Piedmont Pharmacy, Inc. v. Patmore

• Court: Georgia Court of Appeals
• Writing for the Court: SHULMAN; QUILLIAN, P. J., and BANKE
• Citation: Piedmont Pharmacy, Inc. v. Patmore, 240 S.E.2d 888, 144 Ga.App. 160 (Ga. App. 1977)
• Decision Date: 11 October 1977
• Docket Number: No. 54321,No. 2,54321,2
• Parties: PIEDMONT PHARMACY, INC. v. Barbara A. PATMORE et al

Page 888

240 S.E.2d 888

144 Ga.App. 160

PIEDMONT PHARMACY, INC. v. Barbara A. PATMORE et al.

No. 54321.

Court of Appeals of Georgia, Division No. 2.

Oct. 11, 1977.

Rehearing Denied Dec. 1, 1977.

Freeman & Hawkins, William Q. Bird, Paul M. Hawkins, H. Lane Young, II, Atlanta, for appellant.

Ross & Finch, A. Russell Blank, T. M. Smith, Atlanta, for appellees.

SHULMAN, Judge.

This case is before us to review an order by the trial court allowing the addition of appellant as a party defendant. Appellee brought suit in 1974, some six months after an eye ailment was diagnosed as steroid induced glaucoma. Believing the disease to have been caused by a prescription drug she had used for three years, appellee brought the suit against two doctors, a pharmacy and a pharmacist. After conducting discovery, the latter two defendants impleaded appellant and another pharmacy as third-party defendants. Prior to the dismissal of appellee's complaint against the first pharmacy and pharmacist (which dismissal removed the third-party complaint), appellee applied to the court for permission to add appellant as a defendant. The court granted the motion subject to objection. Objection was timely filed by appellant, alleging that the action was barred against it by the statute of limitations. Appellant last filled appellee's prescription in 1971; suit was filed in 1974; and appellant was added as a defendant in July 1975. Appellant's objections were overruled by an order dated March 2, 1977. This appeal is from that order. We affirm.

1. Although appellant offers several bases for a reversal, we need address only one issue: whether the doctrine of continuing tort applies to this case so as to toll the statute of limitations. The period of limitation in this type of action is provided by Code Ann. § 3-1004: "Actions for injuries to the person shall be brought within two years after the right of action accrues . . ." When, then, did appellee's right of action accrue? Appellant insists that the right of action accrued when appellant did the last act complained of, i. e., selling the medication to appellee in February 1971. By appellant's analysis it was too late after February 1973 to bring suit against it. Appellee insists, with equal vigor, that the doctrine of continuing tort tolled the statute of limitations until October 1973, when appellee discovered the condition of her eyes and the purported cause of that condition.

In Parker v. Vaughan, 124 Ga.App. 300, 183 S.E.2d 605, this court introduced into Georgia law the doctrine of continuing tort. Restricting the rule to cases in which a surgeon negligently leaves a foreign object in the body of his patient, we held that ". . . the statute can only begin to run from the time the patient has knowledge, or through the exercise of ordinary care could have learned, of the existence of the continuing tort." Id. at 302, 183 S.E.2d at 606. In Everhart v. Rich's, Inc., 229 Ga. 798, 194 S.E.2d 425, our Supreme Court expanded the doctrine to cover situations ". . . where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time." Id. at 802, 194 S.E.2d at 428. The doctrine was again articulated in Forgay v. Tucker, 128 Ga.App. 497, 197 S.E.2d 492: "(W) here a time interval elapses between the commission of the act and the infliction of injury which first puts the recipient on notice the latter date will mark the time from which the statute of limitations runs . . . (W)hen the injury resulting from a tortious act is not immediately apparent the statute of limitation is tolled so long as the victim could not in the exercise of ordinary care have learned of it . . ." Id. pp. 499, 500, 197 S.E.2d p. 493. If the act complained of her constituted a continuous tort and appellee could not have learned of it in the exercise of ordinary care until the time she actually learned of it, the addition of appellant as a party defendant was proper.

2. We find no difficulty in holding this case to be within the doctrine of continuing tort. Appellee used the medication for over three years. The drug is a steroid and she was diagnosed as having steroid-induced glaucoma. The time interval between the first filling of appellee's prescription by appellant and the discovery of glaucoma places this case squarely within the classification of cases set forth above. The remaining question, then, is whether appellee could have known sooner the nature of her ailment.

3. Appellant contends that appellee knew or should have known of her injury prior to July 1973 (two years before the addition of appellant as a defendant). In support of that contention, it is pointed out that appellee went to an opthalmologist (other than the one who prescribed the drug) in January of 1972 because she was having continued eye trouble and...