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.
Knowledge of the
misrepresentation
to toll the statute based on fraud plaintiff must show that
defendant knew that the misrepresentation was false at the time he made it.
Simply alleging fraud based on a misdiagnosis followed by continued treatment
is in sufficient.
The deterrence requirement
To toll the statute by fraud plaintiff must show that
defendant’s actions deterred him from discovering his true medical condition. It
is not sufficient that defendant made misrepresentations, plaintiff must of
been deterred from seeking further medical help because of such
misrepresentations.
The deterrence
requirement
To toll the statute by fraud plaintiff must show that
defendant’s actions deterred him from discovering his true medical condition. It
is not sufficient that defendant made misrepresentations, plaintiff must of
been deterred from seeking further medical help because of such
misrepresentations.
Once the patient seeks the help of another doctor who
informs the patient of the medical problems, the patient is no longer deterred
from discovering the fraud. If the patient seeks a 2nd opinion from
another physician, that generally stops the tolling effect of the fraud. The
same result occurs when plaintiff ceases going to the original doctor for
treatment and is accepted as a patient by another physician. Moreover, once a
defendant doctor discloses the existence of medical complications, even if
defendant has misdiagnosed those complications, plaintiff is no longer deterred
from learning the true facts. The court will look at plaintiff’s conduct in
reviewing fraud issues. The evidence may show that repeated recurrence of
symptoms put plaintiff on notice of the problem. Communications by plaintiff to
defendant may also show a lack of deterrence when plaintiff expresses
dissatisfaction with defendants care before the statute expires. Hendricks v.
squeaking ghost, 183 Ga. App. 201, 1987. When plaintiff suspects medical
problem and asks his doctor, the doctor’s assurances that plaintiff only
suffered from expected complications, like postradiation symptoms, may toll the
statute. For example in Lynch v. Waters 179 Ga. App. 222, 1986 plaintiff sued
defendants for negligent misdiagnosis of breast cancer. Over the course for
treatment, she repeatedly asked her doctors of any work to be done to ensure
her good health and was advised repeatedly that she had no cause to worry.
Based on their misrepresentations about her condition she refrained from
seeking further medical advice. Under these facts the court found an issue of
fraud. The plaintiff failed to seek medical treatment based on reliance upon
defendant’s misdiagnosis, rather than a knowing misrepresentation of plaintiff’s
medical condition, the statute of limitations will not be tolled. Whether the
defendant knew about plaintiff’s condition and knowingly misrepresented it,
whether plaintiff justifiably relied on defendant’s misdiagnosis, or whether
plaintiff failed to exercise ordinary care for her own safety are generally
questions for the jury. Plaintiff has the burden of proving that defendant
fraudulently deterred him from seeking further medical assistance that kept him
from discovering defendant’s negligence. The appellate courts will closely
scrutinize Plaintiff’s evidence. In Montgomery v. with Ritchie 151 Ga. App. 66,
1979 plaintiff presented evidence that in 1977 her spinal fusion was not solid.
The defendant had operated on plaintiff’s back in 1974. The court found that
evidence of a failed fusion in 1977 would not support inference that the fusion
was not solid in 1974, therefore the statute limitations was not tolled based
on defendants’ assurances that surgery was successful and that she should not
be concerned about her continuing pain. In Gillis v. Palmer the only evidence
of fraud was plaintiff’s testimony that defendant doctor told them that there
was no problem. Nothing in the record gave any indication of concealment or any
effort to deter the patient’s from seeking further medical help. On the other
hand, the patient’s knew that the shots were more painful on the occasion in
question and also noticed unusual knots in their hips. Consequently they were
on notice of facts sufficient to require them to exercise due diligence in
discovering any negligence. Evasion by the treating physician upon direct
inquiry by the patient may be sufficient to raise a fact issue on fraud.
Concealment of material facts may amount to fraud under such circumstances.
OCGA 9-39-71 b imposes a five-year statute of repose on medical malpractice
claims that cuts off claims 5 years after the negligent or wrongful act or
omission occurred. The rationale for this provision is that due to the
uncertainty of aging, health and intervening events, it is reasonable to limit
liability for injury or death occurring more than 5 years from the date of
medical treatment. Because the statute of repose sets a limit on what is
actionable, it cannot generally be tolled. Nevertheless, an exception arises
when the injuries in fact occurred during the period of liability, but
defendant by fraud concealed such injuries. The doctor cannot deceive the
patient for 5 years and assert the statute of repose. The sun never sets on
fraud. Lasoya v. Sunay 193 Ga App 814, 1989.
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