Saffold v. Scarborough, 35501

• Decision Date: 14 March 1955
• Docket Number: No. 1,No. 35501,35501,1
• Citation: 91 Ga.App. 628,86 S.E.2d 649
• Parties: J. C. SAFFOLD v. J. E. SCARBOROUGH
• Court: Georgia Court of Appeals

Page 649

86 S.E.2d 649

91 Ga.App. 628

J. C. SAFFOLD v. J. E. SCARBOROUGH.

No. 35501.

Court of Appeals of Georgia, Division No. 1.

March 14, 1955.

Syllabus by the Court

1. The two acts of negligence on which the action in the first count of the petition is based occurred more than two years prior to the initiation of this action; therefore, the action in the first count is barred by the statute of limitations, and the court did not err in sustaining the demurrer to the first count, setting up the statute.

2. The second count of the petition alleges fraud sufficient to toll the statute of limitations relative to the acts of negligence relied on therein; therefore, the court erred in sustaining the demurrer to the second count, setting up the statute of limitations, and in dismissing the action.

Joseph C. Saffold sued Dr. J. Elliott Scarborough for injuries due to the alleged negligence of the defendant. The petition was in two counts, and alleged in substance that, on April 25, 1945, the defendant negligently administered to the plaintiff 960 milligram hours of radium treatment, when he was supposed to administer only 480 milligram hours of treatment; that, on the defendant's advice, the plaintiff remained under the defendant's care and treatment for a period of five years following the radium treatment; that, on May 26, 1950, the plaintiff was discharged by the defendant, the defendant's report showing 'no evidence of disease'; that, on March 26, 1952, because of swelling and soreness in his upper gums, the plaintiff consulted his dentist, and, upon a thorough examination by the dentist, it was discovered that a perforation existed through the hard palate of the plaintiff's mouth; that, upon such discovery, the plaintiff consulted his family physician, who in turn sent him to Dr. Robert Drane of Savannah for X-rays of his sinuses and nasal cavities; that, upon reports being received from these X-rays, the plaintiff was advised that he was suffering from radiation burns and was advised to return to the defendant, which was done on May 8, 1952; that the plaintiff advised the defendant of the diagnosis of radiation burns, and that the defendant thereupon, and in his progress notes, admitted that the plaintiff's condition was connected with the previous treatment; that the plaintiff remained under the care of the defendant for this condition until August 1, 1952, when he was admitted to Bethesda Naval Hospital, Bethesda, Maryland, and to the care of the doctors in attendance there, under whose care he has remained since that time; that it was discovered at the naval hospital that, by reason of the cumulative effect of the radiation from the treatment given by the defendant, the entire bones and tissue of his hard palate, gums, jawbones, and sinuses were in the process of decaying and being destroyed. Further injuries were alleged in detail. More detailed allegations contained in the petition will be considered in the opinion.

By demurrers to both counts the defendant set up the statute of limitations. The court sustained these demurrers to both counts and dismissed the action, and the plaintiff excepts.

John B. Miller, Savannah, Martin McFarland, Atlanta, for plaintiff in error.

Lokey & Bowden, Bryan, Carter, Ansley & Smith, Marshall, Greene & Neely, Atlanta, for defendant in error.

FELTON, Chief Judge.

1. Properly construed, the first count of the petition alleged two acts of simple negligence against the defendant; (1) in treating the plaintiff with an excessive amount of radium on April 25, 1945, and (2) after five years of treatment, following the administration of the radium, pronouncing him well on May 26, 1950, 'when, in fact, defendant, upon careful examination, knew and could have determined the radiation burns caused petitioner by defendant'; therefore, since both acts of negligence occurred more than two years prior to the institution of this action, the action is barred, and the court did not err in sustaining a demurrer to the first count setting up the statute of limitations. Code, § 3-1004.

2. The second count is based on the original act of negligence of administering an excessive amount of radium, plus the fraud of the defendant in failing to disclose to the plaintiff the fact of the excessive application and the damage resulting therefrom. The plaintiff alleged in the second count that the defendant prescribed a five-year course of treatment following the administration of the radium, and that the plaintiff took such treatment. He further alleges: 'Petitioner shows that during the five year course of treatment previously described and thereafter he from time to time noticed a sloughing off of particles of tissue from the inside of his nose and that he periodically suffered from nose bleeds. Petitioner advised defendant of these happenings, and defendant responded that this was a normal reaction to the treatment given and that it should be...