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MacDowell v. Gallant

Court of Appeals of Georgia, First Division

March 1, 2018

MACDOWELL
v.
GALLANT et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Ursula MacDowell filed a complaint alleging dental malpractice, and, upon concluding that MacDowell's complaint had been filed outside the statute of limitations, the trial court granted summary judgment to Steven M. Gallant, D.D.S. and Steven M. Gallant, D.D.S., P.C., the professional corporation through which he practices. In MacDowell v. Gallant, 323 Ga.App. 61 (744 S.E.2d 836) (2013), this Court reversed the trial court's grant of summary judgment to Dr. Gallant and thereafter, the Supreme Court of Georgia granted his petition for a writ of certiorari, directing the parties to brief whether this Court "err[ed] when it held that the statutory period of limitation was tolled even after the plaintiff consulted with a second dentist." (Punctuation omitted.) Gallant v. MacDowell, 295 Ga. 329, 329 (759 S.E.2d 818) (2014). In affirming this Court, the Supreme Court concluded that

[t]he tolling statute already provides that, where the defendant has engaged in fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation runs only from the plaintiff's discovery of such fraud. OCGA § 9-3-96. Those cases in which the appellate courts have held that the tolling of the period of limitation as a result of fraud ends at the point at which a plaintiff seeks the diagnosis of another doctor are based upon the rationale that, at such a point, the plaintiff is no longer deterred, by any conduct of the defendant, from learning the true facts. . . . Where, as here, the doctor consulted is one who has provided professional services to the plaintiff jointly with the defendant, that rationale does not apply.

(Citations and punctuation omitted.) Id. at 332-333.[1]

         The Supreme Court noted "that other grounds for summary judgment remain to be addressed by the trial court on remand." Gallant, 295 Ga. at 333. It further noted that the trial court had relied only on constructive notice in granting summary judgment to appellants, and left the issue of "whether MacDowell received actual notice of Dr. Gallant's alleged malpractice from Dr. Winston . . . to be addressed on remand." Id. at 332 n. 5. Additionally, the Supreme Court noted that,

[t]he trial court has not yet found that fraud is actually present in this case so as to toll the statute of limitation. It simply found that even if fraud existed and the statute was tolled, the period would run again so as to time bar the claims asserted. The question of whether fraud exists, therefore, remains undetermined.

Gallant, 295 Ga. at 333 n. 6.

         Upon remand, the trial court entered an order directing the parties to file briefs addressing the issues of actual notice and the existence of fraud in relation to the tolling of the statute of limitation. Subsequently, the trial court entered a final order again granting summary judgment to Dr. Gallant, and again finding that MacDowell's claims were filed outside the two-year statute of limitations. The trial court determined that, although there was actual fraud by Dr. Gallant so as to toll the statute of limitations, MacDowell's had actual notice of the malpractice during her consultations with Dr. Winston in November 2007 "or at the latest January 8, 2008, " which commenced the running of the statute of limitations.

         On appeal, MacDowell contends that the trial court erred in granting Dr. Gallant's motion for summary judgment. She asserts that, as the trial court held, Dr. Gallant's fraud tolled the running of the statute of limitations, but maintains that, contrary to the trial court's conclusion, MacDowell's visits to Dr. Winston, who was involved in the treatment, did not stop the tolling of the limitations period. According to MacDowell, the Supreme Court in Gallant, specifically held that the visits to Dr. Winston did not "as a matter of law, serve to place [her] on notice" about the problems with the implants. For the reasons discussed below, we reverse the order of the trial court granting summary judgment to Dr. Gallant.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law.

(Citations and punctuation omitted.) Boggs v. Bosley Medical Institute, 228 Ga.App. 598, 599 (492 S.E.2d 264) (1997).

         The facts, construed in favor of MacDowell as nonmovant, as set forth in MacDowell, 323 Ga.App. at 62-63, establish

that MacDowell had a series of problems with her teeth. She initially sought help from at least two dentists and was referred by one to Dr. Laura Braswell. In February 2006, Braswell examined MacDowell and identified several problems with MacDowell's teeth. In February or March 2006, Braswell referred MacDowell to Gallant, a general practitioner with a specialty in prosthetics, and Dr. Mollie Winston, an oral surgeon, for treatment. Gallant and Winston are in different practices, and they each performed different aspects of MacDowell's dental treatment. Gallant created the ...

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