ROWELL v. McCUE
76531
Court of Appeals of Georgia
September 7, 1988
September 23, 1988
188 Ga. App. 528 | 373 SE2d 243
BIRDSONG, Chief Judge.
3. The final enumeration of errоr is that the trial court erred in permitting the prosecuting attorney to make statements of personal belief in his closing argument. Consideration of that issue is foreclosed by appellant‘s failure tо have closing arguments transcribed. Defense counsel expressly declined, on the record, to have closing arguments taken down. Under those circumstances, there is nothing for this court to review. Sеe Ford v. State, 160 Ga. App. 707 (5) (288 SE2d 39) (1981).
Judgment affirmed. McMurray, P. J., and Pope, J., concur.
DECIDED SEPTEMBER 6, 1988 —
REHEARING DENIED SEPTEMBER 23, 1988.
G. Hughel Harrison, for appellant.
Gerald N. Blaney, Jr., Solicitor, for appellee.
BIRDSONG, Chief Judge.
This is an appeal from the order of the superior court granting appellee/defendant‘s motion for summary judgment.
Appellant initiated a suit for medical malpractice against aрpellee (Dr. McCue). In February 1983, appellee performed a carpal tunnel release operation on appellant‘s right hand. Appellant noticed that following the operation she initially had more movement in her fingers, but the pain remained in equal or greater intensity than before the operation. Dr. McCue advised the appellant that the pain she was expеriencing was normal, but the pain persisted. Appellant continued to have problems with her hands but, according to Dr. McCue, she did not exhibit symptoms normally associated with carpal tunnel syndrome. In an еffort to determine what was wrong with her hands, Dr. McCue sent appellant to two other physicians, as he could not make a diagnosis of her problem at that time. Appellant asserts that she was unhappy with Dr. McCue and was looking for another doctor. After her surgery, appellant knew “definitely something was
After attempting less severe treatment, Dr. Ramaden operated on appellant‘s left hand in January 1985. Following that operation, appellant claims that Dr. Ramaden informed her that the alleged prior carpal tunnel release on her lеft hand had not been performed and that he suspected that the problem with her right hand was the same. Appellant was thus aware of this possibility in January 1985. Appellant‘s right hand was operated on in June 1986. According to appellant, Dr. Ramaden told her following this operation that no carpal tunnel release had been accomplished on her right hand either. In addition to this hearsay evidence and appellant‘s own lay conclusions that Dr. McCue had not performed the two operations, appellant offered the deposition testimony of Dr. Ramaden. Dr. Ramaden testified that appellant‘s surgery on January 15, 1985, was performed by Dr. Ian Rogers with Dr. Ramaden‘s assistance, and that the operative report reflects that appellant‘s transverse carpaling was completely intact. The appellant‘s hospital discharge summary reflects that it did not appear to Dr. Ramaden “the patient had complete release of the carpal tunnel before because her carpal ligament was intact, and, also, there was not evidence of any scar tissue around the nerve as usually happens after release of the carpal tunnel.” Appellee Dr. McCue in his affidavit expressly states that in both operations he carefully cut, under direct vision, the entire transverse carpal ligaments, and “[t]he transverse carpal ligаments were both cut through and through as a part of the surgeries on the two hands.” Further, Dr. McCue states that he has performed follow-up surgeries on patients who have undergone previous carpal tunnel releases and found scarring to be so minimal in some patients as to “give the appearance that no surgery had ever been performed.” Dr. McCue also refers to excerpts frоm an “authoritative and widely used” text on operative orthopedics in support of his observations, and attaches an excerpt from that text to his affidavit.
The trial court granted appellee‘s motion for summary judgment and concluded that there is no evidence that appellee failed to exercise the requisite standards of care at any time during his care and treatment оf the appellant, that the statute of limitations had run on this action as it was not filed within two years of the date on which the negligent or wrongful act or omission occurred, and that insufficient evidence existed to raise a question of fact as to fraud which would toll the statute of limitations. Held:
Appellant enumerates as her fourth enumerated error that the trial court erred in granting appellee‘s mоtion for summary judgment
In resolving this issue, appellant as opposing party shall be given every benefit of all reasonable doubt, and the court shall construe the evidence and all inferences and conclusions arising therefrom most favorably toward the appellant. See Bridges v. Interstate Truck Leasing, 171 Ga. App. 361 (319 SE2d 531).
“The physician-patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud which tolls the statute.” Lynch v. Waters, 256 Ga. 389, 390 (349 SE2d 456). Thus, the doctor-patient relationship creates a duty to inform the patient of his or her condition. Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (358 SE2d 486). A “‘[f]ailure to fulfill this duty would constitute fraud, which would operate to toll the statute of (limitation).‘” Id. A fraud count, howevеr, must be based on more than evidence of a misdiagnosis to withstand a motion for judgment on the pleadings. Lynch, supra at 390. Rather, the “patient must present evidence of a known failure to reveal negligence in order to show fraud.” (Emphasis supplied.) Hendrix, supra at 202; Bray, supra at 897.
In this case, the most favоrable inference which can be drawn from the testimony of Dr. Ramaden is that the appellee failed to sever the entire carpal ligaments on both the right and left hand of
Assuming arguendo that appellant in fact failed to cut both of the transverse carpal ligaments in appellant‘s hands, there exists no еvidence “from which we can make any inference that (the defendant doctor) had any knowledge of improper conduct on his part or that he tried to cover up such conduct in any wаy.” Hendrix, supra at 202. In fact, while appellee did advise plaintiff that the pain she was experiencing was normal, he did not attempt to prevent her from obtaining an accurate diagnosis of her condition. In fact, it is undisputed that appellee referred appellant to two other doctors, and that the appellant also sought other medical advice as she was unhappy with appеllee and knew “definitely something was wrong.” The facts of this case are distinguishable from those in Gillis v. Palmer, 178 Ga. App. 608 (344 SE2d 446). At most, appellee‘s statements of assurance to appellant, informing her that her symptoms of persisting pain were normal, would under the circumstances constitute a mere misdiagnosis insufficient to raise an issue of fraud. See, e.g., Hendrix, supra at 203. Thus, as in Hendrix, we find that the appellee has pierced plaintiff‘s mere allegation of fraud and is entitled to summary judgment.
Judgment affirmed. Banke, P. J., and Beasley, J., concur.
ON MOTION FOR REHEARING.
We have reconsidered our opinion in light of all relevant facts of record, together with all reasonable inferences that can be therefrom drawn, and adhere to the disposition directed.
Motion for rehearing denied.
DECIDED SEPTEMBER 7, 1988 —
REHEARING DENIED SEPTEMBER 23, 1988.
Harold E. Martin, for appellant.
C. Ashley Royal, for appellee.