of the Appellees' negligence.

         After the trial court granted the Appellees' motions for summary judgment, Kelly Adams appealed. She contends that the trial court erred in finding that her claims are barred by the two-year statute of limitation of OCGA § 9-3-71 (a) applicable to medical malpractice actions. Because fact questions exist as to whether Kelly Adams suffered a new injury, we reverse.

Summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Our review of a grant of summary judgment is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

         (Citation omitted.) Ward v. Bergen, 277 Ga.App. 256, 256 (626 S.E.2d 224) (2006). The Appellees bear the burden producing "undisputed evidence showing as a matter of law that [Kelly Adams] manifested symptoms of her injury caused by the alleged misdiagnosis more than two years before her suit was commenced[.]" Brown v. Coast Dental of Ga., P. C., 275 Ga.App. 761, 761 (622 S.E.2d 34) (2005). Accord Ward, supra at 260 (a defendant moving for summary judgment on the affirmative defense of statute of limitation, see OCGA § 9-11-8 (c), bears the burden of proof and may not rely on an absence of evidence in the record). "Accordingly, under this standard, [the Appellees are] entitled to summary judgment only if the undisputed evidence showed that [Kelly Adams] experienced symptoms of her [heart tumor] before [September 10, 2013, ], two years prior to the filing of her malpractice suit." Ward, supra at 260.

         Viewed in the light most favorable to Kelly Adams as the non-moving party, the evidence shows she was at work as a neonatologist for Longstreet Clinic, P. C., in the neonatal intensive care unit at Northeast Georgia Medical Center on January 31, 2013. While speaking with a nurse, Kelly Adams deposed that she had "the sudden onset of a mechanical swishing sound in my ears followed by the room doubling and me being unable to keep my eyes open. . . . I could hear [the nurse] speaking, but I couldn't respond to her." The nurse noticed that Kelly Adams's "eyes were going in different directions[.]" Kelly Adams experienced "a feeling kind of like a flame of fire . . . from the back of my head that extended around to the front of my head[.]" She also felt as if the room were spinning and had pain in her head. The nurses put her in a wheelchair and took her to the emergency department (the "ED"), where the physician on duty examined her. He deposed that she complained of "vertigo, lightheadedness, . . . some headache [in the occipital region], some visual disturbance, scotoma[2] and double vision [and] . . . near syncope[.][3]" He deposed that this combination of symptoms, independently or in combination, could indicate a transient ischemic attack ("TIA"), [4] but did not raise his concern for a cerebrovascular event. Dr. Laroy Penix, a neurologist and one of the Appellees, also examined Kelly Adams while she was at the ED. Dr. Penix's notes state that Kelly Adams reported no prior significant neurological problems, but did report occasional prior vertigo, ear aches and Eustachian tube problems, and a short episode of "visual obscuration" the evening prior to her ED admission. Dr. Penix reported that on January 31, 2013, Kelly Adams reported a "wavy appearance in the far left visual field, " vertigo, and a sensation that the room was spinning and that her eyes were jumping. Dr. Penix "suspect[ed] that the differential diagnosis includes a benign positional vertigo versus a basilar migraine."

         Shortly after discharge, Kelly Adams consulted with an otolaryngologist on February 4, 2013, who diagnosed her with a Eustachian tube dysfunction, headache, and a balance disorder. She then saw a neurologist, Appellee Dr. Edward F. McDonald, beginning February 6, 2013. His records from that date indicate that she presented with a complaint of possible "TIA/migraine, " and that after seeing Dr. Penix in the ED, she had a "headache that lasted days." His notes from her visit indicate that she did not report dizziness, but reported numbness and headache, and blurred and double vision. After evaluating her, however, he no longer considered a TIA an explanation for her symptoms. His clinical notes show a diagnosis of "migraine classical w/o intractable migraine." Kelly Adams deposed that by her second visit, she was having some "neurologic visual issues" and asked what could be causing them, and he was "very adamant that I had migraines and that they were only migraines." She kept a headache diary, and Dr. McDonald's notes reflect she reported four headaches at an office visit on March 5, 2013, and "scintillating scotoma symptoms which was the starry pattern[s] that were described as visual migraines" and "mild head pain." There also were two notes in the medical records dated April 2013 which documented headaches or migraines. Kelly Adams deposed that those were the terms she had been given to describe the "visual, starry patterns with minimal head pain" that she experienced.

         Dr. McDonald's notes from an office visit on September 3, 2013, which was shortly before her stroke, say Kelly Adams presented with a "migraine, " but also that she "has not had any severe migraines." Kelly Adams deposed that "[t]he episodes that I had in the weeks and months following January 31st were different, completely different in nature than the episode that occurred on January 31st[, ]" in that she only had a "starry kind of sky pattern" called "visual migraines" and that her head "usually didn't hurt very much." She deposed that she had not had significant head pain or migraine pain between the episode on January 31, 2013, and her stroke on September 17, 2013, when she experienced the first recurrence of symptoms like those she had felt on January 31, 2013.

         On September 17, 2013, the date of her stroke, Kelly Adams experienced vertigo, right-side paresthesias, tingling in her right hand, blurred vision, especially in her right eye, and a severe headache, and she went to the ED. The physician's notes state that "[t]he presentation is different from her typical migraine." The physician's notes also indicate that she had a "suspected" TIA in January 2013. Kelly Adams was given an echocardiogram, which revealed a myxoma, which is a benign heart tumor, which was identified as the cause of her stroke. The myxoma was surgically removed the next day. Due to the stroke, Kelly Adams alleges that she suffered brain damage and vision loss. She now has a seizure disorder and daily headaches, and is unable to work full-time.

         Although Kelly Adams was given a number of tests typically performed on patients with a suspected TIA at or after the initial incident on January 31, 2013, she was not given an echocardiogram until she presented to the ED on September 17, 2013, and when she was diagnosed with a stroke.

         On September 10, 2015, she filed suit for malpractice, arguing that she was misdiagnosed by Drs. Penix and McDonald, neither of whom ordered an echocardiogram, which could have revealed the cardiac condition that ultimately led to her stroke. The Appellees moved for summary judgment, arguing that the suit was barred by the two-year statute of limitation imposed by OCGA § 9-3-71 (a) because the clock allegedly began to run on the dates of Kelly Adams's initial misdiagnoses, January 31, 2013, and February 6, 2013, rather than on the date of her stroke, September 17, 2013. Specifically, the Appellees contended that Kelly Adams continued to experience symptoms from the misdiagnosed condition between the initial misdiagnoses and the later stroke, and that the stroke was merely a worsening of the earlier condition and not a new injury. Kelly Adams countered that, inter alia, her stroke constituted a new injury, that she was asymptomatic for a time, and that the statute of limitation should run from the date of the stroke.

         OCGA § 9-3-71 (a) sets forth the statute of limitation in medical malpractice actions, providing, in pertinent part, 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."[5] That statute of limitation:

runs from the date of the plaintiff's injury caused by the defendant's negligent act. 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 ...

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