Childers v. Tauber

Shulman, Judge.

On October 26,1977, plaintiff-appellant filed suit to recover for medical malpractice and wrongful death. The complaint alleged that plaintiffs intestate died as a result of complications arising from an operation performed on or about July 21, 1976, during which a surgical sponge was removed from the patient’s bladder. It was alleged that the surgical sponge was left in the patient during a bladder operation on March 9, 1976, performed by the same physician. This appeal follows judgment on the pleadings entered in favor of defendants (the physician *158who performed both operations, the professional association of which the physician is a member, the hospital where the operations were performed, and certain hospital employees) based on the bar of the statute of limitation. We reverse the judgment.

1. Code Ann. § 3-1103 governs the instant case. See Code Ann. § 3-1105; U. S. Fidelity &c. Co. v. Toombs County, 187 Ga. 544 (1 SE2d 411). Compare Jaro, Inc. v. Shields, 123 Ga. App. 391 (181 SE2d 110). This section provides that: "None of the limitations of section 3-1102 [governing actions for medical malpractice] shall apply where a foreign object has been left in a patient’s body, but an action shall then be brought within one year after such negligent or wrongful act or omission is discovered.”

Code Ann. § 3-1103 is a legislative adoption of the doctrine of continuing tort which was announced by this court in Parker v. Vaughan, 124 Ga. App. 300, 302 (183 SE2d 605). Parker held that: "As to this type of wrong the statute can only begin to run from the time the patient has knowledge, or through the exercise of ordinary care could have learned, of the existence of the continuing tort.” While this statute established a new time limitation period, it left unchanged the applicable standard concerning the event which triggers the running of the limitation period. See, e.g., Clark v. Memorial Hosp., 145 Ga. App. 305, 306 (243 SE2d 695).

2. The trial court’s order granted judgment on the pleadings "upon a consideration of the pleadings only.” Other evidence was offered to the effect that the deceased patient neither learned nor was informed that during the second operation a sponge was removed and that the result of the operation was not otherwise discovered within the limitation period for filing. However, this evidence was not offered in response to the motion for judgment on the pleadings and was not considered by the court in ruling on that motion.

The question before us, then, is a narrow one: Did the complaint affirmatively show that every claim set forth therein is barred by the statute of limitation? See Dillingham v. Doctors Clinic, 138 Ga. App. 41 (5) (225 SE2d 500). To establish the bar, the pleadings must show on their face that the complaint was filed more than one *159year after the patient "discovered” the injury, i.e., after the patient or person seeking recovery had "knowledge, or through the exercise of ordinary care could have learned, of the existence of the continuing tort.” Parker, supra, p. 302.

Appellees rely on the following count in plaintiffs verified pleadings, which count was admitted by defendant, as conclusive evidence of this discovery: "The [deceased patient’s] second operation performed on or about July 21, 1976 revealed the presence of a surgical sponge in her bladder.”

The trial court construed the word "revealed” used in the pleadings to be an admission that the sponge was "discovered” within the meaning of Code Ann. § 3-1103 on or about July 21, 1976, and entered judgment on the pleadings on the ground that the filing of the complaint on October 26, 1977, was not within the limitation period. Because the facts as shown in the pleadings and admitted in the answer do not show that the moving party is clearly entitled to judgment, we reverse the judgment.

It might have been procedurally preferable to plead circumstances showing that the complaint was timely filed within one year of the discovery of the foreign object by the patient. Appellant’s failure to do so, however, is not fatal to the case. Even assuming that "revealed” means "discovered,” the pleadings do not state that the patient made this discovery and therefore do not affirmatively show that the statute commenced running on July 21, 1976.

"It is true that the [complaint alleges that the foreign object in the body was revealed in an operation on or about July 21,1976] which was more than [one year] prior to the filing of this action. However, under our present system of notice pleadings rather than issue pleadings, the same are now construed most strongly in favor of the pleader, rather than against him. [Cits.] Plaintiffs complaint, while showing that [a sponge was removed in July 1976 by the same physician who had originally operated], under the allegations of said complaint, this does not constitute a beginning point from which the statute of limitation runs. [The complaint involves a claim governed by Code Ann. § 3-1103], and as no date is alleged *160showing when [the foreign object was] discovered, said pleadings must be construed most favorably toward the pleader, and to the effect that the [foreign object was] not discovered by the [plaintiffs intestate] more than [one year] before filing [this] action. The statute of limitation did not begin to run until the [foreign object was] discovered by [plaintiffs intestate], irrespective of [the operation revealing the foreign object which occurred] at an earlier time. [Cits.]” Hamilton v. Lockridge, 123 Ga. App. 609, 610 (181 SE2d 910). Although Hamilton involved a claim seeking damages for unknown fraud which tolled the limitation period, we find the reasoning there to be applicable to this case involving a claim seeking damages for a "continuing tort which tolled the statute as long as it remained in its ever present unknown status.” Parker, supra, p. 303.

As the statute runs only from the date of discovery of the foreign object by the patient, and that date does not appear in the pleadings, it was not necessary to affirmatively plead either an exception to the statute of limitation or tolling circumstances. The pleadings’ silence on this point may not be held against the pleader.

"[T]his record shows no facts undisputed which call for the conclusion that the statute of limitation on the personal injury action had run, and the judgment on the pleadings based on this ground was erroneous at this state of the proceedings.” Lord v. Smith, 143 Ga. App. 378, 379 (238 SE2d 731). See generally Breedlove v. Aiken, 85 Ga. App. 719 (70 SE2d 85). Compare with Crawford v. McDonald, 125 Ga. App. 289 (187 SE2d 542) where the evidence submitted on summary judgment showed that ordinary diligence would have required the patient to discover that pains in her leg were not a consequence of a kidney operation.

3. Cases cited by appellees (see, e. g., Houston v. Doe, 136 Ga. App. 583 (222 SE2d 131); Shepherd v. Frasier, 223 Ga. 874 (159 SE2d 58); Church of God v. Isaacs, 222 Ga. 243 (149 SE2d 466)) do not require a contrary result. These cases, unlike the instant case, are either pre-CPA cases construing the pleadings against the pleader or situations where the pleadings showed on their face that the statute had run and no exception to the operation of *161the statute appeared.

Argued April 11, 1978 Decided October 23, 1978 Rehearing denied November 20, 1978 Watkins & Daniell, Arthur B. Seymour, for appellant. Webb, Fowler & Tanner, W. Howard Fowler, Long, Weinberg, Ansley & Wheeler, Ben L. Weinberg, Jr., J. M. Hudgins, IV, J. L. Edmondson, for appellees.

Judgment reversed.

Deen, P. J., Webb, McMurray, Smith and Banke, JJ., concur. Bell, C. J., Quillian, P. J., and Birdsong, J., dissent.