Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals affirmed summary judgment for an emergency physician on grounds that the statute of response barred an eleven-year-old claim. In October 2005, plaintiff presented to the emergency department claiming that she might have been sexually assaulted. Plaintiff reported that she had been awake for three or four days smoking crack cocaine when she fell asleep in an abandoned house. She woke up to find her pants around her ankles and two or three men walking around the house. She called the police and went to the emergency department.

In the emergency department, plaintiff presented as incoherent and unable to articulate. She refused a sexual assault examination. The emergency department physician ordered a CT scan of plaintiff’s head, which did not show evidence of trauma. The CT scan was suspicious for a pituitary mass. The radiologist recommended further evaluation with an MRI and noted that the results were called to the emergency physician.

Plaintiff testified that she did not remember anyone discussing the CT scan results with her. The medical record contained a handwritten note from the emergency physician that read “CT” with an arrow to the acronym “NAP,” which the emergency physician testified meant “no acute process.” The emergency physician testified she did not recall the clinical interaction but that it was her practice to document like that when she discussed radiology results with a patient. Plaintiff was transferred to another facility with her medical records, including the CT scan results. Plaintiff had no other interaction with the emergency physician.

In May 2016, Plaintiff returned to the same hospital. Plaintiff claimed she then learned of the pituitary mass for the first time. In May 2018, plaintiff filed suit against the emergency physician from October 2005, claiming failure to diagnose and treat. Plaintiff claimed the five-year statute of response was tolled due to fraudulent concealment or known withholding of the CT scan results. The trial court granted summary judgment and the Court of Appeals affirmed based on expiration of the statute of repose. The Court made it clear that while fraud may equitably estop a defendant from realizing the benefit of the statute of repose, there must be proof of a separate and independent act of fraud, meaning a known failure to reveal malpractice to deter the patient from filing suit.

Take-home: The statute of repose is alive, well, and continues to be an absolute bar except in the most narrowest of circumstances.

The case is Smith v. Kayfan, ___ S.E.2d ___, 2022 WL 2113524 (June 13, 2022).