Carroll v. Piedmont Med. Care Corp.

• Decision Date: 17 October 2019
• Docket Number: A19A1349
• Citation: 352 Ga.App. 348,834 S.E.2d 868
• Court: Georgia Court of Appeals
• Parties: CARROLL v. PIEDMONT MEDICAL CARE CORPORATION et al.

352 Ga.App. 348

834 S.E.2d 868

CARROLL

v.PIEDMONT MEDICAL CARE CORPORATION et al.

A19A1349

Court of Appeals of Georgia.

October 17, 2019

David L. Hudgins, Roswell, for Appellant.

Hall Booth Smith, Terrell W. Benton III, Erin L. Coia, for appellees.

Dillard, Presiding Judge.

Lylah Carroll, acting in her capacity as administrator for the estate of her deceased husband (Byron Tyrone Carroll), appeals from the trial court’s grant of summary judgment in favor of Piedmont Medical Care Corporation and Piedmont Hospitalist Physicians, LLC.¹ The Estate argues that the trial court erred in granting summary judgment to Piedmont on the basis that its medical-malpractice claims were barred by the statute of limitation when the limitation period was tolled by fraud.² For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the non-moving party (i.e. , the Estate),³ the record shows that Byron was hospitalized on February 19, 2012, after being transported by ambulance following complaints of abdominal pain. Thereafter, from February 19 until February 26, Byron underwent a number of diagnostic tests and examinations by various professionals within the hospital, but he was never administered a CT scan

, despite one having been ordered by a physician on February 21. On February 26, Byron—who at that point was in the Critical Care Unit—continued to experience increasing abdominal discomfort and other symptoms, and a CT scan was finally performed. This scan revealed what appeared to be perforation of Byron’s colon, and he underwent an urgent laparotomy

, during which doctors discovered stool throughout his abdomen, a perforation of the colon, and early necrosis of the bowel. Then, during a second exploratory laparotomy on March 1, 2012, doctors determined that the bowel was gangrenous and nonviable, and end-of-life protocols were discussed with the family. Byron passed away later that evening.

Lylah filed a complaint for damages against Piedmont and a number of other defendants⁴ on February 14, 2017, asserting claims for medical negligence related to the care Byron received during the hospitalization that ended with his death. This complaint was filed as a renewal of a prior action that was filed on May 31, 2016, and dismissed without prejudice on August 15, 2016. On March 15, 2017, Piedmont answered and filed a motion to dismiss the renewal action, contending that it was barred by the statute of limitation.

Thereafter, on April 14, 2017, the Estate filed an amended complaint, in which it alleged that the statute of limitation in the case was tolled by fraud on behalf of Piedmont, and the Estate also filed a response to Piedmont’s motion to dismiss. Piedmont then filed an answer to the amended complaint, a reply to the Estate’s response to its motion to dismiss, and a motion to dismiss the amended complaint. The Estate then filed a second amended complaint. Piedmont, once again, moved to dismiss the second amended complaint.

The trial court sua sponte converted Piedmont’s motion to dismiss into a motion for summary judgment, ordering the parties to file evidence pertinent to the motion. Following the submission of evidence and a hearing on the motion,⁵ the trial court granted Piedmont’s request that the case be dismissed. In doing so, the court concluded that no fraud tolled the running of the statute of limitation and, thus, the time limit expired prior to the filing of the initial lawsuit. This appeal by the Estate follows.

The Estate argues that the trial court erred in concluding that the limitation period was not tolled by fraud on the part of Piedmont. We disagree.

In actions alleging medical malpractice, the claim must be filed "within two years after the date on which an injury ... arising from a negligent or wrongful act or omission occurred."⁶ Thus, in most cases of negligent treatment or misdiagnosis, the statute of limitation for medical malpractice will "begin running at the time of the treatment or misdiagnosis."⁷ But the statute of limitation is tolled if "the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action[.]"⁸ In those cases, the statute of limitation runs from the time of the discovery of the fraud.⁹ Importantly, even if there is evidence of fraud, "the statute of limitation is not tolled when the plaintiff knew all facts necessary to show malpractice before the running of the period of limitation."¹⁰

Here, the Estate argues that Piedmont’s negligence resulted in Byron’s death on March 1, 2012. In the second amended complaint, the Estate alleges that,

[a]s a result of the surgical discovery of the bowel rupture and the resulting significant tissue death throughout [Byron’s] entire small bowel, [Piedmont] knew this injury was caused by and was the direct result of [Piedmont’s] negligence in failing to properly work-up, evaluate and treat [Byron’s] bowel obstruction

during the seven days prior to the discovery of the rupture on February 26, 2012.

The Estate then alleges that,

[d]espite their knowledge of the basis and cause of the severe rupture injury and tissue death [Byron] experienced, [Piedmont] failed to inform the Plaintiff that [Byron’s] severe injury and his resulting death were related to and directly caused by [Piedmont’s] negligent acts and omissions in the 7 days preceding the detection of this injury.

And it is this failure to disclose what the Estate contends is a "causal connection" between the failure to earlier obtain a CT scan

and Byron’s resulting injuries that constitutes the "constructive and actual fraud and misrepresentation sufficient to toll the applicable limitation period."

In response to Piedmont’s motion to dismiss the second amended complaint, the Estate argued that the relevant "injury occurred on February 26, 2012," and, as a result, "the injury arising out of [Piedmont’s] negligence occurred at that point and the limitation period would not begin to run until that date." But the Estate also maintains that the "limitation period did not begin to run until much later, at some point after [Byron’s] death" due to Piedmont’s alleged failure to disclose the cause of the bowel rupture (i.e. , the alleged delay in performing a CT scan

). In other words, the Estate asserts that fraud tolled the running of the statute of limitation from February 26, 2012, until some unspecified date. But like the trial court, we disagree.

After the trial court converted the motion to dismiss into a motion for summary judgment, the parties submitted competing affidavits. The Estate submitted affidavits from family members, averring that they were never told a CT scan

was necessary or appropriate. These family members also indicated that, in the days after a CT scan

and surgery were performed on February 26, 2012, no one ever informed them that (1) the bowel rupture and damage could have been prevented by conducting an earlier CT scan ; (2) CT scans are the "gold standard" for diagnosing similar medical situations; (3) an earlier CT scan likely would have revealed a bowel obstruction prior to the extensive tissue death; and (4) a reasonably timed CT scan might have prevented Byron’s death. And in her affidavit, Lylah contends that "a few months" after Byron’s death (while speaking with an unnamed acquaintance who had a connection to the hospital), she was told that "there was still discussion at the hospital about what had happened and what had gone wrong with [Byron’s] treatment."¹¹ It was at this point that Lylah claims she realized "there might be an issue pertaining to the quality and standard of care provided to [her] husband by his attending physicians."

Piedmont responded with affidavits from various members of Byron’s care team during his hospitalization, who averred that they did not believe the failure to obtain a CT scan

prior to February 26, 2012, caused Byron’s injuries and that they at no point withheld relevant medical information from or misrepresented any such information to Byron or his family. Piedmont’s custodian of records also averred that she received multiple requests from the Estate’s attorney for the provision of medical records, and that these records were provided when required fees were paid.

Given the foregoing, the Estate failed to allege or provide evidence of facts sufficient to establish fraud that would toll the running of the statute of limitation as of February 26, 2012. Indeed, the key element for such tolling to apply is that "the fraud must have debarred or deterred plaintiff from bringing the suit timely."¹² In other words, the fraud must "conceal the cause of action and cut plaintiff off from suing, preclude him, hinder him, shut him out, or exclude him to debar him from bringing suit for purposes of suspension of the running of the statute of limitation."¹³ And when there is "a confidential relationship and ... a duty to disclose or the right in the plaintiff to expect full communication of the facts, concealment per se or intentional silence amounts to actual fraud that tolls the statute."¹⁴ A physician-patient relationship is a classic confidential relationship, and "silence or failure to disclose what should be said or disclosed can amount to fraud."¹⁵ Nevertheless, there must be evidence that "there was an intent to conceal by silence or that the representations were false when made and were intended to mislead."¹⁶

In this case, there is no evidence that any misrepresentations were made to Byron or his family; and as to the issue of silence, there is no evidence or suggestion that the Piedmont actors believed or were aware that the failure to obtain an earlier CT scan

resulted in Byron’s death, as the Estate alleges. Thus, while the failure to recognize this is arguably evidence of negligence, it is not evidence of fraud that would be sufficient to toll the statute of limitation.¹⁷ Furthermore, after Byron’s death, there is no allegation of or...