Allen v. Belinfante
In Allen v. Belinfante, 217 Ga. App. 754 (458 SE2d 867) (1995), the plaintiff filed suit in June 1994 and alleged that her oral surgeon failed to warn her of serious health risks associated with certain implants he used to treat her jaw problems during surgery eight years earlier.
The trial court held that the claims were barred by the two-year statute of limitation and the five-year statute of repose.
On appeal, the plaintiff argued that her suit was timely "due to . . . tolling . . . because of . . . fraud occurring within two years of the surgery or, alternatively, that there was a continuing tort." Id. at 756.
The Court held that survival of the plaintiff's claims did not depend on those theories:
Survival of their cause does not rest upon either a tolling of the two-year time frame following the surgery or application of the doctrine of a continuing tort, the viability of which has been questioned in light of legislative changes. Id.
Rather, the Court held, the plaintiff's claim of failure to warn or give notice of the danger of the implants was "alleged to have occurred at three specific times: the time of surgery in 1986, the time of a government alert about the implants in December 1990, and the time of the defendant's examination of Mrs. Allen in 1992 or 1993." Id. at 757.