dissenting.
Because I believe that the decisions of this court constituting *226binding precedent mandate a finding that partial summary judgment should have been granted to appellant, I must respectfully dissent.
Although there is no assertion that the bar of the statute of limitations applies to claims based upon negligence occurring on or after July 11, 1982, the statute had clearly run with regard to claims of negligence based upon action or inaction of appellant doctor in connection with the following office visits: May 16, 1979; July 13, 1979; February 13, 1980; and April 7, 1982. The appellee and the majority concede that all claims based upon conduct occurring from the inception of the doctor-patient relationship to and through July 10, 1982, are barred unless the running of the statute is tolled by fraud.
The crux of the entire majority opinion finding sufficient allegations of fraud which are unpierced by appellant is contained in the majority opinion as follows: “In her amended complaint, appellee asserts that appellant assured her ‘that everything possible and necessary was being done for her and that no other tests or consultations were necessary’; that in reliance on these representations she refrained from further inquiries, which resulted in her not discovering her condition until August 20, 1982; and that appellant ‘knew or should have known that a malignancy was possible and that proper tests, surgery or other preventative action was necessary to avoid injury to [appellee].’ We view these allegations in the complaint (which are also supported by appellee’s affidavit) as sufficient to raise the issue of fraud such as tolls the statute of limitation.” (Majority Opinion, page 224.) Because what the majority has quoted is the only matter of record which could possibly prevent partial summary judgment and because I believe that it is totally insufficient to toll the statute of limitations, I am convinced that the trial court erred in failing to grant appellant’s motion for partial summary judgment. That which appellee has set forth in the averments of her recast complaint and that which is sworn to in her affidavit constitute a mere rephrasing of her claim that the appellant failed to exercise that degree of care and skill generally employed by physicians under similar circumstance. Such allegations are sufficient to place in issue the question of medical negligence vel non but are “insufficient to establish fraud which will toll the statute.” Bray v. Dixon, 176 Ga. App. 895, 897 (338 SE2d 872) (1985). The facts in this case are remarkably similar to, and the result herein is controlled by, our recent whole court decision of Gillis v. Palmer, 178 Ga. App. 608 (344 SE2d 446) (1986). For the reasons set forth in Gillis, Sutlive v. Hackney, 164 Ga. App. 740 (297 SE2d 515) (1982) relied upon by the majority is as inapposite to this case as it was in Gillis. All claims of plaintiff based upon alleged medical negligence occurring on or before July 10, 1982, are barred by the statute of limitations. Gillis v. Palmer, supra; Edmonds v. Bates, 178 Ga. App. 69 (342 SE2d 476) (1986); Bray v. Dixon, supra; Shved v. Daly, *227174 Ga. App. 209 (329 SE2d 536) (1985); Johnson v. Gamwell, 165 Ga. App. 425 (301 SE2d 492) (1983). I would reverse the judgment of the trial court.
Decided April 30, 1986 Rehearing denied May 28, 1986 Thomas A. Withers, for appellant. Ralph B. Loberbaum, William H. Pinson, for appellee. Alton D. Kitchings, Manley F. Brown, James D. Hudson, Gregory C. Sowell, Gary C. Christy, Joy H. Fisher, amici curiae.I am authorized to state that Presiding Judge Deen, Judge Sognier and Judge Beasley join in this dissent.