Mеdical malpractice. Levine performed a surgical procedure on Leagan to sterilize her. The “tubal fulguration” was successful; however, following the operation Leagan suffered severe complications, including a burned bowel. Leagan sued Levine for mаlpractice alleging negligence, battery and breach of contract. Summary judgment was granted to Levine and Leagan appeals.
1. Appellant contends that the trial court erred in granting appellee’s motion for summary judgment based on the statute of limitation. The stеrilization procedure took place on November 16, 1973. Thereafter, appellant was admitted to the hospital on Novembеr 22,1973 and again on December 2,1973, complaining of severe pain in the abdomen. Appellant was placed in the care of a gеneral surgeon, Dr. Booth, who performed two separate surgical procedures in an attempt to discover and treat the cаuse of appellant’s complaint. The testimony is conflicting as to the cause of appellant’s problems and what she was told in this rеgard. Levine and Dr. Booth both stated on deposition that at the time the severe abdominal problems arose, appellant was informed that those problems may have resulted from complications following the sterilization procedure. However, appellаnt testified that she was never told by any physician in attendance that the complications were related directly to the tubal fulguration. Appellant testified further that she did not learn her bowel had been burned until she spoke with her father, also a physician, in June, 1976, and to Dr. Booth in August of 1976. Thus, аppellant contends that a jury question remains as to whether appellee’s conduct amounted to fraud tolling the statute of limitations or alternatively, whether appellant had exercised reasonable diligence in discovering the cause of her injury.
The statute of limitation in this case is two years under the provisions of Code Ann. § 3-1004. Code Ann. § 3-807 provides: “If the defendant... 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 then run only from the time of the discovery of the fraud.” In cаses involving a relation of trust and confidence, such as a physician and patient, silence on the part of the physician when he shоuld speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation.
Brown v. Brown,
Appellee contends, however, that the trial court granted summary judgment based on appellant’s failure to show by competent evidence that Levine had been negligent in carrying out the sterilization procedure. Appellant submitted the affidavit of a medical expert in opposition to appellee’s motion for summary judgment. The affidavit raises questions of fact with regard to appellee’s failure to exercise the proper standard of care in performance of the sterilization procedure. The affidavit also contravenes expert testimony submitted by appellee that he was not negligent in performance оf the surgery.
Appellee argues that the affidavit of appellant’s expert was not considered by the trial court, nor could it be considered, because it was not timely filed or served upon appellee. The affidavit shows on its face that it was filed on January 30,1979, the day of the hearing on appellee’s motion for summary judgment. There is no certificate of service in the record to indicate that the affidavit was served on appellee prior to the day of the hearing. Thus, appellee contends the trial court had no comрetent expert testimony in opposition to appellee’s expert testimony to raise any issues of fact. We do not agreе.
Code Ann. § 81A-106 (d) provides: “. . . When a motion is supported by affidavit, the affidavit shall be served with the motion; and opposing affidavits may be served not lаter than one day before the hearing, unless the court permits them to be served at some other time.” The trial court, in its discretion, can consider an affidavit filed on the day of the hearing.
Supreme Oil Co. v. Brock,
Appellee cites
Malone v. Ottinger,
Appellant’s affidavit, when viewed in the light most favorable to aрpellant, as we must do on summary judgment, raises genuine issues of fact regarding appellee’s negligence in performing the sterilization prоcedure.
Pritchard v. Neal,
2. Appellant also contends that the trial court erred in granting summary judgment to appellee on the issue of breach of сontract. Appellant contends that Levine exceeded his authority under the contract and the Voluntary Sterilization Act (Code Ann. § 84-931 et sеq.) in cauterizing appellant’s ovaries with coagulating current. In defense, appellee raised the provisions of Code Ann. § 84-935.1 which prоvides: “When an operation shall have been performed in compliance with the provisions of this law [§§ 84-931 through 84-935.2], no physician duly licensed without restriction to practice medicine and surgery in this State or other person legally participating in the execution of the prоvisions of this law shall be liable civilly or to criminal prosecution on account of such operation or participation therein, except in the case of negligence in the performance of said procedure.” Since appellant’s claim for nеgligence against appellee is viable, this provision would not bar appellant’s contract claim. See
Shessel v. Gay,
Judgment reversed.