To Toll or Not to Toll? Some Intricacies of the Fraudulent Concealment Doctrine

Gallant v. MacDowell, — S.E.2d — (Ga. 2014)

The doctrine of fraudulent concealment tolls the prescribed limitations and repose periods until the victim learns or becomes reasonably capable of learning the true facts. Ordinarily, the tolling will end at the point at which the victim seeks the diagnosis of another doctor. At that point, the victim is no longer deterred from learning the true facts. Based on these rules and the facts below, the Georgia Supreme Court tolled the limitations period for a dental patient.

This patient was treated by two dentists who maintained separate practices but worked together as a team. Based on a treatment plan devised by one of the dentists, the other dentist was to extract certain teeth and place implants into the patient’s jaw. The first dentist was then to install dental prostheses on the implants. Shortly after the first of several implant procedures, the first dentist determined that the implants had been improperly placed in such a manner as to make the installation of prostheses difficult. Instead of removing those implants, the dentist decided not to inform the patient about the problem. He tried to work around the difficulties created by the implants and go forward with installing the prostheses. He did not want to put the patient through the process of removing and replacing the implants, because she had been through “enough.”

The fix didn’t work and the patient tried to improve her teeth situation with the second dentist. While the second dentist was fixing the fix, the limitations period had expired. The patient nonetheless sued the first dentist. The trial court granted the defendant’s motion for summary judgment: it decided that, even if the statute of limitations was tolled by fraud, nevertheless, as of the date the patient sought the care of the second dentist, she had thereby “consulted with another doctor” and was consequently on notice of the possible malpractice; so that the statute of limitations began to run. The Court of Appeals reversed that decision: it reasoned that the patient’s visits to the second dentist did not end the tolling of the statute of limitations because the two dentists worked together, and so “by consulting with the second dentist the patient cannot be deemed to have sought an independent medical opinion such that she reasonably could have discovered her cause of action.”

The Georgia Supreme Court sided with the Court of Appeals. It clarified that a fraud-based tolling ends only when the victim is no longer deterred from learning the true facts. Unsurprisingly, “cases in which consultation with another doctor was deemed to have triggered the end of the tolling of the statute of limitation for alleged fraud involve instances in which the other doctor consulted was one who was not previously associated with the plaintiff’s care or the treatment that was allegedly negligently rendered.”