Servais v. Philbrick

Banke, Presiding Judge,

dissenting.

This case is controlled neither by Taratus v. Smith, 245 Ga. 107 (263 SE2d 145) (1980),'nor by McAllister v. Razook, 180 Ga. App. 585 (1) (349 SE2d 810) (1986).

In Taratus, a dentist was sued for breach of an express oral warranty to correct or “cure” a patient’s “dental condition.” The Supreme Court upheld a directed verdict for the dentist on that claim, as follows: “Plaintiff’s proof is that the defendant expressly promised to correct his daughter’s dental condition and that at the time the defendant discharged his daughter as a patient the defendant represented he had fully corrected the dental condition he had contracted to correct. This testimony is entirely vague as to the nature of the condition to be corrected or the services to be performed. It is impossible to ascertain from this testimony whether both parties to the alleged contract of express warranty ‘understood and agreed to the same thing.’ [Cit.]” Id. 245 Ga. at 107-8.

In McAllister, a dentist was sued for breach of an alleged warranty to “maintain [the patient] in a state of comfort and health.” *863The claim was predicated on the following language contained in a letter sent by the dentist to the patient’s insurance company, outlining the course of treatment he had prescribed for the patient: “In order to maintain her in a state of comfort and health and to continue to promote proper muscle function and relaxation the following more permanent treatment will be necessary.” Concluding that “the[se] words were merely prefatory with no connotation of promise or warranty,” this court held that the dentist was entitled to summary judgment on the claim. Id. 180 Ga. App. at 586.

Decided March 10, 1989 Rehearing denied March 22, 1989 Joseph B. Bergen, Frederick S. Bergen, for appellant. Oliver, Maner & Gray, Thomas A. Withers, for appellees.

The plaintiff in the present case does not contend that the defendant breached a promise to cure him or maintain him in a state of comfort and health. Rather, he contends that, by assuring him prior to performing the arteriogram that the procedure was “routine” and that there was “nothing to worry about,” the defendant falsely represented to him that there were no recognized complications associated with the procedure. I do not believe we can conclude as a matter of law that the plaintiff’s interpretation of the alleged assurances was unreasonable under the circumstances, nor do I believe that such a representation can be equated with a vague undertaking to effect a cure or to maintain a patient’s health. Being of the opinion that a material factual dispute exists in this case with respect to whether the defendant actively misrepresented the risks associated with the procedure, I would hold that the trial court erred in granting the defendant’s motion for summary judgment. Accord Spikes v v. Heath, 175 Ga. App. 187 (2) (332 SE2d 889) (1985). See generally OCGA § 31-9-6 (d).

I am authorized to state that Presiding Judge McMurray and Judge Pope join in this dissent.