On Dеcember 6, 1999, John Nathan Miller, plaintiff, sued Dr. Stephen F. Kitchens and his partnership, Coastal Surgeons, Ltd., for malpractice prior to and during an operation on October 2, 1997, to repair a hiatal hernia with gastroesophageal reflux. In his complaint, Miller alleged that Kitchens proceeded with surgery before attempting medical therapy; failed to assess pulmonary function in relation to the risk of surgery; failed to makе any attempt to reduce the risk of surgery; failed to switch to an open procedure during surgery after technical difficulties caused some delay in finishing the operation; failed to close ports cut in the diaphragm by sutures, placing a stitch inadvertently into his stomach; failed to determine the situs of unknown bleeding prior to concluding surgery; left a blunt needle in his stomach; failed to determine the plaintiff’s respiratory status; and caused injury to the liver which required reparative surgery on October 7, 1997. All of such alleged acts or omissions of malpractice set forth in the complaint, in plaintiff’s expert affidavit attached to the complaint, and in plaintiff’s expert’s deposition occurred on or prior to the October 2, 1997 operation; by the very nature of such alleged acts or omissions, all injuries and negligent acts or omissions occurred prior to the October 7, 1997 remedial operation, because most were alleged to have occurred prior to or during the October 2, 1997 operation.
Kitchens answered and raised the affirmative defense of the statute of limitation having run on or prior to October 7,1999. Kitchens moved for summary judgment, which was denied, and he renewed the motion. On March 2, 2001, the trial court granted summary judgment on the running of the statute of limitation.
The plaintiff contends that the trial court erred in granting summary judgment for a number of different reasons. We do not find merit on any grounds, and we affirm.
(a) Plaintiff contends that the trial court applied the incorrect standard to determine on summary judgment whether the statute of limitation barred the claim.
The statute of limitation commences to run in a medical malpractice case upon injury caused by an act or omission in deviation from the standard of care and attaches after two years from such date and not from discovery of the injury. OCGA § 9-3-71 (a);
Shessel
v. Stroup,
The October 2,1997 surgery was shown by Kitchens’ evidence in support of his motion for summary judgment to have been when the plaintiffs injuries occurred and that the suit was not commenced until December 6, 1999, which was more than two years after the injury. Thus, Kitchens made out a рrima facie affirmative defense for the running of the statute of limitation. Walker v. Melton, supra at 151.
Therefore, the duty to come forward with some evidence to create a material issue of fact for the jury regarding the running of the statute of limitation shifted the burden of persuasion to the plaintiff. See OCGA § 9-11-56 (e);
Lau’s Corp. v. Haskins,
Plaintiff contends that the statute of limitation was tolled by fraud, because Kitchens failed to disclose to him his injuries under his fiduciary duty as treating physician and thаt the statute of limitation should run from the discovery of the injury by the plaintiff. Actual fraud, through nondisclosure of a known injury by the defendant and through acts to conceal the injury, which deters or debars the bringing of the action, tolls the stаtute of limitation and tolls the running of the statute until discovery of the fraud. OCGA § 9-3-96;
Wade v. Thomasville Orthopedic Clinic,
Plaintiff contends that, on motion for summary judgment based upon the affirmative defense of the running of the statute of limitation, the movant has the burden not only to prove the running of the statute but also that the statute has not been tolled. However, the movant has only the burden of proof as to an affirmative defense of the running of the statute of limitation and not to establish the absence of facts showing a tolling.
Lau’s Corp. v. Haskins,
supra. Now, the burden of persuasion that the statute of limitation has not attached falls to the plaintiff to present some evidence showing that an issue exists that the statute has not run but has been tolled. See
Anglin v. Harris,
(b) Plaintiff contends that the trial court erred in considering the deposition of
(c) Plaintiff contends that the trial court failed to determine when the plaintiff was injured and when the plaintiff discovered that he had been injured. All of plaintiff’s allegations of negligence by necessity occurred prior to the second operation, as did the resulting injuries. The plaintiff’s complaint asserts as an admission in judicio that the injuries occurred prior to or during the October 2,1997 operation. OCGA § 24-3-30;
Keeley v. Cardiovascular Surgical Assoc.,
The law as to medical malpractice arising from misdiagnosis, which was not involved in this case, holds that the statute of limitation commences to run from the discovery of the injury, i.e., misdiagnosis.
Whitaker v. Zirkle,
Injury, and not the discоvery of injury, commences the running of the statute of limitation in cases of medical malpractice. OCGA § 9-3-71 (a);
Shessel v. Stroup,
supra at 58;
Clark v. Singer,
Plaintiff erroneously has concluded that Georgia courts have аdopted the discovery rule in all medical malpractice cases. Plaintiff misplaces his reliance upon language in
Whitaker v. Zirkle,
supra at 708 (1), a misdiagnosis case, which applies to the injury, which is the misdiagnosis: “[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered.” As authority for such statement,
Shessel v. Stroup,
supra, is relied upon, where after a tubal ligation, the plaintiff became pregnant; “[t]he pregnancy was the injury.” Id. at 57. The tortious injury was the pregnancy and not the failed tubal liga
tion. Plaintiff farther
[significantly, the doctrine comports with OCGA § 9-3-71 (a) not because it delays the occurrence of the injury but because it deems that the negligent act, i.e., the failure to make the proper diagnosis, continues as long as the patient rеmains under the physician’s care. The doctrine is applicable to misdiagnosis cases because each time the physician renders treatment to the patient based on an erroneous diagnosis, he is implicitly repeating the misdiagnosis.
Williams v. Young, supra at 341. Thus, the discovery rule has no application in this case, because such rule does not have the general application that plaintiff urges for all medicаl malpractice cases. See Henry v. Med. Center, supra at 894.
(d) Plaintiff contends that he was incapable of knowledge or even discovery of his injuries between October 2, 1997, and December 19, 1997, because he was unconscious. He сontends that such unconsciousness rendered him incapable of knowing of such injury, i.e., the injury does not commence the running of the statute of limitation until discovery. We do not agree. This issue is controlled by Subsection (c) аdversely to the plaintiff.
Also, plaintiff never raised in the trial court below that the unconscious state of the plaintiff tolled the running of the statute of limitation under OCGA § 9-3-73 (b). Thus, it is waived. Further, plaintiff never cites to the portion of the record in support of this enumeration of error; therefore, it is deemed abandoned. Court of Appeals Rule 27 (c);
Henry v. Med. Center,
supra at 894;
Dugger v. Danello,
Judgment affirmed.