Statute of Limitations on Failure to Diagnose In Georgia
In Kaminer v. Canas, 282 Ga. 830, 838 (3) (653 SE2d 691) (2007), the plaintiff alleged that two doctors had failed to diagnose his condition - AIDS - beginning in 1991 and 1993, respectively, and continuing thereafter, yet he did not file suit until 2001. Kaminer, 282 Ga. at 830.
The Supreme Court first addressed whether the claims were barred by the two-year statute of limitation. Id. at 831-837 (1), (2).
In so doing, the Court held that Canas was injured in 1991 and 1992, because in a case of misdiagnosis, "the plaintiff's 'injury' as used in OCGA 9-3-71 (a) has long been confined to the original negligent diagnosis." Id. at 836.
The Court then addressed the application of the statute of repose and held that it had begun to run on the dates that the doctors committed their allegedly negligent acts or omissions and that it could not be tolled. Kaminer, 282 Ga. at 837-838 (3).
But the Court went on, "However, the applicable dates are the same as those on which the statute of limitations started to run in 1991 and 1993, respectively, when the misdiagnoses were initially reached." Id. at 838 (3).
This is so because the Court had already held that the only injuries in Kaminer occurred on those dates; and therefore the associated negligence was one-in-the-same event.
The Supreme Court did not consider whether any subsequent acts of negligence were barred by the statute of repose because it only needed to address the acts of negligence associated with the completed torts alleged in the case.
In other words, it only needed to address the acts of negligence that were the proximate cause of the injury in that case.
Any subsequent acts of negligence resulted in no injury and were therefore not considered.
Because Canas was injured by the doctors in 1991 and 1993, the corresponding acts of negligence were limited to that point in time or before, and they were more than five years old.