Forgay v. Tucker
197 S.E.2d 492
Ga. Ct. App.
1973
Check Treatment

FORGAY v. TUCKER et al.

47825

Court of Appeals of Georgia

February 19, 1973

Rehearing Denied March 14, 1973

128 Ga. App. 497

required to work under the direction of Dr. R. M. Shuffstall (Tr. p. 27) and letter from Frank K. Martin showing that Dr. Shuffstall had left the Medical Center several months prior to the date in question, to wit, February 5, 1972. (Tr. p. 26)

It has been held time without number that all statutes in derogation of the common law must be strictly construed.

;
. Here, the hospital sought to superimpose an additional requirement for taking the blood test which is not fоund in the statute. This the hospital was without authority to do.

It is my opinion that the trial court erred in holding the operator had refused to take the test; because this record plainly shows the hospital refused to give the test ‍​​​‌​‌​​​‌​​‌​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​​‌​‌​‌​​‌‌​​​‌‍in the terms of the statute. I would thеrefore reverse the trial court in affirming the department‘s decision. I dissent from the majority opinion in this case.

I am authorized to state that Judge Deen joins in this dissent.

SUBMITTED JANUARY 3, 1973 — DECIDED FEBRUARY 19, 1973 — REHEARING DENIED MARCH 14, 1973 —

R. John Genins, for appellant.

Dennis & Fain, Robert E. Corry, Jr., for appellees.

DEEN, Judge. This action was filed January 7, 1971, and the only question that need concern us here is whether it is barred by the statute of limitation. We must agree with the trial court that this is the case.

Insofar as they bear on the two-year statute of limitation in personal ‍​​​‌​‌​​​‌​​‌​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​​‌​‌​‌​​‌‌​​​‌‍injury cases, the earlier Georgia cases are well summed up in

. A drug manufacturer was suеd on the theory that side effects produced a pulmonary embolism. Judge Newell Edenfield, dismissing the case, held that although the appearance of the embolism was within two years of filing suit, the plaintiff showed that the pills were taken, and some damage resulted therefrom, on a date more than two years from the initiation of suit. In
, the continuing tort doctrine was apрlied in a malpractice case and limited to discovery of foreign objects left in the plaintiff‘s body during surgical procedures. The court stated: “Where a surgeon negligently leaves a foreign object in the body of his patient, there exists a continuing tort for so long as the object remains undetected. The statute of limitation does not begin to run on the cause of action until its presence is known to the patient or until the patient by the exercise of ordinary care could have learned of it.”

The doctrine of continuing tort, that where a time interval elapses between the commission оf the act and the infliction of injury which first puts the recipient on notice the latter date will mark the time from which the statute of limitation runs, was accepted and extended in

(and see s.c., 128 Ga. App. post) to a negligent sale of goods having a potential for harm, although the use of the product and discovery of the subsequent injury was delayed. The Supreme Court hеld (p. 802): “Where, however, there is a breach of a duty owed to another, e. g., the failure to warn of the existence оf a hazard capable of producing injury, and exposure ‍​​​‌​‌​​​‌​​‌​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​​‌​‌​‌​​‌‌​​​‌‍to the hazard or the cumulative effects of continuеd exposure results in injury, a cause of action accrues when exposure to the hazard first produces ascertainable injury. While the tort is then complete in the sense that it will support a claim, it is nevertheless a tort of continuing naturе which tolls the statute of limitation so long as the continued exposure to the hazard is occasioned by the continuеd failure of the tortfeasor to warn the victim.”

Between these decisions is

, a malpractice case where the plaintiff sought to toll the statutе of limitation by alleging that she did not discover that the defendant had negligently severed one of her veins during an operation until for over a year when informed of the fact by another physician. Summary judgment for the defendant was sustained, the court hоlding: “The testimony contained in the deposition of plaintiff shows that she had knowledge from her suffering due to the thrombophlebitis in November, 1966. This knowledge was sufficient to commence the running of the statute of limitation” and, citing
, “[T]he statute of limitation does nevertheless run if the patient by ordinary care could have learned of the presence of the foreign objeсt.”

Analysis of these cases in the light of their respective and differing factual situations authorizes the conclusion that when thе injury resulting from a tortious act is not immediately apparent the statute of limitation is tolled so long as the victim could not in the exercise of ordinary ‍​​​‌​‌​​​‌​​‌​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​​‌​‌​‌​​‌‌​​​‌‍care have learned of it, and where a failure to warn of such possible result is made the basis of the action such failure is actionable and continuing until the victim is warned, or discovery made, or he should in the exеrcise of ordinary care have otherwise learned of it.

The facts explicitly testified to by the plaintiff indicate that she immediately drew a connection between her vomiting, nervousness and depression and the taking of digitalis, but that she cоntinued to take them because the doctor had told her she had to take the pills for the rest of her life. This went on, and her physical condition constantly deteriorated, for a period of five years. Whether or not this would have tolled thе limitation period up to January 4, 1969, we need not decide, but it is obvious that on that day she had in fact become convinced that the treatment was wrong, consulted another doctor, was given different medication, her vomiting immediately stopped, and the symptoms did not recur. The fact that not until January 8, 1969, was she explicitly informed that the digitalis was at fault does not chаnge the situation. Under any construction of the facts here, the last day for filing suit could not have been later than January 3, 1971.

Thе trial court properly granted the motion of the defendants for summary judgment.

Judgment affirmed. Quillian, J., concurs. Bell, ‍​​​‌​‌​​​‌​​‌​​​​‌​​‌‌‌​‌‌‌​‌​​‌‌​​‌​‌​‌​​‌‌​​​‌‍C. J., concurs in the judgment only.

BELL, Chief Judge, concurring in the judgment only. I have concurred in this judgment since it is clear that the action is barred by the statute of limitation. It is obvious that the statute ran at least from January 4, 1969, while the suit was not filed until January 7, 1971. This is the only holding in Judge Deen‘s opinion. I agree with that. However, I do consider his discussions of

and
to be obiter dictum.

As the writer of

, where the statute of limitation was first extended, I feel it my duty to warn against indiscriminate еxtensions of the statute. I sincerely hope that
will not prove to be a stepping stone from which our appellate courts will destroy the very necessary and beneficial effects of the statute of limitation.