dissenting.
1. I agree that in our consideration of the case, we cannot take into account the depositions which were not considered by the trial court in ruling on the motion. Although the court may have used copies, it being clear that the originals were not filed until after the entry of the order appealed from, the record does not so demonstrate and we cannot assume it.
2. I dissent because I can find no evidence in the record which raises a question of fact with respect to fraud as to the first operation. That was the surgery on January 2 in which Dr. Quattlebaum found a number of small stones in Mrs. Cowart’s gall bladder and removed the gall bladder. Even assuming he did so negligently, in order for this medical procedure to be tested legally, it would have to survive the statute of limitation which otherwise controls. Fraud would toll it, to be sure, but there is no evidence of fraud as to this first surgery; what is focused on by the majority is evidence of fraud with respect to the surgery on January 24, which is quite another matter and is furthermore not a subject of this appeal.
“If facts do exist which would toll the statute of limitations, the appellant [plaintiff] has the burden of setting forth and supporting these facts, Carroll v. Pittsburgh Steel,” [Co., 103 FSupp. 788, 790 (W. D. Pa. 1952)]. Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278, 281 (2) (306 SE2d 366) (1983). There must be evidence of fraud, as to the matter complained of, so as to excuse plaintiff for not bringing suit within the statutorily prescribed time. See Shved v. Daly, 174 Ga. App. 209 (329 SE2d 536) (1985); Gillis v. Palmer, 178 Ga. App. 608, 610 (2) (344 SE2d 446) (1986). The absence of any fraud with respect to the January 2 surgery entitles defendant to a partial summary judgment on that issue.
I am authorized to state that Chief Judge Birdsong and Judge Sognier join in this dissent.
*477Thomas A. Withers, for appellant. Albert Fendig, Jr., William H. Pinson, Jr., for appellees.