In a case being handled by Ragland Law Firm, LLP, the Georgia Court of Appeals has recently held that a Fulton County Superior Court Judge should not have dismissed the malpractice claims of an asplenic patient who alleged that her longtime primary care physician and OB-GYN physicians had failed to recommend steps to protect her against an overwhelming post-splenectomy infection (OPSI). On March 27, 2008, the Georgia Court of Appeals handed down its 4-3 decision in Lyon v. Schramm, et al., 291 Ga.App. 48, 661 S.E.2d 178 (2008). The majority held that Georgia’s five year medical malpractice statute of repose, O.C.G.A. § 9-3-71(b), did not bar the Plaintiff’s claims even though the Defendants first failed to start protecting the Plaintiff against the risk of OPSI more than 5 years prior to the filing of her lawsuit.
The case arose from a medical malpractice lawsuit filed by Atlanta Attorney Daniel Ragland on behalf of a severely injured woman and her husband in the Superior Court of Fulton County, Georgia on August 29, 2006. That lawsuit alleged that because of injuries she suffered at age 17 in a 1982 car accident, the plaintiff’s damaged spleen had to be surgically removed in a procedure known as a splenectomy. As a result, the plaintiff lived her adult years without a spleen which left her at risk for developing a life threatening fulminant condition known as “overwhelming post-splenectomy infection,” a rapidly developing septicaemia which can result when an asplenic individual is exposed to certain encapsulated bacteria such as Streptococcus pneumoniae, Neisseria meningitidis, or Haemophilus influenzae. These pathogens pose minimal risk to healthy and non-immunocompromised persons with fully functioning spleens.
According to the malpractice lawsuit, there are many safeguards which physicians should advise any patient with known asplenia (i.e., no spleen or a dysfunctional spleen) to undertake in order to lower their risk of suffering OPSI. In particular, the CDC and various medical organizations recommend that asplenic patients be immunized against the encapsulated pathogens known to cause OPSI through periodic vaccines such as the Pneumoccoccal conjugate vaccine (PCV7), Pneumococcal polysaccharide vaccine (PPV23 or Pneumovax), Meningococcal polysaccharide vaccine (MPSV-4), Meningococcal conjugated vaccine (MCV-4), and H. influenzae (Hib) polysaccharide protein conjugate vaccine (PRP vaccine). Other prophylactic measures recommended for persons without spleens include using oral antibiotics prior to obtaining any dental care and immediately at the start of any cold-like symptoms, seeking immediate or emergency medical care with the worsening of any cold-like symptoms, and wearing wristbands which alert all medical personnel that someone is asplenic.
In Lyon v. Schramm, the plaintiff asserts that while she was a patient between 1999 and 2004, her primary care physician and several of her OB-GYN physicians failed to warn her about the risks of OPSI which she faced, failed to assess her immunization status and treat her with vaccines recommended for asplenic patients, and failed to educate her about all other prophylactic measures which she could have taken to protect against OPSI. As a result, the planitiff alleges that she knew nothing about her risk of suffering OPSI, that she lacked critical immunizations, and that she was uninformed about what steps to take to guard against OPSI or respond to it once it began. The lawsuit alleges that the plaintiff’s physicians breached standards of care applicable to the treatment of asplenic patients and committed malpractice by failing to warn, vaccinate or otherwise properly treat the plaintiff.
The risks associated with her asplenia and the lack of immunizations finally materialized in September 2004 when Mrs. Lyon, then age 43, suffered an OPSI most likely due to some unknown random exposure to meningococcal organisms. Mrs. Lyons was rushed to North Fulton Regional Medical Center in Atlanta where aggressive treatments were required including the amputation of both arms and both legs. Following quadruple amputation, Mrs. Lyon remained hospitalized for another 6-7 months. Today, she continues to live with her husband and three young children.
The medical malpractice lawsuit on August 29, 2006, less than 2 years after the plaintiff’s OPSI began. The Defendants immediately filed Motions to Dismiss claiming that the lawsuit was barred by Georgia’s five year statute of repose. The Defendants argued that because the patient had first sought treatment from three of the Defendant physicians in 1997, 1999, and 2000, respectively, the five year statute of repose had expired prior to August 29, 2006 when the lawsuit was filed. The trial judge agreed and in late April 2007, granted the Defendants’ Motions to Dismiss.
Malpractice attorney Daniel Ragland filed an appeal with the Georgia Court of Appeals on May 16, 2007, claiming that the five year statute of repose had not expired and that the trial judge erred in dismissing the lawsuit. Among other contentions on appeal, Mr. Ragland argued that the “trigger” for the start of the five year repose period was not limited to the first office visit or earliest time the defendant physicians committed malpractice. Instead, Mr. Ragland argued that each office visit or occasion for treatment at a hospital was a unique situation with a distinct standard of care applicable to the particular circumstances. Therefore, because they knew she had no spleen, Mrs. Lyon’s physicians were required to fulfill their duties to warn her about the risks of OPSI, immunize her with vaccines recommended for asplenic patients, and educate her about other safeguards on each occasion they provided treatment, especially where none of her physicians had fulfilled any of these duties at a prior visit. In his appellate briefs, Mr. Ragland argued that the five year statute of repose would run from each occasion the Defendants committed malpractice, not just the first.
The majority of the Georgia Court of Appeals agreed with the plaintiffs’ position, and reversed the trial judge’s decision to dismiss the lawsuit. In part, the Court explained its reasoning as follows:
In this case, Lyon alleges, and her experts aver, that the doctors knew she had no spleen, had a duty to inform her of the risks and precautions associated with not having a spleen, yet failed to do so on each of her visits to see them. We find no problem concluding that she has alleged separate omissions for each time she visited her doctors. The Supreme Court of Georgia has recently agreed with this Court that “it would be absurd to hold as a matter of law that a doctor can only misdiagnose a patient once, regardless of the length of the treatment or the course of the patient’s illness.” Kaminer, 282 Ga. at 835 (1). We conclude it would also be absurd to hold that a doctor can only fail to warn a patient once during the course of treatment. Indeed, who can say which failure to inform caused the plaintiff’s OPSI, arguably the last one.
Our holding does not nullify the intent of the General Assembly to abolish any medical malpractice action five years after the negligent conduct. Rather, we simply hold that under the facts of this case, the doctors’ repeated incidents of failure to warn are separate acts of negligent conduct, some of which occurred within five years prior to her suit. Under the appellees’ reasoning, doctors would be immunized from a recent failure to warn a patient just because they first breached their duty to warn more than five years ago. We find no support for this proposition.