In June of 2000, William Gannon underwent an appendectomy. In connection with that procedure, a CT scan was performed which showed two masses in his left kidney. Urinalysis also revealed that he had microscopic hematuria, which is blood in the urine that is only visible with a microscope. He was referred to Dr. Lynwood Cleaveland for urological consultation. Dr. Cleaveland told Mr. Gannon that he had a small cyst in his kidney which was common and did not need treatment, but that he should see his primary care physician regarding the hematuria. When Mr. Gannon followed up with his doctors at Internal Medicine Associates of Rockdale, PC IMA, another urinalysis was performed which confirmed microscopic hematuria. However, Dr. John Entrekin did not diagnose a particular cause, because that condition is not uncommon and there were multiple explanations for why Mr. Gannon exhibited it. Mr. Gannon also received treatment from Dr. Deborah Goodrich, but she too failed to diagnose or attempt to diagnose the precise cause of his microscopic hematuria. On October 31, 2002, Mr. Gannon first noticed a suspicious lump in his neck. A biopsy of that lump showed that he had kidney cancer which had become metastatic.
On October 29, 2004, Mr. Gannon and his wife Appellees filed suit against Dr. Cleaveland, IMA, Dr. Entrekin and Dr. Goodrich Appellants, claiming negligent failure to diagnose his kidney cancer which then later metastasized. In support of their claim, Appellees presented expert opinion testimony that the masses initially detected in Mr. Gannon’s kidney in 2000 were cancerous, that the cancer later spread and that, had the cancer been diagnosed and treated before it metastasized, a complete recovery would have been likely. When Mr. Gannon died from complications of his kidney cancer, his wife amended the complaint to allege a wrongful death claim. After discovery, Appellants IMA, Dr. Entrekin and Dr. Goodrich and Appellant Dr. Cleaveland filed separate motions for summary judgment, on the ground that the original claim against them was barred by the two-year statute of limitations and that the subsequent wrongful death claim was barred by the five-year statute of repose. The trial court denied the motions, and the Court of Appeals granted Appellants’ applications for interlocutory review. In a whole court decision, the denial of summary judgment was affirmed. Cleaveland v. Gannon , 288 Ga. App. 875 655 SE2d 662 2007. Appellants filed separate applications for certiorari, which were granted in order to address the continued viability of the “subsequent” or “new injury” exception to the general rule that, when the patient’s medical malpractice claim is based upon negligent misdiagnosis, the statutes of limitations and repose commence to run immediately. See also Amu v. Barnes , 283 Ga. 549 SE2d 2008 certiorari granted to address the same issue. The two appeals have been treated as companion cases, and are hereby consolidated for disposition in this single opinion.
