Ballard v. Rappaport

Deen, Presiding Judge. On August 18, 1978, Mary Ballard filed a complaint against appellee alleging that he negligently performed surgery on her feet in September 1976. This complaint was voluntarily dismissed on November 6, 1980. The complaint was refiled on May 8, 1981, and served on defendant on June 29, 1981. An amendment alleging breach of contract in 1977 was filed November 5,1981, and a second amendment was added on March 1,1982, alleging that the breach of contract “did not occur from a service, diagnosis, prescription, treatment, or care rendered by defendant to plaintiff in his capacity as medical doctor or as a provider of medical services.” The trial court granted the defendant’s motion to dismiss because the statute of limitations barred the complaint. Held: OCGA § 9-3-71 (Code Ann. § 3-1102) requires an action for medical malpractice to be brought within two years from the date of the negligent or wrongful act or omission. This limitation applies to all causes of action arising out of the medical malpractice claim. St. Joseph’s Hosp. v. Mattair, 239 Ga. 674 (238 SE2d 366) (1977). The petition in the instant case was not refiled within the six-month period after it was voluntarily dismissed, as required under OCGA § 9-2-61 (Code Ann. § 3-808). The amendment to this complaint, however, states a claim for breach of contract occurring in 1977 which is not grounded in the malpractice claim. Although the basis for the breach of contract claim is not revealed, we apply the rule that pleadings are construed liberally in favor of the pleader, Cotton v. Fed. Land Bank, 246 Ga. 188 (269 SE2d 422) (1980), and find that the *672 trial court erred in dismissing that portion of the complaint which asserts a claim for breach of contract. Decided October 13, 1983 Rehearing denied October 31, 1983 John Matteson, for appellant. Robert L. Goldstucker, for appellee. Judgment affirmed in part and reversed in part. Banke and Carley, JJ., concur.