HIV patient's suit too late, Ga. SC says

John O'Brien Oct. 29, 2007, 2:00pm


ATLANTA - A Georgia man who did not discover until he was 17 years old that he had contracted pediatric AIDS as an infant will not win his suit against the medical care providers that failed to diagnose him.

The state's Supreme Court ruled Monday by a 4-3 vote that Derek Canas' suit was filed after the two-year statute of limitations had expired, reversing a Court of Appeals decision and letting defendants Dr. Sharon Kaminer, Dr. Ayman Al-Jabi, the Board of Regents of the University System of Georgia and MCG Health off the hook.

"There is no dispute that Dr. Kaminer and Dr. Al-Jabi never diagnosed Canas' AIDS condition," Justice George Carley wrote. "Thus, we do not have to decide whether, by failing to inform him that they had discovered that he had AIDS, they thereby committed a subsequent negligent act which is subject to a separate limitation period.

"Instead, the determinative factor here is that, after the initial misdiagnoses, Canas did not suffer any new injury during the ensuing course of continuing treatment provided by the two physicians. By holding that the statute of limitations on Canas' claim began to run at any time other than the date of the original misdiagnoses, the Court of Appeals erroneously adopted a variant of the previously rejected continuing treatment doctrine and also erroneously failed to give effect to the long-standing interpretation given to the term 'injury' as it appears in OCGA § 9-3-71 (a)."

Joining in the majority were justices Harold Melton, Harris Hines and Robert Benham.

Chief Justice Leah Ward Sears and justices Carol Hunstein and Hugh Thompson dissented, arguing in an opinion authored by Hunstein that the majority was wrong to think only one single injury results from a series of misdiagnoses.

"(G)iven that the initial injury in a misdiagnosis case is the pain and expense caused by the untreated condition, the majority opinion overlooks the possibility that there may be a separate injury after a later misdiagnosis, in the form of the continued pain and expense caused by the untreated condition which, but for the later misdiagnosis, would not have occurred," Hunstein wrote.

"This possible factual scenario renders inappropriate the majority's ruling as a matter of law."

Canas was born in 1984 with a rare heart condition that required transfusion of whole blood and blood products. Kaminer became his pediatric cardiologist in 1991, and Al-Jabi became his general pediatrician two years later. Neither ever diagnosed Canas with HIV.

In 2001, Canas was given an HIV test that returned a positive Pediatric AIDS result. He has responded favorably to treatment thus far.

The Court of Appeals ruled that, "where a patient continues to be treated by the doctor and presents the doctor with a significant change in manifestations of his condition - additional symptoms or significantly increased symptoms - such that the standard of care would require the doctor to reevaluate the first diagnosis, it can be a new negligent act or omission to fail to reconsider the original diagnosis and take appropriate action..."

Four Supreme Court justices disagreed though, partly using language contained in Allrid v. Emory Univ. to prove their point.

"(T)he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result," that decision says.

"With regard to Canas' claim for the misdiagnosis of his AIDS condition," Carley continued, "he was injured and, consequently, the statute of limitations began to run on the date that Dr. Kaminer and Dr. Al-Jabi first failed to diagnose it."

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