Misdiagnosis Claims in Georgia: When Delayed Cancer Detection Costs Lives

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When a cancer is found after an earlier visit missed it, the first legal question is whether the case can still be filed, and in a misdiagnosis claim the date of the injury decides that. Georgia’s medical malpractice statute starts a two-year period on the date of the injury, not on the date the correct diagnosis is finally made, and the Supreme Court of Georgia has recognized one narrow exception for a “new injury.” A second question is what the physician is judged against: the Court has held that a familiar jury instruction about hindsight misstated the law.

The Statute

A medical malpractice action has two years from the date the injury or death caused by the negligent or wrongful act or omission occurred, and it can never be brought more than five years after the act or omission itself. The statute labels the first period a statute of limitations and the second a statute of ultimate repose and abrogation (OCGA 9-3-71(a), (b), (c)).

The Misdiagnosis Is the Injury

In Kaminer v. Canas, 282 Ga. 830 (2007), a patient born with a heart defect received transfusions during surgery as an infant, and two physicians, beginning in 1991 and 1993, attributed the patient’s symptoms of pediatric AIDS to the heart condition. The patient was tested for HIV in April 2001 and sued on December 28, 2001. The Court quoted a Court of Appeals decision, Frankel v. Clark, 213 Ga. App. 222 (1994): “The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.” It concluded that “in most misdiagnosis cases, the two-year statute of limitations and the five-year statute of repose begin to run simultaneously on the date that the doctor negligently failed to diagnose the condition and, thereby, injured the patient.” It rejected the “continuing treatment doctrine,” under which the period would not start until treatment ends, because that doctrine is inconsistent with a statute that starts the period at the injury, and it held that the physicians’ later failures to recognize the patient’s worsening symptoms did not inflict a new injury: “the patient’s injury, and not the physician’s negligence, is the determinative factor for statute of limitations purposes.” Three Justices dissented, and the dissent called the majority’s result “concededly harsh.”

The New Injury Exception

A narrow exception applies when a benign, treatable condition is left untreated because of a misdiagnosis and later develops into a much more serious one. In Amu v. Barnes, 283 Ga. 549 (2008), a physician diagnosed hemorrhoids on January 12, 2000, when the patient reported rectal bleeding. The bleeding stopped within two weeks. In the spring of 2004 the patient developed cramping and nausea, and in June the bleeding returned; the patient was found to have terminal metastatic colon cancer and sued in December 2004. The patient’s experts testified that a sigmoidoscopy or colonoscopy in the months after the January visit would have revealed a premalignant polyp or a very early malignancy that could have been removed. The Supreme Court held that the “new injury” exception survived Kaminer: a patient suffers a new injury “if he or she has a relatively benign and treatable precursor medical condition which, as a proximate result of being misdiagnosed, is left untreated and subsequently develops into a much more serious and debilitating condition.” The exception applies only “in the most extreme circumstances,” in the words of Burt v. James, 276 Ga. App. 370 (2005), which the Court quoted, the patient must have remained asymptomatic for a period after the misdiagnosis, and the limitation period for the new injury runs from the date symptoms attributable to it first appear, not from discovery. The period for the pain, suffering, or economic loss caused by the misdiagnosis itself, the Court noted, ran in January 2002.

Cleaveland v. Gannon, 284 Ga. 376 (2008), applied the exception to kidney cancer. A CT scan in June 2000 showed masses in a patient’s kidney, and a urologist said the patient had a small cyst that did not need treatment. In October 2002 the patient noticed a lump in the neck, and a biopsy showed metastatic kidney cancer. The suit was filed on October 29, 2004. The Court held that the question was not whether the patient was asymptomatic for the kidney cancer present at the time of the misdiagnosis but whether the patient was asymptomatic for the metastatic cancer that constituted the injury. The defendants relied on evidence that microscopic blood in the urine, one episode of visible blood, and night sweats were symptoms of metastasis, but the Court held that the evidence did not establish this as a matter of law, and that because the statute of limitations is an affirmative defense, the burden was on the defendants to show, as a matter of law, that the new injury occurred and manifested itself more than two years before suit. It held that expert opinion about the “likely” date of metastasis was immaterial: what controls “is the objective date that the symptoms of the metastasis of his cancer first manifest themselves to him,” which, construing the evidence for the plaintiffs, was October 2002.

For example, imagine that a physician misdiagnoses a precursor condition on March 1, 2027, the patient has an asymptomatic period and then no symptoms of spread until a mass appears on June 1, 2029, and the patient sues on May 1, 2031. Under Amu and Cleaveland, a claim for the new injury would be measured from June 1, 2029, so a suit on May 1, 2031 falls within two years of the first symptoms, while a claim for the pain and economic loss caused by the misdiagnosis itself would have expired on March 1, 2029.

What the Physician Is Judged Against

A physician whose assessment later proves wrong is judged by whether it met reasonable standards of medical care when made, and an instruction that limits the duty to what is probable rather than possible can mislead a jury. Smith v. Finch, 285 Ga. 709 (2009), concerned a child diagnosed with a viral illness who in fact had Rocky Mountain spotted fever. The parents’ experts testified that the child’s symptoms were “classic” and that the standard of care was to keep a high index of suspicion and a low threshold for treatment; the physicians testified that they associated the disease with a different kind of rash, which appeared only after their examinations. The trial court gave the pattern “hindsight” instruction, and the jury returned a defense verdict. The Supreme Court held that the first sentence of the instruction, that a physician cannot be found negligent on the basis of an assessment that only later proves incorrect if it was made in accordance with reasonable standards of medical care, is acceptable. It held that the final sentence, which said that negligence consists of not foreseeing what is “probable and likely to happen, not against that which is only remotely and slightly possible,” is “inaccurate and misleading” because it is inconsistent with a diagnostic process that considers all potential causes of the symptoms and with the general standard for foreseeability. The Court disapproved the second sentence as duplicative, overruled cases upholding those sentences, and reversed, because the instruction effectively told the jury to disregard the experts’ description of the standard of care.

To show that a misdiagnosis caused the harm, the plaintiff must present expert testimony on causation stated in terms stronger than medical possibility (Zwiren v. Thompson, 276 Ga. 498 (2003)).

Frequently Asked Questions

Does a patient’s mental incapacity pause the deadline?
No. Persons legally incompetent because of intellectual disability or mental illness are subject to the medical malpractice limitation periods, and no action may be brought on their behalf more than five years after the negligent act or omission (OCGA 9-3-73(b), (c)(1)). In Williams v. Regency Hospital Co., No. S25G0276 (Ga. Aug. 26, 2025), the Supreme Court of Georgia rejected an equal protection challenge to that rule.

What if the misdiagnosed patient was a young child?
A child under five when the claim arose has two years from the fifth birthday to sue, but no action may be brought after the tenth birthday if the child was under five at the time of the negligent act; a child five or older is subject to the ordinary periods and to a five-year outside limit (OCGA 9-3-73(b), (c)(2)).

Who can give the expert opinion that a diagnosis fell below the standard of care?
In a medical malpractice action, the expert must have been licensed at the time of the alleged act and, for at least three of the last five years, regularly engaged in actively practicing, or teaching others, in the area in which the opinion is given, with enough frequency, as the judge determines, in diagnosing the condition at issue; with limited exceptions, the expert must be a member of the same profession (OCGA 24-7-702(c)(1), (2)).

Must an expert affidavit be filed with the complaint?
Yes, in a professional malpractice action against a physician or other listed professional: the complaint must be accompanied by an expert’s affidavit setting out at least one negligent act or omission and its factual basis, subject to the statute’s exceptions for a limitation period about to expire (OCGA 9-11-9.1(a), (b)).

  • OCGA 9-3-71(a), (b), (c)
  • Kaminer v. Canas, 282 Ga. 830 (2007); Frankel v. Clark, 213 Ga. App. 222 (1994) (as quoted in Kaminer)
  • Amu v. Barnes, 283 Ga. 549 (2008)
  • Cleaveland v. Gannon, 284 Ga. 376 (2008)
  • Smith v. Finch, 285 Ga. 709 (2009)
  • Zwiren v. Thompson, 276 Ga. 498 (2003)
  • OCGA 9-3-73(b), (c); Williams v. Regency Hospital Co., No. S25G0276 (Ga. Aug. 26, 2025)
  • OCGA 24-7-702(c)(1), (2)(A), (B); OCGA 9-11-9.1(a), (b)

Disclaimer

This article provides general information about misdiagnosis claims under Georgia law. It is not legal advice, is not medical advice, and does not create an attorney-client relationship. Whether a claim is timely depends on when the injury occurred and what symptoms the patient had, and the deadlines are short. A person who may have been misdiagnosed should seek medical care and consult a licensed Georgia attorney promptly about the particular situation.

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