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LLOYD v. KRAMER6/3/1998
Ann Lloyd sued her podiatrist, Jerald N. Kramer and his professional corporation, Dr. Jerald N. Kramer, P. C., for medical malpractice, fraud, battery, breach of fiduciary duty, punitive damages, and
costs. Enumerating two errors, Lloyd contests the partial summary judgment awarded to Kramer on all her claims except for malpractice.
The underlying case arose after Kramer operated on Lloyd's right foot. Lloyd asserted that Kramer subjected her to inappropriate and unnecessary surgery during which he fused the joints of three toes and inserted pins in them and also performed a metatarsal osteotomy to shorten her second toe. Lloyd alleged that in obtaining her consent to medical treatment, Kramer fraudulently, knowingly, and deliberately made material misrepresentations both as to the nature of her medical condition and as to the need for surgery to correct it.
In moving for partial summary judgment, Kramer attacked one of the requisite elements of a fraud claim, claiming that Lloyd failed to show that he made a false representation to her with the intent to deceive. In granting partial summary judgment, the trial court found that Lloyd failed to offer evidence to show that Kramer knew that the procedures were unnecessary or that Kramer made fraudulent misrepresentations to her. The court decided that the written consent to medical treatment form foreclosed the battery claim. The court held that because Lloyd's claim for breach of fiduciary duty was based on fraud and battery, it necessarily failed. Lloyd appeals this judgment. Held:
1. Lloyd contends that the trial court erred in granting partial summary judgment. She claims that the record is replete with evidence from which fraud can reasonably be inferred.
Since fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. McNeil v. Cowart, 186 Ga. App. 411, 412 (1) (367 S.E.2d 291) (1988). OCGA ยง 23-2-57. "Proof of fraud is seldom ever susceptible of direct proof and thus recourse to circumstantial evidence usually is required." McNeil, 186 Ga. App. at 412 (1). Moreover, " t is peculiarly the province of the jury to pass on these circumstances [showing fraud]." Farmers State Bank v. Huguenin, 220 Ga. App. 657, 661 (2) (469 S.E.2d 34) (1996). "`Except in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.' [Cit.]" Huguenin, 220 Ga. App. at 661 (2). This is not such a case.
Lloyd's evidence, when viewed in a light most favorable toward her, indicates that Kramer engaged in a pattern of misdiagnosis and needless but profitable operations. Lloyd's expert, W. Allen Boyce, M.D., a board-certified orthopedic surgeon, testified that Lloyd had a Morton's neuroma, a condition "easily distinguishable" from the hammer toe deformity for which Kramer improperly treated her. The gist of Boyce's testimony was that the conditions of hammer toe and Morton's neuroma are distinct, not overlapping, and hard to inadvertently
confuse. Based on his examination of Lloyd and her medical records including her x-rays, Boyce determined that Lloyd never had any symptoms of hammer toes. In Boyce's professional opinion, Kramer performed unnecessary and inappropriate surgery. Boyce stated that the usual remedy for a Morton's neuroma is simply to wear a larger shoe size and the most extreme treatment is to snip the affected nerve after which the patient can walk away unassisted.
Lloyd testified that Kramer misled her into believing the surgery was necessary to remedy a neuroma and that Kramer failed to tell her that her joints would be fused and rendered permanently rigid. Kramer admitted that he to
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