Jones v. Lamon , 206 Ga. App. 842 ( 1992 )

Sognier, Chief Judge.

Bettye Jones and Luther Jones filed suit for medical malpractice and loss of consortium against Clyde Lamon, M.D., and, under the theory of respondeat superior, against Colquitt County Hospital Authority d/b/a Colquitt Regional Medical Center. The trial court granted summary judgment to the hospital on the respondeat superior issue and to both defendants on the basis that the Joneses’ action was barred by the statute of limitation. The Joneses appeal, specifically confining the issue for our consideration to the statute of limitation ruling.

The record reveals that appellant Bettye Jones underwent surgery at appellee hospital in July 1989 and was prescribed the anticoagulant drug, Coumadin, by appellee Lamon. The effect of the drug on Ms. Jones was monitored by prothrombin time tests conducted while she was in the hospital. After her discharge from the hospital on August 15, 1989, Ms. Jones continued taking daily doses of Coumadin as prescribed by Lamon. On August 26, appellants reported to Lamon that Ms. Jones was experiencing the onset of nausea, vomiting, and certain other symptoms. Ms. Jones was admitted to the hospital on August 28, 1989, at which time tests determined that she was suffering from gastrointestinal hemorrhaging, which appellants contend was caused by appellees’ failure to monitor her properly while she was taking Coumadin. Appellants filed suit on August 27, 1991.

Appellants submitted the affidavit of Julian M. Loube, M.D., in which Dr. Loube averred that Ms. Jones’ hemorrhaging resulted from the “inappropriate management of her Coumadin”; that the symptoms Ms. Jones experienced “could reasonably have been interpreted by most lay, medically unsophisticated people to indicate a stomach or bowel upset”; that physicians could not be certain of the underlying diagnosis without the appropriate examinations and laboratory studies conducted on Ms. Jones on August 28, 1989; and that in Dr. Loube’s opinion Ms. Jones “could not have known that she was suffering from , the effects of improperly administered Coumadin until her admission to the hospital on August 28, 1989.”

1. Appellant Bettye Jones (hereinafter appellant) contends that her medical malpractice suit was not time barred under OCGA § 9-3-71 (a) because the limitation period on her claim did not begin to run until August 28, 1989, the date on which she discovered the causal relationship between her injury and appellees’ alleged breach of duty. OCGA § 9-3-71 (a), as amended in 1985, Ga. L. 1985, p. 556, § 1, is applicable here and provides 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.”

Appellant, by asserting the limitation period for her medical malpractice claim did not begin to run until the date she discovered the cause of her injury, seeks to have this court engraft onto OCGA § 9-3-71 (a) the “discovery rule” applied to OCGA § 9-3-33, the general tort statute of limitation, by King v. Seitzingers, Inc., 160 Ga. App. 318, 320 (287 SE2d 252) (1981).¹ The “discovery rule” is based on specific language in OCGA § 9-3-33 (Ga. Code Ann. § 3-1004) providing that the limitation period for general torts begins to run from the date “the right of action accrues.” See Miles v. Ashland Chemical Co., 261 Ga. 726, 727 (410 SE2d 290) (1991); King, supra. The Supreme Court has recognized that “there are four points at which a tort cause of action may accrue: [I] [w]hen the defendant breaches his duty; [II] when the plaintiff is first injured; [III] when the plaintiff becomes aware of his injury; or [IV] when the plaintiff discovers the causal relationship between his injury and the defendant’s breach of duty.” (Emphasis supplied.) Lumbermen’s Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 462 (330 SE2d 344) (1985), overruled in part, Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988) (held, discovery rule in King not applicable to property damage statute of limitation of OCGA § 9-3-30).

It is argued that this court must apply the “discovery rule” of OCGA § 9-3-33 to OCGA § 9-3-71 (a) because when the latter statute was amended in 1985, the legislature was compelled by the Supreme Court’s opinion in Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984) to abandon its attempt to classify medical malpractice claims separate from general tort claims for statute of limitation purposes. Shessel held that the 1976 version of § 9-3-71 (a) was unconstitutional, and OCGA § 9-3-71 (a) was amended in 1985 in order to cure the constitutional deficiency set forth in Shessel. See Quinn v. Stafford, 257 Ga. 608, 610 (4, 5) (362 SE2d 49) (1987). Therefore, to address this argument, we must examine the Supreme Court’s holding in Shessel.

In Shessel the defendant breached a duty owed the plaintiff by negligently performing a sterilization procedure on her. Under the 1976 version of OCGA § 9-3-71, the statute of limitation on the plaintiff’s malpractice claim began to run at the time of the procedure. (Point I in Lumbermen’s Mut. Cas. Co., supra.) However, the plaintiff’s injury was her subsequent pregnancy. Shessel, supra at 57. The Shessel opinion does not reflect whether the point II date of the injury (i.e., the date the plaintiff became pregnant) was the same as the point III date of discovery of the injury (i.e., the date the plaintiff learned she was pregnant), although the court did recognize the distinction between the two.² However, because of the nature of the injury, the point III date of the discovery of the injury was identical to the point IV date of the discovery of the cause of the injury. Thus, the Shessel court did not have to distinguish between point III and point IV in its opinion.

Accordingly, when the Shessel court held the 1976 version of OCGA § 9-3-71 to be unconstitutional, the Supreme Court was not focused on the differences among points II, III, and IV, all of which involve the varying times at which the injury affects a plaintiff, because those differences were not in issue. Instead, the Shessel court focused on the difference between a limitation period that commenced on the date of a defendant’s breach of a duty (point I) rather than on the date of an injury to the plaintiff (points II, III, and IV). It was “this difference in the beginning point for calculating the limitation period which [was] the focal point of [the Shessel] appeal,” id. at 57, and constituted the basis for the holding therein that the 1976 version of OCGA § 9-3-71 was unconstitutional because similarly situated parties were not treated alike. Id. at 59.

This analysis of Shessel reveals that the constitutional deficiency in the 1976 version of OCGA § 9-3-71 (a) could be cured by focusing the statute’s “beginning point for calculating the limitation period” on the date of an injury to the plaintiff rather than on the date of the defendant’s breach of a duty. The legislature, by amending OCGA § 9-3-71 (a) to provide that malpractice actions must be brought within two years after the date “on which an injury or death arising from a negligent or wrongful act or omission occurred,” acted in conformity with the holding in Shessel because the “beginning point” is now determined by looking to the consequence of the defendant’s acts on the plaintiff.

Contrary to appellant’s contention, nothing in Shessel compelled the legislature to select the point IV date of discovery of the cause of the injury as the beginning point for calculating the limitation period. Indeed, Shessel contains language intimating the Supreme Court was unwilling to approve setting the beginning point even at the earlier point III date of discovery of the injury. See id. at 57, 58. It is not necessary to over-analyze the language in Shessel, however, given our determination that the legislature, when amending OCGA § 9-3-71 (a) in 1985, was not required by Shessel to enact a redundant statute duplicating the provisions of OCGA § 9-3-33 and thereby abolish all distinction between the medical malpractice and general tort statutes of limitation by providing for identical commencement dates for the limitation periods in each statute.³

The plain language in OCGA § 9-3-71 (a) that the statute of limitation in a medical malpractice action begins to run on the date “on which an injury . . . arising from [an act of malpractice] occurred” would seem to support the conclusion that the limitation period commences to run on the date of the injury, i.e., point II. This court in Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), without any analysis of the matter, stated that the date an injury occurs under the statute is point III, “the date the injury is discovered. Shessel v. Stroup, supra.” Id. at 708.⁴ However, it is not necessary to resolve that issue here because, pretermitting whether the time limitation commenced running on the very first day appellant went unmonitored (point II), the evidence in the case sub judice establishes uncontrovertedly that appellant was aware of her injury (point III) at least by August 26, the date on which she contacted appellee Lamon because she was and had been experiencing nausea and the other symptoms of the internal hemorrhaging from which she was suffering. Thus, the fact appellant did not know and, according to Dr. Loube’s uncontroverted affidavit, could not have known the cause of her suffering before August 28, does not affect the application of OCGA § 9-3-71 (a) when the evidence establishes that appellant’s injury occurred and had physically manifested itself to her by August 26. Appellant’s subjective belief that her suffering stemmed from a stomach virus or some other cause unrelated to appellees’ alleged negligence does not change the fact that her injury occurred by August 26.

Therefore, because appellant Bettye Jones failed to file suit within two years of August 26, the date on which her injury arising from appellees’ alleged negligent act or omission occurred, OCGA § 9-3-71 (a), her complaint was untimely as a matter of law. Accordingly, the trial court’s grant of summary judgment in favor of appellees as to her claim is affirmed.

2. We agree with appellant Luther Jones that the trial court erred by granting summary judgment to appellee Lamon as to his claim for loss of consortium. No question of fact exists that his loss of consortium claim remains viable because the statute of limitation applicable to his claim, the four year period set forth in OCGA § 9-3-33, has not expired. See Elwell v. Haney, 169 Ga. App. 481, 482 (313 SE2d 499) (1984) (running of limitation for personal injury claim does not bar derivative loss of consortium claim). We note that the alternative basis given by the trial court for its grant of summary judgment in favor of appellee hospital was not challenged on appeal. Hence, that judgment is presumed to be binding and in effect. See generally Jones v. First Nat. Bank of Atlanta, 147 Ga. App. 441 (249 SE2d 154) (1978).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., Carley, P. J., and Andrews, J., concur. Beasley and Johnson, JJ., concur specially. McMurray, P. J., Pope and Cooper, JJ., dissent.

1 The Supreme Court, in a case decided since Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), held that the discovery rule of King, supra “ ‘(is confined) to cases of bodily injury [under OCGA § 9-3-33] which develop only over an extended period of time.’ [Cit.]” Corporation of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988). See also Miles v. Ashland Chemical Co., 261 Ga. 726, 727 (410 SE2d 290) (1991).

2 “The general tort limitation [in OCGA § 9-3-33] begins only when the action ‘accrues’ and that is no sooner than the date of injury [point II] and perhaps no sooner than the date of discovery [point III]. [Cit.]” Shessel, supra at 58.

3 Our determination that the legislature was not compelled to enact OCGA § 9-3-71 with the same commencement date as that in OCGA § 9-3-33 is also supported by the rule of construction which “ ‘forbids that two provisos should be treated as having no more scope or significance than one of them would have if standing alone. . . .’ [Cit.]” Butterworth v. Butterworth, 227 Ga. 301, 304 (180 SE2d 549) (1971).

4 Contrary to the dissent’s assertion, nothing in Whitaker stands for the proposition that the distinction between the statutes of limitation in OCGA §§ 9-3-71 and 9-3-33 has been abolished. Whitaker does not address and thus does not constitute controlling authority for the dissent’s interpretation of OCGA § 9-3-71 (a).