                            THIRD DIVISION
                             MILLER, P. J.,
                     ELLINGTON, P. J., and GOBEIL, J.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 26, 2018




In the Court of Appeals of Georgia
 A18A0863. HAYES et al. v. HINES et al.

      ELLINGTON, Presiding Judge.

      In this medical malpractice action, the Appellees, Jeffrey Hines, M. D. (“Dr.

Hines”) and Wellstar Cobb Gynecologists, LLC, Wellstar Medical Group, LLC, and

Wellstar Health System, Inc. (“Wellstar defendants”), moved to dismiss those claims

raised by the Appellant, Michael Hayes, in his capacity as the administrator of the

estate of Erika Hayes, his deceased wife.1 The trial court, upon conversion of the

motion to dismiss to a motion for partial summary judgment, granted partial summary

judgment to Appellees on the ground that the estate’s claims were barred by the

statute of limitation. Appellant contends on appeal that the trial court erred in


      1
        Appellant’s complaint, as amended, also raised claims against Appellees in
his capacity as Erika Hayes’s surviving spouse.
granting Appellees’ motion for partial summary judgment because (1) the trial court

erred in holding that Appellant could not show a “new injury” exception to the two-

year statute of limitation established by OCGA § 9-3-71 (a), (2) the trial court erred

in finding that the tolling provisions of OCGA § 9-3-92 did not apply to this case, and

(3) the trial court erred in concluding that the claims against Dr. Hines, which

Appellant raised in his second amended complaint, did not relate back to the filing

of the original complaint by operation of OCGA § 9-11-15 (c).2 We reverse for the

reasons set forth below.

      “The standard of review for an appeal from a grant of summary judgment is de

novo, viewing the evidence in the light most favorable to the nonmoving party, to

determine whether a genuine issue of material fact remains or whether the moving

party is entitled to judgment as a matter of law.” (Citation omitted.) Oller v. Rockdale

Hospital, LLC, 342 Ga. App. 591, 592 (804 SE2d 166) (2017).

      So viewed, the record shows the following. In August 2013, Erika Hayes

(“Hayes”) sought treatment from Dr. Vidya Soundararajan, an OB/GYN, for

abnormal bleeding and a large fibroid mass in her uterus. They discussed treatment

options, including an abdominal hysterectomy and a robotic hysterectomy. Dr.

      2
          Appellees’ cross-appeal in Case No. A18A0864 has been withdrawn.

                                           2
Soundararajan referred Hayes to gynecological oncologist Dr. Jeffrey Hines to

evaluate whether the robotic procedure was appropriate for Hayes.

      After Dr. Hines reviewed ultrasound and MRI reports and then personally met

with Hayes on November 13, 2013, he reported to Dr. Soundararajan that he had a

very low suspicion that the fibroids were malignant. According to Dr. Soundararajan,

if Dr. Hines had been concerned that the fibroids had been cancerous, he would have

performed the surgery because “he’s the cancer surgeon.” Dr. Soundararajan was

satisfied that Dr. Hines “sending the patient back to [her] . . . was his way of saying

do the hysterectomy as you choose fit.”

      On December 13, 2013, Dr. Soundararajan performed a robotic hysterectomy

on Hayes during which Hayes’s uterus and fibroids were cut up, or “morcellated,”

rather than removed intact. An analysis of samples obtained during the surgery

identified grade three leiomyosarcoma, a form of soft tissue cancer. Following the

surgery, and for several months thereafter, CT and PET scans were negative for

cancer. On October 24, 2014, however, a screening showed the presence of pelvic

tumors, and a biopsy confirmed a recurrence of high grade leiomyosarcoma.

According to the affidavit of Dr. Edmund S. Petrilli, a physician board certified in

gynecology and gynecologic oncology, the morcellating of Hayes’s uterus caused the

                                          3
spillage and spread of her malignancy throughout her abdominal-pelvic cavity,

whereas the cancer had previously been localized within her uterus. Hayes died of

metastatic uterine cancer on May 19, 2015.

      Appellant was appointed by the probate court as administrator of Hayes’s estate

on December 9, 2015, and he filed the underlying lawsuit against Dr. Soundararajan

and numerous other defendants that same day.3 Appellant asserted a wrongful death

claim in his capacity as Hayes’s surviving spouse, and he asserted the estate’s claims

for pre-death damages in his representative capacity. The original complaint named

“John Does Nos. 1-5” as defendants but did not name Dr. Hines as a defendant.

Appellant filed an amended complaint in March 2016, which continued to assert

claims against the John Does.

      Appellant filed a second amended complaint on April 21, 2017, which named

Dr. Hines as a defendant and which substituted Dr. Hines for a John Doe. The second

amended complaint also alleged that Dr. Hines was an employee and agent of the

Wellstar defendants. Attached to the amended complaint was the affidavit of William


      3
        The complaint was filed in the State Court of Gwinnett County based on the
residency of defendants associated with the manufacture of the morcellation device
used in Hayes’s surgery, and the case was later transferred to the State Court of Cobb
County after Appellant settled his claims against those defendants.

                                          4
Irvin, M. D., a gynecologic oncologist, who opined that Dr. Hines violated the

standard of care by, among other things, improperly classifying Hayes as a “very low

suspicion for leiomyoma sarcoma.” Dr. Irvin was also of the opinion that, to a

reasonable degree of medical certainty, Dr. Hines’s “failures caused or contributed

to the spread of Mrs. Hayes’ occult malignancy and ultimate metastasis of her uterine

cancer, thereafter leading to a substantially reduced likelihood of survival.”

      Following the filing of the second amended complaint, Appellees answered,

asserted the affirmative defense that the estate’s claims were barred by the two-year

statute of limitation, and moved to dismiss the estate’s claims on that ground.4

Appellant responded that the estate’s claims were timely because (i) Hayes was

asympotomatic of metastatic cancer until October 24, 2014, and a “new injury”

occurred at that time for purposes of the commencement of the statute of limitations,

and (ii) by operation of OCGA § 9-3-32, the running of the statute was tolled between

Hayes’s death and Appellant’s appointment as administrator of her estate, which

placed the expiration of the statute of limitation in May 2017. Appellant also


      4
       The Appellees did not move to dismiss Appellant’s wrongful death claim, for
which the limitation period began to run at the time of Hayes’s death. See
Williams v. Dept. of Human Resources, 272 Ga. 624, 626 (532 SE2d 401) (2000);
Legum v. Crouch, 208 Ga. App. 185, 187 (2) (430 SE2d 360) (1993).

                                          5
contended that, should the trial court disagree that the cause of action arose on

October 24, 2014, the estate’s claims were nevertheless timely because they related

back to the date of filing of the original complaint upon application of OCGA § 9-11-

15 (c).

      Appellees’ motion to dismiss was later converted to a motion for partial

summary judgment with the consent of the Appellant. Following a hearing, the trial

court found that (i) the “new injury” exception did not apply, (ii) the limitation period

was not tolled under OCGA § 9-3-32, and (iii) the second amended complaint did not

relate back to the date of the original complaint for purposes of OCGA § 9-11-15 (c).

The trial court therefore granted Appellees’ motion for partial summary judgment.

      1. Appellant contends that the trial court erred in finding that, as a matter of

law, he could not demonstrate a “new injury” that would provide an exception to the

two-year statute of limitation. OCGA § 9-3-71 (a) requires that “an action for medical

malpractice shall be brought within two years after the date on which an injury or

death arising from a negligent or wrongful act or omission occurred.” In cases where

the allegedly tortious conduct was a failure to correctly diagnose a patient’s medical

condition, the “injury” referenced by OCGA § 9-3-71 (a) generally occurs at the time

of misdiagnosis. See Amu v. Barnes, 283 Ga. 549, 551 (662 SE2d 113) (2008). In

                                           6
such cases, “[t]he misdiagnosis itself is the injury and not the subsequent discovery

of the proper diagnosis [and] the two-year statute of limitations begins to run

simultaneously on the date that the doctor negligently failed to diagnose the

condition[.]” (Citation and punctuation omitted.) Id. A “new injury” exception to

general rule applies, however,

      in cases in which the patient’s injury arising from the misdiagnosis
      occurs subsequently, generally when a relatively benign or treatable
      precursor condition, which is left untreated because of the misdiagnosis,
      leads to the development of a more debilitating or less treatable
      condition. Thus, the deleterious result of a doctor’s failure to arrive at
      the correct diagnosis in these cases is not pain or economic loss that the
      patient suffers beginning immediately and continuing until the original
      medical problem is properly diagnosed and treated. Rather, the injury is
      the subsequent development of the other condition.


(Citation and punctuation omitted.) Cleaveland v. Gannon, 284 Ga. 376, 377 (1) (667

SE2d 366) (2008). “[T]he trigger for commencement of the statute of limitations is

the date that the patient received the ‘new injury,’ which is determined to be an

occurrence of symptoms following an asymptomatic period.” Amu v. Barnes, 283 Ga.

549, 513 (662 SE2d 113) (2008). See Ward v. Bergen, 277 Ga. App. 256, 259 (626

SE2d 224) (2006) (“[W]hen a misdiagnosis results in subsequent injury that is


                                          7
difficult or impossible to date precisely, the statute of limitation runs from the date

symptoms attributable to the new injury are manifest to the plaintiff.”) (citation and

punctuation omitted). As the defense of the statute of limitation is an affirmative

defense for purposes of OCGA § 9-11-8 (c), “at the summary judgment stage, the

burden was on [Appellees] to come forward with evidence demonstrating as a matter

of law that [Hayes’s] injury occurred and manifested itself more than two years before

[Appellant’s] malpractice suit was commenced.” (Citations and punctuation omitted.)

Ward v. Bergen, 277 Ga. App. at 260.

      Appellees argue that the new injury exception should not apply because

Hayes’s cancer was not a benign or treatable condition in November 2013, and that

she did not remain asymptomatic before the development of the alleged new injury.

Hayes’s condition was not benign as of November 13, 2013, but Appellees do not

show that it was not then treatable, or that it was as or less treatable than the

metastatic cancer that she later developed.5 Rather, the evidence showed that the


      5
        In their appellate brief, Appellees emphasize “medical statistics” showing
approximately two-thirds of women diagnosed within grade three leiomyosarcoma
die within five years of diagnosis. In support of the assertion, they cite to their lower
court brief, which in turn relies on an out-of-court statement, i.e., a website.
Pretermitting whether Appellees’ statistical assertion constitutes evidence, it does not
show that Hayes’s condition was untreatable.

                                           8
ultimate metastasis of Hayes’s uterine cancer led to a substantially reduced likelihood

of her survival. Further, according to Dr. Irvin, “an open laparotomy with removal of

an intact uterus” was an alternative to the procedure involving morcellation, which

carried with it an “attendant risk of . . . death” from the spread of the malignancy.

      On the advice of physicians at the Mayo Clinic, Hayes also underwent

chemotherapy after the pathology confirmed that her uterine fibroids were malignant

and during the period before the new tumors appeared. Appellees posit, albeit without

testimony of the physicians who authorized the chemotherapy,6 that licensed medical

professionals would not have permitted such “unnecessary care” if Hayes were

“cancer free.” However, the evidence does not demand such a conclusion.7 Appellant,

on the other hand, has pointed to evidence that Hayes’s metastatic cancer did not

manifest until October 24, 2014, and that Dr. Hines’s misdiagnosis in November 2013

contributed to the improper treatment of Hayes’s condition and thereby to “the



      6
         As far as professional testimony, the appellate record includes only the
affidavits attached to Appellant’s complaint, and the amendments thereto, and the
deposition of Dr. Soundararajan.
      7
         At his deposition Appellant agreed that one of the physicians at the Mayo
Clinic looked at the PET scan and didn’t see any active cancer. Appellant then
testified that Hayes was admitted into a study that involved chemotherapy “because
a known leiomyosarcoma tumor was morcellated inside [her] body.”

                                          9
development of a more debilitating or less treatable condition.” (Citation and

punctuation omitted.) Cleaveland v. Gannon, 284 Ga. at 377 (1). Accordingly, the

trial court erred in finding that, as a matter of law, the new injury exception did not

apply. See id. at 382 (2) (where evidence authorized a finding that, following

defendants’ negligence in failing to diagnosis cancer that later metastasized, the

patient experienced a period when he was asymptomatic of metastatic cancer, the

“new injury” exception precluded the grant of summary judgment to the defendants

based on the expiration of the statute of limitation); Amu v. Barnes, 283 Ga. at 553-

554 (metastatic cancer constituted a “new injury” which did not exist at the time of

the original diagnosis, but which was proximately caused by defendant’s negligence,

and so the limitation period began to run when the patient experienced the new

injury); Ward v. Bergen, 277 Ga. App. at 261 (as a jury issue remained as to when

invasive cancer developed and metastasized after defendant’s alleged failure to

properly diagnose and treat the patient’s condition, and whether she experienced any

symptoms of the invasive cancer more than 2 years before filing suit, malpractice

claims were not barred by the statute of limitation as a matter of law, and trial court

erred in granting summary judgment to the defendant).



                                          10
      2. The Appellant also contends that the trial court incorrectly concluded that

the tolling provisions of OCGA § 9-3-92 did not apply to this case. OCGA § 9-3-92

provides, in applicable part:

      The time between the death of a person and the commencement of
      representation upon his estate . . . shall not be counted against his estate
      in calculating any limitation applicable to the bringing of an action,
      provided that such time shall not exceed five years.


Thus, “[l]imitation statutes run against estates, but when estates are unrepresented,

such statutes are tolled between the death of a person and the appointment of a

representative . . . for a period of five years provided representation is taken within

that period of time.” Harrison v. Holsenbeck, 208 Ga. 410, 411 (67 SE2d 311)

(1951).

      Appellees argue that, as Appellant obtained counsel and sought expert advice

before having “himself appointed” administrator, he began acting as the estate’s

administrator before his formal appointment and thereby implicitly waived the

statute’s tolling provisions. Pretermitting whether Appellant’s pre-appointment acts

were consistent with that of an administrator,8 we find no support for this argument.


      8
       Appellant had his own interests to protect in pursuing a claim for Hayes’s
wrongful death.

                                          11
First, the tolling provision in OCGA § 9-3-92, in light of the use of the word “shall,”

contemplates that “the tolling calculation therein provided [is] mandatory in every

instance where the statute [is] applicable; that is, tolling occurs by operation of law

to the extent provided by the statute.” Legum v. Crouch, 208 Ga. App. 185, 188 (3)

(430 SE2d 360) (1993). See Goodman v. Satilla Health Svcs., 290 Ga. App. 6, 9 (658

SE2d 792) (2008) (applying tolling provision of OCGA § 9-3-92 to dispute as to

whether the statute of limitation had run on an estate’s medical malpractice claim).

Second, “only the qualification of a permanent administrator constitutes

representation upon the estate so as to trigger the revival of a tolled statute of

limitations.” (Citations omitted.) Deller v. Smith, 250 Ga. 157, 159 (1) (b) (296 SE2d

49) (1982). See Kitchens v. Brusman, 280 Ga. App. 163, 165 (2) (633 SE2d 585)

(2006) (the appointment of a temporary administrator does not result in the

representation of the estate for purposes of the tolling provision of OCGA § 9-3-32).

Even if Appellant hired a lawyer and consulted with experts beforehand, he was not,

if fact, appointed administrator until December 9, 2015, at which time the statute of

limitation on the estate’s malpractice claim, which had been tolled upon Hayes’s

death, began to run anew. See Goodman v. Satilla Health Svcs., 290 Ga. App. at 9 (In

a medical malpractice case, the statute of limitation began to run on the estate’s claim

                                          12
on the date of the decedent’s diagnosis, which was the date of injury, and it continued

to run until the decedent’s death, at which time the running of the period was tolled

until the appointment of the estate’s representative.). It follows that the trial court

erred in finding that OCGA § 9-3-92 “does not apply” to this case.

      3. Finally, Appellant contends that the trial court erred in ruling that the second

amended complaint did not relate back to the original complaint for purposes of

OCGA § 9-11-15 (c).9 As explained in Division 1, supra, a question of material fact

remains whether, under the “new injury” exception to OCGA § 9-3-71 (a), the

statutory period of limitation began to run on October 24, 2014. Given that the


      9
          OCGA § 9-11-15 (c) provides:

      Whenever the claim or defense asserted in the amended pleading arises
      out of the conduct, transaction, or occurrence set forth or attempted to
      be set forth in the original pleading, the amendment relates back to the
      date of the original pleading. An amendment changing the party against
      whom a claim is asserted relates back to the date of the original
      pleadings if the foregoing provisions are satisfied, and if within the
      period provided by law for commencing the action against him the party
      to be brought in by amendment (1) has received such notice of the
      institution of the action that he will not be prejudiced in maintaining his
      defense on the merits, and (2) knew or should have known that, but for
      a mistake concerning the identity of the proper party, the action would
      have been brought against him.



                                          13
limitation period was tolled from the date of Hayes’s death to the appointment of an

administrator of her estate, as explained in Division 2, supra, if the finder of fact

determines that Hayes suffered a new injury on October 24, 2014, then Dr. Hines was

served within the time allowed.10 Accordingly, as the case currently stands, it is

premature to consider whether the second amended complaint would relate back to

the initial complaint if Dr. Hines had been served outside the limitation period.

      Judgment reversed. Miller, P. J., concurs and Gobeil, J., concurs specially.*

*THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS

RULE 33.2 (a)




      10
          Generally, “[w]hen an unidentified party is sued as ‘John Doe’ and service
as to the unknown party is successful within the statute of limitations, an amendment
to the complaint relates back to the filing of the original complaint.” Bailey v. Kemper
Group, 182 Ga. App. 604, 606 (356 SE2d 695) (1987). See Sims v. American Cas.
Co., 131 Ga. App. 461, 481 (6) (206 SE2d 121) (1974) (accord). However, “[w]here
service has not been effected successfully on the John Doe party within the statutory
time of limitations, the test of OCGA § 9-11-15 (c) applies.” Bailey v. Kemper Group,
182 Ga. App. at 606. See generally Bishop v. Farhat, 227 Ga. App. 201, 202 (1) (489
SE2d 323) (1997) (OCGA § 9-11-15 (c) is the procedure “by which the trial court
determines whether the amended complaint ‘relates back’ to a filing within the statute
of limitation.”).

                                          14
 A18A0863. HAYES, et al. v. HINES, et al.

      GOBEIL, Judge, concurring specially.

      The Appellant concedes that biopsy samples from Erika Hayes’ laparoscopic

hysterectomy were pathologically confirmed as “grade III leiomyosarcoma, i.e., a

particularly aggressive form of soft tissue cancer with a high mortality rate.” This

grim diagnosis calls into question whether the ultimate metastasis of the cancer was

a new injury or just the inevitable progression of a deadly disease. Appellant asserts

that there was a period during which Ms. Hayes was “cancer-free” following the

hysterectomy (based upon negative CT and PET scans, but not necessarily exploring

what the scans are capable of detecting). On the other hand, Appellees contend that
Ms. Hayes was symptomatic and actively participating in chemotherapy throughout

the time between her cancer diagnosis and death. Given the facts of this case, the

caselaw on whether the metastasis of cancer can be a new injury and the standard for

summary judgment, I cannot conclude as a matter of law that there is no genuine issue

of material fact regarding whether there may have been a new injury. See OCGA §

9-11-56(c) (summary judgment is only proper when there is no genuine issue of

material fact). Accordingly, I concur that it was error to decide the question on

summary judgment.




                                         2
