Henry v. Medical Center, Inc.

456 S.E.2d 216, 216 Ga. App. 893, 95 Fulton County D. Rep. 1555, 1995 Ga. App. LEXIS 304

• Court: Court of Appeals of Georgia
• Decided: February 16, 1995
• Docket: A94A2333
• Status: Published

Opinions

Andrews, Judge.

Henry appeals from the grant of summary judgment to the hospital in her medical malpractice suit.

Viewed with all inferences in favor of Henry, the evidence was that she entered defendant hospital on September 4, 1991 to give birth. Upon being admitted, an IV was placed in her hand by hospital personnel. According to Henry, the IV began to hurt immediately upon being inserted and continued to hurt and she complained to a nurse about it. Henry was released on September 6,1991 and over the next two days she began having fever blisters around the point of insertion. By Sunday, September 8, her arm was numb. On Monday, September 9, she called her ob/gyn and was told to elevate the arm and apply heat. When this provided no relief, she went in to see her doctor on September 10. Treatment was begun for cellulitis and she was admitted to the hospital on September 13 for intensive antibiotic therapy.

1. The brief filed by counsel for Henry is not in compliance with the Rules of the Court of Appeals. As pointed out by appellee, there are no references to the record or transcript to support the arguments made by Henry in direct violation of Rule 15 (c) (3) (i) and (ii). In such a situation, as stated by then Presiding Judge Beasley in Dugger v. Danello, 175 Ga. App. 618, 620 (2) (334 SE2d 3) (1985), “[t]he absence of specific page references is tantamount to an abandonment of the enumerations of error.” According to Rule 7, it may also lead to dismissal of the appeal when committed by an appellant.

“ ‘ “Error must be shown affirmatively by the record, and not by mere recitations in a brief. (Cits.)” (Cit.)’ Rolling v. State, 204 Ga. App. 13 (1) (418 SE2d 396) (1992).” Wright v. State, 213 Ga. App. 626, 627 (445 SE2d 377) (1994).

“ ‘ “ ‘The burden is upon the party alleging error to show it affirmatively by the record.’ ” (Cit.)’ [Cit.]” Gale v. Obstetrics & Gynecology of Atlanta, 213 Ga. App. 614, 615 (2) (445 SE2d 366) (1994). See McHaffie v. Decatur Fed. &c. Assn., 214 Ga. App. 368, 369 (448 SE2d 36) (1994).

2. Considering the record, as we are bound to do, it reflects that suit was filed on September 10, 1993. The hospital filed its motion to dismiss or for summary judgment which was granted by the trial court. We affirm.

Under OCGA § 9-3-71 (a), such an action must be brought within two years after the date “on which an injury . . . occurred.” While appellant argues that her visit to her doctor’s office where the actual diagnosis was made is the operative date, it is without question that, at least by Sunday, September 8 when her numbness began and a day after the appearance of fever blisters, Henry was aware that her arm had been injured.

“The fact that [Henry] did not know the medical cause of her suffering did not affect the application of OCGA § 9-3-71 (a) when [her own] evidence established that her injury had occurred and had physically manifested itself to her [by September 8, 1991].” Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994). See Jones v. Lamon, 206 Ga. App. 842 (426 SE2d 657) (1992).

Therefore, summary judgment was properly granted to the hospital.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur specially.