Crawford v. McDonald, 46713

• Decision Date: 13 January 1972
• Docket Number: No. 46713,No. 3,46713,3
• Citation: 125 Ga.App. 289,187 S.E.2d 542
• Parties: Judy T. CRAWFORD v. Harold P. McDONALD
• Court: Georgia Court of Appeals

Page 542

187 S.E.2d 542

125 Ga.App. 289

Judy T. CRAWFORD v. Harold P. McDONALD.

No. 46713.

Court of Appeals of Georgia, Division No. 3.

Jan. 13, 1972.

C. W. Milam, Joseph S. Crespi, Atlanta, for appellant.

Dunaway, Shelfer, Haas & Newberry, William S. Shelfer, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This is an appeal by a plaintiff-patient from a summary judgment for defendant-physician in a malpractice action based on an occurrence during an operation for a kidney ailment. The allegation is that the surgeon 'without further authorization' did 'cut, sever and then closed up veins leading down from her right leg.' Thereafter by an amendment denominated Count II she alleged fraudulent conduct by the doctor in that he did not disclose to her that he had severed the vein and further failed to note such vein severance as a part of her medical history in the hospital records.

The operation occurred November 19, 1966, with plaintiff being discharged from further treatment on December 7, 1966. This suit was filed December 4, 1969, and after deposing plaintiff the defendant filed a motion for summary judgment based on the applicable two-year statute of limitations (Code Anno. § 3-1004); Breedlove v. Aiken, 85 Ga.App. 719, 70 S.E.2d 85. This summary judgment motion is based on the testimony given by plaintiff during an extensive cross examination deposition wherein she was interrogated at length concerning her past and post-operative medical history. Plaintiff sought by her affidavit to rebut the contentions which the defense had derived from her deposition. She now asserts she did not discover the alleged negligence of November 19, 1966 until December 7th of the following year, so that the suit filed December 4, 1969, was within the statutory period of two years from date of discovery.

Plaintiff also sought at that stage to keep her action in court by the amendment which added Count II to the complaint alleging fraud through wilful non-disclosure and the omission of any entry on the hospital charts concerning the alleged unauthorized severance of the vein leading to the leg.

We recognize the correctness of the rulings in Tabor v. Clifton, 63 Ga.App. 768, 771, 12 S.E.2d 137, dealing with the confidential relationship between physician and patient, the duty of the physician to inform the patient of the nature and character of any operation that is performed, and that where the physician goes beyond his authority and conceals such fact from the patient that his failure to inform the patient constitutes a fraud on the patient and tolls the statute of limitation. See also Silvertooth v. Shallenberger, 49 Ga.App. 133, 174 S.E. 365; Bryson v. Aven, 32 Ga.App. 721, 124 S.E. 553; Phipps v. Wright, 28 Ga.App. 164, 110 S.E. 511; Persons v. Jones, 12 Ga. 371; and Edwards v. Monroe, 54 Ga.App. 791, 189 S.E. 419.

None of these cases apply to the instant situation because plaintiff by her own testimony (record pages 149, 150 and 151) acknowledged that as soon as she was conscious after the kidney surgery of November 19, 1966 she realized there was something wrong with her leg and that she continued to suffer thereafter from thrombophlebitis.

A plaintiff must exercise reasonable diligence to learn of the existence of a cause of action. Breedlove v. Aiken, 85 Ga.App. 719, 70 S.E.2d 85. 'Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation.' Wellston Company v. Sam N. Hodges, Jr. & Co., 114 Ga.App. 424, 426, (151 S.E.2d 481, 482). See also Mobley v. Murray County, 178 Ga. 388, 173 S.E. 680, stating that 'the true test, therefore, to determine when a cause of action has accrued is 'to ascertain the time when plaintiff could first have maintained his action to a successful result. " The testimony contained in the deposition of plaintiff shows that she had knowledge from her suffering due to the thrombophlebitis in November, 1966. This knowledge was sufficient to commence the running of the statute of limitation. A case similar in nature is reported in Cheney v. Syntex Laboratories, 277 F.Supp. 386 (N.D.Ga.) Here the cause of action was based upon drugs that were last taken on April 12, 1965, with the side effects appearing April 20, 1965, resulting in hospitalization because of an embolism developing April 26, 1965. When the suit was filed April 25, 1967, it was ruled that even though the injury complained of occurred within the limitation period, nevertheless the action was barred because the basis was the medicine that had been last administered on April 12, 1965.

Plaintiff sought by her affidavit to fill the holes but in doing so she relies upon hearsay evidence, relating what was told to her by a doctor who treated her in December, 1967, and who purportedly then informed her of the discovery that the vein had been cut and that he had found suture material therein. No affidavit was obtained from this physician and he was not summoned to testify, so that plaintiff relies solely upon hearsay. Code Ann. § 81A-156(e) provides that evidence, whether by deposition or by affidavit '. . . shall show affirmatively that the affiant is competent to testify to the matters stated therein.' In Matthews v. Wilson, 119 Ga.App. 708, 711, 168 S.E.2d 864, 866, this court held that 'the same rule applies to depositions, interrogatories and...