Doc Added To Cancer Death Suit Too Late, Ga. Court Says

By Y. Peter Kang

Law360 (January 28, 2019, 8:04 PM EST) – A Georgia appellate panel on Monday cut a doctor loose from a suit accusing health care providers of causing a patient’s death by failing to diagnose her cancer, saying a lower court improperly allowed the physician to be added to the suit more than five years after the alleged negligence.

A three-judge Court of Appeals panel dismissed claims lodged against obstetrician Dr. Audrey Arona in a suit accusing her, fellow obstetrician Dr. Byron Dickerson, now deceased, and their practice group, Preferred Women’s Healthcare LLC, of failing to diagnose patient Debbie Sain’s ovary cancer during her pregnancy in 2012, which purportedly caused her death a year later. The suit filed by the patient’s widower, Jason Sain, asserts that doctors failed to detect the cancer despite ultrasound images showing a mass.

After learning through a deposition of a Preferred sonographer that Arona had previously treated the patient and had been aware of the mass, the trial judge allowed Sain to amend his complaint to add Arona as a co-defendant on the grounds that the claim “related back” to the original complaint and despite the expiration of Georgia’s five-year statute of repose for medical malpractice cases.

Unlike the two-year statute of limitations, which is contingent upon when a claim accrues, Georgia’s statute of repose is a hard deadline for a medical malpractice claim and is tied to the date of alleged negligence, according to the opinion.

In an issue of first impression, the panel ruled that Sain’s amended June 2017 complaint adding Arona as a co-defendant constituted the “bringing” of an action for the purposes of Georgia’s statute of repose, and was improper because it was filed more than five years after the alleged negligence occurred in April 2012.

“The statute of repose imposes a bright-line rule,” the panel wrote in a unanimous 19-page opinion. “We hold that the medical malpractice statute of repose prevents a plaintiff from amending the complaint in a pending medical malpractice action to add an individual party defendant more than five years after the alleged negligence because, at that point, the plaintiff’s cause of action against that particular defendant no longer exists.”

The panel shot down Sain’s argument that the statute of repose should be tolled because Arona had been aware of the original suit against her practice group and knew that Sain had incorrectly attributed negligence to Dickerson rather than her.

“Courts are not authorized to permit late filings on a case-by-case determination that the purposes of the statute are satisfied,” it said. “Admittedly, Arona did not volunteer to be sued along with PWH and Dickerson’s estate when she learned of Sain’s claims, but Sain has not identified any legal authority for abrogating the statute of repose under the circumstances presented here.”

Judges Ken Hodges, Elizabeth Gobeil and Christian A. Coomer sat on the panel for the Court of Appeals.

Sain is represented by Roy E. Barnes, John R. Bevis and Mark D. Meliski of The Barnes Law Group LLC.

The health care providers are represented by L. Evan Cline, Daniel J. Huff and R. Page Powell Jr. of Huff Powell & Bailey LLC.

The case is Preferred Women’s Healthcare LLC et al. v. Sain et al., case number A18A1544, in the Court of Appeals of Georgia, Third Division.

–Editing by Aaron Pelc.