Banks v. Dalbey

258 S.E.2d 701, 150 Ga. App. 779, 1979 Ga. App. LEXIS 2374

• Court: Court of Appeals of Georgia
• Decided: July 16, 1979
• Docket: 57496
• Status: Published

Opinions

Smith, Judge.

In this action brought by appellant Banks for medical malpractice, the trial court granted appellee Dalbey’s motion for summary judgment. The motion was founded upon the alleged late filing of the suit under the applicable statute of limitations. We reverse.

On August 24, 1974, appellant cut his hand on a ceramic vase, and on that date appellee, a medical doctor, treated appellant and attempted to remove glass from his wound. Although appellant continued to experience some residual pain, the cut healed and the treatment appeared successful. However, X-rays taken in June or July of 1976 revealed foreign objects in appellant’s hand. When those objects were removed, on April 19, 1977, they were discovered to be particles of ceramic glass. Appellant filed this suit on April 29, 1977.

Contrary to the trial court’s conclusion, appellant timely filed his lawsuit. The statutes which are here involved provide: "Except as otherwise provided in this Chapter, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred.” (Code § 3-1102.) "None of the limitations of section 3-1102 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. For purposes of this section, 'foreign object’ shall not include a chemical compound, fixation device or prosthetic aid or device.” (Code § 3-1103.) This is only the second time a malpractice suit has been before this court dealing with the interpretation of Code § 3-1103. In the case of Clark v. Memorial Hospital of Bainbridge, 145 Ga. App. 305 (243 SE2d 695) (1978), this court unnecessarily attempted to ascertain the legislature’s intent in enacting Code § 3-1103. The Clark case, supra, turned upon the point that the statute of limitations had run under both Code § 3-1102 and Code § 3-1103, thereby rendering any further interpretation unnecessary to the opinion. In light of this, our holding in the Clark case, that "Code Ann. § 3-1103, [supra,] refers to objects placed in the patient’s body during some medical procedure” is dictum and therefore not a binding precedent.

The holding of Parker v. Vaughan, 124 Ga. App. 300 (183 SE2d 605) (1971), that Code § 3-1004 began to run from the time the patient has knowledge or through the exercise of ordinary care should have learned of the existence of the continuing tort, is not limited to causes of action in which a surgeon negligently fails to remove an object which he placed in his patient’s body. The Parker case, at p. 303, held that it was "limited to causes of action in which a surgeon negligently leaves a foreign object in the body of the patient.” (Emphasis supplied.)

Black’s Law Dictionary defines "leave”: "to allow or cause to remain; to let remain unmoved or undone; to refrain from or neglect taking, doing, or changing.” It is clear then that when the Parker case, supra, held that it was dealing with foreign objects negligently left in the body, it covered either situation: where it was left by the doctor in the process of an operation or where it was left by the doctor in the process of treatment where the foreign object was in the body from some cause other than that of the treating physician.

In view of the law that existed in this state as of 1976, by virtue of the Parker case, supra, it is clear that the legislature intended that Code § 3-1103, supra, should apply in either of the following cases, to wit:

(a) Where the foreign object was both placed in the body and left there by the person treating the injury, or

(b) Where a foreign object from some source other than the person treating the injury was left in the body by that person.

Code § 3-1103 supports (b) above when it says, "[A]fter such negligent or wrongful act or omission is discovered.” (Emphasis supplied.) Webster’s Dictionary defines omission as "A thing which is omitted or left undone.” Clearly when the person leaves the foreign object in the patient’s body, regardless of how it got there, that person has "left undone” what he was professionally trained to do. Hence he is negligent by an act of omission, an act "left undone,” if you please.

Submitted March 13, 1979 Decided July 16, 1979 E. Graydon Shuford, for appellant. Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Sidney F. Wheeler for appellee.

Certainly, when Dalbey treated Banks for the glass in his hand, Banks expected the foreign objects to be removed, irrespective of how they got there. That was the purpose of the treatment, and when Dalbey failed to remove the glass, he left a foreign object in Banks’ body. The fact that he did not place it there makes no difference.

Judgment reversed.

Quillian, P. J., McMurray, P. J., Banke and Corley, JJ., concur. Deen, C. J., Shulman, Birdsong and Underwood, JJ., dissent.