Friday, April 26, 2013

Fraud by the physician | Atlanta DUI lawyer

As a response to a statute of limitations defense, a plaintiff sometimes asserts that the treating physician misrepresented plaintiff’s condition or the care provided and that plaintiff did not discover this misrepresentation until the statute of limitations had run. To toll the statute, plaintiff must establish essential elements of fraud within the physician-patient relationship or lose on summary judgment. Allegations of negligent treatment, advice and misdiagnosis, even willful negligence are insufficient to raise a question of fact on fraud. Fraud issues are often fact intensive, and the appellate courts will examine the record closely to see if plaintiff has raised and supported a reasonable inference of culpable misrepresentation. Fraudulent conduct by the treating physician will toll the statute of limitations OCGA 9-3-96 states if the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud. It is not enough however for plaintiff to simply prove fraud. Fraud sufficient to toll the statute limitation requires one: actual fraud involving moral turpitude on the part of the defendant 2) the fraud must conceal the cause of action from the plaintiff thereby debarring or deterring the knowing of the cause of action 3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation. Kane v. Shoup 260 Ga. App. 723 2003. Note that plaintiff does not have to prove actual fraud. The plaintiff has the burden of proving facts to establish fraud to toll the statute Edmonds v. Bates 178 Ga. App. 69 (1986). To toll the statute the fraud must involve moral turpitude not mere broken promises, unfulfilled predictions or erroneous conjecture as to future events. Also plaintiff must offer evidence of fraudulent misrepresentation made by each defendant for whom plaintiff seeks to have the statute of limitations tolled. Charter peach 3rd behavioral health system v. Kohout 233 Ga. App. 452 (1998). The statute is tolled only until the fraud is discovered or should have been discovered unless excused. Plaintiff must exercise ordinary care to discover the fraud, questions about the existence of fraud and plaintiff’s diligence in discovering it are ordinarily jury questions. The plaintiff must do more than make a bare allegation of fraud that is unsupported by the record to raise an issue of fact. The patient physician relationship is a relationship of trust and confidence. The patient with no expertise or training entrusts his  medical condition to the trained physician the patient with no expertise or training entrusts his medical condition to the trained physician. Because of this confidential relationship, an exception arises to the requirement in typical fraud cases that defendant makes some actual misrepresentation. Within the confidential relationship, silence when the doctor should speak or failure to disclose what should be disclosed will constitute fraud as much as an actual misrepresentation. Thus within the doctor-patient relationship plaintiff need not prove actual fraud. Relationship creates a duty that requires a doctor to inform the patient about his condition. Nevertheless there must be evidence that there was an intent to this conceal by silence. Charter peach for behavioral health system v. covert 233 Ga. App. 452 (1998). The Court of Appeals found sufficient evidence of intent to conceal in Quattlebaum v. Co. wort 182 Ga. App. 473 (1987). There defendant did not advise his patient that defendant had failed to connect the left hepatic duct to the small intestine, and in fact prepared misleading and incorrect medical records on this point. This conduct raised a jury question on fraud. The court found a reasonable inference of a knowing concealment and cover up, not just a mere misstatement. Similarly in set live v. Hackney 164 Ga. App. 740 (1982) defendant performed reconstructive breast surgery on the plaintiff. Shortly after surgery he injected saline into the implants to improve the appearance of her breasts. He told plaintiff that the implants were self sealing when she inquired about the possibility of leakage. The court found that defendant’s subsequent conduct in repeating the injections raise an inference of fraud, even if he initially believed that leakage would not occur. The court stated that concealment per se amounts to actual fraud when for any reason one party has a right to expect full communication of the facts from another.Contact an Atlanta DUI lawyer today about your case.

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