Vitner v. Miller

Annie Miller sued Saul Vitner, M.D. for professional malpractice in connection with two failed abortions performed on her by Vitner. Vitner appeals the denial of his motion to dismiss based on (1) the applicable statute of limitation and (2) the alleged insufficiency of the expert affidavit submitted with Miller's complaint. For reasons which follow, we affirm in part and reverse in part. 1. Prior to a voluntary dismissal without prejudice and refiling, this case originally appeared before us in Vitner v. Miller, 208 Ga. App. 306 (430 S.E.2d 671) (1993). The facts are fully set forth in the prior opinion. In that case, Vitner appealed the denial of his motion for summary judgment based on the applicable statute of limitation. A full court majority opinion held that the complaint, filed on March 18, 1991, was untimely as to the first abortion performed on March 11, 1989 because ""any injury which resulted from the first abortion occurred and physically manifested itself to [Miller] by March 14[, 1989]."" Id. at 307. However, we further held that the complaint was [223 GaApp Page 693] timely as to the second abortion performed on March 15, 1989 because Miller's injury from the second abortion ""manifested itself on March 20, 1989, when [Miller] began to bleed and experience pain after the second abortion."" Id.