Vitner v. Miller

430 S.E.2d 671, 208 Ga. App. 306, 93 Fulton County D. Rep. 1529, 1993 Ga. App. LEXIS 516

• Court: Court of Appeals of Georgia
• Decided: March 31, 1993
• Docket: A92A1305
• Status: Published

Opinions

Cooper, Judge.

We granted this interlocutory appeal to determine whether the trial court erred in denying appellant’s motion for summary judgment.

Appellant performed an abortion by suction curettage on appellee on March 11, 1989. A few days later appellee began experiencing pain and bleeding. Her physician in Mississippi determined that appellee retained products of conception despite the first procedure; therefore, she returned to appellant for a second suction curettage on March 15, 1989. According to appellee, after the second procedure, appellant promised her that he had correctly completed the procedure. On March 20, 1989, appellee was bleeding again, and she saw another physician who performed a third abortion. On March 18, 1991, appellee brought an action for medical malpractice against appellant alleging negligence in the performance of an abortion. Appellant moved the trial court for summary judgment on the ground that the complaint was barred by the statute of limitation. In its denial of summary judgment, the court concluded that based upon appellant’s statement after the second abortion that he correctly completed the procedure and the fact that the injury did not manifest itself until March 20 or 21, 1989, when the third abortion “completed” the two prior abortions, the statute of limitation began to run on March 20 or 21, 1989.

In four enumerations of error, appellant essentially contends the trial court erred in failing to hold that the action was barred by the statute of limitation. The statute of limitation applicable to this case is contained in OCGA § 9-3-71 (a): “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” At the outset we find that the third abortion was part of the “course of treatment” which resulted from appellant’s failure to remove all of the products, of conception in performing the abortion on appellee and was not the injury to appellee. Surgery Assoc., P. C. v. Kearby, 199 Ga. App. 716, 718 (405 SE2d 723) (1991). Appellant contends that appellee’s alleged injuries “occurred” on March 11, 1989 and March 15, 1989, the dates of the procedures performed by appellant which resulted in the retention of products of conception. Accordingly, with regard to any alleged negligence in the first procedure, the statute of limitation began running on March 11, 1989 and expired two years from that date, and as to the second procedure, the statute of limitation expired two years from March 15, 1989. However, the focus of OCGA § 9-3-71 (a) is not the date of the negligent act but the “consequence of the defendant’s acts on the plaintiff.” Jones v. Lamon, 206 Ga. App. 842, 845 (426 SE2d 657) (1992).

The record reflects that shortly after the first abortion, on March 14, 1989, appellee phoned appellant’s office, complaining of pain and bleeding, and her physician in Mississippi determined that she retained products of conception. Therefore, any injury which resulted from the first abortion occurred and physically manifested itself to appellee by March 14. Id. at 846. Because the suit was not filed within two years of March 14, the complaint was untimely as to the first abortion. However, with regard to the second abortion, the injury manifested itself on March 20, 1989, when appellee began to bleed and experience pain after the second abortion. Therefore, the complaint, filed on March 18, 1991, was timely filed as to alleged injury resulting from the second abortion.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Birdsong, P. J., and Andrews, J., concur. Pope, C. J., concurs specially. Beasley, P. J., Johnson and Blackburn, JJ., dissent.