*1 рroper. was for a frivo- imposition damages moved for the Appellee
6. has merit in Although we find no appeal pursuant lous to OCGA error, we cannot conclude appellants’ enumerations delаy. Accordingly, ap- solely purposes for totally frivolous or is denied. penalties assessment of pellee’s motion for the concurs concurs. Judgments affirmed. judgment only. dismissed 1987. Center, appellants.
Charles N. fоr Ellin, King, appellee. Martin L. William R. for QUATTLEBAUM v. COWART et al. 73228.
(356 SE2d Benham, Judge. application appellant’s
This follows this court’s interlocutory trial court’s denial of his motion for for review of the partial summary judgment. filed, cognizant
1. counsel became After the depositions of the fact that twelve had never been filed trial who, request court at of counsel court. Counsel notified the trial depositions and sent to appellee, ordered supplementary record. becаuse there is no evidence that were available to the trial court denying summary when it its decision we cannot judgment, rendered depositions upon consider those review of the trial court’s decision. 760) (1973); Griffeth, Pitmаn v. Ac- See tion, Lane, Inc. Toddler’s removal) Appellant performed cholecystectomy (gall bladder developed complica-
on Mrs. 1974. When she tions, ducts, patient’s in his suspecting gallstones residual rеopened any gall- Mrs. 1974. He not find Cowart on did stones, but did remove cc of bile from Mrs. Cowart’s abdominal cavity. duct, connected hepatic He was unable to locate the left records, right hepatic duct to the small intestine. On the medical however, hepatic the common duct stated that he had connected Coward, complications, un- to the small intestine. Mrs. still 1975; August derwent a at the hands of third complica- year; and suffered later that Mayo Clinic was seen at specialist seen she was years. tions for the next five to her duct connected Emory Clinic who tract. *2 malpractice against action appellee in of Linda his care contending negligent he was years of her seven had caused in and her hepatic duct to her left when he failed to connect filed incorrect and mis- Appellees allege also that system. phy- appellees and other thereby preventing reports, leading medical Ap- physical true condition. determining Mrs. Cowart’s sicians from two-year that ground on the sought summary judgment pellant Ap- аppellees’ suit. precluded 9-3-71 of OCGA statute of limitation § by fraud limitation was tolled that pellees contended Appellant also by appellant. OCGA perpetrated allegedly § alleged that the fraud mаintaining summary judgment, sought partial January not relate to the appellees did error on of Appellant’s sole enumeration performed on Mrs. Cowart. summary court’s denial of his motion is the trial judgment. malpractice is clear
“The statute of limitation for medical article, provided in an action unambiguous: ‘Except as otherwise this brought years two after malpractice for medical shall be within occurred.’ nеgligent wrongful act or omission date on which the Palmer, 178 Ga. (Emphasis supplied.) OCGA 9-3-71.” (1) (344 Hackney, 164 Ga. also Sutlive See 515) (1982) (in here, which, alleged acts of as App. 740 medi legislative revision of the the 1976 malpractice occurred before brought of and suit cal However, by a defendant doctor will perpetrated fraud change). 9-3-96; supra,
the statute of limitation. See OCGA § Division in his care and treat-
Appellees allege аppellant negligent years more than two appellee ment of Linda Cowart Appellees action was filed. contend before the instant by making of deliber- tolling committed by reassuring appellees misrepresentations ate in medical records and problems all he could to correct the had done infer- all facts and favorable biliary system. summary judgment, non-movant. construed in favor of the ences therefrom must be (1976). Neal, “In Pritchard v. 139 Ga. confidence, physician such as involving cases a relation of trust and he should part physician when patient, silence on the of disclose, is as much a speak, ought what he or his failure disclose Lea- representation. fraud in law as an actual affirmative false gan the case representation bar, false there is evidence of an actual affirmative part appel- that he never told as well as evidence problems lees that Mrs. Cowart’s were caused his failure to con- appel- nect the small Inasmuch as duct to the intestine. inception lant’s failure to inform had its operation, the trial court did not err
partial summary questions judgment. The of the actual existence of appellees’ diligence discovering injury such fraud as well the fraudulent concealmеnt jury. are, Shved v. for the App. 209, Appellant partial summary judg- and the dissent maintain they granted appellant ment is no all the evidence pellant’s subsequent contend should have been because there operation, relating evidence and that fraud related to construing of Mrs. Cowart. treatment appellees/non- the facts and in favor inferences drawn therefrom movants, record reflects that Mrs. Cowart had cc of bile cavity her abdominal because action was not taken *3 the to ensure bile flow into the post- might argued small intestine. While it be that Mrs. Cowart’s operative operation might trig- condition after the have gered running replete the of the statute of the record is by allegedly perpetrated with evidence that the fraud on beyond running tolled the of that statute of limita- year tion. Since lawsuit was filed within one оf the discov- ery alleged negligence fraud, of the though may partially January opera- it be said to have run as to the expired. alleged by appellees tion, had not The fraud to have been perpetrated by appellant prevented realizing appel- from alleged negligence January just prevented lant’s on as it them from discovering subsequent alleged negligence as well as the existence of the fraud itself. today comports previous pronounce-
Our decision with limitation-tolling ments on the issue of fraud medical present supports suits. In the the record a reasonable inference aрpellant knowingly attempted negligence that throughout to conceal his (see post-January relationship
his 1974 and that with Hackney, supra) Sutlive v. acknowledge failed to disclose previous to his that Mrs. Cowаrt’s condition was related Rowell, treatment of her. See Lorentzson 341) (1984); Leagan supra. There is evidence from improper which it can be inferred that knew of his conduct supra), up (compare and tried to cover such conduct appellees’ allegations to more than mere mis- of fraud amount Gamwell, Johnson diagnosis. Compare we conclude appellees, in favor of record
Viewing the evidence of not err the trial court did
summary judgmеnt. JJ., Banke, J., Carley Pope, concur. P.
Judgment affirmed. J., only. Bird- judgment McMurray, P. concur JJ., Beasley, dissent. song, Sognier C. dissenting. Judge, case, we take cannot in our consideration agree
1. I not considered into which account may cop- used the court have ruling Although on motion. ies, entry until originals were it clear that the from, demonstrate and the record does not so appealed of the order we it. cannot assume I find nо evidence the record which
2. I dissent because can respect operation. question fact to as to first raises a Quattlebaum in which Dr. found a surgery That was gall stones in Mrs. Cowart’s bladder and removed number of small so in order for assuming negligently, bladder. Even he did gall procedure it would have to survive legally, to be tested it, Fraud toll of limitation which otherwise controls. would sure, surgery; of fraud as to this first be but there no evidence majority what is focused on is evidence of January 24, matter and is fur- quite which is another subject thermore not limitations,
“If facts exist would do which [plaintiff] setting supporting has the burden of forth and facts, Pittsburgh Steel,” [Co., FSupp. Carroll v. thеse (W. Clinic, 1952)]. Orthopedic D. Pa. Wade v. Thomasville App. 278, 281 There must be evidence of of, plaintiff complained the matter so as excuse for not *4 Shved bringing statutorily prescribed suit within the time. See v. (329 536) (1985); SE2d (344 (2) Ga. App. any SE2d The absence of to the entitles defendant a partial summary judgment on that issue.
I am Judge Birdsong Judge authorized state that Chief Sognier join in this dissent. 19, 1987 April denied Withers,
Thomas A. for appellant. Jr., Fendig, Pinson, Jr., Albert William H. appellees. 73262. JOHNSON v. THE STATE. (356 101) SE2d
Benham, Judge. Tried for two counts of burglary April convicted of one acquitted count and of the other. Verdict and sen- 12, 1985, tence were April entered on and a motion for new trial was filed on Upon appointment counsel, of new a letter brief in support of the motion for new 13, 1985, trial was filed September an order denying the motion day. was entered the same May 27, 1986, counsel filed with the trial court a motion for out-of-time appeal, averring by affidavit that he had not copy received a order denying motion; that he had learned of the order several months later while reviewing the superior records court clеrk’s office; and that delay the effect of the was to render ineffective assis- tance of counsel to period of time. The order granting an appeal out-of-time was entered July court on 3, 1986, appeal and this was then this court.
1. The dissent contends
appeal
must be dismissed for
lack of jurisdiction, asserting
appropriate
it is
for the trial court
an
appeal
out-of-time
“only when the defendant has been
found to have suffered a
In Webb v.
deprivation.”
constitutional
State,
(327
224) (1985)
Ga. 130
State,
SE2d
and Cannon v.
(334
342)
(1985),
the two cases the dissent cites as
standing for that proposition,
the courts held that if counsel’s actions
resulted in ineffective assistance of counsel
right
as to the
of a de-
appeal,
fendant
then the grant of
an out-of-time
would be
State,
Harper
appropriate.
See also
Lucey, 469 U. S. (1985), SC 83 LE2d and our state