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Goleman v. Orgler5/30/2000
DATE OF JUDGMENT: 02/23/1999
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: WINSTON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
TRIAL COURT DISPOSITION: SUMMARY JUDGMENT GRANTED IN FAVOR OF APPELLEE
DISPOSITION: AFFIRMED - 05/30/2000
. On December 1, 1995, Joyce Goleman filed a medical malpractice suit against Dr. R. J. Orgler. Subsequently, Dr. Orgler filed two motions for summary judgment. Both motions were granted by the trial judge. The final motion was granted based on the fact that the statute of limitations had run and the action was time barred, and the trial judge dismissed the cause of action. Goleman has filed this timely appeal and presents the following issue: whether the trial judge erred in granting Dr. Orgler's motion for summary judgment on the basis that Goleman's claim was barred by the statute of limitations. Finding this issue to be without merit, we affirm the decision of the lower court.
FACTS
. On December 1, 1995, Goleman filed a cause of action against Dr. Orgler. Within her complaint, Goleman claimed that on November 29, 1993, she was a patient of Dr. Orgler's and was seeking treatment for what she contended was influenza. However, Dr. Orgler negligently diagnosed and performed surgery for appendicitis. Dr. Orgler filed an answer in which he stated he had recommended to Goleman that she be admitted to the hospital and that with her permission and consent, he performed an exploratory laparotomy. On September 13, 1996, Dr. Orgler filed a motion for summary judgment because Goleman had failed to present expert testimony to support her allegations; therefore, there was no triable issue of fact. Goleman responded to the motion for summary judgment filed by Dr. Orgler and submitted a motion to make her complaint more specific.
. The trial court granted Dr. Orgler's motion for summary judgment based on the lack of expert testimony to establish a standard of care and any breach. Additionally, the trial judge allowed Goleman to amend her complaint to allege the claim of lack of informed consent. Goleman's last amended complaint claimed that Dr. Orgler breached his duty by failing to inform her regarding what treatment he was going to administer, and that he failed to inform her that he was going to perform an operation. Additionally, Goleman alleged that Dr. Orgler failed to inform her of the risk and consequences of the proposed treatment and any reasonable alternatives. Furthermore, Goleman contended she had never consented to any operation on her body and that the operation was against her will. Dr. Orgler filed another motion for summary judgment.
. Dr. Orgler premised this motion on the fact that whether Goleman's claim was founded on assault and battery or medical negligence due to a lack of informed consent, and it was barred by the applicable statute of limitations. The trial judge granted the motion for summary judgment.
DISCUSSION
I. WHETHER THE TRIAL JUDGE ERRED IN GRANTING DR. ORGLER'S MOTION FOR SUMMARY JUDGMENT ON THE BASIS THAT GOLEMAN'S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS.
. Before this Court discusses the merits of Goleman's argument, we will discuss the applicable standard of review for a summary judgment. The lower court is vested with the discretion to grant a summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Collier v. Trus
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