Norred v. Teaver
320 Ga. App. 508
| Ga. Ct. App. | 2013Background
- In 2005 Norred saw Dr. Teaver for a root canal after a chipped molar.
- Dr. Teaver placed a cotton pellet and later a permanent crown over the tooth, leaving the pellet in place.
- In 2006 the permanent crown was placed; the cotton pellet remained and later caused infection.
- Norred discovered the cotton pellet in 2010 during a routine dental cleaning and filed suit in 2011 for medical negligence.
- Norred’s expert connected the injury to Teaver’s failure to remove the cotton pellet before crowning.
- Teaver moved for summary judgment arguing § 9-3-71 applied and that § 9-3-72 did not apply because the pellet was intentionally left.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OCGA § 9-3-72 apply to objects left intentionally? | Norred argues 9-3-72 covers any foreign object left in body, regardless of intent. | Teaver argues 9-3-72 applies only to objects unintentionally left in the body. | Yes; § 9-3-72 applies regardless of intent. |
| What is the proper interpretation of 'foreign object' and 'left' in § 9-3-72? | Cotton pellet is foreign and left in body, triggering 1-year discovery rule. | Objects intentionally left are not 'left' under the statute. | Plain language supports application to intentional as well as unintentional left objects. |
| Does the statutory language align with prior overruled precedents (Pogue, Shannon, Dalbey)? | Prior dicta misapplied; statute should be read plainly to include intentional left objects. | Existing precedents should control interpretation of the statute. | Overruled prior limitations; no longer required to restrict 9-3-72 to inadvertent objects. |
Key Cases Cited
- Pogue v. Goodman, 282 Ga. App. 385 (Ga. App. 2006) (objects intentionally placed not foreign objects; falls under general statute)
- Shannon v. Thornton, 155 Ga. App. 670 (Ga. App. 1980) (foreign object left in body; intentional placement not 'left' for purposes of statute)
- Whiddon v. Spivey, 194 Ga. App. 587 (Ga. App. 1990) (washer left in leg not a foreign object due to conscious decision)
- Ivey v. Scoggins, 163 Ga. App. 741 (Ga. App. 1982) (presence of suture as foreign object when not part of proper procedure)
- Dalbey v. Banks, 245 Ga. 162 (Ga. 1980) (dicta on physician knowledge and continuation of tolling; distinguished)
- Spivey v. Whiddon, 260 Ga. 502 (Ga. 1990) (mischief of discovery tolling; supports 9-3-72 purpose)
- Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302 (Ga. 1988) (supreme court cited in context of foreign object interpretation)
- Abend v. Klaudt, 243 Ga. App. 271 (Ga. App. 2000) (commentary on continuing tort and 9-3-72 timing)
- Karafotias v. Coyne, 184 Ga. App. 335 (Ga. App. 1987) (timing and tolling under 9-3-72 context)
- Hamrick v. Ray, 171 Ga. App. 60 (Ga. App. 1984) (appellate discussion of limitations in medical malpractice)
- Benefield v. Tominich, 308 Ga. App. 605 (Ga. App. 2011) (dissent on interpretation of statutory limits)