Wade v. Thomasville Orthopedic Clinic, Inc.

• Decision Date: 01 July 1983
• Docket Number: No. 66376,66376
• Citation: Wade v. Thomasville Orthopedic Clinic, Inc., 306 S.E.2d 366, 167 Ga.App. 278 (Ga. App. 1983)
• Parties: WADE v. THOMASVILLE ORTHOPEDIC CLINIC, INC.
• Court: Georgia Court of Appeals

Page 366

306 S.E.2d 366

167 Ga.App. 278

WADE v. THOMASVILLE ORTHOPEDIC CLINIC, INC.

No. 66376.

Court of Appeals of Georgia.

July 1, 1983.

Thomas J. Morse, Thomasville, Edward J. Walsh, Decatur, for appellant.

William U. Norwood III, Thomasville, for appellee.

DEEN, Presiding Judge.

In October and November of 1977 appellant Wade was treated at the Archbold Memorial Hospital, Thomasville, Georgia, by physicians practicing as the Thomasville Orthopedic Clinic (TOC), for injuries received when she was attacked by a sow. The compound fracture of one leg required the use of traction and a body cast, and during the entire 54-day hospitalization period there was a "Foley" catheter inserted in appellant's urethra. There was testimony that the use of a Foley catheter over so long a period of time almost invariably produces infection in the urinary tract. Hospital records show that a urinary tract infection was observed some eight days prior to her November 30, 1977, discharge, and that an antibiotic, Furodantin, was prescribed by Dr. Payne of TOC. The laboratory test results placed in evidence show that the particular disease organisms present in Mrs. Wade's urine were resistant to this antibiotic. The test results were entered in the patient's hospital record seven days before the Furodantin was prescribed. Appellant asserts that she was not told of the presence of the urinary tract infection at the time of her discharge from the hospital and that the catheter was infrequently changed or irrigated.

When appellant returned to TOC the following January or February for orthopedic follow-up, she complained of pain in her back but allegedly was assured that this was merely a consequence of her injuries to which she would have to become accustomed. When her cast was removed early in March the fracture was found not to have healed completely, and she was hospitalized for further orthopedic treatment. The history and physical examination made upon admission and signed by Dr. Rogers of TOC indicates that she had hemorrhagic pyuria, or blood in the urine accompanied by pain in the lower abdomen. A regimen of whirlpool baths was prescribed and commenced on March 11. On March 14 a urologist not associated with TOC was consulted, and after making a diagnosis of kidney infection accompanied by a large kidney stone, he recommended discontinuance of the baths. He performed a nephrectomy and uretectomy on March 17, and appellant remained in the hospital until May 12, 1978. Her hospital records show "W. Rogers" of TOC as her primary care physician throughout this period of hospitalization. The discharge summary, signed by Dr. Falbaum of TOC, contained the notation, "The patient will be followed as an outpatient in this office."

On March 13, 1980, appellant brought a negligence action against both TOC and the hospital. The latter was subsequently voluntarily dismissed as a party defendant without prejudice. Defendants moved to dismiss or for summary judgment, pleading the statute of limitations, but the motion was overruled. They subsequently moved for partial summary judgment, again pleading the running of the statute and asking by way of a motion in limine that appellant be confined to allegations concerning events occurring after March 13, 1978, and these motions were granted. Discovery proceeded, but after the case was called for trial, appellant voluntarily dismissed the suit on April 7, 1982.

Nearly six months later, in September 1982, appellant refiled her complaint. By letter to the Clerk of the Thomasville County Superior Court, appellant's counsel requested that copies of the affidavits and depositions filed in the prior suit be transferred to the current case, and the clerk did so but did not certify them. The trial court ruled that this transfer was improper and that the documents could not be considered in the current action. Appellees presented in support of their motion for summary judgment the affidavit of one of the three TOC physicians as to standard of care. The affidavit and deposition of one of Mrs. Wade's experts, a Dr. Perine, and the deposition of a Dr. Woodman were not allowed into evidence, and she called no other expert witnesses. The court granted appellee's motion in limine and motion for partial summary judgment regarding the limitation to events occurring after March 13, 1978, and subsequently granted summary judgment as to the entire case.

On appeal Mrs. Wade contends that the trial court erred in admitting in evidence an affidavit of a TOC physician which was filed by appellee in the second action only, alleging that the affidavit was defective in form and therefore legally insufficient to serve as the basis for an award of summary judgment. Her second and third enumerations assign as error the court's granting summary judgment because, she contends there remained in the case genuine issues of material fact concerning appellee's allegedly fraudulent conduct in not revealing the existence of the urinary tract infection, and her own reasonable diligence in discovering the problem. Her fourth enumeration contends that the trial court erred in excluding from consideration the affidavit and depositions of her expert witnesses. Held:

1. Appellant assigns as error the trial court's admitting into evidence the deposition of Dr. Payne of TOC. She alleges that the affidavit does not meet the requirement of OCGA § 9-11-56(e) (Code Ann. § 81A-156), which requires in pertinent part that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

This court cannot consider this enumeration. Nowhere in the record is there any evidence that appellant objected to this affidavit at the trial level; to the contrary, the letter of appellant's counsel requesting the transfer of certain documents from the prior proceeding specifically lists Dr. Payne's affidavit as among the documents to be filed in the action from which this appeal is taken. "Issues not raised in the court below may not be raised [here] for the first time as they present nothing to this court for decision." Lester v. Groves, 162 Ga.App. 590, 591, 291 S.E.2d 785 (1982); Mynatt v. Tom Washburn & Assocs.,-Century 21, 161 Ga.App. 168, 288 S.E.2d 122 (1981).

2. The trial court did not err in granting appellee's motion in limine and motion for partial summary judgment with respect to the court's limitation of appellant to allegations concerning acts of omissions on the part of appellee occurring on or after March 14, 1978. The relevant statute of limitations, OCGA § 9-3-71 (Code Ann. § 3-1102), requires that an action for medical negligence or malpractice "shall be brought within two years after the date on which the negligent or wrongful act or omission occurred." See Allrid v. Emory Univ. Hosp., 249 Ga. 35, 285 S.E.2d 521 (1982). A malpractice action is defined in OCGA § 9-3-70 (Code Ann. § 3-1101) as "any claim for damages resulting from ... injury ... arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service..." If fraud by which a patient is deterred from bringing a timely action under § 9-3-71 (Code Ann. § 3-1102) is involved, however, the two-year limitation is tolled until discovery of the fraud. OCGA § 9-3-96 (Code Ann. § 3-807). Fraud sufficient to toll the statute must be actual rather than constructive, Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980), except when there exists a confidential relationship between the parties, such as that between physician and patient. Sutlive v. Hackney, 164 Ga.App. 740, 742, 297 S.E.2d 515 (1982); Brown Radiology Assocs. v. Gowers, 157 Ga.App. 770, 773, 278 S.E.2d 653 (1981). "Where persons sustain toward [another] a relation of trust and confidence, their silence when they ought to speak ... is as much a fraud in law as an actual affirmative false representation." Morris v. Johnstone, 172 Ga. 598, 158 S.E. 308 (1931); Brown v. Brown, 209 Ga. 620, 75 S.E.2d 13 (1953); Johnson v. Gamwell, 165 Ga.App. 425, 426, 301 S.E.2d 492 (1983). The question of the existence of such fraud, and the related question of the patient's exercise of diligence in discovering the injury and the fraudulent concealment, are ordinarily for jury determination. Johnson v. Gamwell, supra; Leagan v. Levine, 158 Ga.App. 293, 279 S.E.2d 741 (1981).

In the instant case, appellee's contentions to the contrary notwithstanding, there clearly existed between the parties at all relevant times a confidential physician-patient relationship which would trigger the duty on appellee's part to inform the patient of her condition. Failure...