Bryson v. Aven
| Decision Date | 30 September 1924 |
| Docket Number | 15221. |
| Parties | BRYSON v. AVEN. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The relation of patient and physician is a confidential one, and where in curetting a womb it becomes necessary, in order to effect a successful result, to insert a pessary, a duty devolves upon the physician to inform the patient within a reasonable time of the use of the pessary, and direct her as to when it should be removed. A failure to so inform the patient is a fraud upon her, and if injury result therefrom to the patient, a cause of action accrues at the time of the discovery of the fraud, or when, by the exercise of due care the fraud might have been discovered by her, and not from the date of the injury, or the date of the operation.
In such a case the operation and the insertion of the pessary was not an invasion of a right, and no cause of action could accrue until the discovery of the fraud and the resulting injury arising therefrom. This ruling is not in conflict with the case of Davis v. Boyett, 120 Ga. 649, 48 S.E. 185 66 L.R.A. 258, 102 Am.St.Rep. 118, 1 Ann.Cas. 386, where there was an invasion of a right, and where there existed no confidential relationship between the parties. See Civil Code 1910, §§ 4114, 4624, 4627; Persons v. Jones, 12 Ga 371 (1, 2), 58 Am.Dec. 476; Hoyle v. Jones, 35 Ga 40 (2), 89 Am.Dec. 273; Backhouse v. Bonomi, 9 H. L Cas. 503; Angell on Actions (6th Ed.) 183, 185.
Where suit was filed by the patient against a physician more than two years after the operation, but within only about three months after the discovery of the alleged fraud, and where it was alleged in the petition that an injury to the plaintiff resulting in a miscarriage on account of the failure of the physician to inform her of the presence of the pessary in the womb, and as to when it should be removed, a cause of action was set out and the suit was not barred by the statute of limitations.
It was error to dismiss the petition.
In view of the above rulings, it is unnecessary to pass upon the ruling of the trial court upon other grounds of demurrer to which exceptions were taken.
Error from City Court of Atlanta; H. M. Reid, Judge.
Action by Mrs. F. L. Bryson against C. C. Aven. Judgment for defendant, and plaintiff brings error. Reversed.
Gilmer A. Jones, of Franklin, N. C., and T. B. Higdon, of Atlanta for plaintiff in error.
Bryan &...
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