Summary
In Breedlove v. Aiken, 85 Ga. App. 719, 720 (70 S.E.2d 85), a physician concealed from his patient that, in addition to performing an authorized operation, the physician also performed two other unauthorized operations upon the patient.
Summary of this case from Brown v. KinserOpinion
33934.
DECIDED FEBRUARY 28, 1952. REHEARING DENIED MARCH 19, 1952.
Action for damages; from Fulton Superior Court — Judge Pharr. November 16, 1951.
Barrett Hayes, A. Tate Conyers, for plaintiff.
G. Seals Aiken, James A. Branch, Thomas B. Branch Jr., for defendant.
Where a physician in performing an authorized operation on January 14, 1949, also performed two unauthorized operations, and the patient was not informed of this action by the physician until January 28, 1949, and where suit was filed on January 20, 1951, the claim is not barred by the statute of limitations unless the jury should find that the action was not brought within two years from the discovery of the fraud or within two years from the time the patient should have made the discovery in the exercise of reasonable diligence.
DECIDED FEBRUARY 28, 1952 — REHEARING DENIED MARCH 19, 1952.
On January 20, 1951, Mrs. Dorice S. Breedlove filed suit against Dr. W. S. Aiken in the Superior Court of Fulton County for $25,000 damages, and alleged substantially as follows: The defendant, on January 14, 1949, removed the plaintiff's appendix and at the same time, without the plaintiff's knowledge and consent, performed two other operations on the plaintiff. The plaintiff was not informed of this action by the defendant until January 28, 1949. On January 20, 1949, the defendant's brother removed the plaintiff's impacted teeth, and during the operation the defendant removed the plaintiff's tonsils without her knowledge and consent and against her explicit instructions.
The defendant moved to dismiss the petition on the ground that the alleged cause of action was barred by the statute of limitations. The court sustained the motion and the plaintiff excepted.
The sole question presented for determination is, whether or not the plaintiff's alleged cause of action is barred by the statute of limitations, which for injuries to the person is two years. Code, § 3-1004. The alleged claim arising out of the tonsillectomy is barred, since the claim arose on January 20, 1949, and the action was not brought until January 20, 1951, two years and one day thereafter. However, the petition alleges that the defendant did not inform the plaintiff of the two operations performed on January 14, 1949, until January 28, 1949. "Concealment per se amounts to actual fraud where for any reason one party has a right to expect full communication of the facts from another." Poullain v. Poullain, 76 Ga. 420, 421 (5a); Morris v. Johnstone, 172 Ga. 598, 605 ( 158 S.E. 308). "If the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud." Code, § 3-807. Where there is, as here, a confidential relationship between physician and patient, and where the physician in performing an authorized operation goes beyond the contract and performs another operation, and where the patient does not know that the physician exceeded the contract, the concealment of the facts constitutes actual fraud and tolls the statute of limitations. Tabor v. Clifton, 63 Ga. App. 768, 771 ( 12 S.E.2d 137). The statute does not begin to run until the discovery of the fraud ( Stocks v. Leonard, 8 Ga. 511; Kirkley v. Sharp, 98 Ga. 484, 487, 25 S.E. 562; Wood v. Anderson, 60 Ga. App. 262, 266, 3 S.E.2d 788; Tabor v. Clifton, supra); and the plaintiff has two years after such discovery in which to bring her action. Colvin v. Warren, 44 Ga. App. 825 (2) ( 163 S.E. 268); Anderson v. Foster, 112 Ga. 270, 273 ( 37 S.E. 426). Consequently, the court erred in sustaining the motion to dismiss. The claim for the alleged unauthorized operations on January 14 is not barred unless the jury should find that the action was not brought within two years from the discovery of the fraud or within two years from the time the plaintiff should have discovered the facts in the exercise of reasonable diligence. McCranie v. Bank of Willacoochee, 29 Ga. App. 552 (3) ( 116 S.E. 202); U.S. Fidelity Guaranty Co. v. Toombs County, 187 Ga. 544, 558 ( 1 S.E.2d 411).
Judgment reversed. Sutton, C. J., and Felton, J., concur.