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

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                       March 1, 2018

In the Court of Appeals of Georgia
 A17A1864. MACDOWELL v. GALLANT et al.

       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 SE2d 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 SE2d 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

      1
        This Court had held
      that the trial court erred by ruling that MacDowell’s visits to Winston
      ended the tolling period. Winston was one of MacDowell’s original
      treating physicians and was the very practitioner who allegedly placed the
      implants incorrectly. Further, as a treating doctor, Winston was not in a
      position to provide a second opinion as to the procedures that she herself
      executed as a team with Gallant. Therefore, by consulting with Winston,
      MacDowell cannot be deemed to have sought an independent medical
      opinion such that she reasonably could have discovered her cause of
      action. The purpose of seeking a second opinion is to overcome the
      alleged fraud that deters the patient from discovering the true facts. In this
      case, Winston could not provide a second opinion as to the work that she
      and Gallant were performing together. Accordingly, we conclude that the
      trial court erred by ruling otherwise.


(Footnotes and emphasis omitted.) MacDowell, 323 Ga. App. at 64.

                                            2
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.

                                             3
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 SE2d 264) (1997).

                                           4
      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 treatment plan, including developing a surgery guide, taking
      bite models, and installing prostheses; Winston performed the extraction
      and implant surgeries.


      Based on his examination of MacDowell, Gallant confirmed that she
      needed a full mouth prosthodontic reconstruction, and he developed a
      course of action that would involve several procedures over a year or
      more. Gallant prepared a letter outlining his goal of installing fixed
      implant prostheses and the associated costs. MacDowell elected to embark
      on the plan, and based on Gallant’s surgical guides, Winston extracted
      certain teeth and replaced them with implants. When Gallant later
      examined MacDowell, he determined that the implants were placed too
      deep, too close together, and at an incorrect orientation. By November
      2006, a few weeks after Winston performed the implant procedure on
      MacDowell, Gallant had also consulted with another dentist, Dr. Hal
      Arnold, who confirmed Gallant’s opinion that the implants were


                                          5
improperly placed and would create difficulties in executing the final plan
for prostheses.


As of November 2006, the implants were still relatively new, and an
option remained to remove them and potentially reconfigure them before
they integrated into the bone. Gallant did not inform MacDowell of the
improper implantation, and instead, exercising his own judgment, decided
that “with what this woman has been through, it’s enough,” and he
endeavored to work around the difficulties with the existing implants. He
admits that he did not consult MacDowell in this decision.


Ultimately, MacDowell’s prosthetics were misaligned and did not perform
as desired. MacDowell complained to Gallant in February 2007 that her
tongue overlapped her teeth such that she could not chew without biting
her tongue. Gallant performed several adjustments, and in November
2007, Gallant sent MacDowell to Winston for examination of
MacDowell’s tongue and mouth due to MacDowell’s continued problems.
Winston told MacDowell that her reconstruction process was taking too
long, and after taking some measurements, Winston told MacDowell that
her reconstruction was too narrow. Gallant continued to make several
more adjustments over several more office visits in November 2007
through January 2008. Winston again saw MacDowell in January 2008,
and discussed her problems.


In February 2008, Gallant referred MacDowell to Arnold for a second
opinion, and Arnold examined her on February 13, 2008. Based on that
examination, Arnold recommended that the reconstruction be redone.
Gallant ultimately offered to “remake the case,” but MacDowell declined

                                    6
      and obtained care from Arnold and other dentists, requiring several
      additional painful and costly restorative procedures.


      On January 26, 2010, MacDowell filed suit against Gallant and his
      practice, alleging claims for professional malpractice, breach of contract,
      battery, and negligence per se.


MacDowell, 323 Ga. App. at 62-63.

      Generally, an action for medical malpractice must be brought within two years

after the date on which an injury arising from a negligent act or omission occurred.

OCGA § 9-3-7 (a)1. Pursuant to OCGA § 9-3-96, however, this period of limitation for

filing an action against a defendant is tolled where the defendant is guilty of fraud.

      If the defendant is guilty of a fraud by which the plaintiff has been
      debarred or deterred from bringing an action, the period of limitation shall
      run only from the time of the plaintiff’s discovery of the fraud. The
      confidential relationship between doctor and patient creates a duty to
      inform the patient of his or her condition. Failure to fulfill this duty would
      constitute fraud, which would toll the statute of limitation.”


(Citation and punctuation omitted.) Boggs, 228 Ga. App. at 601 (1) (b). See Zechmann

v. Thigpen, 210 Ga. App. 726, 730 (5) (437 SE2d 475) (1993) (there must be evidence

that each health care provider intentionally withheld information as to the wrongful

conduct in order to toll the statute of limitation); Hill v. Fordham, 186 Ga. App. 354,

                                            7
355 (1) (367 SE2d 128) (1988) (where confidential relationship exists between

physician or dentist and patient, the patient has the right to rely upon what her physician

or dentist tells her, and an intentional failure to disclose will toll the statute if the intent

to conceal or to remain silent is shown); Leagan v. Levine, 158 Ga. App. 293, 293 (1)

(279 SE2d 741) (1981) (“In cases involving a relation of trust and confidence, such as

a physician and patient, silence on the part of the physician when he should speak, or

his failure to disclose what he ought to disclose” constitutes fraud. ).

       Here, we agree that there was evidence that Dr. Gallant did not inform

MacDowell that her implants were improperly placed or that the placement of the

implants would result in further complications during the ensuing reconstruction

process. The record reflects that, although MacDowell visited Dr. Gallant multiple

times for various procedures, followup appointments and consultations after Dr.

Winston’s implants, he never informed MacDowell that he was concerned that the

implants were improperly placed, that they should be redone, or that they would impede

the reconstruction. In her deposition testimony, Dr. Winston recalled that she and Dr.

Gallant had consulted about the implant placements, that she disagreed with his

assessment that the implants were misplaced, and that “every time that [MacDowell]

voiced concerns . . . she would relay that to Dr. Gallant.”

                                               8
       Dr. Gallant testified that he did not tell MacDowell about the failed implants and

reconstruction because he “made a decision that I felt was in [MacDowell’s] best

interest [which] was to use the implants[.]” He agreed that MacDowell was “entitled to

know this information and her treatment options,” and that he had “withheld

information from her” that would have aided MacDowell in making “a fully informed

decision” about her treatment. Accordingly, the trial court did not err in finding that Dr.

Gallant’s fraudulent concealment tolled the two-year statute of limitations for medical

malpractice.

       The trial court subsequently found that Dr. Gallant was nonetheless entitled to

summary judgment because MacDowell had actual notice of the reconstruction issues.2

       2
        In Gallant, the Supreme Court noted that
       [Gallant] contended at oral argument that, even if MacDowell’s
       consultations with Dr. Winston did not qualify as constructive notice of
       the alleged tort, in those discussions Dr. Winston provided MacDowell
       with actual notice of Dr. Gallant’s alleged malpractice. It is true that the
       tolling of the statute of limitation resulting from fraudulent concealment
       of malpractice ends when the plaintiff discovers the concealed tort, which
       may result from actual notice of the malpractice from any source,
       including the original doctor or an associated doctor, as well as from the
       constructive notice that is deemed to occur when the plaintiff consults
       with an independent doctor.


                                            9
It acknowledged that, in accordance with Gallant, MacDowell’s visits with Dr.

Winston, a co-treating doctor, could not be relied upon to place MacDowell on

constructive notice of the problems. But, according to the trial court, by the time of

MacDowell’s last visit with Dr. Winston in January of 2008, she “plainly had

knowledge that something was amiss,” quoting Bauer v. Weeks, 267 Ga. App. 617, 620

(600 SE2d 700) (2004), because Dr. Winston told her that the “reconstruction process

was taking too long and that her reconstruction was too narrow.” The trial court

concluded that Dr. Winston’s concerns were actual notice that Dr. Gallant had

performed the dental work improperly, and that knowledge commenced the running of

the statute of limitations because “it was sufficient to put [Ms, MacDowell] on notice

so that by the exercise of due diligence [she] could have discovered fraudulent

concealment by Dr. Gallant of the malpractice.” These visits were more than two years

before the January 26, 2010 filing of the present action, and the trial court subsequently

held that Dr. Gallant was entitled to summary judgment on all claims.3


(Emphasis in original.) Gallant, 295 Ga. at 332 n. 5.

       3
        The trial court also found that MacDowell’s claim for breach of contract was
time-barred because based on the claim for medical malpractice and thus subject to the
same two-year statute of limitations, and that the battery claim, with its two-year statute
of limitations commencing “after the right of action accrues,” also arose from Dr.

                                            10
      The trial court’s reliance on Bauer is misplaced. In that case, although this Court

held that the homeowner’s knowledge that “something was amiss” was sufficient to put

him on notice “so that by the exercise of due diligence [he] should have discovered the

alleged fraud,” Bauer, 267 Ga. App. at 620, the homeowner had sought assistance from

an “independent handyman,” to make repairs and was not relying on information from

the fraudulent actor. Id. The statute of limitations was tolled by fraud, but then

commenced with the constructive notice from the independent repairman. Id. See

MacDowell, 323 Ga. App. at 64 (“by consulting with Winston, MacDowell cannot be

deemed to have sought an independent medical opinion such that she reasonably could

have discovered her cause of action[.]”)

      In this case, however, MacDowell was being seen by Dr. Gallant, her treating

doctor, and Dr. Winston, a co-treating physician. Thus, although the tolling of the

period of limitation as a result of fraud ends when MacDowell sought the diagnosis of

another doctor,”[w]here, as here, the doctor consulted is one who has provided

professional services to the plaintiff jointly with the defendant, that rationale does not




Gallant’s professional negligence and thus was also time-barred.

                                           11
apply,” unless “MacDowell received actual notice of Dr. Gallant’s alleged malpractice

from Dr. Winston.” Id. at 332, 332 n. 5.

       The trial court held that, “at the very least, by November 2007 [when Dr. Gallant

referred MacDowell back to Winston for the first follow-up] MacDowell was obligated

to exercise ‘ordinary care’ to learn of ‘the existence of the tort to [her],’ and the statute

of limitation began to run from that time.” This is true only if, at that time, Dr. Winston

provided MacDowell with actual notice that the reconstruction was improperly done.

Gallant, 295 Ga. at 332 n. 5. Although MacDowell said that in November of 2007 Dr.

Winston told her that the reconstruction was taking too long and that it was too narrow,

MacDowell also said that prior to that time, Dr. Winston had not “conveyed to [her] any

type of concern about Dr. Gallant or his abilities to do the work that he had agreed to

do.”

       According to Dr. Winston, “The only thing I specifically remember [about the

concerns MacDowell had about the care she was receiving from Dr. Gallant] is that she

felt that she was mistreated physically there, that he hurt her,” so if MacDowell was

seeing both doctors for a procedure, she preferred Dr. Winston to “numb her before she

went [to see Dr. Gallant].” Further, MacDowell complained to Dr. Winston that she was

unhappy with “Dr. Gallant’s technique and how rough he was with her.” Dr. Winston

                                             12
said that when MacDowell had voiced concerns about the “actual work [Dr. Gallant]

was doing,” she would relay the concerns to Dr. Gallant. However, Dr. Winston said

that she did “not recall” having any discussion with MacDowell about seeing someone

else for the reconstruction. She further did not recall “a time that she felt that Dr.

Gallant was not attempting to accommodate [MacDowell] . . . with aesthetics or the way

something fit.” According to Dr. Winston, she “thought he was trying.”

       The crucial rule of summary judgment procedure is that a trial court cannot

resolve facts or reconcile issues but can only ascertain if a material factual issue remains

in dispute. (Citation omitted.) R.D. Stallion Carpets, Inc. v. Dorsett Indus., L.P., 244

Ga. App. 719, 725 (536 SE2d 523) (2000). In this case, material issues of fact remain

as to whether the interactions between Dr. Winston and MacDowell were such that

MacDowell acquired actual notice of Dr. Gallant’s malpractice and thus, commenced

the running of the statute of limitations.

       Accordingly, the trial court erred in granting summary judgment to Dr. Gallant.

       Judgment reversed. McMillian and Mercier, JJ., concur.




                                             13
