dissenting in part.
Generally I am in agreement with what is said in the majority opinion relating to the statute of limitations.
However, I do not agree that, against a motion for summary judgment, the plaintiff alleged or proved fraud. The existence of confidential relations between the parties, such as existed here, does not mean that the relationship will toll the statute of limitations whether or not fraud exists, but only that the victim has reason to rely upon the person who committed the fraudulent misconduct, and is therefore not charged with a duty of exercising the degree of care to discover the fraud which would otherwise obtain. “In cases involving a relation of trust and confidence, such as a physician and patient, silence on the part of the physician 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. Brown v. Brown, 209 Ga. 620, 621 (6) (75 SE2d 13) (1953).” Leagan v. Levine, 158 Ga. App. 293 (279 SE2d 741) (1981). (Emphasis supplied.) Thus, a confidential relation affects, not the existence of the elements of fraud (that the statement was false, that the speaker knew it was false, that it was made with intent to deceive, that it did deceive, and that the victim suffered consequent injury), but the extent of the duty of the defendant to reveal it. Negligence, even gross negligence, is not fraud. When a statement is made, that statement must be false and known to the speaker before fraud can be predicated upon it. Then, if the relationship is confidential, it becomes a jury question whether facts if known to the speaker should have been revealed by the speaker, or whether they should in any event have been known to the victim.
The missing ingredient in this case is that the plaintiff in this case has based her right of action on negligence only. Although she alleges fraud, there is a bare conclusion where the facts which constitute fraud are never alleged or otherwise shown. The plaintiff was not informed that “defendant was not a qualified licensed plastic surgeon”; he informed her that “he had been doing a number of implant operations” and he assured her that “this injection would not rupture the implant or cause any leakage.”
The physician, however, is not a guarantor of the success of an operation. Blount v. Moore, 159 Ga. App. 80 (282 SE2d 720) (1981). There is no allegation that any of these statements was not made in perfectly good faith. The plaintiff does not claim that the defendant had to be licensed as a plastic surgeon in order to perform the operation which he performed, or that he had not in truth performed a number of previous implants, or that he had reason to believe the injection might rupture the implant. The physician might well have *745shown himself to be negligent and incompetent, but there is none of the animus decipiendi which would indicate a purpose to deceive.
A plaintiff has some burden, even in opposing a motion for summary judgment, to show a basic cause of action. Where it is clear that her right of action is barred by the statute of limitations, she must show facts sufficient to constitute fraud to evade this sanction. Code § 81A-109 (b). Where confidential relations exist there is a greater duty on the actor not to conceal by silence, and there is a lessened duty on the victim who must ordinarily exercise ordinary care before acting in reliance on the statements made. But the fraud itself — that is, the intention to deceive — must still exist. See Marlin v. Hill, 192 Ga. 434 (15 SE2d 473) (1941); Ryan v. Wohl, South & Co., 241 Ala. 123 (1 S2d 292); Phillips Petroleum Co. v. Daniel Mtr. Co., Tex. Civ. App. (149 SW2d 979); Counts v. Kary, 67 S.D. 607 (297 NW 442). Where a fact is unknown to the actor he cannot be charged with fraud in failing to reveal it. This is the point made in the distinction relating to less elements of (duty), not less elements of (fraud). I believe this is a misconstruction and misinterpretation by the majority opinion citing Shipman v. Horizon Corp., 245 Ga. 808 (267 SE2d 244) (1980), which quotes from another case. For this reason I do not consider the fraud defense sufficient to toll the statute of limitations.
I am authorized to state that Judge Birdsong and Judge Carley join in this dissent.