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Esener v. Kinsey9/13/1999
FOURTH DIVISION
On June 12, 1998, Nancy D. Kinsey, individually and as next friend of her minor daughter, Samantha Kinsey, sued Dr. Ismail Esener, the obstetrician-gynecologist who delivered Samantha, for birth injuries. This was more than ten years after the alleged injury to the minor child.
At birth, on December 16, 1987, Samantha suffered anoxic brain damage through the alleged negligent acts and omissions of Dr. Esener. It was alleged that Dr. Esener was aware of the cause of such brain damage but concealed such negligence from Kinsey and caused her to believe that there was another cause for the brain damage.
In plaintiff's complaint, she alleged that she discovered Dr. Esener's fraud on approximately September 29, 1997, which was 78 days before the statute of repose abrogated the action.
On September 12, 1998, Dr. Esener answered the complaint and raised the defense of the statute of limitations and statute of repose. On December 7, 1998, Dr. Esener moved for judgment on the pleadings based upon the statute of repose. OCGA § 9-3-73. In response, Kinsey filed her affidavit, an additional affidavit of her medical expert, and progress notes from the delivery. On February 24, 1999, the trial court denied Dr. Esener's motion for judgment on the pleadings and stated that the ruling was made without a consideration of the affidavits.
Dr. Esener contends that the trial court erred in denying his motion for judgment on the pleadings based upon the statute of repose, notwithstanding allegations of fraud, because the fraud, in this medical malpractice action, was discovered prior to the expiration of the statute of repose. We do not agree.
Since this was a motion for judgment on the pleadings, then we must treat all well pled facts as true. OCGA § 9-11-12 (c); Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978); Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540, 543-544 (218 SE2d 263) (1975); Hancock v. Nashville Inv. Co., 128 Ga. App. 58, 60 (3) (195 SE2d 674) (1973). Therefore, we must assume that the defendant's statements to the plaintiff were made with the intent to conceal the cause of the brain damage to the minor child from the mother and that she was deterred from filing this action as a result. Considering the pleadings alone, they set forth the date of birth when the anoxia is alleged to have caused brain damage immediately prior to birth of the minor plaintiff; when the ten years of the statute of repose abrogated any cause of action; when the alleged fraud was discovered; when the action was filed; and allegations of intentional fraudulent concealment of the brain injury . OCGA §§ 9-3-71 (b) (c); 9-9-73 (b), (c) (2) (A), (d).
The General Assembly, as a matter of public policy, has provided that a defendant's fraud which has debarred or deterred as plaintiff from bringing an action tolls the running of the statute of limitation until the fraud is discovered or reasonably should have been discovered. See OCGA § 9-3-96; Trust Co. Bank v. Union Circulation Co., Inc., 241 Ga. 343, 344-345 (245 SE2d 297) (1978). Where a relationship of trust and confidence such as a physician-patient relationship exists, there is a duty to disclose the cause of any injury and failure to do so acts as fraud, tolling the statute of limitation. See Trust Co. Bank v. Union Circulation Co., Inc., supra at 344; Quattlebaum v. Cowart, 182 Ga. App. 473, 474-476 (356 SE2d 91) (1987); Breedlove v. Aiken, 85 Ga. App. 719 (70 SE2d 85) (1952). Here, the motion dealt only with the statute of repose as a bar to suit, even if fraud existed.
Fraud by which the plaintiff is debarred or deterred from bringing an action tolls any appli
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