This аppeal is from the trial court’s denial of appellant/dentist’s motion for summary judgment in this dental malpractice action. We granted appellant’s petition for interlocutory appeal to consider whеther she is entitled to summary judgment by virtue of the one-year statute of limitation contained in OCGA § 9-3-72 applicable tо foreign objects left in a patient’s body.
On January 11, 1984 appellant performed a root canal on appellee. During the course of this procedure a file broke off in appellee’s tooth. Appellant attempted to cure the problem and directed appellee to contact her the next day if the problem persisted. Appellee returned to appellant’s office the next day where appellant “took care of [him], said everything was fine,” and told him she had gotten the file out of the tooth. After a while the pain returned and in September of 1984 appellee consulted a different dentist who discovered that the file was still embedded in the tooth and so informed appellee. Appellee instituted this lawsuit on Aрril 11, 1986.
The trial court found a question of fact as to whether fraud had been perpetrated on appellee by appellant’s representation that all the file had been removed from his tooth. The court found: “If fraud in fact existed, as determined by the trier of fact, the statute of limitation under OCGA § 9-3-96 would commence to run on that date and this action would be timely filed and OCGA § 9r3-72 dealing with foreign bodies would be inapplicable.” Held:
The trial cоurt’s order implies the existence of a separate cause of action for fraud, yet the comрlaint in this case alleges only a malpractice claim based upon negligence. Further, the only evidеnce of fraud of record relates to the tolling of the statute of limitation (OCGA § 9-3-96) and not to a separate cause of action. See generally Shipman v. Horizon Corp.,
“Thе trial court clearly erred in denying [appellant’s] motion for
“ ‘Where a physician places a foreign object in his patient’s body ... he has actual knowlеdge of its presence. His failure to remove it goes beyond ordinary negligence so as to be classifiеd by the legislature (in OCGA § 9-3-72) as a continuing tort which tolls the statute of [limitation] until the object is discovered. The purposе of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiffs claim which does not rest on professional diagnostic judgment or discretion to survive until actual disсovery of the wrongdoing.’ Dalbey v. Banks,
“We also reject appellee’s contention that [appellant’s alleged fraudulent concealment of the continued presence of the file in appelleе’s tooth] constituted a separate act of malpractice not subject to OCGA § 9-3-72. Pursuant to OCGA § 9-3-72, the failure to inform a patient of the presence of a foreign object left by the physician merely tolls the onе-year statute of limitation until the time at which the patient discovers the presence of the object. [Likewise, fraud by a physician pursuant to OCGA § 9-3-96 which debars or deters a patient from bringing an action merely tolls the one-year statute of limitation of § 9-3-72 until discovery of same.] The failure to inform the patient of the presencе of the object in [either] context does not constitute a separate act of malpractice. A contrary holding would emasculate OCGA § 9-3-72 and render it inapplicable to the cases for which it was spеcifically designed, i.e., those cases in which the patient is not informed of the presence of the object until sometime after the act of malpractice giving rise to the claim.” Hamrick v. Ray,
Judgment reversed.
Notes
The effect, if any, on this case of the 1985 amendment to OCGA §§ 9-3-71 and 9-3-72 (Ga. L. 1985, p. 556, § 3) has not been raised or addressed in this court or the court below and thus provides no basis for our opinion. See in this regard Stafford v. Quinn,