HIV lawsuit is too late, MCG attorneys argue

ATLANTA - The family of a boy who contracted HIV from a 1985 blood transfusion at Medical College of Georgia Hospital and whose condition went undiagnosed for many years shouldn't be allowed to proceed with a malpractice lawsuit, attorneys argued Tuesday.

The statute of limitations has long since expired, argued Bryan Dorsey, who represented MCG Health Inc. and two physicians in front of the Georgia Supreme Court.

The court is being asked to overturn a Georgia Court of Appeals decision that would allow Derek Canas, now 22, and his family to sue because he continued to show new pediatric AIDS symptoms as he grew older and the continuing misdiagnosis amounted to negligence.

State law gives patients five years after a negligent or wrongful act, such as a misdiagnosis, to file a lawsuit, whether or not they knew anything was wrong at the time. In the case of an injury, there is a two-year statute of limitation.

The test determining Mr. Canas was HIV-positive came seven years after both sides agreed doctors first should have realized Mr. Canas' numerous respiratory and infection problems could be serious enough to warrant more tests.

That was clearly past the allowed time limit to file a claim, Mr. Dorsey said.

However, Robert Persons, who represents the Canas family, said the Court of Appeals was right to rule that as Mr. Canas' symptoms changed and became worse over the years, the physicians' negligence continued beyond just the first time they misdiagnosed his condition.

"You cannot abide the notion that a doctor over an eight-to-10 year period is negligent one time," Mr. Persons argued Tuesday.

Mr. Canas was born with a rare heart defect and received blood transfusions at MCG while undergoing heart surgery as an infant. In 1985, when Mr. Canas received the blood, MCG's blood bank had not yet started screening for HIV.

Sharon Kaminer, a former pediatric cardiologist at MCG, and Ayman Al-Jabi, a Brunswick pediatrician, both saw Mr. Canas routinely as he was growing up and attributed most of his ailments to childhood colds and his heart condition.

The justices did not indicate Tuesday when they would issue a ruling.

Reach Vicky Eckenrode at (678) 977-4601 or vicky.eckenrode@morris.com.