On June 12, 1998, Nancy D. Kinsey, individually and as next friend of her minor daughter, Samantha Kinsey, sued Dr. Ismail Esener, the obstetrician-gynecologist who delivered Samantha, for birth injuries. This was more than ten years after the alleged injury to the minor child.
At birth, on December 16, 1987, Samantha suffered anoxic brain damage through the alleged negligent acts and omissions of Dr. Esener. It was alleged that Dr. Esener was aware of the cause of such brain damage but concealed such negligence from Kinsey and caused her to believe that there was another cause for the brain damage.
In plaintiff’s complaint, she alleged that she discovered Dr. Esener’s fraud on approximately September 29, 1997, which was 78 days before the statute of repose abrogated the action.
On September 12, 1998, Dr. Esener answered the complaint and raised the defense of the statute of limitation and statute of repose. On December 7, 1998, Dr. Esener moved for judgment on the pleadings based upon the statute of repose. OCGA § 9-3-73. In response, Kinsey filed her affidavit, an additional affidavit of her medical expert, and progress notes from the delivery. On February 24, 1999, the trial court denied Dr. Esener’s motion for judgment on the pleadings and stated that the ruling was made without a consideration of the affidavits.
Dr. Esener contends that the trial court erred in denying his motion for judgment on the pleadings based upon the statute of repose, notwithstanding allegations of fraud, because the fraud, in this medical malpractice action, was discovered prior to the expiration of the statute of repose. We do not agree.
Since this was a motion for judgment on the pleadings, then we must treat all well-pled facts as true. OCGA § 9-11-12 (c);
Pressley v. Maxwell,
The General Assembly, as a matter of public policy, has provided that a defendant’s fraud which has debarred or deterred a plaintiff from bringing an action tolls the running of the statute of limitation until the fraud is discovered or reasonably should have been discovered. See OCGA § 9-3-96;
Trust Co. Bank v. Union Circulation Co.,
Fraud by which the plaintiff is debarred or deterred from bringing an action tolls any applicable period of limitation. OCGA § 9-3-96. There is a distinction between a statute of limitation and a statute of ultimate repose. A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. . . . Therefore, an injury or death is not actionable if it occurs more than [ten] years from the date of [delivery]. ... A statute of ultimate repose sets an ultimate limit on which injuries shall be actionable. Therefore, by definition, a statute of ultimate repose cannot be “tolled” to permit actions to be brought for injuries which did not occur until after the statutory period had expired. However, the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud. The statute of ulti mate repose should not provide an incentive for a doctor or other medical professional to conceal his or her negligence with the assurance that after [ten] years such fraudulent conduct will insulate him or her from liability. The sun never sets on fraud.
(Citations omitted.)
Hill v. Fordham,
However, if the evidence of defendant’s fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose.
Hill v. Fordham,
supra at 358; accord
Beck v. Dennis,
Since fraud does not toll the statute of repose but may give rise to equitable estoppel of the defendant to raise the defense of the statute of repose, the plaintiff must have acted diligently for equitable estoppel to be available, after the fraud was first discovered or should have been discovered. This is generally a jury issue. See
Hill v. Fordham,
supra at 357-358;
Lasoya v. Sunay,
supra at 816-817. In dicta in
Zechmann v. Thigpen,
Assuming that the allegations of fraud are true for purposes of this motion for judgment on the pleadings and that such fraud deterred the earlier filing of this suit as alleged in the complaint, the trial court properly denied the motion, because issues for jury determination exist as to plaintiff’s exercise of diligence in order for the doctrine of equitable estoppel to prevent the defendant from assert
ing the defense of the statute
Whether by discovery, which delays the accrual of the action, or by infancy, incompetency, or fraud, which may toll the statute of limitation for up to five years, however, nothing stops the abrogation of the action by the statute of repose; five years after the negligent or wrongful act or omission occurred, despite any non-discovery or any tolling, the medical malpractice action or potential action ceases to exist by abrogation of law under the statute of repose. OCGA §§ 9-3-71 (b); 9-3-73 (c)[J [Cits.]
Charter Peachford Behavioral Health System v. Kohout,
Judgment affirmed.