Sutlive v. Hackney

Pope, Judge. On February 15, 1974 appellant obstetrician/gynecologist performed reconstructive breast surgery upon appellee in which appellant surgically removed two previously implanted mammary prostheses and inserted two silicone-filled implants, allegedly too small for her breast structure. Following the surgery, appellee returned to appellant because she was dissatisfied with the deformed and convoluted appearance of her breasts. On June 4, 1974, November 2,1974, and August 26,1976 appellant transcutaneously injected a saline solution into the silicone implants in an effort to [741] enlarge them and, thus, correct their appearance. Appellee claims that when she questioned appellant about the possibility of leakage caused by these injections, he informed her that the implants were self-sealing and would, therefore, seal around the puncture holes to prevent any such leakage. Upon seeking help from another physician in August, 1980 for chest pains and breast shrinkage occurring since late 1979, appellee asserts that she learned that the implants had been perforated, leaking silicone into her chest area. Corrective surgery was performed in August, 1980 and May, 1981. Appellee’s action for medical malpractice was filed in June, 1981. On his motion for summary judgment, appellant raised the statute of limitation as a defense. The motion was denied by the trial court, and this court granted a discretionary appeal on this issue. Prior to 1976 actions for injuries resulting from medical malpractice were subject to the limitation contained in Code Ann. § 3-1004 which provides that “[a]ctions for injuries to the person shall be brought within two years after the right of action accrues. . . .” Accrual of the action occurred when the injury was discovered or should have been discovered in the exercise of ordinary care. See Simons v. Conn, 151 Ga. App. 525 (2) (260 SE2d 402) (1979); Forgay v. Tucker, 128 Ga. App. 497, 500 (197 SE2d 492) (1973). However, in 1976 medical malpractice actions were taken from the general auspices of Code Ann. § 3-1004 and were placed in Code Ann. Ch. 3-11, relating solely to limitations of actions for medical malpractice. See Ga. L. 1976, pp. 1363 et seq. Specifically, the statute of limitation for medical malpractice actions was changed to be two years after the date on which the negligent or wrongful act or omission occurred. Code Ann. § 3-1102. As appellee’s last injection was administered on August 26,1976 and her action was filed on June 24, 1981, under the applicable statute of limitation, Code Ann. § 3-1102, this medical malpractice action would be barred. However, under Code Ann. § 3-807, fraud tolls the statute of limitation so that it “shall run only from the time of the discovery of the fraud.” Appellee contends that such fraud was perpetrated by appellant, that the time of discovery was August, 1980, and that her action filed less than one year later was not barred. We agree that appellee’s allegations of fraud are sufficient to toll the statute of limitation contained in Code Ann. § 3-1102. Appellant advances the view that actual fraud involving intentional deception and moral turpitude must be shown to toll the statutue of limitation pursuant to Code Ann. § 3-807. While this is true under the explanation provided by the Supreme Court in Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980), the [742] existence between the parties of a confidential relationship lessens, if not negates, the necessity of a showing of actual fraud. Cases relied upon by appellant in this regard acknowledge this principle. In Shipman the court quotes American Nat. Bank v. Fidelity & Deposit Co., 131 Ga. 854 (63 SE 622) (1908), for the proposition that in the instance where the gravamen of the action does not involve actual fraud “in order to prevent the statute of limitations from running by reason of the fraud of the party committing it, consisting in the concealment of such conduct, there must be something more than a mere failure, with fraudulent intent, to disclose such conduct, unless there is on the party committing such wrong a duty to make a disclosure thereof by reason of facts and circumstances, or the existence between the parties of a confidential relation. ” (Emphasis supplied.) In Webb v. Lewis, 133 Ga. App. 18 (2) (209 SE2d 712) (1974), this court held that fraud which tolls the statute of limitation must be actual fraud in the absence of any confidential relationship. The relationship between a physician and his patient is one of trust and confidence. Leagan v. Levine, 158 Ga. App. 293 (1) (279 SE2d 741) (1981). That the parties in this case were in a confidential relationship at all pertinent times is recognized by the appellant. Therefore, there is no requirement that actual fraud be shown in order to come within the purview of Code Ann. § 3-807 to toll the applicable statute of limitation. “Where a person sustains towards [another] a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation. Morris v. Johnstone, 172 Ga. 598 (3) (158 SE 308) [1931].” Brown v. Brown, 209 Ga. 620 (6) (75 SE2d 13) (1953). Appellee alleges that appellant wrongfully held himself out to be a licensed, qualified plastic surgeon and that this conduct amounts to such a “failure to disclose” and a fraudulent misrepresentation. Fraud is further alleged by appellee’s claim that appellant failed to disclose the possibility of puncture with resulting leakage caused by the injections into the implants. Moreover, appellee claims that appellant expressly assured her that no leak would occur as a consequence of the injections due to the “self-sealing” nature of the implants. This court recently stated that “a patient has the right to believe what he is told by his [physician] about his condition.” Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 773 (278 SE2d 653) (1981). Certainly, the same right to rely on the lack of danger of leakage obtains in this situation. After injecting the saline solution into the apparently self743 contained silicone sacs, appellant repeated this procedure twice — five months after the first injection and then one year and nine months later. Even if, at the time, appellant believed his assurance to have been true when he told appellee that the injection would not cause leakage, his undisputed course of conduct following the first injection provides a reasonable inference that he may have had knowledge of the leakage and acted with the follow-up injections to conceal the problem. “ ‘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.’ ” Breedlove v. Aiken, 85 Ga. App. 719, 720 (70 SE2d 85) (1952). Decided November 23, 1982 Rehearing denied December 13, 1982 William P. Franklin, Jr., Gregory Hodges, for appellant. Robert C. Shearhouse, for appellee. Appellee’s right to rely on appellant’s assurance as to the lack of danger from the injections, coupled with appellant’s repeated administration of saline by injection over a period of years and the discovery of the alleged leakage in the course of the subsequent 1980 surgery, were effective to raise an issue of fraud sufficient to withstand appellant’s motion for summary judgment based on the statute of limitation. Whether the appellant’s alleged acts or omissions had the effect of deterring appellee from discovering or pursuing her claim so as to toll the statute of limitation is a proper question for the jury to decide. See Leagan v. Levine, supra at (1). Additionally, “the issue of [appellee’s] exercise of ordinary care in discovering her injury must be resolved by a jury.” Piedmont Pharmacy v. Patmore, 144 Ga. App. 160, 163 (240 SE2d 888) (1977). “On motions for summary judgment the burden is on the moving party to establish the lack of a genuine issue of fact and the right to judgment as a matter of law. All doubts as to the existence of such an issue or issues are resolved against the movant. The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” Morgan v. Carter, 157 Ga. App. 218, 219 (276 SE2d 889) (1981). As the foregoing questions for jury determination were raised, the application of the summary judgment standard quoted above requires that appellant’s motion be denied. Judgment affirmed. Quillian, C. J., Shulman, P. J., McMurray, P. J., Banke and Sognier, JJ., concur. Deen, P. J., Birdsong and Carley, JJ., dissent.