Edmonds v. Bates

• Decision Date: 07 February 1986
• Docket Number: 71232,Nos. 71124,s. 71124
• Parties: EDMONDS v. BATES et al. BATES v. EDMONDS
• Court: Georgia Court of Appeals

Page 476

342 S.E.2d 476

178 Ga.App. 69

EDMONDS v. BATES et al.

BATES v. EDMONDS.

Nos. 71124, 71232.

Court of Appeals of Georgia

Feb. 7, 1986.

Rehearing Denied Feb. 28, 1986.

Certiorari Denied April 8, 1986.

Russell L. Adkins, Jr., Marietta, for appellant (case no. 71124).

Y. Kevin Williams, Robert H. Cleveland, Roy E. Barnes, Marietta, for appellees.

Y. Kevin Williams, Marietta, for appellant (case no. 71232).

Thomas J Casurella, Russell L. Adkins, Jr., Marietta, for appellee.

BEASLEY, Judge.

The three doctors who were sued in this medical malpractice action moved for summary judgment. It was granted to Drs. Lipsius and Simone and denied to Dr. Bates, all on the ground of the statute of limitations. OCGA § 9-3-71. Edmonds, the patient, appeals from the judgment granted, and Dr. Bates appeals from the judgment denied.

To entitle defendants to summary judgment, " 'undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. [Cit.]' " Waller v. Transworld Imports, 155 Ga.App. 438, 439, 271 S.E.2d 1 (1980). All evidence most favorable to plaintiff's position, including his own testimony, will be taken as true. Jordan v. Atlanta Neighborhood Housing Svc., 171 Ga. 467, 468, 320 S.E.2d 215 (1984); Pugh v. Frank Jackson Lincoln-Mercury, 165 Ga.App. 292, 300 S.E.2d 227 (1983). In considering summary judgment, the court is limited to determining whether there is a genuine issue regarding a material fact; if so, summary judgment must be denied. OCGA § 9-11-56. That, then, is how we must view the case.

The record shows without dispute that Edmonds was first treated by Dr. Bates for heart problems in February 1981 and, after surgery and release and then subsequent hospitalization in February 1982, was released on February 13 and last seen by Dr. Bates on May 7, 1982. Sometime during or after the second hospitalization, Dr. Bates informed Edmonds of his prognosis that Edmonds had only a short time to live and that medical management was his only alternative because he could not survive further medical treatment or surgery. Cardiologist Simone was first consulted about Edmonds' condition in March 1981 and last saw him during the second hospitalization on February 11, 1982. Dr. Simone likewise advised Edmonds that further corrective surgery was not feasible and that medication was the only available treatment. Dr. Lipsius, who was first consulted in November 1981, last saw Edmonds on January 26, 1982. While under his care, Dr. Lipsius gave Edmonds his diagnosis that Edmonds' problems were psychological and not physical. When Edmonds was released from the hospital in February 1984, he was to return in six weeks but he did not do so. In April or May he consulted with other physicians and was informed that surgery was in fact possible and strongly recommended. It was subsequently performed.

It was not until March 1, 1984, that Edmonds filed suit against the three physicians, alleging that their negligent treatment and advice and diagnosis resulted in business losses, financial strain, "unnecessary treatment ... which exacerbated his condition and may have shortened his life," and pain and suffering. He also sought punitive damages based on wanton and wilful conduct.

In countering the motions for summary judgment on the ground of the expiration of the statute of limitation, plaintiff maintains that it did not begin to run until May 1982 when he first discovered the negligence, so that his March 1984 filing was well within the two years allowed by OCGA § 9-3-71. ¹ The trouble with his position is that it defies the plain meaning of the statute. We had pointed out in 1981, in chronicling the history of the medical malpractice statute of limitations, that "the legislature has changed the date the time begins to run from the date of discovery to the date of breach." Hart v. Eldridge, 158 Ga.App. 834, 836, 282 S.E.2d 369 (1981). Although the decision was disapproved as to another question in Allrid v. Emory Univ., 249 Ga. 35, 37, 285 S.E.2d 521 (1982), that point remained intact. In applying the statute to run from the date of the allegedly negligent occurrence, the Supreme Court recognized that "it has the effect, in many cases, of cutting off rights before there is any knowledge of injury. Nonetheless, the legislature has the power, within constitutional limitations, to make such provisions." ² It likewise applies here. Accord Johnson v. Gamwell, 165 Ga.App. 425, 301 S.E.2d 492 (1983); see also Lumbermens Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 464, fn. 6, 330 S.E.2d 344 (1985).

Case No. 71124

As to Drs. Lipsius and Simone, there is no evidence, nor can a reasonable inference be drawn, to support plaintiff's argument that he remained under the defendants' care until May 1982, when he became aware of their alleged negligence. He admitted not having seen or spoken with them for months prior to that time. All of the evidence is that the latest possible dates on which the alleged negligent misdiagnosis and negligent course of treatment could have occurred are January 26 and February 11, 1982, the dates Edmonds was last seen by Drs. Lipsius and Simone respectively. He admits that he received no actual medical treatment or diagnosis from either of them beyond these times. His claimed reliance on their opinions during this subsequent period until he sought and obtained other contrary opinion does not constitute treatment or care by the physicians, as defined by OCGA § 9-3-70.

Faced with this obstacle, Edmonds next contends that the statute was tolled until discovery of the fraud of the doctors. OCGA § 9-3-96. It is true that fraud by the defendant physician would toll the statute until discovery of the fraud. Johnson, supra 165 Ga.App. at 426, 301 S.E.2d 492. But Edmonds does not allege fraud in his complaint; rather, he alleges only negligent treatment and advice and misdiagnosis, and that such acts were wanton and wilful. "Such an allegation is insufficient to raise an issue of fraud, as misdiagnosis only raises an issue of negligence under OCGA § 9-3-70(a)(2) ..." Johnson, supra at 427, 301 S.E.2d 492; see also Bray v. Dixon, 176 Ga.App. 895, (338 S.E.2d 872) (1985). The same would be true for giving the wrong opinion regarding treatment possibilities. OCGA § 9-3-70(1).

Nor has Edmonds introduced evidence of fraud. One of the elements of fraud is that defendant know that the representation is false. Reilly v. Mosley, 165 Ga.App. 479, 480, 301 S.E.2d 649 (1983); Hart v. Waldo, 117 Ga. 590(1), 43 S.E. 998 (1903). There is nothing in the record to reflect that any of the doctors knew at any time that the treatment or opinion given by him was in error, nor is there any evidence that any of them fraudulently withheld such information from the patient. See Bray v. Dixon, supra.

Not only is there no allegation of fraud in the complaint, nor any evidence of fraud with respect to the representations plaintiff quarrels with, there are no allegations of fraud which would have prevented Edmonds from discovering the alleged negligence so as to toll the statute. Edmonds has introduced no claim nor evidence whatsoever that he was fraudulently prevented by the doctors from seeking another opinion and thereby learning that treatment by way of surgery was available to alleviate his problem or that any of them fraudulently induced him to rely on their opinions; Edmonds simply gave evidence that he was led to rely on their opinion and that this is what caused him to wait until May 1982 to obtain the contrary opinion. But this falls far short of fraud, and a jury could not so find it, although we recognize that fraud having the effect of tolling the statute of limitations is generally a proper question for a jury to decide. Johnson, supra 165 Ga.App. at 426, 301 S.E.2d 492. "If facts do exist which would toll the statute of limitations, the [plaintiff] has the burden of setting forth...