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A unanimous Georgia Supreme Court on Monday threw out a decision by the Georgia Court of Appeals that effectively had given patients more time to sue doctors for misdiagnosis. The justices held that the 2000 appeals court ruling was an improper expansion of the limits on medical malpractice cases set up by the Georgia General Assembly. Monday’s high court decision took away what had been a big win for plaintiffs’ lawyers. But plaintiffs’ lawyers maintained that Justice Robert Benham’s ruling still set a favorable precedent for malpractice plaintiffs. “The battle is not over yet,” said Antoinette Davis Johnson of Smolar & Sakas, who authored an amicus brief on the case for the Georgia Trial Lawyers Association. TWO-YEAR LIMIT The justices sent the case back to the Georgia Court of Appeals, which must decide exactly when the two-year statute of limitations should start in the case of Margaret Williams, a diabetic who claims her doctor failed to diagnose dislocated bones in her left foot. According to the Georgia Supreme Court decision, Williams first came to the defendant, Dr. Devell R. Young, in September 1995, complaining of swelling and pain in her left ankle and foot. Young prescribed a foot pump to alleviate lymph edema, but the problems persisted. In September 1996, Young told Williams her condition was permanent and she would have to live with it, according to the decision. But in November, a second doctor took an X-ray of Williams’ foot and diagnosed a dislocation, leading to surgery to repair three bones. Williams’ lawyer, Frank J. Klosik Jr. of Atlanta’s Greer, Klosik, Daugherty and Swank, says if the case ever goes to trial, an expert will testify Williams’ foot eventually was amputated as a result of the misdiagnosis. According to Benham’s decision, Williams sued one year and 51 weeks after the second doctor’s diagnosis, but more than two years after her last visit to Young. Chief Judge Loring A. Gray Jr. of Dougherty Superior Court threw out Williams’ suit on summary judgment, concluding the statute of limitations had run its course. But in 2000, the full Georgia Court of Appeals reversed. TREATMENT RULE In a decision by Presiding Judge Marion T. Pope Jr., the majority voted to adopt the “continuing treatment” doctrine for determining when to start the statute of limitations. Under the doctrine, the clock does not start until the patient has ended his or her treatment with the doctor. Pope reasoned the doctrine was fair, because “A harsh result can occur when the symptoms manifest themselves at or before misdiagnosis, but the patient is not aware until sometime later that the diagnosis was erroneous.” Williams v. Young, 247 Ga. App. 337 (2000). At the Georgia Supreme Court, Benham did not discuss the result but concluded, “The legislatively-prescribed statute of limitation does not provide for the commencement of the period of limitation upon the termination of the health-care provider’s treatment of the patient, and the judicial branch is not empowered to engraft such a provision on to what the legislature has enacted.” Young v. Williams, No. S01G0589 (Sup. Ct. Ga., March 11, 2002). All of the justices concurred, although Presiding Justice Leah Ward Sears concurred in the judgment only. Sears and Justice Carol W. Hunstein also joined a concurring opinion by Justice George H. Carley, which appeared to offer hope for Williams. Carley emphasized that the court, while striking out the “continuous treatment” theory, did not affirm Judge Gray’s decision to throw Williams’ case out as having run out of time. Instead, Carley noted, the court was telling the appeals court to “determine when the statute of limitations began to run on Ms. Williams’ misdiagnosis claim … .” REFERRED TO ’97 CASE Carley then referred to Walker v. Melton, 227 Ga. App. 149, a 1997 appeals court decision in which a panel reversed — on grounds not relying on the “continuous treatment doctrine” — a summary judgment based on an expired statute of limitations in a misdiagnosis case. Klosik said the appeals court still has options to reconcile the date of Williams’ injury with the challenges set by the statute of limitations. He said he expects the appeals court “to continue with its wisdom in reaching the result that will give justice to Ms. Williams.” Young’s lawyer, Thomas S. Chambless of Albany, Ga.’s Watson, Spence, Lowe and Chambless, said the high court decision “rejects a judicial amendment” to the law and urges the appeals court to determine that the statute of limitations started running on the day of the alleged misdiagnosis.

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