continuing tort doctrine in Georgia

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2014See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “when restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P2d 1259, 1261 (I) (Colo. App. 1984) (statute of limitation did not bar action because the defendants’ breeding and raising of horses on their property “resulted in repeated and successive breaches of the ... protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P3d 250, 254 (Okla.

2014See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F.3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “where restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P.2d 1259, 1261 (Colo. App.1984) (statute of limitation did not bar action because the defendants breeding and raising of horses on their property “resulted in repeated and successive breaches of the . . . protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P.3d 250, 254 (Okla.

2014See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “when restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P2d 1259, 1261 (I) (Colo. App. 1984) (statute of limitation did not bar action because the defendants’ breeding and raising of horses on their property “resulted in repeated and successive breaches of the ... protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P3d 250, 254 (Okla.

2014See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F.3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “where restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P.2d 1259, 1261 (Colo. App.1984) (statute of limitation did not bar action because the defendants breeding and raising of horses on their property “resulted in repeated and successive breaches of the . . . protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P.3d 250, 254 (Okla.

2014See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “when restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P2d 1259, 1261 (I) (Colo. App. 1984) (statute of limitation did not bar action because the defendants’ breeding and raising of horses on their property “resulted in repeated and successive breaches of the ... protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P3d 250, 254 (Okla.

2014See Winn-Dixie Stores v. Dolgencorp, LLC, 746 F.3d 1008, 1043 (11th Cir. 2014) (under Florida law, the continuing tort doctrine applies “where restrictive covenants are violated by ongoing, separate acts”); Barker v. Jeremiasen, 676 P.2d 1259, 1261 (Colo. App.1984) (statute of limitation did not bar action because the defendants breeding and raising of horses on their property “resulted in repeated and successive breaches of the . . . protective covenants which continued until the date of trial”); Vranesevich v. Pearl Craft, 241 P.3d 250, 254 (Okla.

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2006Auth., 263 Ga. at 660 (2) (biopsy of mole); Ward v. Bergen, 277 Ga. App. 256 ( 626 SE2d 224 ) (2006) (mammogram); Whitaker v. Zirkle, 188 Ga. App. 706 ( 374 SE2d 106 ) (1988) (biopsy of mole). 16 See Division 1 (b), infra. 17 See Waters v. Rosenbloom, 268 Ga. 482, 483 (2) ( 490 SE2d 73 ) (1997) (not reaching appellants’ argument that Court should apply the continuing tort doctrine to the medical malpractice statute of repose). 18 See Young v. Williams, 274 Ga. at 846 (suggesting in dicta that the continuous treatment doctrine is more appropriately incorporated into a limiting statute that comm

2006Auth., 263 Ga. at 660 (2) (biopsy of mole); Ward v. Bergen, 277 Ga. App. 256 ( 626 SE2d 224 ) (2006) (mammogram); Whitaker v. Zirkle, 188 Ga. App. 706 ( 374 SE2d 106 ) (1988) (biopsy of mole). 16 See Division 1 (b), infra. 17 See Waters v. Rosenbloom, 268 Ga. 482, 483 (2) ( 490 SE2d 73 ) (1997) (not reaching appellants’ argument that Court should apply the continuing tort doctrine to the medical malpractice statute of repose). 18 See Young v. Williams, 274 Ga. at 846 (suggesting in dicta that the continuous treatment doctrine is more appropriately incorporated into a limiting statute that comm

1973The statute of limitation does not begin to run on the cause of action until its presence is known to the patient or until the patient by the exercise of ordinary care could have learned of it." The doctrine of continuing tort, that where a time interval elapses between the commission of the act and the infliction of injury which first puts the recipient on notice the latter date will mark the time from which the statute of limitation runs, was accepted and extended in Everhart v. Rich's, Inc., 229 Ga. 798 ( 194 SE2d 425 ) (and see s.c., 128 Ga. App. post) to a negligent sale of goods having a

1973The statute of limitation does not begin to run on the cause of action until its presence is known to the patient or until the patient by the exercise of ordinary care could have learned of it." The doctrine of continuing tort, that where a time interval elapses between the commission of the act and the infliction of injury which first puts the recipient on notice the latter date will mark the time from which the statute of limitation runs, was accepted and extended in Everhart v. Rich's, Inc., 229 Ga. 798 ( 194 SE2d 425 ) (and see s.c., 128 Ga. App. post) to a negligent sale of goods having a

2021As discussed above, to determine where a tort is committed, we consider “the place where the last event necessary to make an actor liable for an alleged tort takes place.” Auld, 309 Ga. at 894 (2) (a) (citation and punctuation omitted).

2021As discussed above, to determine where a tort is committed, we consider “the place where the last event necessary to make an actor liable for an alleged tort takes place.” Auld, 309 Ga. at 894 (2) (a) (citation omitted).

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2013Thus, Shaw bore the burden on summary judgment to come forward with evidence demonstrating as a matter of law that Garcia’s alleged defamation occurred more than a year prior to the filing of her defamation action.5 Once Shaw did this, by pointing to the 18-month time lapse between the filing of its fraud complaint with the Board and Garcia’s filing of her defamation action, and by pointing to an absence of evidence of other defamatory acts, the burden shifted to Garcia either to show that her 5 Realty World-Druid Realty, Inc. v. Hooper Properties, Inc., 191 Ga. App. 773, 774 (1) (b) ( 383 SE2

2013Thus, Shaw bore the burden on summary judgment to come forward with evidence demonstrating as a matter of law that Garcia’s alleged defamation occurred more than a year prior to the filing of her defamation action.5 Once Shaw did this, by pointing to the 18-month time lapse between the filing of its fraud complaint with the Board and Garcia’s filing of her defamation action, and by pointing to an absence of evidence of other defamatory acts, the burden shifted to Garcia either to show that her 5 Realty World-Druid Realty, Inc. v. Hooper Properties, Inc., 191 Ga. App. 773, 774 (1) (b) ( 383 SE2

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2013As explained in Abend v. Klaudt, 243 Ga. App. 271, 272 (1) ( 531 SE2d 722 ) (2000), “[b]y requiring in OCGA § 9-3-72 that a patient who claims a foreign object was negligently left in their body must file an action within one year after the negligent act or omission is discovered, the legislature adopted the continuing tort rule announced in Parker v. Vaughan, 124 Ga. App. 300, 302 ( 183 SE2d 605 ) (1971).” See Abend, supra, 243 Ga. App. at 275-276 (2) (e); Karafotias v. Coyne, 184 Ga. App. 335, 336 ( 361 SE2d 514 ) (1987); Hamrick v. Ray, 171 Ga. App. 60, 61-62 (1) ( 318 SE2d 790 ) (1984).

2006Assoc. of Columbus, 247 Ga. App. at 688 (2) (death from delay in diagnosing heart attack); Oliver v. Sutton, 246 Ga. App. at 437 (pain from untreated osteoarthritis); Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. at 456 (b) (physical precedent only) (unneeded psychiatric hospitalizations and therapy); Ford v. Hove, 218 Ga. App. at 830 (3) (death from delay in diagnosing brain tumor); Frankel v. Clark, 213 Ga. App. at 223 (pain from untreated oral cyst under new dental bridge). 21 Our oft-repeated shorthand statement that “the misdiagnosis itself is the injury” does not mea

2006The continuing tort doctrine has not been applied, however, to fix the date of the tortious act, which marks the beginning of a statutory period of ultimate repose and abrogation. 17 To the contrary, we have rejected the argument that, after an initial misdiagnosis, a doctor’s “continued failure to recognize the [patient’s] problem constitute [s] a continuing tort.” Frankel v. Clark, 213 Ga. App. 222, 223 ( 444 SE2d 147 ) (1994).

2006The continuing tort doctrine has not been applied, however, to fix the date of the tortious act, which marks the beginning of a statutory period of ultimate repose and abrogation. 17 To the contrary, we have rejected the argument that, after an initial misdiagnosis, a doctor’s “continued failure to recognize the [patient’s] problem constitute [s] a continuing tort.” Frankel v. Clark, 213 Ga. App. 222, 223 ( 444 SE2d 147 ) (1994).

2006As we have observed, in actions for medical malpractice the continuing tort doctrine “would nullify the intent of the General Assembly that, after five years, no medical malpractice action could be brought, even when a disability attaches to toll the running of the statute because the statute of repose abolishes any action five years after the negligent or wrongful act or omission.” (Citations omitted.) Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 456 (b) ( 504 SE2d 514 ) (1998) (physical precedent only).

2006As we have observed, in actions for medical malpractice the continuing tort doctrine “would nullify the intent of the General Assembly that, after five years, no medical malpractice action could be brought, even when a disability attaches to toll the running of the statute because the statute of repose abolishes any action five years after the negligent or wrongful act or omission.” (Citations omitted.) Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 456 (b) ( 504 SE2d 514 ) (1998) (physical precedent only).

2006Assoc. of Columbus, 247 Ga. App. at 688 (2) (death from delay in diagnosing heart attack); Oliver v. Sutton, 246 Ga. App. at 437 (pain from untreated osteoarthritis); Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. at 456 (b) (physical precedent only) (unneeded psychiatric hospitalizations and therapy); Ford v. Hove, 218 Ga. App. at 830 (3) (death from delay in diagnosing brain tumor); Frankel v. Clark, 213 Ga. App. at 223 (pain from untreated oral cyst under new dental bridge). 21 Our oft-repeated shorthand statement that “the misdiagnosis itself is the injury” does not mea

2006See, e.g., Williams v. Young, 258 Ga. App. at 823. 22 As we discussed in Division 1 (a), supra, application of the continuing tort doctrine causes the statutory limitation period to begin to run when the tortious exposure to a hazard was eliminated by an appropriate warning or when the plaintiff otherwise discovered or should have discovered the existence of the continuing tort. 23 We note that on remand of Young v. Williams, “[i]n light of the inequities inherent in cases... in which a patient remains under the care of one physician and the statute of limitation expires on [the patient’s] cla

2006A legislative enactment to this effect would create a more just statutory scheme for this type of medical malpractice case.” Williams v. Young, 258 Ga. App. at 824.

2006Auth., 263 Ga. at 660 (2) (biopsy of mole); Ward v. Bergen, 277 Ga. App. 256 ( 626 SE2d 224 ) (2006) (mammogram); Whitaker v. Zirkle, 188 Ga. App. 706 ( 374 SE2d 106 ) (1988) (biopsy of mole). 16 See Division 1 (b), infra. 17 See Waters v. Rosenbloom, 268 Ga. 482, 483 (2) ( 490 SE2d 73 ) (1997) (not reaching appellants’ argument that Court should apply the continuing tort doctrine to the medical malpractice statute of repose). 18 See Young v. Williams, 274 Ga. at 846 (suggesting in dicta that the continuous treatment doctrine is more appropriately incorporated into a limiting statute that comm

2006Auth., 263 Ga. at 660 (2) (biopsy of mole); Ward v. Bergen, 277 Ga. App. 256 ( 626 SE2d 224 ) (2006) (mammogram); Whitaker v. Zirkle, 188 Ga. App. 706 ( 374 SE2d 106 ) (1988) (biopsy of mole). 16 See Division 1 (b), infra. 17 See Waters v. Rosenbloom, 268 Ga. 482, 483 (2) ( 490 SE2d 73 ) (1997) (not reaching appellants’ argument that Court should apply the continuing tort doctrine to the medical malpractice statute of repose). 18 See Young v. Williams, 274 Ga. at 846 (suggesting in dicta that the continuous treatment doctrine is more appropriately incorporated into a limiting statute that comm

2006Auth., 263 Ga. at 660 (2) (biopsy of mole); Ward v. Bergen, 277 Ga. App. 256 ( 626 SE2d 224 ) (2006) (mammogram); Whitaker v. Zirkle, 188 Ga. App. 706 ( 374 SE2d 106 ) (1988) (biopsy of mole). 16 See Division 1 (b), infra. 17 See Waters v. Rosenbloom, 268 Ga. 482, 483 (2) ( 490 SE2d 73 ) (1997) (not reaching appellants’ argument that Court should apply the continuing tort doctrine to the medical malpractice statute of repose). 18 See Young v. Williams, 274 Ga. at 846 (suggesting in dicta that the continuous treatment doctrine is more appropriately incorporated into a limiting statute that comm

2006Auth., 263 Ga. at 660 (2) (biopsy of mole); Ward v. Bergen, 277 Ga. App. 256 ( 626 SE2d 224 ) (2006) (mammogram); Whitaker v. Zirkle, 188 Ga. App. 706 ( 374 SE2d 106 ) (1988) (biopsy of mole). 16 See Division 1 (b), infra. 17 See Waters v. Rosenbloom, 268 Ga. 482, 483 (2) ( 490 SE2d 73 ) (1997) (not reaching appellants’ argument that Court should apply the continuing tort doctrine to the medical malpractice statute of repose). 18 See Young v. Williams, 274 Ga. at 846 (suggesting in dicta that the continuous treatment doctrine is more appropriately incorporated into a limiting statute that comm

2006Assoc. of Columbus, 247 Ga. App. at 688 (2) (death from delay in diagnosing heart attack); Oliver v. Sutton, 246 Ga. App. at 437 (pain from untreated osteoarthritis); Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. at 456 (b) (physical precedent only) (unneeded psychiatric hospitalizations and therapy); Ford v. Hove, 218 Ga. App. at 830 (3) (death from delay in diagnosing brain tumor); Frankel v. Clark, 213 Ga. App. at 223 (pain from untreated oral cyst under new dental bridge). 21 Our oft-repeated shorthand statement that “the misdiagnosis itself is the injury” does not mea

2000Buice v. Dixon, 223 Ga. 645, 647 ( 157 SE2d 481 ) (1967).

2000Childers v. Tauber, 148 Ga. App. 157, 158 ( 250 SE2d 787 ) (1978); Dalbey v. Banks, 245 Ga. 162, 163 ( 264 SE2d 4 ) (1980).