Statute of limitations: the “second opinion” exception to the fraudulent concealment rule

MacDowell v. Galant, — S.E.2d —, 2013 WL 2996206 (Ga. App. 2013)

This case involved a dental patient undergoing a full mouth prosthodontic reconstruction: a series of tooth extractions, implant surgeries, and other procedures that took over a year to carry out. One of the defendants, a dental surgeon, placed the implants improperly. Another defendant, a dental reconstruction specialist, decided not to tell the patient about that mistake and not to redo the implants because “with what this woman has been through, it’s enough.” The specialist endeavored to work around the difficulties with the existing implants, alas, unsuccessfully.

The patient came out of these procedures with a host of medical problems, to which she added a legal problem by suing her doctors after the expiration of Georgia’s two-year limitations period.  The patient asked the trial court and, subsequently, the Court of Appeals to toll the limitations period based on the “fraudulent concealment” rule. Specifically, she argued the specialist’s “failure to tell her of his opinion that the implants were improperly placed, particularly before they became integrated into the bone and much more difficult to remove” constituted fraudulent concealment.

The trial judge ruled that the tolling stopped when the patient sought a diagnosis from another doctor: the dental surgeon who misplaced the implants. The judge explained this ruling by saying that “once a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment.”  Based on the patient’s visits to that doctor, the judge calculated that she filed her complaint too late.

The Court of Appeals reversed that decision. Because the doctor who gave the patient the post-treatment consultation was “one of [her] original treating physicians and … the very practitioner who allegedly placed the implants incorrectly,” the Court held that the patient “cannot be deemed to have sought an independent medical opinion such that she reasonably could have discovered her cause of action.” The Court explained that the “second opinion” exception to the fraudulent concealment rule applies only when the patient’s “purpose of seeking a second opinion is to overcome the alleged fraud that deters the patient from discovering the true facts.” The Court thus allowed the patient to toll the limitations period and proceed with her action.

The Court of Appeals’ decision is obviously correct. I decided to report it because it provides a much-needed authority for the proposition that a second opinion must be independent to counteract fraudulent concealment.