Boggs v. Bosley Medical Institute, Inc.

• Decision Date: 11 September 1997
• Docket Number: No. A97A1406,A97A1406
• Citation: 492 S.E.2d 264,228 Ga.App. 598
• Parties: , 97 FCDR 3456 BOGGS v. BOSLEY MEDICAL INSTITUTE, INC. et al.
• Court: Georgia Court of Appeals

Page 264

492 S.E.2d 264

228 Ga.App. 598, 97 FCDR 3456

BOGGS v. BOSLEY MEDICAL INSTITUTE, INC. et al.

No. A97A1406.

Court of Appeals of Georgia.

Sept. 11, 1997.

Reconsideration Denied Sept. 29, 1997.

Certiorari Denied Feb. 20, 1998.

Salter & Richards, Katharyne C. Johnson, Atlanta, for appellant.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Kevin P. Race, Atlanta, for appellees.

BLACKBURN, Judge.

James Boggs appeals the trial court's grant of summary judgment to Bosley Medical Institute, Inc. (Bosley) and David Phillips, M.D., on Boggs' claims for fraud and medical malpractice, contending that the trial court erroneously held such claims to be barred by the statute of limitation. For the reasons discussed below, we reverse the grant of summary judgment with respect to the fraud claim, but affirm the grant of summary judgment with respect to the medical malpractice claim.

Bosley operates medical offices throughout the United States specializing in hair restoration and hair transplant services. In or around February 1989, Boggs contacted Bosley regarding treatment for his hair loss problem. Boggs claims that, during his initial consultation, it was represented that only two surgical treatments would be required to correct his problem. However, after the two surgical procedures on February 21, 1989, and July 17, 1989, Boggs claims that his scalp was badly scarred and his hair density was not as promised. Boggs returned to Bosley and claims he was told that one more surgical "touch-up" procedure was required. Following surgery on April 25, 1990, however, he still had not achieved the promised results. Between June 18, 1990, and November 11, 1993, five more surgical procedures were performed by Bosley physicians. Boggs claims that, prior to each such surgery, he was informed that only one more treatment was required to correct the problem.

On March 14, 1994, Boggs consulted Dr. Marc Pomerantz, a hair replacement surgeon and former associate medical director for Bosley. Pomerantz informed Boggs that it was Bosley's standard practice to intentionally underestimate the number and the cost of treatments required to correct prospective patients' hair loss problems, knowing that additional treatments would be required.

On February 23, 1996, Boggs sued Bosley for fraud, claiming that it had intentionally misrepresented the number of procedures required to correct his hair loss problem. He also asserted a malpractice claim against Bosley and Phillips, the physician who performed one of his surgical procedures, alleging that such procedure was negligently performed. Bosley and Phillips moved for summary judgment, contending primarily that Boggs' claims were barred by the two-year medical malpractice statute of limitation. The trial court granted summary judgment to both defendants, and Boggs appeals from that ruling.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law. Moore v. Food Assoc., 210 Ga.App. 780, 781, 437 S.E.2d 832 (1993).

1. (a) Boggs contends that the four-year statute of limitation for fraud, rather than the two-year statute of limitation for medical malpractice claims, is applicable to his fraud claim. We agree.

OCGA § 9-3-71(a) states that, "[e]xcept as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." The term "action for medical malpractice" includes "any claim for damages resulting from the death of or injury to any person arising out of ... [h]ealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person." OCGA § 9-3-70.

Boggs' fraud claim states a cause of action separate and distinct from any claim of medical malpractice. Boggs does not contend that Bosley negligently misdiagnosed his condition. Rather, he contends that Bosley, as part of its standard procedure and without regard to its medical opinion, intentionally and repeatedly understated the number of treatments required in order to induce Boggs to undergo a series of costly treatments. Boggs argues that this constitutes ordinary fraud and is therefore not subject to the medical malpractice statute of limitation.

"Not every claim which calls into question the conduct of one who happens to be a [professional] is a professional malpractice claim requiring expert testimony or an OCGA § 9-11-9.1 affidavit. It is only where the claim is based upon the failure of the professional to meet the requisite standards of the subject profession that the necessity to establish such standards and the violation thereof by expert testimony for the guidance of the jury arises." Hodge v. Jennings Mill, Ltd., 215 Ga.App. 507, 508, 451 S.E.2d 66 (1994). Although a physician does indeed have a duty not to...