Dowling v. Lopez

440 S.E.2d 205, 211 Ga. App. 578, 94 Fulton County D. Rep. 43, 1993 Ga. App. LEXIS 1586
CourtCourt of Appeals of Georgia
DecidedDecember 3, 1993
DocketA93A1695
StatusPublished
Cited by17 cases

This text of 440 S.E.2d 205 (Dowling v. Lopez) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowling v. Lopez, 440 S.E.2d 205, 211 Ga. App. 578, 94 Fulton County D. Rep. 43, 1993 Ga. App. LEXIS 1586 (Ga. Ct. App. 1993).

Opinions

McMurray, Presiding Judge.

On April 24, 1988, Carla Kiser (“the decedent”) died of metastatic carcinoma and was survived by her two-year-old child, Brandis Swails. On February 6, 1989, Viola Dowling (plaintiff) was appointed executrix of the decedent’s estate and on January 4, 1991, she filed a medical malpractice action on behalf of the estate and as next friend of Brandis Swails, alleging the decedent endured unnecessary pain and suffering and died prematurely as a result of misdiagnosis by the decedent’s physician, Frank Lopez (defendant). Defendant denied the material allegations of the complaint and moved for summary judgment, arguing that the estate’s survival action is barred by the two-year statute of limitation and that the minor child’s wrongful death claim cannot stand because any failure in diagnosing the decedent’s cancer was not the proximate cause of her death.

The undisputed evidence reveals that defendant is a physician specializing in diseases of the stomach and intestines; that defendant began treating the decedent on November 19, 1987, for severe abdominal pain and that defendant concluded the decedent had “ileocolitis” or Crohn’s disease, an inflammation of the bowels. It is also undisputed that the decedent was under defendant’s care until February 7, 1988; that defendant noted “a sausage-shaped . . .” mass in the decedent’s lower abdomen during physical examinations on December 4, 11, 15, 21 and 28, 1987, and that the decedent was hospitalized on three separate occasions while under defendant’s care for physical complications he attributed to Crohn’s disease.

On February 22, 1988, a team of surgeons discovered that the decedent had terminal cancer which originated in her bowels. The decedent died on April 24, 1988.

This appeal followed an order granting defendant’s motion for summary judgment. Held:

1. Plaintiff contends the trial court erred in granting summary [579]*579judgment as to the estate’s survival action, arguing the two-year statute of limitation prescribed in OCGA § 9-3-71 (a) tolled pursuant to OCGA § 9-3-90 because the decedent was mentally incapacitated after the alleged malpractice. Plaintiff apparently reasons the decedent did not regain capacity until plaintiff’s appointment as executrix of the estate on February 6, 1989, and, as a consequence filing of the survival action on January 4, 1991, preceded expiration of the statute of limitation on February 6, 1991. This contention is without merit.

Assuming, without deciding, the decedent was mentally incapacitated after the alleged malpractice, the tolling provision of OCGA § 9-3-90 during periods of legal incapacity does not apply in actions for medical malpractice. OCGA § 9-3-73 (b); Kumar v. Hall, 262 Ga. 639, 640 (1) (423 SE2d 653). Further, assuming the statute of limitation began upon discovery of the alleged misdiagnosis by defendant on February 22, 1988, see Bryant v. Crider, 209 Ga. App. 623 (3) (434 SE2d 161), the statute of limitation as to the survival action expired on December 6, 1990, two years after the alleged medical malpractice plus 288 days allowed by tolling of the statute of limitation between the decedent’s death on April 24, 1988, and appointment of the executrix of the decedent’s estate on February 6, 1989. OCGA § 9-3-92. Notwithstanding, plaintiff argues that OCGA § 53-7-92 tolled the statute of limitation for an additional six months after her appointment as executrix of the decedent’s estate, thus extending the time for filing the survival action beyond January 4, 1991. This argument is without merit. OCGA § 53-7-92 does not toll the statute of limitation for survival actions accruing at or before the decedent’s death. This Code section tolls the statute of limitation for the commencement of actions against the estate within six months after appointment of an administrator of the estate. Deller v. Smith, 250 Ga. 157, 158 (1b), 160, 162 (296 SE2d 49); Cannon v. Tant, 229 Ga. 771, 772 (1) (195 SE2d 15).

2. Next, plaintiff contends the trial court erred in granting summary judgment as to the surviving child’s wrongful death claim, arguing that genuine issues of material fact remain regarding the proximate cause of the decedent’s death.

Georgia’s wrongful death statutes give a right of action not available at common law and must be limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms. Miles v. Ashland Chem. Co., 261 Ga. 726, 728 (410 SE2d 290). OCGA § 51-4-2 (a) provides that a child may recover the full value of a parent’s life where there is evidence that the parent’s death was a homicide, i.e., the result of the wrongful act, default or negligence of another. OCGA § 51-4-1 (2). Neither this Code subsection, nor any other provision in Georgia’s wrongful death statutes provides for recovery where a defendant’s wrongful act or negligence did not result [580]*580in death. Nonetheless, the dissent suggests that genuine issues of material fact remain as to the wrongful death action because there is evidence that the decedent’s life could have been prolonged (rather than saved) had it not been for defendant’s alleged malpractice. This view fails to recognize the fundamental distinction between statutorily prescribed wrongful death claims and claims associated with loss of chance of survival, e.g., pain and suffering, loss of consortium, loss of enjoyment of life. See Martin J. McMahon, Annot., Medical Malpractice: Measure and Elements of Damages in Actions Based on Loss of Chance, 81 ALR4th 485. While the loss and damages suggested by the dissent may be available in a cause of action outside Georgia’s wrongful death statutes, OCGA § 51-4-2 (a) simply does not provide for recovery for loss of chance of extended survival. In fact, this Code subsection only provides damages for the full value of the decedent’s life. (It does not provide for recovery for whatever remains of a decedent’s life because of misdiagnosis in a case of terminal illness.) See Michael P. Sullivan, Annot., Recovery in Death Action for Failure to Diagnose Incurable Disease Which Caused Death, 64 ALR4th 1232.

It thus follows that negligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient “ ‘ “proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.” Maddox v. Houston County Hospital Auth., 158 Ga. App. 283, 284 (279 SE2d 732) (1981).’ Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1a) (304 SE2d 922).” Goggin v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pruette v. Phoebe Putney Memorial Hospital
671 S.E.2d 844 (Court of Appeals of Georgia, 2008)
Goodman v. SATILLA HEALTH SERVICES, INC.
658 S.E.2d 792 (Court of Appeals of Georgia, 2008)
Smith v. AMERICAN TRANSITIONAL HOSPITALS, INC.
330 F. Supp. 2d 1358 (S.D. Georgia, 2004)
Zwiren v. Thompson
578 S.E.2d 862 (Supreme Court of Georgia, 2003)
Brown v. MacHeers
547 S.E.2d 759 (Court of Appeals of Georgia, 2001)
Estate of Patterson v. Fulton-DeKalb Hospital Authority
505 S.E.2d 232 (Court of Appeals of Georgia, 1998)
Anthony v. Chambless
500 S.E.2d 402 (Court of Appeals of Georgia, 1998)
Grantham v. Amin
471 S.E.2d 525 (Court of Appeals of Georgia, 1996)
Velez v. Bethune
466 S.E.2d 627 (Court of Appeals of Georgia, 1995)
Roseberry v. Brooks
461 S.E.2d 262 (Court of Appeals of Georgia, 1995)
United States v. Cumberbatch
647 A.2d 1098 (Supreme Court of Delaware, 1994)
Dowling v. Lopez
440 S.E.2d 205 (Court of Appeals of Georgia, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
440 S.E.2d 205, 211 Ga. App. 578, 94 Fulton County D. Rep. 43, 1993 Ga. App. LEXIS 1586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowling-v-lopez-gactapp-1993.