Lead Opinion
On February 15, 1974 appellant obstetrician/gynecologist performed reconstructive breast surgery upon appellee in which appellant surgically removed two previously implanted mammary prostheses and inserted two silicone-filled implants, allegеdly too small for her breast structure. Following the surgery, appellee returned to appellant because she was dissatisfied with the deformed and convoluted appearance of her breasts. On June 4, 1974, November 2,1974, and August 26,1976 appellant transcutaneously injected a saline solution into the silicone implants in an effort to
Upon seeking help from another physician in August, 1980 for chest pains and breast shrinkage occurring since latе 1979, appellee asserts that she learned that the implants had been perforated, leaking silicone into her chest area. Corrective surgery was performed in August, 1980 and May, 1981. Appellee’s action for medical malpractice was filed in June, 1981. On his motion for summary judgment, appellant raised the statute of limitation as a defense. The motion was denied by the trial court, and this court granted a discretionary appeal on this issue.
Prior to 1976 actions for injuries resulting from medical malpractice were subject to the limitation contained in Code Ann. § 3-1004 which provides that “[a]ctions for injuries to the person shall be brought within two years after the right of action accrues. . . .” Accrual of the action occurred when the injury was discovered or should have been discovered in the exercise of ordinary care. See Simons v. Conn,
As appellee’s lаst injection was administered on August 26,1976 and her action was filed on June 24, 1981, under the applicable statute of limitation, Code Ann. § 3-1102, this medical malpractice action would be barred. However, under Code Ann. § 3-807, fraud tolls the statute of limitation so that it “shall run only from the time of the discovery of the fraud.” Appellee contends that such fraud was perpetrated by appellant, that the time of discovery was August, 1980, and that her action filed less than one year later was not barred. We agree that appellee’s allegatiоns of fraud are sufficient to toll the statute of limitation contained in Code Ann. § 3-1102.
Appellant advances the view that actual fraud involving intentional deception and moral turpitude must be shown to toll the statutue of limitation pursuant to Code Ann. § 3-807. While this is true under the explаnation provided by the Supreme Court in Shipman v. Horizon Corp.,
The relationship between a physician and his patient is one of trust and confidence. Leagan v. Levine,
“Where a person sustains towards [another] a relation of trust and confidence, his silence when he should speаk, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation. Morris v. Johnstone,
After injecting the saline solution into the apparently self-
Appellee’s right to rely on appellant’s assurance as to the lack of danger from the injections, coupled with appellant’s repeated administration of saline by injection over a period of years and the discovery of the alleged leakage in the course of the subsequent 1980 surgery, were effective to raise an issue of fraud sufficient to withstand аppellant’s motion for summary judgment based on the statute of limitation. Whether the appellant’s alleged acts or omissions had the effect of deterring appellee from discovering or pursuing her claim so as to toll the statute of limitation is a proper question for the jury to decide. See Leagan v. Levine, supra at (1). Additionally, “the issue of [appellee’s] exercise of ordinary care in discovering her injury must be resolved by a jury.” Piedmont Pharmacy v. Patmore,
“On motions for summary judgment the burden is on the moving party to establish the lack of a genuine issue of fact and the right to judgment as a matter of law. All doubts as to the existence of such an issue or issues are resolved against the movant. The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drаwn from the evidence.” Morgan v. Carter,
Judgment affirmed.
Dissenting Opinion
dissenting in part.
Generally I am in agreement with what is said in the majority opinion relating to the statute of limitations.
However, I do not agree that, against a motion for summary judgment, the plaintiff alleged or proved fraud. The existence of confidential relations between the рarties, such as existed here, does not mean that the relationship will toll the statute of limitations whether or not fraud exists, but only that the victim has reason to rely upon the person who committed the fraudulent misconduct, and is therefore not charged with a duty of exercising the degree of care to discover the fraud which would otherwise obtain. “In cases involving a relation of trust and confidence, such as a physician and patient, silence on the part of the physician when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false rеpresentation. Brown v. Brown,
The missing ingredient in this case is that the plaintiff in this case has based her right of action on negligencе only. Although she alleges fraud, there is a bare conclusion where the facts which constitute fraud are never alleged or otherwise shown. The plaintiff was not informed that “defendant was not a qualified licensed plastic surgeon”; he informed her that “he had beеn doing a number of implant operations” and he assured her that “this injection would not rupture the implant or cause any leakage.”
The physician, however, is not a guarantor of the success of an operation. Blount v. Moore,
A plaintiff has some burden, even in opposing a motion for summary judgment, to show a basic cause of action. Where it is clear that her right of action is barred by the statute of limitations, she must show facts sufficient to constitute fraud to evade this sanction. Code § 81A-109 (b). Where confidential relations exist there is a greater duty on the actor not to conceal by silence, and there is a lessened duty on the victim who must ordinarily exercise ordinary care before acting in reliance on the statements made. But the fraud itself — that is, the intention to deceive — must still exist. See Marlin v. Hill,
Dissenting Opinion
dissenting.
While I totally sympathize with the result sought to be achieved by the majority, I am unable tо conscientiously assert a legal basis for that result. In my opinion, the majority is motivated — at least in part — by the clearly harsh effect which the 1976 legislative amendment produced vis-a-vis medical malpractice claimants. See Code Ann. § 3-1102. In this connection, I find it еxtremely difficult to rationalize the fact that the statute of limitation does not begin to run upon the ordinary tort claimant until the injury is discovered, or in the exercise of ordinary care should have been discovered, while in the case of medical malpractice claimants, the statute of limitation is two years after the date on which the negligent or wrongful act or omission occurred. Our Supreme Court, even while applying Code Ann. § 3-1102, recognized the new law “to be an extremely harsh limitation in application beсause it has the effect, in many cases, of cutting off rights before there is any knowledge of injury.” Allrid v. Emory University,