In 1984, Derek Canas was born with a rare heart defect. At the age of two months, he underwent surgery at the Medical College of Georgia Hospital Hospital. During and after the procedure, he received transfusions of whole blood and blood products. In May of 1991, Dr. Sharon Kaminer, who was an employee of the Hospital, became Canas’ pediatric cardiologist. In May of 1993, Dr. Ayman Al-Jabi became his general pediatric medical care provider. Although the child displayed signs of pediatric AIDS, neither Dr. Kaminer nor Dr. Al-Jabi ever arrived at that diagnosis. They both attributed his symptoms to his heart condition. In April of 2001, Canas was finally tested for HIV and diagnosed with AIDS. He began to receive treatment, to which he has responded favorably. His condition is the result of the blood transfusions he received at the Hospital. On December 28, 2001, Canas brought suit against Dr. Kaminer and Dr. Al-Jabi. On February 7, 2003, he filed an amended complaint which added the Board of Regents of the University System of Georgia Board and MCG Health, Inc. MCGHI as defendants and which alleged that, in their capacities as operators of the Hospital, they were vicariously liable for Dr. Kaminer’s alleged malpractice. All four defendants moved for summary judgment. The trial court granted summary judgment “on all claims for medical malpractice where the alleged negligent or wrongful act or omission occurred more than 5 years before the date on which the action was brought.” However, summary judgment was denied “on all medical malpractice claims where the injury occurred within 2 years of the date this action was filed and the negligent or wrongful act or omission that caused the injury occurred within 5 years of the date this action was filed.”
On appeal, the Court of Appeals affirmed, even though Dr. Kaminer and Dr. Al-Jabi initially misdiagnosed Canas’ condition more than 5 years before his suit was filed. Within 2 years of the commencement of the action, the two physicians had seen Canas and persisted in their failure to diagnose his worsening AIDS condition, and the Court of Appeals concluded 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. . . . There is evidence . . . that after the initial misdiagnoses, Canas presented Dr. Al-Jabi and Dr. Kaminer with significant changes in the manifestations of his condition. Canas v. Al-Jabi , 282 Ga. App. 764, 777 1 a 639 SE2d 494 2006. The four defendants applied for certiorari, and we granted their petitions to determine whether the Court of Appeals erred in holding that, if a plaintiff in a misdiagnosis case presents with additional or significantly increased symptoms of the same misdiagnosed disease, the medical malpractice statute of limitations and statute of repose do not bar the plaintiff’s claims.
