Beck v. Dennis , 215 Ga. App. 728 ( 1994 )

Pope, Chief Judge.

In this medical malpractice action, plaintiffs William and Linda Beck appeal from the trial court’s grant of summary judgment to defendant based oil the statute of repose. See OCGA § 9-3-71 (b). Concluding that a question of fact remains regarding defendant’s fraudulent concealment of his negligent act, we reverse.

Viewing the facts in a light favorable to plaintiffs, it appears that defendant (an ear, nose and throat specialist — “ENT”) operated on Mr. Beck in 1983 after he was seriously injured in an automobile accident. Mr. Beck suffered numerous fractures of his facial bones, and defendant used nasal packing to control bleeding and stabilize the fractures. Although defendant generally notes how many pieces of packing he puts in during an operation, he did not do so in this case. Several days later, defendant removed all the packing from the right side of Mr. Beck’s nose and most of the packing from the left. Defendant was unhble to find all the packs on the left side, however. He knowingly left a pack there, figuring he would find it and take it out another time. He did not tell Mr. Beck about the remaining piece of packing; nor did he make any notation about it in Mr. Beck’s records. Defendant then operated on Mr. Beck a second time. Again he failed to remove the packing or make a notation of it, even though he knew it was there.

After the second operation, Mr. Beck had trouble with his jaw slipping. He decided to change doctors, and because his primary problem was with his jaw, he went to Dr. Gruskin, an oral maxillofacial surgeon, rather than another ENT. Defendant called Mr. Beck, upset that he had changed doctors. Defendant did not tell Mr. Beck about the piece of packing defendant had left in his nose, however, even though he knew it was there and that it could cause problems if it remained. Defendant expected Dr. Gruskin to contact him, but when he did not, defendant made no effort to get in touch with him.

In 1990, Mr. Beck saw Dr. Davis, another ENT, for serious sinus problems he was having. When nothing else worked and a CT scan showed a mysterious opaque area in Mr. Beck’s nose, Dr. Davis operated and discovered the packing that had been left there seven years earlier. Less than one year later, this suit was brought.

1. “The physician-patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud.” Lynch v. Waters, 256 Ga. 389, 390 (349 SE2d 456) (1986). And the existence of such fraud is a question for a jury to decide. Leagan v. Levine, 158 Ga. App. 293 (279 SE2d 741) (1981). The statute of repose should not be applied to relieve a defendant of liability for injuries caused by negligence concealed by the defendant’s fraud, lest it provide an incentive for a doctor to conceal his negligence with the assurance that in five years he will be insulated from liability. See Hill v. Fordham, 186 Ga. App. 354 (367 SE2d 128) (1988).

Zechmann v. Thigpen, 210 Ga. App. 726 (5) (437 SE2d 475) (1993) and Hendrix v. Schrecengost, 183 Ga. App. 201 (1) (358 SE2d 486) (1987) are distinguishable. Zechmann was a misdiagnosis case in which there was no evidence that the defendant doctor knew the correct diagnosis he allegedly “withheld.” Similarly, Hendrix involved a doctor who allegedly withheld information that he had negligently failed to remove a patient’s cervix when he performed her hysterectomy, but there was no evidence that the doctor knew the cervix or any part of it remained. In this case, on the other hand, defendant acknowledged he knew he had left a piece of packing in Mr. Beck’s nose and that it could cause problems, yet he failed to inform Mr. Beck (or anyone else) so Mr. Beck could have it removed. As this evidence is sufficient to create an issue of fact regarding fraudulent concealment which would estop the doctor from relying on the statute of repose, the trial court erred in granting summary judgment.

2. Although we have concluded that the grant of summary judgment based on the statute of repose in this case must be reversed, we take this opportunity to state our views on that statute. While the Supreme Court has held the statute of repose is constitutional, see Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (437 SE2d 308) (1993), we believe a five-year period of repose is unrealistically short and produces unfair results in many cases. Too many patients are denied the right to recover from their negligent doctors simply because the effects of their doctors’ negligence did not become apparent until more than five years after the negligent act. We therefore urge the legislature to reconsider the five-year period of repose set forth in OCGA § 9-3-71 (b).

Judgment reversed.

Birdsong, P. J., Beasley, P. J., Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., Andrews and Johnson, JJ., dissent.