The Georgia Court of Appeals (“Georgia Appellate Court”) held in its opinion filed on June 8, 2018 that the plaintiffs’ medical malpractice claim against the dermatologist who treated their 16-year-old daughter was filed after the expiration of Georgia’s two-year statute of limitations for medical malpractice claims, and therefore summary judgment was properly granted to the defendant dermatologist.
The Underlying Facts
The girl’s parents brought her to the dermatologist’s medical practice on February 17, 2014 for treatment of eczema on the girl’s legs. A physician assistant, who was supervised by the defendant dermatologist, prescribed triamcinolone acetonide cream to be used as directed.
Near the end of April or beginning of May 2014, the girl saw purple scar-like marks on her thighs where she had applied the cream, and showed her mother the marks on May 11, 2014.
On June 3, 2014, the girl returned to the dermatology office where she was seen by a dermatologist for an assessment of the marks. On that date, the dermatologist diagnosed the marks as stretch marks typical for girls her age, advised that there was no correlation between the cream and the marks, instructed the girl to continue using the cream for eczema, but directed her not to use it directly on the marks. The dermatologist also prescribed another cream for treatment of the marks.
The girl used the creams as directed but the marks on her legs got worse. Her mother brought her to another dermatologist on December 22, 2014, who said that the marks were a known side effect of triamcinolone acetonide cream and that the girl should stop using it immediately.
The Georgia medical malpractice lawsuit was filed on December 16, 2016, alleging that the defendants were negligent in failing to adequately assess and treat the girl’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.
The Georgia medical malpractice defendants moved for summary judgment, arguing that the plaintiffs’ medical malpractice claims were barred by the two-year statute of limitation for Georgia medical malpractice claims. The trial court granted summary judgment to the defendants, and the plaintiffs appealed.
Georgia Appellate Court Opinion
Georgia Medical Malpractice Statute Of Limitations
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.
The Georgia Appellate Court stated that with respect to the plaintiffs’ claims that the defendants negligently prescribed triamcinolone acetonide cream, the relevant date is when the girl developed the marks on her thighs allegedly caused by the cream, as that was the injury.
The Negligently Prescribed Cream Claim
The Georgia Appellate Court stated that based on the evidence, the precise date that the marks developed would be difficult, if not impossible, to pinpoint, but the record shows that the girl first noticed the marks around the end of April or beginning of May 2014, and showed them to her mother on May 11, 2014. Thus, 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 Georgia Appellate Court held that the claim that the defendants negligently prescribed the cream are barred by the statute of limitation.
Negligent Misdiagnosis Claim
With regard to the plaintiffs’ medical misdiagnosis claims, the Georgia Appellate Court stated that the latest date upon which a misdiagnosis could have occurred was June 3, 2014, when the girl was told by the dermatologist 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 she should continue using the triamcinolone acetonide cream for eczema.
The Georgia Appellate Court stated 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 Georgia Appellate Court stated that 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, and the defendants’ alleged failure to correct any previous negligence does not constitute additional acts of negligence (after an initial misdiagnosis, a doctor’s continued failure to recognize the patient’s problem does not constitute a continuing tort).
The Georgia Appellate Court held that because the plaintiffs’ medical malpractice complaint was filed in December 2016, more than two years after the latest possible misdiagnosis, any such claims are barred by the two-year limitation period.
Source Polis v. Ling, A18A0808.
If you have been injured as a result of medical negligence by a dermatologist in Georgia or in another U.S. state, you should promptly consult with a Georgia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your dermatologist malpractice claim for you and represent you in a dermatology medical malpractice case, if appropriate.
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