Lead Opinion
In February, 1956, following a series of convulsions, James Allrid was admitted to Emory University Hospital (Emory) for the purpose of undergoing a cerebral angiogram. This diagnostic test is performed by injecting an x-ray contrast medium into the carotid artery in the neck. A series of x-rays is taken as the contrast medium passes through the brain’s arterio-venous system in order to diagnose obstructions or other abnormalities. Both a right-side and a left-side carotid study were performed on Allrid. It is undisputed that Diodrast, a non-radioactive contrast medium was used in the right-side study. The record does not clearly reflect what contrast medium was used in the left-side study, but plaintiff alleges that Thorotrast, a radioactive substance which gradually destroys body tissues, was used.
The record indicates that between February, 1956 and March, 1979, Allrid suffered from sore throats, the cause of which his physicians were unable to determine. Allrid was admitted to Crawford Long Hospital in March, 1979. At that time his physician determined that “despite an apparent history for patient having received Diodrast [in the left-side study]..., the present appearance suggests Thorotrast having been received instead” аs “any other material would no longer be visible on x-rays.” Emory records indicated that Diodrast alone had been used as the contrast medium in conducting the angiogram. In October, 1979 Allrid and his wife brought this action against Emory University and Tenneco Chemicals, Inc., a manufacturer of Thorotrast, alleging that their combined acts of negligence were the proximate cause of his injuries. Allrid subsequently died. His widow proceeds as executrix in this action. She appeals from the trial court’s order granting summary judgment to Emory University Hospital. We affirm.
Insofar as medical malpractice actions are concerned, this section replaced Code Ann. § 3-1004 which provided that an action for medical malpractice “shall be brought within two years after the right of action accrues.” One exception to the limitations of Code Ann. § 3-1102 is “where a foreign object has been left in a patient’s body,” but the term “foreign object [does] not include a chemical compound.” Code Ann. § 3-1103. Under the latter section “an action shall... be brought within one year after such negligent or wrongful act or omission is discovered.”
Code Ann. § 3-1102 became effective July 1, 1976. Simultaneously the legislature providеd for a one-year grace period prior to giving Code Ann. § 3-1102 retrospective application. “No action for medical malpractice which would be barred before July 1, 1977, by the provisions of this Chapter but which would not be so barred by the provisions of Title 3, [i.e., Code Ann. § 3-1004] in force immediately prior to July 1,1976, shall be barred until July 1,1977.” Code Ann. § 3-1105.
The trial court correctly found that, sinсe the alleged negligent act occurred in February, 1956 and suit was not brought until October, 1979, plaintiffs claim was barred under Code Ann. § 3-1102. Clark v. Randall,
In a personal injury case, “a cause of action accrues when exposure to the hazard first produces ascertainable injury.” Everhart v. Rich’s, Inc.,
“ [T]he true tеst to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” U-Haul Co. v. Abreu & Robeson,
While we are constrained by the terms of Code Ann. Ch. 3-11 to reach this result, we find Code Ann. § 3-1102 to be an extremely harsh limitation in application because 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.
(b) “A statute of limitation is remedial in nature. The legislature can сonstitutionally provide for the retrospective application of a remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights.” Jaro, Inc. v. Shields,
No cause of action which existed on July 1, 1976, the effective date of Code Ann. § 3-1102, was immediately barred by the statute. Every such cause of action survived for at least the grace period of one year. Code Ann. § 3-1105. Some causes of action became barred by the statute after the grace period but before two years had elapsed. (This is so because the date on which the breach occurred was within one year preceding the effective date of the statute. All other such causes
The theory advanced by plaintiff and expressed in Hart v. Eldridge,
(c) Plaintiff next argues that Code Ann. Ch. 3-11 violates equal protection of the laws. Plaintiff concedes that the standard оf review in this case is the “rational basis” test. This standard requires that classifications created by a state “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Reed v. Reed,
We have held that a separate classification of medical malpractice actions under Code Ann. Ch. 3-11 is a rational exercise of legislative power. Hamby v. Neurological Associates, P. C.,
In Dalbey v. Banks,
(2) The trial court found that if Dr. Fincher, the physician who performed the angiogram on Allrid in 1956, knowingly injected Allrid with a potentially hazardous substance and failed to warn him of the same, these facts would be sufficient to constitute fraud which would toll the statute of limitations under Code Ann. § 3-807.
Plaintiff argues that whether Dr. Fincher was an agent of Emory is a question of fact for the jury.
“The rule is that for the hospital to be held liable it must be shown that the doctor was an employee of the hospital and not an independent contractor.” Ga. Osteopathic Hospital v. Hol-lingsworth,
The record shows that Fincher, while on staff at Emory, had no contract with the hospital nor did the hospital compensate him. Emory did not carry insurance on him. Further, Fincher rented office space in the Emory facilities. The affidavit of the Administrator of Emory University Hospital from 1952 to 1977 states that “Emory did not control, or did it have the right to control the time, manner or method in'which Dr. Fincher treated his patients.” The record also demonstrates that, in 1956, staff physicians at Emory controlled the flow of drugs into the Emory Hospital pharmacy without supervision from the hospital administration; that it was customary for staff physicians to bring otherwise unavailable, and sometimes experimental, drugs into the hospital for use in treating patients; and that there was no procedure whereby these physicians coordinated these practices with any hospital policy. We agree with the trial court that a careful examinаtion of the record demonstrates that Emory’s evidence is in no way controverted by plaintiff. Plaintiff attempts to controvert this evidence by noting that Fincher was required to attend staff meetings and by citing a hospital policy that staff physicians had the right to object to unreasonable procedures used by other staff physicians. However, where a “hospital reservе [s] no right to control specific medical techniques employed by the ... doctors, but merely exercise[s] a limited surveillance in order to monitor the quality of medical care provided,” these controls are not inconsistent with an employer-independent contractor relationship. Overstreet v. Doctors Hospital,
Further, “[w]here a physician is an independent contractor the hospital is not liable for his negligent performance of professional services unless it negligently selected him or undertook to direct him in the manner and method of treating the patient.” Hollingsworth v. Ga. Osteopathic Hospital,
(3) Plaintiff next argues that Emory committed a fraud independent of Dr. Fincher’s actions which tolled the statute of
The rulе in Georgia is that “‘[a] private hospital is under a duty to exercise such reasonable care in looking after and protecting a patient as the patient’s condition which is known to the hospital through its agents and servants charged with the duty of looking after and supervising the patient may require.’ ” (Emphasis supplied.) Doctors Hospital v. Poole,
We are unwilling to hold that Emory was required to disclose the dangers of a contrast medium allegedly used in diagnosing a patient’s condition when there is no evidence to show that either Emory or its agents were aware that this medium had been used. Nor do we find that the failure to make this disclosure constituted actual fraud which wоuld toll the statute of limitations.
(4) In August, 1980 Emory filed a motion for summary judgment as to three issues: (a) that plaintiffs claim was barred by the statute of limitations, Code Ann. § 3-1102; (b) that Dr. Fincher was not an agent of Emory at the time of Allrid’s cerebral angiogram and, thus, Emory was not liable for any negligence attributable to him; and (c) Allrid consented to the treatment he received at Emory. In October, 1980 plaintiff amended her complaint to allege that Emory was also liable as a supplier of a dangerous chattel in that Emory allegedly supplied the Thorotrast used in performing the cerebral angiogram on Allrid in 1956. In her briefs and at the hearing on the motion for summary judgment, plaintiff relied on the
Pretermitting a determination of whether a hospital may be held liable as a “suрplier of dangerous chattel” under the theory plaintiff advances, we find that the issue of Emory’s liability under this theory was not resolved by the trial court’s order. We conclude that the effect of the trial court’s order was to grant partial summary judgment to Emory, but to reserve for future determination the issue of “supplier of dangerous chattel.”
Judgment affirmed.
Notes
This section provides: “If the defendant, or those under whom he claims, shall have been guilty of a fraud by which the plaintiff shall have been debarred or deterred from his action, the period of limitation shall run only from the time of discovery of the fraud.”
The Restatement of the Law of Torts, Second, § 388 provides: “One who supplies directly or through a third person a chаttel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to .exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”
Dissenting Opinion
dissenting.
I would affirm the trial court’s grant of a total summary judgment in favor of the appellees. I therefore respectfully dissent.