Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals reversed summary judgment to an ob/gyn and nurse midwife in a case of alleged failure to diagnose cervical cancer. On September 11, 2014, the patient presented to a hospital with complaints of vaginal bleeding, reporting that she had an abnormal Pap smear. She was referred for follow-up with a physician.

The patient presented to the defendant ob/gyn group on November 7, 2014. The ob/gyn did not perform a physical exam or Pap smear, but ordered an ultrasound. The practice ordered a copy of the hospital records, which were faxed the morning of the visit, but the doctor did not see them. The patient returned on November 13, 2014 for the ultrasound and was seen by the midwife. The midwife did an exam for vaginitis but did not order a Pap smear. The patient did not return for follow-up care in 2015 or 2016.

In 2017, the patient was diagnosed with a uterine mass, suspected of being cancer. On follow-up, she was diagnosed with stage IV cervical cancer. The patient filed suit on June 22, 2018. After the patient passed away in 2019, the administrator asserted a wrongful death claim.

The ob/gyn group, doctor, and nurse midwife moved for summary judgment on expiration of the statute of limitations for the medical malpractice claim, arguing there was no misdiagnosis in 2014. The defendants also argued that the wrongful death claim was derivative and therefore failed as a matter of law. Defendants argued that because there was no misdiagnosis because a Pap smear would not have shown the presence of cervical cancer in November 2014, there could be no new injury as a matter of law. Plaintiffs claimed the statute of limitations accrued when the cancer metastasized based on the “new injury” exception to the two year statute of limitations. The trial court granted the motion.

The Court of Appeals reversed, holding that there was evidence in the record showing a genuine issue of material fact on the new injury exception to the statute of limitations. Specifically, the Court pointed out that Plaintiffs had produced expert testimony that the standard of care required the ob/gyn to perform a physical exam and Pap smear during the initial visit in November 2014 and that the results would have been abnormal. In addition, there was testimony that a physical exam would have revealed a suspicious lesion, requiring a biopsy. Lastly, the Court held that Plaintiffs had come forward with evidence that the cancer was present in 2014 because it was stage IV in 2017. The Court noted that the role in assessing evidence on summary judgment is not to resolve disputes in favor of any parties, but simply to assess whether there is a dispute.

Take-home: failure to diagnose cancer cases are difficult to assess in terms of application of the statute of limitations. They are fact-specific and, as this case makes clear, testimony/evidence specific.

The case is Tarver v. Sigouin, ___ S.E.2d ___ 2021 WL 2659563 (June 29, 2021).

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