dissenting.
1. I respectfully dissent. The majority holds that in an action for medical malpractice the statute of limitations begins to run on the date on which the alleged precipitating negligent or wrongful act or omission occurred, rather than the date of the injury to the plaintiff resulting from that precipitating act.
In Shessel v. Stroup, 253 Ga. 56, 57 (316 SE2d 155), the Supreme Court accepted as the date of inception of the running of the statute of limitations in a medical malpractice action an injury that did not occur until more than three years after the alleged negligent act because the injury did not manifest itself until that time. The Supreme Court found the act unconstitutional “as applied to personal injury claims in which the injury occurs more than two years after the negligent or wrongful act.” Id. at 59. They compared the general tort statute of limitations, OCGA § 9-3-33 with OCGA § 9-3-71, the statute of limitations for medical malpractice actions, and held: “In each circumstance, however, the time period begins to run from the time the right of action accrues. We have held that an action for personal injury does not accrue until the tort is complete, and a tort is not complete until injury is sustained.” Contrary to the majority’s conclusion, the proposed result does not declare ineffective or unconstitutional the medical malpractice statute of limitations. To the contrary, the majority refuses to follow the plain result reached in a similar factual situation in Shessel, supra.
In the instant case, the injury alleged and proven was the “abscess” each plaintiff sustained. The affidavit of Mrs. Gillis showed that she first went to Dr. Palmer for treatment of her abscess on October 4, 1982. Mr. Gillis’ affidavit showed he first went for treatment of his abscess on October 25, 1982. This action was filed on October 1, 1984. The only evidence as to inception of injury of each plaintiff is the affidavits of Mr. and Mrs. Gillis, and they show injury occurring within the two years preceding the filing of this action.
The U. S. Supreme Court faced a similar issue in Urie v. Thompson, 337 U. S. 163, 170 (69 SC 1018, 93 LE 1282), where an employee of the railroad contracted silicosis at some point during the 30 years he worked for the railroad. The defendant railroad trustee, Thompson, maintained that Urie must have had silicosis for more than three *612years prior to the filing of his action, and thus he was barred by the three-year statute of limitations. No specific date could be ascertained for inception of plaintiff’s injury, but the court reasoned that “[w]e do not think the humane legislative plan intended such consequences to attach to blameless ignorance [of his injury]. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights . . . the afflicted employee can be held to be ‘injured’ only when the accumulated effects of the deleterious substance manifest themselves.” (Emphasis supplied.) In the instant case, the record supports only a conclusion that the injury first manifested itself on October 4 for Mrs. Gillis, and October 25, for Mr. Gillis. This action was filed within the statute of limitations following the manifestation of injury. As in Shessel, the Supreme Court used the date of the injury as the crucial point.
Although Mrs. Gillis discovered a knot five days after receiving her injection, and Mr. Gillis discovered a knot ten days following his shot, I do not view the formation of a knot following a medical injection as requiring an immediate mandatory medical conclusion by a lay person that he or she has been injured by the negligence of the person giving the injection. The further unexpected development of the knot turning into an abscess is the reasonable date of injury. Such date cannot be determined by a trial court as a matter of law without facts supporting such conclusion. The only evidence of the date of injury is the affidavits of the plaintiffs.
This judgment is on motion for summary judgment. If the sole question is one as to length of time which elapsed between the alleged negligent act and the institution of the action, the question of whether the action is barred is one of law; but where, as here, there is a dispute as to the date of accrual of the right of action, i.e., the date the abscess formed, the issue becomes one of mixed fact and law and is for determination by a jury under proper instructions from the court. Jones v. Hudgins, 163 Ga. App. 793, 795 (295 SE2d 119); Georgia Power Co. v. Womble, 150 Ga. App. 28, 30 (256 SE2d 640).
To sustain the ruling of the trial court that the Gillises “should have known of the allegedly negligent treatment during the month of September, 1982” would require that a doctor’s patient, receiving a medical injection involving a burning sensation on September 3, and the formation of a knot in the same area on October 8-13, (a result common experience shows not to be unique), followed by an abscess requiring treatment on October 4 or October 25, to: (1) medically diagnose that he or she had an injury, (2) that the injury was medically caused by the earlier injection (rather than defective serum), (3) the person giving the injection was negligent, and (4) that person’s negli*613gence was the proximate cause of his injury, which would ultimately require medical treatment the following month. Such reasoning requires a lay person to medically diagnose that he or she has an injury, and its causation, before he or she goes to a doctor for diagnosis and treatment.
“On motions for summary judgment the burden is on the moving party to establish the lack of a genuine issue of fact and the right to judgment as a matter of law. All doubts as to the existence of such an issue or issues are resolved against the movant. The party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence.” Morgan v. Carter, 157 Ga. App. 218, 219 (276 SE2d 889). Hence, all inferences, all ambiguities, and all doubts as to whether there is an issue are to be resolved against the movant. Summers v. Milcon Corp., 134 Ga. App. 182 (4) (213 SE2d 515). Here, the trial judge found there was an issue as to the negligence of Dr. Palmer but granted summary judgment on the basis that the Gillises should have discovered their injury in September 1982. This finding ignores the requirement that a cause of action for tortious conduct must be preceded by an injury. There is no evidence of any injury (as opposed to a possible act of precipitating negligence) to these plaintiffs in September 1982. The injury was the abscess and the only evidence as to the date of injury is plaintiffs’ affidavits that the injury manifested itself in October 1982. Neither plaintiff could have successfully pursued a tort action in September 1982, because there was no injury. In Shessel, the Supreme Court postponed the running of the statute of limitations until the injury manifested itself. If ignorance of the injury prevented the statute from running in Shessel, ignorance of any injury in the instant case until October 1982, should also prevent the running. Therefore, I respectfully dissent.
2. There is another reason for my dissent in the case of Mr. Gillis. Dr. Palmer advised Mr. Gillis “there was no problem” while he was treating his abscess. We have no other indication of what Dr. Palmer did or did not tell the Gillises during his treatment of their abscesses, as he did not submit an affidavit in support of his motion. But he, as stated by Dr. Smith, should have known, that “injections do not cause infection if ordinary medical care and skill is exercised. ...” Dr. Palmer should have been aware that the Gillises’ infections must have been directly related to the shots given them by his nurse. The relationship between a doctor and his patient is one of trust and confidence. Saffold v. Scarborough, 91 Ga. App. 628, 632 (86 SE2d 649). Thus, a patient has a right to expect his physician will correctly advise him about his medical condition. Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 773 (278 SE2d 653). In such a confidential relationship, “the beneficiary may be off guard, and may *614rely implicitly, not only on what is said, but also on the supposition that nothing important will be left unsaid. . . .” Oliver v. Oliver, 118 Ga. 362, 371 (45 SE 232). “ ‘Where a person sustains towards [another] a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation.’ ” Sutlive v. Hackney, 164 Ga. App. 740, 742 (297 SE2d 515); accord Wade v. Thomasville Orthopedic Clinic, 167 Ga. App. 278, 281 (306 SE2d 366); Johnson v. Gamwell, 165 Ga. App. 425, 426 (301 SE2d 492). This court has held that the statute of limitations for a tort “would not begin to run if the defendant physician has assured [his patient] that the injuries which had manifested themselves were only slight or only temporary and assured him he would eventually be all right, thereby inducing plaintiff to refrain from making any further inquiry into his condition.” Stephen W. Brown Radiology Assoc., supra at 774. Here, Mr. Gillis said Dr. Palmer “assured [him] there was no problem.” On motion for summary judgment, where movant has the burden of establishing the absence of all issues, this testimony alone is sufficient to raise an issue of whether because of the confidential relationship between Dr. Palmer and his patient, and the patient’s right that he would be correctly informed about his condition, this artifice or fraud was sufficient to deter Mr. Gillis from seeking further medical help for his injury until November 1982.
Decided March 21, 1986 Rehearing denied April 4, 1986 D. Duston Tapley, Jr., for appellants. J. Franklin Edenfield, for appellee.Therefore, I respectfully dissent to the majority decision that summary judgment was proper for Dr. Palmer as to Mr. Gillis.
I am authorized to state that Chief Judge Banke, Presiding Judge McMurray, and Judge Pope join in this dissent.