Tabor v. Clifton , 63 Ga. App. 768 ( 1940 )

1. Where, as alleged in the petition, the defendant, a physician, in performing an authorized operation upon the plaintiff, did, without authority from the plaintiff and without any necessity therefor, remove certain vital organs from her body, and the plaintiff did not know that the defendant had removed such organs from her body, the physician, was, by virtue of the confidential relationship between him and the plaintiff, namely, that of physician and patient, under a duty to the plaintiff to acquaint her with what he had done; and his failure to do so amounted to such fraud on the plaintiff as would toll the statute of limitations as applied to the plaintiff's cause of action for an unauthorized and unnecessary removal of her vital organs until a discovery by the plaintiff of the fraud. Where, as here, the suit was brought within the statute of limitations after the discovery of the fraud, the cause of action was not barred.

2. Since the suit was brought within the period of limitation after the discovery of the fraud, it was immaterial that the plaintiff was, by reason of her physical condition, prevented from filing suit at a date earlier than the date the suit was filed.

DECIDED NOVEMBER 30, 1940. On July 28, 1939, Mrs. Frances Turner Tabor brought suit for damages against Dr. Ben H. Clifton. The plaintiff alleged that on November 24, 1928, she engaged the services of the defendant, a physician and surgeon, to perform an operation for appendicitis on her; that on that date, while the plaintiff was under the influence of an anaesthetic, the defendant not only removed her appendix but without her knowledge and without any authority from her breached his contract with her by removing the plaintiff's right tube and right ovary; that the defendant unskillfully, carelessly, and negligently performed the operation on the plaintiff for appendicitis; that the improper manner in which the defendant performed this operation, together with the unauthorized removal by him of her right tube and right ovary, has permanently injured the plaintiff, has caused her pain and suffering and has incapacitated her from performing her household duties; that the plaintiff continued to suffer from the operation performed by the defendant because of the unskillful and negligent manner in which he performed such operation until June 20, 1937, at which time, because of such unskillful and negligent operation performed upon her by the defendant, it became necessary for the plaintiff to be again operated on by another physician and surgeon, in an effort to correct the injuries inflicted on her by the defendant; that it was necessary at this second operation to remove the plaintiff's left tube and ovary which had become diseased from the accumulation of pus and inflammation in the plaintiff's system as the result of such former operation; that except for the negligence of the defendant in the first operation, the second operation, resulting in pain and suffering and the removal of her other ovary and tube thereby rendering it impossible for the plaintiff to bear children, would not have been necessary.

In paragraph 20 of the petition the plaintiff alleged that the defendant "secretly withheld from her that said tube and ovary were removed by him, nor did he, defendant, inform plaintiff any time before or thereafter that said tube and ovary were removed, and plaintiff further alleges that she did and could not know thereof until on or about the 1st of August, 1937, at which time plaintiff was informed thereof by said Dr. Coker [the surgeon who performed the second operation of June 20, 1937], and by her said husband." The plaintiff further alleged in paragraph 21 of the petition "that the withholding information by defendant of the said removal of said tube and ovary amounted to actual fraud perpetrated upon plaintiff, and the same has existed since the date of said breach up to and until on or about the 1st of August, 1937, at which [time] plaintiff was informed as aforesaid." The plaintiff further alleged, in paragraph 22, that since August 1, 1937, she has "been frail, too weak physically, and suffered such pain and agony she has not been able before now to make these complaints and charges and file this petition against defendant."

The defendant demurred on the ground that it appeared from the face of the petition that the alleged cause of action was barred by the statute of limitations. He demurred specially to paragraphs 20 and 21, on the ground that they did not contain allegations of fact sufficient to toll the statute of limitations; and to paragraph 22, on the ground that the allegations were irrelevant and immaterial, constituted no issuable facts, and were prejudicial. The judge sustained the demurrer on the ground that the alleged cause of action was barred by the statute of limitations. To this judgment the plaintiff excepted. 1. The defendant did not demur on the ground that no cause of action was alleged. The sole attack on the petition as a whole was on the ground that it appeared from the face thereof that the plaintiff's alleged cause of action was barred by the statute of limitations. The sole question presented for decision is whether whatever cause of action the plaintiff may have had for the alleged illegal and unauthorized removal from her body by the defendant of a tube and ovary, to her damage as alleged, was barred by the statute of limitations. The wrongful act of the defendant, as appears from the petition, occurred on November 24, 1928. As the suit was not filed until July 28, 1939, more than ten years afterwards, the cause of action, if there was one ex contractu or ex delicto, was barred unless the plaintiff was ignorant of the fact that the defendant had removed her tube and ovary, and the defendant had fraudulently withheld and concealed this fact from her, and the suit was filed within the statutory period after the discovery by her of such fraud. Code, § 3-807.

Where there is a confidential relationship, such as that between physician and patient, by which the physician is under a duty to inform the patient of the nature and character of any operation which he has performed on the patient, and where the physician in performing an authorized operation has gone beyond the contract and performed another operation by removing vital organs from the patient's body which he had no authority to remove, and which it did not appear were necessary to be removed, and where the patient did not know that the physician in performing the operation had exceeded the contract and removed such organs, but where the physician knew this, the concealment of these facts by him from the patient, and his failure to inform the patient thereof, constituted a fraud on the patient, and tolled the statute of limitations. The statute did not begin to run against the patient until she became aware of the true facts. See Silvertooth v. Shallenberger,49 Ga. App. 133 (174 S.E. 365); Bryson v. Aven,32 Ga. App. 721 (124 S.E. 553); Phipps v. Wright,28 Ga. App. 164 (110 S.E. 511); Persons v. Jones,12 Ga. 371 (58 Am. D. 476); Edwards v. Monroe,54 Ga. App. 791, 799 (189 S.E. 419). The statute of limitations began to run from the date the plaintiff acquired knowledge of what the defendant had done, which she alleges was August 1, 1937. Where the petition, as in the case at bar, was filed on July 28, 1939, within two years from the date the statute began to run, the action was not barred, since, whether the suit be ex delicto or ex contractu, it was not barred when brought within two years from the discovery by the plaintiff of the fraud of the defendant. It follows that paragraphs 20 and 21 of the petition were not subject to the demurrer.

2. The allegations of paragraph 22, to the effect that since August 1, 1937, when the plaintiff discovered the alleged negligence and wrongful conduct of the defendant, she had been too weak physically to file her petition earlier, were irrelevant and immaterial, since the petition was filed within the statutory period of two years from the time the plaintiff alleged that she acquired knowledge of the defendant's conduct. This paragraph was subject to demurrer.

The court erred in sustaining the demurrer on the sole ground that it appeared from the allegations that the plaintiff's cause of action was barred by the statute of limitations, and in dismissing the action.

Judgment reversed. Sutton and Felton, JJ., concur.