It is undisputed in this case that appellee-plaintiff Gurjitt Dhillon, then five feet five inches tall, sought elective cosmetic surgery to increase his height. Paid $40,000, podiatrist George R. Vito, D. P. M., performed a limb-lengthening procedure1 on both of Mr. Dhillon’s legs, and feet as perfectly normal before undergoing the procedure. The surgery left one of Mr. Dhillon’s legs shorter than the other and both angulated to the ground below the knee. On September 9, 2003, Mr. Dhillon filed his complaint for damages, later amended, against appellants-defendants Dr. Vito, Dr. Vito’s employer, Foot & Leg Centers, Georgia, P. C. “F & L”, and Surgical Centers of Georgia, P. C. “Surgical Centers”, seeking damages and status as a class action alleging negligence per se for the unlawful practice of medicine as a podiatrist, fraud, and professional malpractice. On December 5, 2003, Dr. Vito, F & L, and Surgical Centers collectively “the appellants” filed their motion for summary judgment, contending that Dr. Vito did not violate the Georgia Podiatry Act, OCGA § 43-35-3 et seq., for performing the complained of procedure on Mr. Dhillon’s legs; that, even were the Act violated, a showing of a deviation from the standard of care was nonetheless required; and that class action treatment was improper, fraud having been alleged and individual questions of law and fact predominating. The appellants filed their amended motion for summary judgment on January 14, 2004 —this to show Mr. Dhillon’s consent to undergo the procedure complained of. Contemporaneously, Mr. Dhillon filed a cross-motion for partial summary judgment upon his negligence per se claim for the unauthorized practice of medicine. On February 27, 2004, Surgical Centers joined Dr. Vito and F & L in their motions for summary judgment “appellants’ motion for summary judgment”. Upon his motion, the state court granted Mr. Dhillon a default judgment as to liability on his amended complaint on March 1, 2004 —this for an untimely filed answer upon finding that the parties had entered into a consent agreement which, in addition to authorizing Mr. Dhillon to amend his complaint, had required an answer of the appellants. Thereafter, the appellant moved that the default be opened, and on April 16, 2004, the state court did so, finding a proper case. The state court’s denial of the appellants’ motion for summary judgment and its grant of Mr. Dhillon’s motion for partial summary judgment followed one week later.
In Case No. A04A2170, the appellants challenge the denial of the their motion for summary judgment and the grant of partial summary judgment, contending that the Georgia Podiatry Act permits elective cosmetic leg lengthening by podiatrists; that given the foregoing, partial summary judgment for Mr. Dhillon on his negligence per se claim was improper; and that the case against them is inappropriate for certification as class action under OCGA § 9-11-23. In Case No. A04A2171, Mr. Dhillon contends that the state court erred in opening the default upon his amended complaint, arguing that the default should stand as a sanction for alleged discovery improprieties undertaken by Dr. Vito. Elective cosmetic leg lengthening by a podiatrist as the unauthorized practice of podiatry, such violation of law as capable of causing the injuries alleged, the state court did not err in denying the appellants’ motion for summary judgment and in granting Mr. Dhillon’s partial motion for summary judgment.2 The state court having reserved its ruling upon the instant action as proper for certification as a class action, there is nothing for us to review on appeal thereon. Fowler v. Cox , 264 Ga. App. 880, 889 2 592 SE2d 510 2003. Further, the record revealing no abuse of discretion in the state court upon opening the default as a proper case, no error obtained on that account. Accordingly, we affirm in both cases.
