Breedlove v. Aiken
| Decision Date | 28 February 1952 |
| Docket Number | No. 33934,No. 1,33934,1 |
| Parties | BREEDLOVE v. AIKEN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
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.
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.
Barrett & Hayes, A. Tate Conyers, Atlanta, for plaintiff in error.
G. Seals Aiken, James A. Branch and Thomas B. Branch, Jr., Atlanta, for defendant in error.
WORRILL, Judge (after stating the foregoing facts.)
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 when, from any reason, one party has a right to expect full communication of the facts from another'. Poullain v. Poullain, 76 Ga. 420, 421(5a), 4 S.E. 92, 97; 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,...
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