O.C.G.A. § 9-3-71 (2019)

Annotations

Cross references. Tolling of limitations for medical malpractice, § 9-3-97.1. Editor’s notes. Ga. L. 1985, p. 556, § 3, not codified by the General Assembly, provides: “No action for medical malpractice which, prior to July 1, 1985, has been barred by the provisions of Title 9, relating to actions, shall be revived by this Act. No action for medical malpractice which would be barred before July 1, 1986, by the provisions of this Act but which would not be so barred by the provisions of Title 9 in force immediately prior to July 1, 1985, shall be barred until July 1, 1986.” Law reviews. For comment on Parker v. Vaughan, 124 Ga. App. 300, 183 S.E.2d 605 (1971), see 8 Ga. St. B.J. 244 (1971), and 23 Mercer L. Rev. 697 (1972). For comment on statutes of limitations in medical malpractice actions in Georgia, see 33 Mercer L. Rev. 377 (1981).

For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For annual survey on torts, see 36 Mercer L. Rev. 327 (1984). For case note, “Lynch v. Waters: Tolling Georgia’s Statute of Limitations for Medical Malpractice,” see 38 Mercer L. Rev. 1493 (1987). For annual survey article on the law of torts, see 45 Mercer L. Rev. 403 (1993). For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For annual survey of evidence law, see 56 Mercer L. Rev. 235 (2004). For survey article on tort law, see 60 Mercer L. Rev. 375 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For article, “Misdiagnosis Law in Georgia: Where Are We Now?,” see 16 (No. 5) Ga. St. B.J. 14 (2011). For annual survey of tort laws, see 67 Mercer L. Rev. 237 (2015).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION PROCEDURAL REQUIREMENTS APPLICATION OF TIMING PRINCIPLES SPECIFIC ACTIONS DECISIONS UNDER § 9-3-33 General Consideration Venue for dissolved corporate entity. - Trial court erred in denying the defendants’ motion to dismiss and in finding that venue was proper in DeKalb County, Georgia, because while it was undisputed that the cause of action arose in DeKalb County, by March 2013, when plaintiff filed the renewal suit, the defending orthopedic practice had been administratively dissolved and no longer had an office or transacted business there; thus, venue was where the practice last maintained the practice’s registered office prior to dissolution, which was in Fulton County. Ross v. Waters, 332 Ga. App. 623, 774 S.E.2d 195, 2015 Ga. App. LEXIS 371 (2015). Constitutionality of statute of repose. - Five-year statute of repose on medical malpractice actions is rationally related to a legitimate end of government and does not violate equal protection guarantees. Craven v. Lowndes County Hosp. Auth., 263 Ga. 656, 437 S.E.2d 308 (1993). Statute of repose for medical malpractice claims is rationally related to a legitimate legislative attempt to reduce the uncertainties and costs related to malpractice litigation long after the medical services have been rendered and does not violate equal protection guarantees. Hanflik v. Ratchford, 848 F. Supp. 1539, 1994 U.S. Dist. LEXIS 4980 (N.D. Ga. 1994), aff’d, 56 F.3d 1391, 1995 U.S. App. LEXIS 14382 (11th Cir. 1995). Statute of repose for medical malpractice suits under O.C.G.A. § 9-3-71(b) did not violate the equal protection clauses of the federal or Georgia Constitutions. There was a rational basis for treating medical malpractice differently from other forms of professional malpractice and for the five-year repose period itself,

based on the considerations that uncertainty over the causes of illness and injury made it difficult for insurers to adequately assess premiums and that the passage of time made it more difficult to determine the cause of injury. Nichols v. Gross, 282 Ga. 811, 653 S.E.2d 747, 2007 Ga. LEXIS 871 (2007). Constitutionality as applied to cases in which injury occurs more than two years after act or omission. - Since all general tort claims survive until there is injury, but those medical malpractice claims in which the injury occurs more than two years after the negligent act do not, all who are similarly situated are not treated alike. Since there is no substantial relation in this classification to the object of a limitation statute, prior to its amendment in 1985, O.C.G.A. § 9-3-71 was an unconstitutional denial of equal protection as applied to personal injury cases in which the injury occurs more than two years after the negligent or wrongful act or omission. Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155, 1984 Ga. LEXIS 803 (1984), superseded by statute as stated in Quinn v. Stafford, 257 Ga. 608, 362 S.E.2d 49, 1987 Ga. LEXIS 995 (1987). Constitutionality as applied to wrongful death. - Since there is no rational basis for a limitation scheme which permits medical malpractice wrongful death action if patient dies within two years of defendant’s negligent act but which bars wrongful death action if patient lives for two years after defendant’s negligent act, when the defendant is a doctor, but not in other wrongful death cases, prior to its amendment in 1985, O.C.G.A. § 9-3-71 was unconstitutional as applied to actions for wrongful death. Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484, 1983 Ga. LEXIS 993 (1983), super-

General Consideration (Cont’d) seded by statute as stated in Quinn v. Stafford, 257 Ga. 608, 362 S.E.2d 49, 1987 Ga. LEXIS 995 (1987). Construction with § 9-3-73. - In a medical malpractice action, because the trial court erroneously applied the fiveyear statute of repose contained in O.C.G.A. § 9-3-71(b), and not O.C.G.A. § 9-3-73, in finding that the parents’ amended negligence complaint against certain doctors and nurses was timebarred, the trial court erred in entering summary judgment against the parents; further, the trial court also erred in finding that the doctors and nurses were rendering care to only the mother, and not the mother and the newborn child. Johnson v. Thompson, 286 Ga. App. 810, 650 S.E.2d 322, 2007 Ga. App. LEXIS 799 (2007), cert. denied, No. S07C1840, 2008 Ga. LEXIS 90 (Ga. Jan. 7, 2008). While wrongful death medical malpractice distinction unconstitutional, “foreign object” medical malpractice distinction constitutional. - Allrid v. Emory Univ., 166 Ga. App. 130, 303 S.E.2d 486 (1983), which holds that the distinction between “foreign object” cases and all other medical malpractice cases does not violate equal protection, and Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983), which holds that the distinction between medical malpractice wrongful death cases and all other wrongful death cases and all other wrongful death cases violates equal protection, reach different results, but the two opinions are not inconsistent. Allrid v. Emory Univ., 251 Ga. 367, 306 S.E.2d 905, 1983 Ga. LEXIS 793 (1983) (see O.C.G.A. § 93-72 and notes thereto). Continuous treatment doctrine did not apply. - Statute of repose, O.C.G.A. § 9-3-71(b), barred a medical malpractice action against appellants, a doctor and the doctor’s professional corporation, for failing to follow-up on a patient’s medication and treatment, leading to the patient’s death, as the action was filed more than five years after the alleged negligence started to occur and the continuous treatment doctrine did not apply in Georgia to push forward the date for commencing the

action; therefore, the trial court should have granted appellants’ motion in limine to exclude evidence of malpractice that occurred more than five years before the complaint was filed. Eyzaguirre v. Baker, 260 Ga. App. 53, 579 S.E.2d 47, 2003 Ga. App. LEXIS 252 (2003), cert. denied, No. S03C1010, 2003 Ga. LEXIS 563 (Ga. June 9, 2003). Georgia Court of Appeals erred in holding that, if a plaintiff in a misdiagnosis case presents with additional or significantly increased symptoms of the same misdiagnosed disease, the medical malpractice statute of limitations and statute of repose do not bar the plaintiff’s claims. Such holding adopted a variant of the previously rejected continuing treatment doctrine and presented a reinterpretation of the term injury set forth in O.C.G.A. § 9-3-71(a). Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691, 2007 Ga. LEXIS 790 (2007), cert. denied, 553 U.S. 1065, 128 S. Ct. 2503, 171 L. Ed. 2d 786, 2008 U.S. LEXIS 4378 (2008). Trial court properly rejected a patient’s claim that because the patient’s injuries resulted from the physicians’ failure to treat the patient’s breast cancer, the statute of limitations began to run on the date of the cancer diagnosis as the patient’s claim was a variant of the continuous treatment theory, which had been resoundingly rejected by the Georgia Supreme Court. Harrison v. Daly, 268 Ga. App. 280, 601 S.E.2d 771, 2004 Ga. App. LEXIS 891 (2004). On appeal from the grant of summary judgment in favor of a dentist in a patient’s medical malpractice action, summary judgment was upheld based on the expiration of the statute of limitation and rejection of the continuous treatment doctrine by the Supreme Court of Georgia and because the exception for a subsequent injury did not apply. Bousset v. Walker, 285 Ga. App. 102, 645 S.E.2d 593, 2007 Ga. App. LEXIS 427 (2007). Separate acts of professional negligence. - Because a medical malpractice complaint alleged that within the fiveyear period prior to the filing of the complaint, three doctors committed separate acts of professional negligence in, inter alia, failing to warn a patient about devel-

oping overwhelming post-splen-ectomy infection, those subsequent negligent acts causing new injuries were subject to separate periods of repose under O.C.G.A. § 93-71; subsection (b) of § 9-3-71 did not limit the number of separate negligent acts that could act as a trigger. Schramm v. Lyon, 285 Ga. 72, 673 S.E.2d 241, 2009 Ga. LEXIS 62 (2009). Amended (1985) version of O.C.G.A. § 9-3-71 applied to an action filed after its effective date for alleged negligent treatment which occurred in 1984. Hunter v. Johnson, 259 Ga. 21, 376 S.E.2d 371, 1989 Ga. LEXIS 89 (1989). Separate classification of medical malpractice actions is rational exercise of legislative power, as is different treatment of loss of consortium arising out of medical malpractice, insofar as limitation of actions is concerned. Hamby v. Neurological Assocs., P.C., 243 Ga. 698, 256 S.E.2d 378, 1979 Ga. LEXIS 1034 (1979); Perry v. Atlanta Hosp. & Medical Ctr., 255 Ga. 431, 339 S.E.2d 264, 1986 Ga. LEXIS 544 (1986); Brooks v. Meriwether Mem’l Hosp. Auth., 246 Ga. App. 14, 539 S.E.2d 518, 2000 Ga. App. LEXIS 1131 (2000). This section applies to actions against hospitals for malpractice. St. Joseph’s Hosp. v. Mattair, 239 Ga. 674, 238 S.E.2d 366, 1977 Ga. LEXIS 1292 (1977). O.C.G.A. § 9-3-71 is applicable against non-profit blood banks. - See Bradway v. American Nat’l Red Cross, 263 Ga. 19, 426 S.E.2d 849, 1993 Ga. LEXIS 273 (1993). Limitation of this section applies whether action is in tort or contract. St. Joseph’s Hosp. v. Mattair, 239 Ga. 674, 238 S.E.2d 366, 1977 Ga. LEXIS 1292 (1977). O.C.G.A. § 9-3-71 does not apply to a claim for breach of contract which is not grounded in a malpractice claim. Ballard v. Rappaport, 168 Ga. App. 671, 310 S.E.2d 4, 1983 Ga. App. LEXIS 2886 (1983). Subsection (a) of O.C.G.A. § 9-3-71 was applicable to claims which were based not on medical malpractice, but rather on fraudulent representations, fraudulent concealment of material infor-

mation, breach of express and implied warranties, and breach of contract. Knight v. Sturm, 212 Ga. App. 391, 442 S.E.2d 255, 1994 Ga. App. LEXIS 256 (1994), cert. denied, No. S94C1022, 1994 Ga. LEXIS 693 (Ga. Apr. 28, 1994). Because the evidence presented on appeal adequately showed that the decedent estate’s claim filed by the personal representative under O.C.G.A. § 51-4-5 was filed two months after the two-year statute of limitation under O.C.G.A. § 9-371(a) expired, despite the application of O.C.G.A. § 9-3-92, the trial court properly dismissed the claim as time-barred. Goodman v. Satilla Health Servs., 290 Ga. App. 6, 658 S.E.2d 792, 2008 Ga. App. LEXIS 233 (2008). Subsection (b) of O.C.G.A. § 9-3-73, subjecting persons who are legally incompetent because of mental retardation or mental illness to periods of limitation for medical malpractice actions, required that action be brought within two years of its effective date. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653, 1992 Ga. LEXIS 997 (1992). Term “legally incompetent because of mental retardation or mental illness” includes those suffering from brain injury; thus, the tolling provisions of O.C.G.A. § 9-3-90 do not apply even when such mental incapacity exists. Robinson v. Williamson, 245 Ga. App. 17, 537 S.E.2d 159, 2000 Ga. App. LEXIS 895 (2000), cert. denied, No. S00C1805, 2001 Ga. LEXIS 95 (Ga. Jan. 19, 2001). Retroactive application of statute of repose. - Subsection (b) of O.C.G.A. § 9-3-71 may be retrospectively applied without violating either the state or federal constitutions. Hanflik v. Ratchford, 848 F. Supp. 1539, 1994 U.S. Dist. LEXIS 4980 (N.D. Ga. 1994), aff’d, 56 F.3d 1391, 1995 U.S. App. LEXIS 14382 (11th Cir. 1995). New injury exception is not predicated on a patient’s discovery of a physician’s negligence as the trigger for commencement of the statute of limitations is the date that the patient received the new injury, which is determined to be an occurrence of symptoms following an asymptomatic period. Amu v. Barnes, 283 Ga. 549, 662 S.E.2d 113, 2008 Ga. LEXIS 437 (2008).

General Consideration (Cont’d) Subsequent injury exception. - In a medical malpractice action, because the subsequent injury exception did not disregard O.C.G.A. § 9-3-71(a), but rather attempted to reconcile the statute’s “date of injury” language with the fact that it was often difficult or impossible in the misdiagnosis context to calculate precisely when a new injury arose, the trial court committed no error in applying the subsequent injury exception in the case; furthermore, contrary to the doctor’s characterization, the subsequent injury exception did not simply create a discovery rule in violation of § 9-3-71(a). Amu v. Barnes, 286 Ga. App. 725, 650 S.E.2d 288, 2007 Ga. App. LEXIS 739 (2007), aff’d, 283 Ga. 549, 662 S.E.2d 113, 2008 Ga. LEXIS 437 (2008). In a negligent misdiagnosis case, the trial and appellate courts properly determined that the two year statute of limitations set forth in O.C.G.A. § 9-3-71(a) had not run on plaintiff’s claim for the injury of colon cancer that resulted from the misdiagnosis of a hemorrhoid condition made by a doctor as the cancer was a new injury that did not exist at the time of the original misdiagnosis. Amu v. Barnes, 283 Ga. 549, 662 S.E.2d 113, 2008 Ga. LEXIS 437 (2008). In a medical malpractice case based on a doctors’ failure to diagnose a patient’s cancer, which later metastasized, the doctors failed to establish as a matter of law that the patient’s “new injury” occurred and manifested itself more than two years before the suit was filed; thus, the doctors were not entitled to summary judgment on grounds that the suit was time-barred under O.C.G.A. § 9-3-71(a). O.C.G.A. § 93-71(a)’s two-year statute of limitations commences the date the patient first experiences symptoms of a “new injury” following a symptom-free period, not on the date the patient “discovers” either the injury or the doctor’s negligence. Cleaveland v. Gannon, 284 Ga. 376, 667 S.E.2d 366, 2008 Ga. LEXIS 755 (2008). Court of appeals erred by utilizing the “new injury” exception to the general rule for determining commencement of the

limitations period under O.C.G.A. § 9-371(a) in negligent misdiagnosis cases because a patient’s medical malpractice action against a doctor and a medical practice did not involve a misdiagnosis, and the court of appeals expressly found that the action was not a misdiagnosis case, but it treated the matter as a “new injury” case, which was a concept specific to the jurisprudence of misdiagnosis cases and was limited to misdiagnosis cases involving a very discreet set of circumstances; even if the “new injury” exception to misdiagnosis cases was applicable, the matter would still not be a “new injury” case because the patient was diagnosed with prostate cancer, was treated for prostate cancer, and still had prostate cancer. McCord v. Lee, 286 Ga. 179, 684 S.E.2d 658, 2009 Ga. LEXIS 639 (2009). Court’s duty to verify statute of limitations. - Dismissal of minor’s wrongful death claims with prejudice was upheld because the trial court judge approved the consent order based on representations of both parties, and the father failed to cite any legal authority to support the assertion that the trial court had an independent duty to verify the parties’ joint statement that the statute of limitation had run on the minor’s claims against the defendants. Parrish v. St. Joseph’s/ Candler Health Sys., Inc., 364 Ga. App. 228, 874 S.E.2d 413, 2022 Ga. App. LEXIS 288 (2022), overruled in part, Hamon v. Connell, 315 Ga. 760, 883 S.E.2d 785, 2023 Ga. LEXIS 24 (2023). Legislature can constitutionally provide for retrospective application of this remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights. Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521, 1982 Ga. LEXIS 1111 (1982). There was no question of retroactive application of the statute of repose since the statute, having been enacted in 1985, was in effect at the time the 1989 action was filed. Sievers v. Espy, 264 Ga. 118, 442 S.E.2d 232, 1994 Ga. LEXIS 288 (1994). This section does not operate to bar actions filed before July 1, 1976. St.

Joseph’s Hosp. v. Mattair, 239 Ga. 674, 238 S.E.2d 366, 1977 Ga. LEXIS 1292 (1977). Judgment on pleadings when complaint time barred. - In a medical malpractice action, when the averments in the complaint clearly showed that the negligent or wrongful act or omission occurred in March 1984 and the complaint was not filed until June 1995, the complaint was barred by O.C.G.A. § 9-3-71(b) (five-year limitation period) and the court did not err by granting judgment on the pleadings to the defendants. Braden v. Bell, 222 Ga. App. 144, 473 S.E.2d 523. Malpractice action may be brought in tort or contract against hospital or physician. St. Joseph’s Hosp. v. Mattair, 239 Ga. 674, 238 S.E.2d 366, 1977 Ga. LEXIS 1292 (1977). Intentional termination of life support a wrongful death claim, not a malpractice claim. - Trial court properly refused to dismiss a plaintiff’s claim asserting tortious termination of life support based on the defendant’s argument that it was really a medical malpractice claim and, therefore, required an expert medical affidavit under O.C.G.A. § 9-119.1; because such a claim is a suit for wrongful death, not medical malpractice, no expert medical affidavit was necessary. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823, 2007 Ga. App. LEXIS 1269 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. May 19, 2008), overruled in part, Harrison v. McAfee, 338 Ga. App. 393, 788 S.E.2d 872, 2016 Ga. App. LEXIS 417 (2016). Two year statute of limitations for wrongful death applied to a suit alleging tortious termination of life support of a parent, and that limitations period was tolled based on the infancy of the parent’s child, who was born to the parent prior to the defendant terminating the parent’s life support. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823, 2007 Ga. App. LEXIS 1269 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. May 19, 2008), overruled in part, Harrison v. McAfee, 338 Ga. App. 393, 788 S.E.2d 872, 2016 Ga. App. LEXIS 417 (2016).

Procedural Requirements Plaintiff’s failure to file an expert affidavit with the original complaint barred the plaintiff’s claim for professional malpractice, filed three years after the statute of limitation expired, because O.C.G.A. § 9-11-9.1 mandates that the plaintiff’s failure to file an affidavit with the original complaint could not be cured through the filing of an amended complaint which included an affidavit. Upson County Hosp., Inc. v. Head, 246 Ga. App. 386, 540 S.E.2d 626, 2000 Ga. App. LEXIS 1230 (2000). Wrongful death claim added via amendment to timely complaint. - When a patient and the patient’s spouse filed a medical malpractice complaint, which the spouse amended after the patient’s death to add a wrongful death claim, the wrongful death claim was not barred by the statute of repose as the wrongful death claim did not initiate legal proceedings, but was filed as an amendment to a pending suit that timely asserted other claims arising out of the same alleged malpractice; this result was consistent with the legislative purpose of the statute of repose set forth in O.C.G.A. § 9-3-73(f), as the original medical malpractice allegations had been brought less than two years after the alleged negligence, and the wrongful death claim was based on the same alleged acts and omissions as the earlier claims. Wesley Chapel Foot & Ankle Ctr., LLC v. Johnson, 286 Ga. App. 881, 650 S.E.2d 387, 2007 Ga. App. LEXIS 834 (2007), cert. denied, No. S07C1879, 2007 Ga. LEXIS 820 (Ga. Oct. 29, 2007). Vicarious liability allegations for negligence in medical action. - Trial court properly concluded that original and renewal complaints satisfied Georgia’s forgiving notice-pleading requirements with respect to a vicarious liability claim against a medical center and doctor for negligence because the complaints specifically identified the doctor as an agent or employee of the center acting within the scope of employment or agency, such that the doctor’s acts and omissions were imputed to the center, which was vicariously

Procedural Requirements (Cont’d) liable for the resulting injuries and harm to the plaintiff. Trabue v. Atlanta Women’s Specialists, LLC, 349 Ga. App. 223, 825 S.E.2d 586, 2019 Ga. App. LEXIS 140 (2019), aff’d, 310 Ga. 331, 850 S.E.2d 748, 2020 Ga. LEXIS 764 (2020). Questions for jury. - Whether an act or acts will constitute fraud so as to have the effect of tolling the statute of limitations is a proper question for a jury to decide. Johnson v. Gamwell, 165 Ga. App. 425, 301 S.E.2d 492, 1983 Ga. App. LEXIS 1894 (1983). Question of the actual existence of fraud for failure on the part of a physician to disclose problems following an operation, as well as the question of plaintiffs’ diligence in discovering the injury and the fraudulent concealment, are for the jury. Quattlebaum v. Cowart, 182 Ga. App. 473, 356 S.E.2d 91, 1987 Ga. App. LEXIS 1708 (1987). Application of Timing Principles Accrual of action. - Statute of limitations begins to run from the time the patient has knowledge, or through the exercise of ordinary care could have learned of the existence of the tort to the patient. Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653, 1981 Ga. App. LEXIS 2011 (1981). Statute of limitations would not begin to run if the defendant-physician had assured the plaintiff-patient that the injuries which had manifested themselves were only slight or only temporary and assured the plaintiff-patient that the plaintiff-patient would eventually be all right, thereby inducing the plaintiff to refrain from making any further inquiry into the plaintiff-patient’s condition. Stephen W. Brown Radiology Assocs. v. Gowers, 157 Ga. App. 770, 278 S.E.2d 653, 1981 Ga. App. LEXIS 2011 (1981). Fact that the plaintiff did not know the medical cause of the plaintiff’s suffering did not affect the application of O.C.G.A. § 9-3-71 shince the plaintiff’s own evidence established that the injury had occurred and had physically manifested itself to the plaintiff more that two years

before the plaintiff brought a malpractice suit. Henry v. Medical Ctr., Inc., 216 Ga. App. 893, 456 S.E.2d 216. Trial court properly granted summary judgment to the doctor in the patient’s medical malpractice action as the action was untimely under O.C.G.A. § 9-3-71(a); the limitation period started to run at the date the patient consulted a different doctor, but the action was not filed within two years of that date. Lorelli v. Sood, 259 Ga. App. 166, 575 S.E.2d 921, 2002 Ga. App. LEXIS 1603 (2002). Statute of repose in a medical malpractice claim ran from the date the negligent or wrongful act or omission occurred without regard to when the injury arising from the negligent act or omission occurred or was discovered; thus, a malpractice claim filed more than five years after the date on which the last negligent or wrongful act or omission attributable to the doctor and the medical center could have occurred was time barred. Christian v. Atha, 267 Ga. App. 186, 598 S.E.2d 895, 2004 Ga. App. LEXIS 565 (2004), cert. denied, No. S04C1525, 2004 Ga. LEXIS 699 (Ga. Sept. 7, 2004). Because a podiatrist did not meet the burden under O.C.G.A. § 9-11-8(c) of proving the affirmative defense of the twoyear time bar under O.C.G.A. § 9-3-71(a) in a patient’s medical malpractice action, the trial court did not err in denying the podiatrist’s request for summary judgment, as factual issues remained regarding when the patient’s injury occurred and when the patient should have known about the patient’s own injury; although the podiatrist had properly diagnosed the patient’s condition and the lawsuit was brought within two years of the actual diagnosis, the podiatrist claimed that a few months prior, the podiatrist’s notes had changed based on new complaints by the patient, which should have been the time that the limitations period commenced. Sidlow v. Lewis, 271 Ga. App. 112, 608 S.E.2d 703, 2004 Ga. App. LEXIS 1589 (2004), cert. denied, No. S05C0715, 2005 Ga. LEXIS 361 (Ga. May 9, 2005). Absent fraud, O.C.G.A. § 9-3-71 imposed an absolute limit on the time within which a case may have been filed; since nothing in the record showed that a doctor

ever knew that the treatment or advice to a patient was in error, nor was there any evidence that the doctor fraudulently withheld such information from the patient, the patient’s malpractice case filed 12 years after the doctor’s alleged negligence was time-barred. Waycross Urology Clinic, P.C. v. Johnson, 279 Ga. App. 195, 630 S.E.2d 807, 2006 Ga. App. LEXIS 497 (2006), cert. denied, No. S06C1597, 2006 Ga. LEXIS 736 (Ga. Sept. 8, 2006). Trial court erred in denying partial summary judgment on a patient’s medical malpractice and ordinary negligence claims, when, given evidence that the patient suffered an injury arising out of the misdiagnosis in January of 1999, when the patient was first seen by the doctor manifesting continuous symptoms of a moderate B-12 deficiency and the doctor failed to make the diagnosis and provide treatment, and the patient failed to file an action within the two years; but, because the patient’s ordinary negligence and breach of fiduciary duty claims were essentially malpractice claims, subject to the same limitations period, summary judgment as to these claims was upheld. Stafford-Fox v. Jenkins, 282 Ga. App. 667, 639 S.E.2d 610, 2006 Ga. App. LEXIS 1513 (2006). In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662, 2007 Ga. App. LEXIS 1277 (2007), aff’d, 284 Ga. 376, 667 S.E.2d 366, 2008 Ga. LEXIS 755 (2008). Temporary administrator of estate impacted statute of repose. - For summary judgment purposes, a decedent’s symptoms which occurred nearly two years after a doctor’s alleged misdiagnosis, but less than two years before the decedent’s death, were a new or subsequent injury; because the decedent’s husband was only appointed temporary administrator of the decedent’s estate, the limitation period was tolled under O.C.G.A. § 9-3-92, and thus summary

judgment ruling that the estate’s claim for pain and suffering was untimely was error. Kitchens v. Brusman, 280 Ga. App. 163, 633 S.E.2d 585, 2006 Ga. App. LEXIS 781 (2006). Unrepresented estate statute did not toll statute of repose. - Pursuant to a question certified by the federal appellate court, the Supreme Court of Georgia finds that since the tolling of the ultimate statute of repose for medical malpractice cases is not required by O.C.G.A. § 9-3-71(d) or O.C.G.A. § 9-373(a) and it would contravene the mandatory language of O.C.G.A. § 9-3-71(b), the unrepresented estate statute, O.C.G.A. § 9-3-92, does not toll the statute of repose during the time that the estate of a claimant is unrepresented; thus, the district court properly dismissed the state court medical malpractice claims brought by the administrator of the estate of the claimant because the claims were timebarred and could not be extended by O.C.G.A. § 9-3-92. Simmons v. United States, 421 F.3d 1199, 2005 U.S. App. LEXIS 18157 (11th Cir. 2005). Amending complaint to change named plaintiff not initiation. - Decedent’s sibling, as the purported representative of the decedent’s spouse, filed a wrongful death suit against medical providers within five years of the alleged negligent acts and, within a reasonable time after the providers objected to the sibling’s standing, filed a motion to amend the complaint to name the decedent’s spouse as the real party in interest. As the proposed amendment did not “initiate” a new claim, the medical malpractice statute of repose, O.C.G.A. § 9-3-71(b), did not prevent amendment of the complaint even though the motion to amend was filed more than five years after the alleged negligence. Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861, 2008 Ga. App. LEXIS 797 (2008), cert. denied, No. S08C1935, 2008 Ga. LEXIS 892 (Ga. Oct. 27, 2008), cert. denied, No. S08C1919, 2008 Ga. LEXIS 895 (Ga. Oct. 27, 2008). Addition of party not warranted. - Request by a deceased patient’s widow to add the treating physician’s employer to the widow’s medical malpractice action

Application of Timing Principles (Cont’d) was properly denied as the widow failed to show that the employer had notice of the institution of the lawsuit prior to the expiration of the statute of limitations; notice to the hospital and the physician of the institution of litigation did not constitute notice to the employer, even though they were all insured by the same carrier. Hunter v. Emory-Adventist, Inc., 323 Ga. App. 537, 746 S.E.2d 734, 2013 Ga. App. LEXIS 666 (2013). Medical malpractice statute of repose, O.C.G.A. § 9-3-71(b), prevented a plaintiff from amending the complaint in a pending medical malpractice action to add an individual party. Preferred Women’s Healthcare, LLC v. Sain, 348 Ga. App. 481, 823 S.E.2d 569, 2019 Ga. App. LEXIS 30 (2019), cert. denied, No. S19C0773, 2019 Ga. LEXIS 687 (Ga. Oct. 7, 2019). Accrual of action for wrongful death. - Statute of limitations for wrongful death action emanating from medical malpractice begins to run from date of death, not from date of the negligent act or omission of practitioner. Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484, 1983 Ga. LEXIS 993 (1983), superseded by statute as stated in Quinn v. Stafford, 257 Ga. 608, 362 S.E.2d 49, 1987 Ga. LEXIS 995 (1987). When a patient and the patient’s spouse filed a medical malpractice complaint which the spouse amended after the patient’s death to add a wrongful death claim, the wrongful death claim was not barred by the statute of limitations as it had been filed within two years of the patient’s death. Wesley Chapel Foot & Ankle Ctr., LLC v. Johnson, 286 Ga. App. 881, 650 S.E.2d 387, 2007 Ga. App. LEXIS 834 (2007), cert. denied, No. S07C1879, 2007 Ga. LEXIS 820 (Ga. Oct. 29, 2007). In medical malpractice personal injury case, cause of action accrues when exposure to the hazard first produces ascertainable injury. Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521, 1982 Ga. LEXIS 1111 (1982). Absent a showing of fraud, the statute of limitations concerning medical malpractice will begin to run at the time of the

malpractice, or when evidence of such malpractice is reasonably apparent to the victim, and a suit brought substantially later than the time allowed for by the statute of limitation will be barred. Shved v. Daly, 174 Ga. App. 209, 329 S.E.2d 536, 1985 Ga. App. LEXIS 2704 (1985). Medical malpractice action was time-barred. - Patient was suffering from poisoning from an antibiotic with symptoms including substantial renal damage and nausea by May 15, 2002, which was the proximate result of either the physician’s course of treatment with the drug, the physician’s failure to recognize the toxic condition and symptoms resulting from that treatment, or both; the fact that the patient did not know the cause of the patient’s symptoms did not lead to a different result. Smith v. Harris, 294 Ga. App. 333, 670 S.E.2d 136, 2008 Ga. App. LEXIS 1179 (2008), cert. denied, No. S09C0428, 2009 Ga. LEXIS 328 (Ga. June 8, 2009). Trial court did not err when the court held that the medical malpractice allegations of the original complaint were barred by O.C.G.A. § 9-3-71(b) as the alleged negligence occurred nine to ten years before the complaint was filed, and the parents’ claim that the defendants should be estopped from asserting a statute-of-repose defense due to fraud was not supported by any evidence. Macfarlan v. Atlanta Gastroenterology Assocs., 317 Ga. App. 887, 732 S.E.2d 292, 2012 Ga. App. LEXIS 782 (2012), cert. denied, No. S13C0313, 2013 Ga. LEXIS 136 (Ga. Feb. 4, 2013). Patient’s medical malpractice action was time barred by the two-year statute of limitations because it was the initial October 2007 surgery, in which the patient allegedly received negligent treatment, that gave rise to the patient’s cause of action, not the March 2009 surgery to correct the 2007 surgery; the patient’s injury from the negligent treatment began manifesting itself from March to June 2008, thus, by March to June 2008 at least, the patient had suffered an injury and could have maintained a malpractice action to a successful result by showing a breach of the standard of care by the first surgeon. Beamon v. Mahadevan, 329 Ga.

App. 685, 766 S.E.2d 98, 2014 Ga. App. LEXIS 763 (2014). Although the parents’ amended complaint related back to the filing date of their original complaint, February 10, 2015, the parents’ claims, which were subject to the two-year general medical malpractice statute of limitation, were time barred and could not be revived because the parents had until October 25, 2013, to file a lawsuit for the parents’ individual claims; and the underlying lawsuit was filed more than a year after the expiration of the applicable two-year statute of limitation. Swallows v. Adams-Pickett, 344 Ga. App. 647, 811 S.E.2d 445, 2018 Ga. App. LEXIS 106 (2018), cert. denied, No. S18C0922, 2018 Ga. LEXIS 558 (Ga. Aug. 20, 2018). In a medical malpractice lawsuit, the defendants’ motion for a partial summary judgment on all claims for damages that the parents incurred on behalf of their minor child was granted as those claims were barred by the two-year statute of limitation because the five-year statute of limitation extension applied only to the claims of the minor child and did not apply to the parents’ claims; thus, any of the parents’ claims for damages for their minor child’s medical expenses, and the parents’ ancillary claims such as their own loss of income, were subject to the two-year statute of limitation applicable to medical malpractice actions generally, and were barred. Swallows v. Adams-Pickett, 344 Ga. App. 647, 811 S.E.2d 445, 2018 Ga. App. LEXIS 106 (2018), cert. denied, No. S18C0922, 2018 Ga. LEXIS 558 (Ga. Aug. 20, 2018). Patient’s medical malpractice claims were barred by the two-year statute of limitations because the claims were brought more than two years after the patient developed marks on the patient’s thighs allegedly caused by the cream prescribed by the doctor and more than two years after the doctor’s misdiagnosis of the cause for those marks. Polis v. Ling, 346 Ga. App. 185, 816 S.E.2d 93, 2018 Ga. App. LEXIS 347 (2018). Trial court did not err in granting summary judgment in favor of the doctor on the ground that the plaintiff’s medicalmalpractice action was barred by the ap-

plicable five-year statute of repose because the date of treatment was October 2005 and the action was not filed until May 2018; and the doctor was not equitably estopped from asserting the statute of repose as nothing in the record supported a finding that the doctor committed a separate act of fraud after the doctor’s alleged failure to communicate the CT scan results to the plaintiff, or that the doctor intentionally intended to induce the plaintiff to act or refrain from acting. Smith v. Kayfan, 364 Ga. App. 651, 874 S.E.2d 465, 2022 Ga. App. LEXIS 295 (2022). True test to determine when cause of action for medical malpractice accrued is to ascertain the time when the plaintiff could first have maintained the plaintiff’s action to a successful result. Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521, 1982 Ga. LEXIS 1111 (1982). Continuing tort theory inapplicable. - Application of a medical malpractice plaintiff’s contention that the continuing tort theory applied so as, in essence, to extend the date when the statute of limitation began to run would appear to thwart the legislative intent of the 1985 amendment. Crawford v. Spencer, 217 Ga. App. 446, 457 S.E.2d 711, 1995 Ga. App. LEXIS 476 (1995), cert. denied, No. S95C1448, 1995 Ga. LEXIS 1024 (Ga. Sept. 11, 1995), overruled in part, Williams v. Young, M.D., P.C., 247 Ga. App. 337, 543 S.E.2d 737, 2000 Ga. App. LEXIS 1440 (2000); Charter Peachford Behavioral Health Sys. v. Kohout, 233 Ga. App. 452, 504 S.E.2d 514. In misdiagnosis cases, the misdiagnosis itself is the “injury” and not the subsequent discovery of the proper diagnosis. Surgery Assocs. v. Kearby, 199 Ga. App. 716, 405 S.E.2d 723, 1991 Ga. App. LEXIS 598 (1991), cert. denied, No. S91C1170, 1991 Ga. LEXIS 793 (Ga. June 27, 1991). As a general rule, in most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent

Application of Timing Principles (Cont’d) discovery of the proper diagnosis; thus, the fact that the patient did not know the medical cause of the patient’s suffering does not affect the applicability of the statute of limitations. Ford v. Dove, 218 Ga. App. 828, 463 S.E.2d 351, 1995 Ga. App. LEXIS 898 (1995), cert. denied, No. S96C0298, 1996 Ga. LEXIS 276 (Ga. Jan. 26, 1996), overruled in part, Ezor v. Thompson, 241 Ga. App. 275, 526 S.E.2d 609, 1999 Ga. App. LEXIS 1616 (1999), overruled in part, Williams v. Young, M.D., P.C., 247 Ga. App. 337, 543 S.E.2d 737, 2000 Ga. App. LEXIS 1440 (2000). Injuries from a misdiagnosis of multiple personality disorder were injuries that occurred and became manifested at the time of defendants’ acts or omissions prior to the running of the statute. Charter Peachford Behavioral Health Sys. v. Kohout, 233 Ga. App. 452, 504 S.E.2d 514. Trial court erred in granting summary judgment to a dentist and the dental practices in a medical malpractice action, based on misdiagnosis, as the dental defendants failed to meet their burden pursuant to O.C.G.A. § 9-11-8(c) of showing undisputed evidence that the affirmative defense of the two-year limitations period of O.C.G.A. § 9-3-71(a) barred the action. Brown v. Coast Dental of Ga., P.C., 275 Ga. App. 761, 622 S.E.2d 34, 2005 Ga. App. LEXIS 1110 (2005). Although a patient was not diagnosed with drug-induced tardive dyskinesia based on the patient’s doctor’s prescription of a drug for reflux until May 2005, and the patient’s complaint was filed within two years of that date, the relevant date was the date of injury, or when the patient first exhibited symptoms, which was in the summer of 2004. Therefore, the patient’s claims were time barred under O.C.G.A. § 9-3-71(a). Deen v. Pounds, 312 Ga. App. 207, 718 S.E.2d 68, 2011 Ga. App. LEXIS 924 (2011). Non-relating new claim. - When the patient’s new claim focused on the doctor’s actions during and after surgery while the original complaint focused on the doctor’s action prior to surgery, the alleged acts of negligence occurred at different times, in-

volving separate and distinct conducts, such that the patient’s new claim did not arise out of the same conduct, transaction, or occurrence as the claims in the original complaint, rendering the claim barred by the applicable limitations period of O.C.G.A. § 9-3-71. Moore v. Baker, 989 F.2d 1129, 1993 U.S. App. LEXIS 9943 (11th Cir. 1993). Suit by injured minor after reaching majority. - Provision of subsection (b) of O.C.G.A. § 9-3-73 that all minors who have attained the age of five years shall be subject to periods of limitation for actions for medical malpractice applies not only to suits brought on behalf of a minor, but also to suits brought personally by an injured minor upon reaching majority. Barnes v. Sabatino, 205 Ga. App. 774, 423 S.E.2d 686 (1992). Date of wrongful or negligent act controls. - In an action for medical malpractice, the controlling factor is the date of the negligent or wrongful act and not the date on which the plaintiff should have, or did in fact, discover the negligence. Faser v. Sears, Roebuck & Co., 674 F.2d 856, 1982 U.S. App. LEXIS 19641 (11th Cir. 1982); Jones v. Lamon, 206 Ga. App. 842, 426 S.E.2d 657, 1992 Ga. App. LEXIS 1814 (1992). When a misdiagnosis results in subsequent injury that is difficult or impossible to date precisely, the statute of limitations runs from the date symptoms attributable to the new injury are manifest to the plaintiff. Walker v. Melton, 227 Ga. App. 149, 489 S.E.2d 63. “Period of limitation” in O.C.G.A. § 9-11-9.1 includes the statute of limitations in O.C.G.A. § 9-3-71(a) and the statute of repose in O.C.G.A. § 9-3-71(b). Cochran v. Bowers, 274 Ga. App. 449, 617 S.E.2d 563, 2005 Ga. App. LEXIS 81 (2005). Doctor’s motion to dismiss a widow’s suit was properly denied as the “period of limitation” in O.C.G.A. § 9-11-9.1 referred to the statute of limitations in O.C.G.A. § 9-3-71(a) and the statute of repose in O.C.G.A. § 9-3-71(b); the appellate court would not delve into the factual basis for the widow’s statement that the widow believed that the period of limitations was about to end as the doctor might

have claimed that the statute of limitations period ran from the doctor’s misdiagnosis of the patient. Cochran v. Bowers, 274 Ga. App. 449, 617 S.E.2d 563, 2005 Ga. App. LEXIS 81 (2005). Injury occurring outside time period not actionable. - Subsection (b) of O.C.G.A. § 9-3-71 bars an action from being brought more than five years from the negligent act or omission; if the injury occurs outside that period, it is not actionable. Braden v. Bell, 222 Ga. App. 144, 473 S.E.2d 523. In order to toll the statute of limitations it is necessary for the patient to present evidence raising an issue of fraud or misrepresentation on the part of the doctor. Hamilton v. Mitchell, 165 Ga. App. 717, 302 S.E.2d 589, 1983 Ga. App. LEXIS 1997 (1983). If facts exist which would toll the statute of limitations, the plaintiff has the burden of setting forth and supporting these facts. Wade v. Thomasville Orthopedic Clinic, Inc., 167 Ga. App. 278, 306 S.E.2d 366, 1983 Ga. App. LEXIS 2430 (1983). Even if evidence of fraud exists, the statute of limitations is not tolled if the plaintiff knew all facts necessary to show malpractice before the running of the period of limitation. Hendrix v. Schrecengost, 183 Ga. App. 201, 358 S.E.2d 486, 1987 Ga. App. LEXIS 1915 (1987); Lasoya v. Sunay, 193 Ga. App. 814, 389 S.E.2d 339, 1989 Ga. App. LEXIS 1680 (1989). Trial court did not err in denying a doctor’s motion to dismiss an administrator’s professional negligence claim because the new professional negligence claim related back to the date of the original complaint and was not barred by the two-year statute of limitation as both the original complaint and the amended complaint set forth allegations based upon the decedent’s surgery, emergency room visit, and discharge relating to the care received from the doctor following the laparoscopic gallbladder surgery the doctor performed. Jensen v. Engler, 317 Ga. App. 879, 733 S.E.2d 52, 2012 Ga. App. LEXIS 832 (2012), cert. denied, No. S13C0296, 2013 Ga. LEXIS 115 (Ga. Feb. 4, 2013). No renewal refiling for reposed action. - In a medical malpractice suit reposed under O.C.G.A. § 9-3-71, a plain-

tiff cannot voluntarily dismiss a suit and refile that suit within the six-month renewal period of O.C.G.A. § 9-2-61(a) since a reposed action is deemed destroyed. Wright v. Robinson, 262 Ga. 844, 426 S.E.2d 870, 1993 Ga. LEXIS 312 (1993); Burns v. Radiology Assocs., 214 Ga. App. 76, 446 S.E.2d 788, 1994 Ga. App. LEXIS 774 (1994); Hanflik v. Ratchford, 848 F. Supp. 1539, 1994 U.S. Dist. LEXIS 4980 (N.D. Ga. 1994), aff’d, 56 F.3d 1391, 1995 U.S. App. LEXIS 14382 (11th Cir. 1995); Thompson v. Long, 225 Ga. App. 719, 484 S.E.2d 666. Medical malpractice statute of repose attaches when an action filed within the statute of limitations is voluntarily dismissed and refiled more than five years after the alleged injury. Miller v. Vitner, 249 Ga. App. 17, 546 S.E.2d 917, 2001 Ga. App. LEXIS 359 (2001), cert. denied, No. S01C1107, 2001 Ga. LEXIS 715 (Ga. Sept. 7, 2001). Executrix’s medical malpractice claim against a doctor was properly dismissed as, even if the action was refiled in accordance with O.C.G.A. § 9-2-61, the suit was barred by the statute of repose under O.C.G.A. § 9-3-71(b) as the suit was filed seven years after the patient’s death. Adams v. Griffis, 275 Ga. App. 364, 620 S.E.2d 575, 2005 Ga. App. LEXIS 873 (2005). Because the children of a decedent refiled their complaint against the operators of a nursing home more than five years after the death of their mother or the alleged wrongful acts occurred, their claims were subject to dismissal under the statute of repose of O.C.G.A. § 9-3-71(b). Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 666 S.E.2d 401, 2008 Ga. App. LEXIS 784 (2008). Because dismissal of a medical malpractice suit for failure to comply with the expert affidavit requirements rendered the suit void and incapable of being renewed under O.C.G.A. § 9-2-61, and the two-year limitation period in O.C.G.A. § 9-3-71(a) had expired, the suit was properly dismissed. Hendrix v. Fulton DeKalb Hosp. Auth., 330 Ga. App. 833, 769 S.E.2d 575, 2015 Ga. App. LEXIS 69 (2015). If a defendant physician is guilty of fraud, the two-year statute of limita-

Application of Timing Principles (Cont’d) tions under O.C.G.A. § 9-3-71 is tolled until discovery of the fraud. Johnson v. Gamwell, 165 Ga. App. 425, 301 S.E.2d 492, 1983 Ga. App. LEXIS 1894 (1983). If fraud by which a patient is deterred from bringing a timely action under O.C.G.A. § 9-3-71 is involved, the twoyear limitation is tolled until discovery of the fraud by O.C.G.A. § 9-3-96. Wade v. Thomasville Orthopedic Clinic, Inc., 167 Ga. App. 278, 306 S.E.2d 366, 1983 Ga. App. LEXIS 2430 (1983). Statute tolled by physician’s fraud. - Physician-patient relationship is a confidential one, and silence or failure to disclose what should be said or disclosed can amount to fraud which tolls the statute of limitations, but a fraud count must allege more than misdiagnosis to withstand a motion for judgment on the pleadings. Lynch v. Waters, 256 Ga. 389, 349 S.E.2d 456, 1986 Ga. LEXIS 891 (1986). Statute of repose should not be applied to relieve a defendant of liability for injuries caused by negligence concealed by the defendant’s fraud, lest it provide an incentive for a doctor to conceal the doctor’s negligence with the assurance that in five years the doctor will be insulated from liability. Beck v. Dennis, 215 Ga. App. 728, 452 S.E.2d 205, 1994 Ga. App. LEXIS 1347 (1994), cert. denied, No. S95C0637, 1995 Ga. LEXIS 551 (Ga. Apr. 6, 1995), overruled in part, Abend v. Klaudt, 243 Ga. App. 271, 531 S.E.2d 722, 2000 Ga. App. LEXIS 368 (2000). Since the defendant physician knew that the physician had left a piece of packing in plaintiff’s nose and that it could cause problems, yet the physician failed to inform the plaintiff or anyone else, an issue of fact was created regarding fraudulent concealment which would estop the defendant from relying on the statute of repose. Beck v. Dennis, 215 Ga. App. 728, 452 S.E.2d 205, 1994 Ga. App. LEXIS 1347 (1994), cert. denied, No. S95C0637, 1995 Ga. LEXIS 551 (Ga. Apr. 6, 1995), overruled in part, Abend v. Klaudt, 243 Ga. App. 271, 531 S.E.2d 722, 2000 Ga. App. LEXIS 368 (2000). Fraud sufficient to toll the statute must be actual rather than constructive,

except when there exists a confidential relationship between the parties, such as that between physician and patient. Wade v. Thomasville Orthopedic Clinic, Inc., 167 Ga. App. 278, 306 S.E.2d 366, 1983 Ga. App. LEXIS 2430 (1983). Allegation sufficient to raise issue of fraud. - Plaintiff’s action against a hair restoration service claiming that the service had intentionally misrepresented the number of procedures required to correct plaintiff’s hair loss problem was a fraud claim which was not subject to the two-year medical malpractice statute of limitation. Boggs v. Bosley Medical Inst., Inc., 228 Ga. App. 598, 492 S.E.2d 264. Evidence that a nurse-midwife, hospital, and medical practice deliberately misrepresented and withheld information concerning a baby’s condition before and just after the baby’s birth was sufficient to create a jury question as to whether they committed fraud sufficient to toll the statute of limitations and estop the application of the statute of repose, O.C.G.A. § 9-3-71(a), pursuant to O.C.G.A. § 9-396. Wilson v. Obstetrics & Gynecology of Atlanta, P.C., 304 Ga. App. 300, 696 S.E.2d 339, 2010 Ga. App. LEXIS 475 (2010), cert. denied, No. S10C1642, 2010 Ga. LEXIS 802 (Ga. Oct. 18, 2010), cert. denied, No. S10C1641, 2010 Ga. LEXIS 791 (Ga. Oct. 18, 2010). Allegation insufficient to raise issue of fraud. - Allegation that the plaintiff’s condition was misdiagnosed on September 4, 1979, and that the physician continued to treat the plaintiff until March 18, 1980, when the plaintiff ordered X-rays which revealed the misdiagnosis, was insufficient to raise an issue of fraud so as to toll the statute of limitations as misdiagnosis only raises an issue of negligence and not fraud. Johnson v. Gamwell, 165 Ga. App. 425, 301 S.E.2d 492, 1983 Ga. App. LEXIS 1894 (1983). Fraud did not toll the statute in an action based on misdiagnosis of multiple personality disorder, with childhood sexual abuse, since the plaintiff knew the facts of the plaintiff’s past, knew about the diagnosis and treatment, and chose to believe and act upon such opinions and allow treatment. Charter Peachford Behavioral Health Sys. v. Kohout, 233 Ga. App. 452, 504 S.E.2d 514.

Since the plaintiff knew his wife died of a heart attack, a doctor’s attribution of the cause to a heart murmur rather than cardiomyopathy did not constitute sufficient evidence of fraud to create a jury question on whether the defendant was equitably estopped from raising the defense of the statute of repose. Hutcherson v. Obstetric & Gynecologic Assocs., 247 Ga. App. 685, 543 S.E.2d 805, 2000 Ga. App. LEXIS 1473 (2000). Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to physicians in a patient and spouse’s medical malpractice action against them, wherein the patient claimed that the patient had sustained radiation damage to the patient’s arm which the doctors did not reveal until the expiration of the limitations period of O.C.G.A. § 9-3-71(a); however, the record revealed that the physicians had repeatedly informed the patient that such damage was one of the possible causes of the patient’s arm pain and there was no fraud found on their part which would have extended the time period pursuant to O.C.G.A. § 9-3-96. Price v. Currie, 260 Ga. App. 526, 580 S.E.2d 299, 2003 Ga. App. LEXIS 421 (2003). Plaintiffs’ malpractice claims were not tolled by O.C.G.A. § 9-3-96 and thus were time-barred by O.C.G.A. § 9-3-71; plaintiffs, whose vision had deteriorated after laser surgery, had not shown that the defendants’ alleged fraud prevented them from knowing of their claims at the time when each consulted other specialists about their vision problems. Gibson v. Thompson, 283 Ga. App. 705, 642 S.E.2d 366, 2007 Ga. App. LEXIS 162 (2007). Trial court’s order denying dismissal of a fraud claim in a medical malpractice action against a doctor, upon a motion which the trial court treated as one for summary judgment when it considered material beyond the pleadings, was reversed, as there was no evidence that the doctor knew or even suspected that the patient had a pancreatic tumor, or that the doctor withheld information regarding it; thus, the doctrine of equitable estoppel did not apply and the fraud claim was barred by the statute of repose, O.C.G.A. § 9-3-71(b). Balotin v. Simpson, 286 Ga. App. 772, 650 S.E.2d 253, 2007 Ga. App.

LEXIS 499 (2007), cert. denied, No. S07C1913, 2007 Ga. LEXIS 803 (Ga. Oct. 29, 2007). Trial court did not err in granting a doctor’s motion for judgment on the pleadings on the ground that a patient failed to file a medical malpractice complaint within the two-year period of limitation for medical malpractice claims pursuant to O.C.G.A. § 9-3-71(a) because the limitation period did not remain tolled due to the doctor’s alleged fraudulent statements; the doctor’s assertion that the doctor had not done anything wrong did not prevent the patient from asking any of the doctors that treated the patient over the next several months about what could have caused a needle to break in the patient’s cheek. Pryce v. Rhodes, 316 Ga. App. 523, 729 S.E.2d 641, 2012 Ga. App. LEXIS 603 (2012), cert. denied, No. S12C1785, 2013 Ga. LEXIS 223 (Ga. Mar. 4, 2013). Negligence suit barred by either of the two statutes of limitation applicable to medical malpractice cases, O.C.G.A. §§ 93-71 and 9-3-72. See Bevel v. Routledge, 168 Ga. App. 89, 308 S.E.2d 207, 1983 Ga. App. LEXIS 2689 (1983). Misdiagnosis claim time-barred. - In a medical malpractice claim for alleged misdiagnosis of radiological results, although the defendant’s misdiagnosis allowed the plaintiff’s pain and suffering condition to continue, the injury was deemed to be the misdiagnosis itself, rather than any injury occurring subsequent to the misdiagnosis, thereby barring the claim as untimely under O.C.G.A. § 9-3-71. Stone v. Radiology Servs., 206 Ga. App. 851, 426 S.E.2d 663, 1992 Ga. App. LEXIS 1809 (1992), cert. denied, No. S93C0582, 1993 Ga. LEXIS 298 (Ga. Mar. 18, 1993). Patient’s cause of action for medical malpractice related to a doctor’s failure to diagnose dislocated bones in the patient’s foot accrued when the misdiagnosis occurred, not from when the doctor’s treatment of the patient ended and not from when the patient discovered that the doctor’s diagnosis was wrong; since the action was filed more than two years after the misdiagnosis, it was not filed within the applicable two-year statute of limitation

Application of Timing Principles (Cont’d) in O.C.G.A. § 9-3-71(a) and was barred. Williams v. Young, 258 Ga. App. 821, 575 S.E.2d 648, 2002 Ga. App. LEXIS 1474 (2002), cert. denied, 542 U.S. 904, 124 S. Ct. 2838, 159 L. Ed. 2d 267, 2004 U.S. LEXIS 4196 (2004). Trial court properly held that a patient’s medical malpractice suit was barred by the two-year statute of limitations set forth in O.C.G.A. § 9-3-71(a), which began to run at the time of the alleged misdiagnosis, when a doctor advised the patient not to follow a surgeon’s instructions on follow-up care on lumps in her breast; the case did not fall within the limited exception for subsequent injury cases, as the patient’s symptoms worsened over time. Harrison v. Daly, 268 Ga. App. 280, 601 S.E.2d 771, 2004 Ga. App. LEXIS 891 (2004). Prescription drug negligence action time-barred. - Even assuming negligent acts involving drug prescriptions constituted a continuing tort over 18 years, when the plaintiff knew of, or through reasonable diligence should have discovered, the injury and the cause of the injury before five years preceding the filing of the action, it was barred by the statute of repose. Waters v. Rosenbloom, 268 Ga. 482, 490 S.E.2d 73. Plaintiff’s bankruptcy does not toll statute. - Because the pendency of a patient’s bankruptcy petition did not operate to toll the medical malpractice statute of repose, the trial court properly dismissed the suit for failing to state a claim upon which relief could be granted. Flott v. Southeast Permanente Med. Group, Inc., 288 Ga. App. 730, 655 S.E.2d 242, 2007 Ga. App. LEXIS 1213 (2007), cert. dismissed, No. S08C0676, 2008 Ga. LEXIS 387 (Ga. Apr. 21, 2008). New and separate acts of negligence. - In a medical malpractice suit, a trial court erred by dismissing three doctors who were seen by the patient five years prior to the date the suit was filed because, in applying the statute of repose, O.C.G.A. § 9-3-71(b), the patient properly asserted that each doctor committed a new and separate act of negligence each

time the doctors saw the patient. Lyon v. Schramm, 291 Ga. App. 48, 661 S.E.2d 178, 2008 Ga. App. LEXIS 381 (2008), aff’d, 285 Ga. 72, 673 S.E.2d 241, 2009 Ga. LEXIS 62 (2009). Failure to serve complaint prior to expiration. - Trial court abused the court’s discretion in denying the defendant’s motion to dismiss given the plaintiff’s complete failure to account for the three-month delay between filing the complaint and serving the defendant, during which the statutes of limitation expired. UHS of Peachford v. Brady, 361 Ga. App. 290, 864 S.E.2d 129, 2021 Ga. App. LEXIS 474 (2021). Substitution of real party in interest did not bar action. - Although an estate’s malpractice action was not initially brought by the real party in interest - the estate’s administrator - the administrator was timely substituted as the plaintiff in the action by amendment which, under O.C.G.A. § 9-11-17(a), had the same effect as if the action had been commenced by the real party in interest. Thus, the suit was not time-barred by O.C.G.A. § 9-3-71(b)’s five-year repose period, and a doctor and health care facilities were not entitled to summary judgment. Memar v. Styblo, 293 Ga. App. 528, 667 S.E.2d 388, 2008 Ga. App. LEXIS 995 (2008). Specific Actions Foreign object medical malpractice action. - Five-year statute of repose in subsection (b) of O.C.G.A. § 9-3-71 does not bar a foreign object medical malpractice action timely filed within the one-year period set forth in O.C.G.A. § 9-3-72. Abend v. Klaudt, 243 Ga. App. 271, 531 S.E.2d 722, 2000 Ga. App. LEXIS 368 (2000), cert. denied, No. S00C1335, 2000 Ga. LEXIS 716 (Ga. Sept. 29, 2000), overruled in part, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). In a medical malpractice action, it is for a jury to determine whether a patient by exercising ordinary care should have learned on December 7, 2005, or on December 9, 2005, that a foreign object had been left in the patient’s body during the performance of surgery in 2001 and the

decision of the jury would govern whether the statute of limitations in O.C.G.A. § 93-71 or O.C.G.A. § 9-3-72 controlled. Monfort v. Colquitt County Hosp. Auth., 288 Ga. App. 202, 653 S.E.2d 535, 2007 Ga. App. LEXIS 1167 (2007), cert. denied, No. S08C0463, 2008 Ga. LEXIS 225 (Ga. Feb. 25, 2008). By requiring in O.C.G.A. § 9-3-72 that a patient who claims a foreign object was negligently left in the patient’s body must file an action within one year after the negligent act or omission is discovered, the Georgia General Assembly has adopted the continuing tort rule; therefore, based upon the plain language and the legislative intent of O.C.G.A. § 9-3-72, the Georgia Court of Appeals overrules both Pogue v. Goodman, 282 Ga. App. 385 (638 S.E.2d 824) (2006) and Shannon v. Thornton, 155 Ga. App. 670 (272 S.E.2d 535) (1980) as these cases improperly limit the statute’s application. Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Georgia Court of Appeals has reinterpreted the exception under O.C.G.A. § 93-72 to the one-year limitation period in medical malpractice cases for foreign objects left in the body to apply whether the object was left intentionally or unintentionally; thus, a trial court erred in granting summary judgment to a dentist who left a cotton pellet in a patient’s tooth as the claim was not time barred. Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Applicability to “foreign object” cases. - O.C.G.A. §§ 9-3-71 and 9-3-72 was applicable to any action based upon an act of malpractice involving the placing of a foreign object in a patient’s body. Hamrick v. Ray, 171 Ga. App. 60, 318 S.E.2d 790, 1984 Ga. App. LEXIS 2100 (1984), overruled in part, Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). When the defendant physician made a conscious decision in the exercise of the physician’s professional judgment to leave a foreign object in the patient’s leg, the patient’s claim rested on defendant’s professional diagnostic judgment or discretion, and the two-year statute of limitations found in O.C.G.A. § 9-3-71 applies,

rather than the one-year statute of limitations found in O.C.G.A. § 9-3-72. Whiddon v. Spivey, 194 Ga. App. 587, 391 S.E.2d 421, 1990 Ga. App. LEXIS 284, aff’d, 260 Ga. 502, 397 S.E.2d 117, 1990 Ga. LEXIS 390 (1990). Inadvertent or intentional leaving of object in body. - No language in O.C.G.A. § 9-3-72 limits the statute’s application to only those foreign objects left inadvertently as such an interpretation of the statute would allow a defendant-doctor to unilaterally bar a plaintiff’s claim, that has already fallen outside of the general limitation period, merely by asserting that the physician left the foreign object in the patient’s body intentionally, no matter how absurd the assertion. Norred v. Teaver, 320 Ga. App. 508, 740 S.E.2d 251, 2013 Ga. App. LEXIS 225 (2013). Application to negligence action against veterinarian. - Because the two-year statute of limitations under either O.C.G.A. § 9-3-33, the personal injury statute, or O.C.G.A. § 9-3-71, the medical malpractice statute, had run on the claims of negligence asserted by the plaintiffs against a veterinarian based on the death of the plaintiffs’ pet kitten, the trial court properly granted the veterinarian’s motion for summary judgment as to those claims. Langley v. Shannon, 278 Ga. App. 173, 628 S.E.2d 608, 2006 Ga. App. LEXIS 271 (2006). Prescribing unsuitable medication. - In a case involving alleged negligence by a physician in prescribing unsuitable medication, the limitation period began to run when the plaintiff was aware of the plaintiff’s injury, even though the plaintiff did not know the medical cause of the plaintiff’s suffering. Crawford v. Spencer, 217 Ga. App. 446, 457 S.E.2d 711, 1995 Ga. App. LEXIS 476 (1995), cert. denied, No. S95C1448, 1995 Ga. LEXIS 1024 (Ga. Sept. 11, 1995), overruled in part, Williams v. Young, M.D., P.C., 247 Ga. App. 337, 543 S.E.2d 737, 2000 Ga. App. LEXIS 1440 (2000). New brain injury. - Trial court did not err in determining that there was evidence that the patient plaintiff incurred a new injury after suffering a massive stroke and permanent brain damage

Specific Actions (Cont’d) on April 7, 2010, and in concluding that the two-year limitation period under O.C.G.A. § 9-3-71(a) could begin to run on that date, which rendered the plaintiffs’ malpractice action timely. Hosp. Auth. v. Fender, 342 Ga. App. 13, 802 S.E.2d 346, 2017 Ga. App. LEXIS 309 (2017), cert. denied, No. S17C1924, 2017 Ga. LEXIS 990 (Ga. Dec. 11, 2017), cert. denied, No. S17C1923, 2017 Ga. LEXIS 992 (Ga. Dec. 11, 2017), overruled in part, Quynn v. Hulsey, 310 Ga. 473, 850 S.E.2d 725, 2020 Ga. LEXIS 761 (2020), overruled in part as stated in Miller v. Polk, 363 Ga. App. 771, 872 S.E.2d 754, 2022 Ga. App. LEXIS 218 (2022). No “new injury”. - In a malpractice action brought against a doctor by a husband and wife, there was no “new injury” in April, 2001, and the action was barred by the two-year statute of limitation because the misdiagnosis and mistreatment in January, 2001, were the cause of the injury for which the husband sought recovery. Burt v. James, 276 Ga. App. 370, 623 S.E.2d 223, 2005 Ga. App. LEXIS 1255 (2005), cert. denied, No. S06C0518, 2006 Ga. LEXIS 185 (Ga. Feb. 27, 2006). Failure to diagnose and treat. - Patient’s medical malpractice claim, for a failure to diagnose and treat, was not time-barred under O.C.G.A. § 9-3-71(a) because a jury issue existed as to when the patient’s cancer developed and metastasized and whether the patient had any cancer symptoms more than two years before filing suit. Ward v. Bergen, 277 Ga. App. 256, 626 S.E.2d 224, 2006 Ga. App. LEXIS 65 (2006), cert. denied, No. S06C0961, 2006 Ga. LEXIS 372 (Ga. May 18, 2006). Misdiagnosis claims. - In most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated, with the misdiagnosis itself being the injury and not the subsequent discovery of the proper diagnosis. In most misdiagnosis cases, the two-year statute of limitations and the five-year statute of repose begins to run

simultaneously on the date that the doctor negligently failed to diagnose the condition and, thereby, injured the patient. Kaminer v. Canas, 282 Ga. 830, 653 S.E.2d 691, 2007 Ga. LEXIS 790 (2007), cert. denied, 553 U.S. 1065, 128 S. Ct. 2503, 171 L. Ed. 2d 786, 2008 U.S. LEXIS 4378 (2008). Patient’s claim for misdiagnosis of the patient’s condition, which the patient originally alleged was a result of the doctor’s negligence during surgery, was not barred by the two-year statute of limitation, O.C.G.A. § 9-3-71(a); although the surgery itself occurred more than two years before the patient filed suit, the patient’s misdiagnosis complaint was filed within two years of the date the doctor failed to diagnose a surgery-related injury during a follow-up visit. Smith v. Danson, 334 Ga. App. 865, 780 S.E.2d 481, 2015 Ga. App. LEXIS 734 (2015). Trial court erred in granting summary judgment based on a finding that the patient’s claims of misdiagnosis were barred by the two-year statute of limitations for medical malpractice actions because the question of the cause of the intervening symptoms the patient experienced was a question for the jury given the contradicting expert testimony presented on the issue. Adams v. McDonald, 346 Ga. App. 464, 816 S.E.2d 454, 2018 Ga. App. LEXIS 401 (2018). Failure to inform patient of HIV results. - Patient’s claim against a doctor and hospital for failure to report the positive results of the patient’s HIV test to the patient as required under O.C.G.A. § 31-22-9.2 was a classic medical malpractice claim, despite the patient’s claim that it was ordinary negligence; because the claim was brought eight years after the test, the claim was barred by the five-year statute of repose, O.C.G.A. § 93-71(b). Remand was required for consideration of equitable estoppel. Piedmont Hospital, Inc. v. D. M., 335 Ga. App. 442, 779 S.E.2d 36, 2015 Ga. App. LEXIS 775 (2015), cert. denied, No. S16C0676, 2016 Ga. LEXIS 328 (Ga. Apr. 26, 2016). Death following surgery. - When the last act of alleged negligence occurred on September 26, 2001, when a patient underwent surgery, and the patient died

of the resulting complications in 2005, the statute of repose under O.C.G.A. § 9-371(b) barred any claims that were not filed by September 26, 2006. The statute of repose did not violate due process or equal protection; furthermore, the right to file the cause of action had accrued before the statute of repose barred filing the claim. Bush v. Sreeram, 298 Ga. App. 68, 679 S.E.2d 87, 2009 Ga. App. LEXIS 556 (2009). Negligent care of elderly claims. - Daughter’s claims against a nursing home for the negligent care of her mother were barred by the two-year statute of limitations, O.C.G.A. § 9-3-71(a), because the daughter was aware of her mother’s frequent injuries at the nursing home over the years that she spent there. Dove v. Ty Cobb Healthcare Sys., 305 Ga. App. 13, 699 S.E.2d 355, 2010 Ga. App. LEXIS 662 (2010). Battery claim. - Five year statute of repose contained in O.C.G.A. § 9-3-71 applied to a battery claim based on the defendant’s alleged failure to obtain the plaintiff’s consent to the injection pursuant to O.C.G.A. § 31-9-6.1. Blackwell v. Goodwin, 236 Ga. App. 861, 513 S.E.2d 542. Five-year medical malpractice statute of repose did not bar patient and husband’s claims in refiled action for sexual assault, battery, and loss of consortium claims as the refiled complaint alleged those claims arose out of a non-consensual touching of the patient and not out of the provision of professional services to the patient, but those claims were nevertheless barred because the claims were not raised in the original action and were time barred under their own applicable limitations period by the time the claims were filed as part of the refiled complaint. Blier v. Greene, 263 Ga. App. 35, 587 S.E.2d 190, 2003 Ga. App. LEXIS 1009 (2003), cert. denied, No. S04C0114, 2004 Ga. LEXIS 102 (Ga. Jan. 20, 2004), cert. denied, No. S04C0106, 2004 Ga. LEXIS 103 (Ga. Jan. 20, 2004). Malpractice action against dentist. - When a dentist informed a patient, beyond the two-year period of limitations but within the five-year period of repose set forth in O.C.G.A. § 9-3-71, that dental

work previously done by the dentist would have to be redone, and a malpractice action was filed more than five years after the alleged negligent act occurred, such action was precluded by the statute of repose codified in subsection (b) of O.C.G.A. § 9-3-71. Schmidt v. Parnes, 194 Ga. App. 622, 391 S.E.2d 459, 1990 Ga. App. LEXIS 257 (1990). Two-year limitation begins to run on the date a diagnosis was received, rather than from the time symptoms were experienced and complained of to physicians. Bryant v. Crider, 209 Ga. App. 623, 434 S.E.2d 161, 1993 Ga. App. LEXIS 944 (1993). In a medical malpractice action against a hospital and physician for injury to an infant patient, the cause of action accrued, for limitations purposes, when the parents and patient discovered that the alleged negligence of the hospital and physicians caused the injuries, rather than when the alleged negligence was first discovered. Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654, 1994 Ga. LEXIS 75 (1994). Plaintiff discovered or became aware of the injury no later than March 16, 1989, when the plaintiff’s doctor informed the plaintiff that the silicone needed to be surgically removed because of the knots on the plaintiff’s face, which knots actually manifested themselves two or three months earlier than that date, consequently, the limitation period began to run at the latest by that date. Knight v. Sturm, 212 Ga. App. 391, 442 S.E.2d 255, 1994 Ga. App. LEXIS 256 (1994), cert. denied, No. S94C1022, 1994 Ga. LEXIS 693 (Ga. Apr. 28, 1994). Cause of action following implant of device. - Doctor’s negligence occurred as early as January, 1997, when a doctor failed to find that mesh which was left in a patient’s abdomen was the cause of the infection, not in July, 1998, when the doctor last saw the patient, and because the patient filed a lawsuit more than two years after the doctor misdiagnosed the cause of the problem, the patient’s action against the doctor was barred by O.C.G.A. § 9-3-71(a). Brahn v. Young, 265 Ga. App. 705, 595 S.E.2d 553, 2004 Ga. App. LEXIS 233 (2004), cert. denied, No. S04C1165, 2004 Ga. LEXIS 498 (Ga. June 7, 2004).

Specific Actions (Cont’d) Contribution action. - Claim for contribution maintainable under a 20year statute of limitations, based on an earlier medical malpractice action and alleging that x-ray studies were negligently interpreted by the defendant radiologist, was barred by the five-year statute of repose for medical malpractice cases. Krasaeath v. Parker, 212 Ga. App. 525, 441 S.E.2d 868, 1994 Ga. App. LEXIS 287 (1994), cert. denied, No. S94C1072, 1994 Ga. LEXIS 705 (Ga. May 13, 1994). Failure to diagnose kidney cancer. - Doctors were sued for malpractice due to the doctors’ failure to diagnose a patient’s kidney cancer, which metastasized and killed the patient. As the doctors had the burden of proof as to the doctor’s statute of limitations defense, the doctors could not obtain summary judgment based on controverted opinion testimony as to when the patient’s cancer metastasized. Cleaveland v. Gannon, 284 Ga. 376, 667 S.E.2d 366, 2008 Ga. LEXIS 755 (2008). Failure to inform of mammogram results. - When a physician failed to inform a patient of mammogram results indicating the possibility of cancer, the patient’s action filed more than two years from the date of the mammogram, but within one year from the time she began experiencing pain in her breast, was timely. Staples v. Bhatti, 220 Ga. App. 404, 469 S.E.2d 490. Failure to diagnose gall stones. - When a patient sued a physician for failing to diagnose and notify the patient of the presence of gall stones in the patient’s system, the statute of limitations began to run when the physician examined the patient or when an ultrasound report became available to the physician, and not when the patient’s condition was subsequently diagnosed by another physician. Daughtry v. Cohen, 187 Ga. App. 253, 370 S.E.2d 18, 1988 Ga. App. LEXIS 630 (1988). Failure to notify of a Food and Drug Administration notice. - Patient’s claim based on the physician’s failure to notify the patient of a Food and Drug Administration (FDA) notice regarding

problems with a temporo-mandibular implant accrued on the date the patient received the notice from the physician, not when the physician received the FDA notice. Screven v. Drs. Gruskin & Lucas, 227 Ga. App. 756, 490 S.E.2d 422. Failure to preserve sperm. - Couple’s suit based on an infertility clinic’s failure to preserve sperm was time-barred under O.C.G.A. § 9-3-71(a); the limitations period began running on the date all of the sperm was used, not on the date of discovery, and because the claim involved a decision as to whether to use a fertilization method that would not have used all of the sperm, the claim was for professional, not ordinary, negligence. Baskette v. Atlanta Ctr. for Reprod. Med., LLC, 285 Ga. App. 876, 648 S.E.2d 100, 2007 Ga. App. LEXIS 593 (2007), cert. denied, No. S07C1618, 2008 Ga. LEXIS 103 (Ga. Jan. 7, 2008). Under O.C.G.A. § 9-3-70, in a married couple’s suit based on an infertility clinic’s failure to preserve sperm, claims against two employees of the clinic were claims for professional negligence, not for ordinary negligence, and thus were time-barred under O.C.G.A. § 9-3-71(a); the employees were involved in the process of thawing and using the husband’s sperm in order to fertilize the wife’s eggs, and the employees performed these technical functions within the scope of their employment and under the supervision of licensed medical doctors. Baskette v. Atlanta Ctr. for Reprod. Med., LLC, 285 Ga. App. 876, 648 S.E.2d 100, 2007 Ga. App. LEXIS 593 (2007), cert. denied, No. S07C1618, 2008 Ga. LEXIS 103 (Ga. Jan. 7, 2008). Negligent hiring, retention, supervision and entrustment. - Plaintiff’s claims against an endoscopy center for negligent hiring, retention, supervision and entrustment were subject to the five year statute of repose because the claims arose out of the actions of a nurse employed by the center in administering an injection to the plaintiff. Blackwell v. Goodwin, 236 Ga. App. 861, 513 S.E.2d 542. Executrix’s negligent supervision and retention claim against a hospital was properly dismissed as, even if the action

was refiled in accordance with O.C.G.A. § 9-2-61, the suit was barred by the statute of repose under O.C.G.A. § 9-3-71(b) as the suit was filed seven years after the patient’s death; the claim ultimately rested on whether a doctor’s substandard medical care caused the patient’s injury and was, therefore, considered to be a medical malpractice claim for purposes of the statute of repose. Adams v. Griffis, 275 Ga. App. 364, 620 S.E.2d 575, 2005 Ga. App. LEXIS 873 (2005). Minor’s wrongful death claim dismissed with prejudice. - Dismissal of minor’s wrongful death claims with prejudice was upheld because the trial court judge approved a consent order based on representations of both parties, and the father failed to cite any legal authority to support an assertion that the trial court had an independent duty to verify the parties’ joint statement that the statute of limitation had run on the minor’s claims against the defendants. Parrish v. St. Joseph’s/Candler Health Sys., Inc., 364 Ga. App. 228, 874 S.E.2d 413, 2022 Ga. App. LEXIS 288 (2022), overruled in part, Hamon v. Connell, 315 Ga. 760, 883 S.E.2d 785, 2023 Ga. LEXIS 24 (2023). Negligence and misdiagnosis claim time barred. - Dental malpractice action alleging negligence from placement of bridge and misdiagnosis of a cyst in the plaintiff’s jaw was barred since the injury, commencing the two-year statute of limitations, occurred when the defendant placed the bridge without diagnosing the cyst, and the defendant’s alleged continuing failures to correct the defendant’s previous misdiagnosis were not additional acts of negligence or continuing tort tolling the statute. Frankel v. Clark, 213 Ga. App. 222, 444 S.E.2d 147, 1994 Ga. App. LEXIS 528 (1994). Malpractice action based on misdiagnosis of kidney cancer, when evidence established that the decedent’s injury had occurred and the decedent had physically manifested symptoms of kidney cancer more than two years before the suit was filed, was barred by the statute of limitations, and the fact that the decedent did not know the medical cause of the decedent’s suffering did not affect the application of the statute. Ford v. Dove, 218 Ga.

App. 828, 463 S.E.2d 351, 1995 Ga. App. LEXIS 898 (1995), cert. denied, No. S96C0298, 1996 Ga. LEXIS 276 (Ga. Jan. 26, 1996), overruled in part, Ezor v. Thompson, 241 Ga. App. 275, 526 S.E.2d 609, 1999 Ga. App. LEXIS 1616 (1999), overruled in part, Williams v. Young, M.D., P.C., 247 Ga. App. 337, 543 S.E.2d 737, 2000 Ga. App. LEXIS 1440 (2000). Medical malpractice action by the plaintiffs, a patient and the patient’s parents, against the defendants, an orthodontist and an orthodontic corporation, for misdiagnosis and mistreatment in relation to the patient’s treatment for an overbite was time-barred under O.C.G.A. § 9-3-71 even though it was filed within two years after the plaintiffs allegedly learned that the defendants’ treatment approach did not effectively address the patient’s real problem because: (1) the action was filed more than two years after the patient last saw the orthodontist; (2) the limitation period ran from the date of misdiagnosis, not from the discovery of the proper diagnosis; (3) there was no evidence of a new injury subsequent to the date of medical treatment; and (4) the plaintiffs failed to offer adequate evidence to create a fact issue on the plaintiffs claim that fraud tolled the running of the limitation period as the plaintiffs produced no evidence that the defendants fraudulently misrepresented or withheld the results of the treatment. Kane v. Shoup, 260 Ga. App. 723, 580 S.E.2d 555, 2003 Ga. App. LEXIS 310 (2003), cert. denied, No. S03C1194, 2003 Ga. LEXIS 652 (Ga. July 14, 2003). Medical malpractice suit was barred by the O.C.G.A. § 9-3-71(b) five year statute of repose because the alleged misdiagnosis and failure to treat the decedent’s cardiovascular risk factors occurred more than seven years before the widow filed suit, and the new condition exception did not apply since the risk factors existed at the start of the treatment. Howell v. Zottoli, 302 Ga. App. 477, 691 S.E.2d 564, 2010 Ga. App. LEXIS 166 (2010). Trial court properly struck, as time barred, the breach of fiduciary duty claim because the gravamen of that claim was the doctor’s alleged failure to correctly read the patient’s ultrasound and the failure to diagnose the patient’s medical con-

Specific Actions (Cont’d) dition, amounting to a claim of negligence that went to the propriety of the doctor’s exercise of medical skill and judgment, a medical malpractice claim as contemplated by O.C.G.A. §§ 9-3-70 and 9-371(b). Johnson v. Jones, 327 Ga. App. 371, 759 S.E.2d 252, 2014 Ga. App. LEXIS 340 (2014). Trial court erred in denying a hospital’s motion to dismiss an amended complaint because the complaint was filed outside the statute of limitations, O.C.G.A. § 9-371(a); the complaint did not relate back to the filing of the original complaint because there was no evidence that the hospital received timely notice of the action as required by O.C.G.A. § 9-11-15(c). St. Francis Health, LLC v. Weng, 354 Ga. App. 310, 840 S.E.2d 712, 2020 Ga. App. LEXIS 163 (2020). Dentist’s failure to inform patient of impacted tooth. - Facts raised an issue of fraud for jury determination which, if found, would estop a dentist from raising the defense of the statute of repose, when it was alleged that the dentist failed to inform the patient of an impacted tooth and that the dentist stated that the patient’s pain was caused by bone slivers. Hill v. Fordham, 186 Ga. App. 354, 367 S.E.2d 128, 1988 Ga. App. LEXIS 366 (1988). Experience of symptoms in dental malpractice claim. - Dental patient’s malpractice suit filed on January 24, 2003, was time-barred under O.C.G.A. § 9-3-71(a); although the patient had complained of pain and sensitivity at an appointment on January 25, 2001, the patient admitted experiencing those symptoms from the time bridges had been installed on January 3, 2001, and logic indicated that the patient had symptoms before the January 25 appointment. Brown v. Coast Dental of Ga., P.C., 284 Ga. App. 244, 643 S.E.2d 740, 2007 Ga. App. LEXIS 128 (2007), cert. denied, No. S07C1098, 2007 Ga. LEXIS 496 (Ga. June 25, 2007). Contamination of blood. - Action for medical malpractice brought more than five years after the allegedly wrongful transmission of AIDS-contaminated

blood was barred by the provision of ultimate repose contained in subsection (b) of O.C.G.A. § 9-3-71. Bieling v. Battle, 209 Ga. App. 874, 434 S.E.2d 719, 1993 Ga. App. LEXIS 1021 (1993), modified, No. A93A0693 (Ga. Ct. App. 1993), cert. denied, No. S93C1798, 1993 Ga. LEXIS 1056 (Ga. Oct. 29, 1993), overruled in part, Southern States Chemical v. Tampa Tank & Welding, No. S23A0273, 2023 Ga. LEXIS 115 (Ga. May 31, 2023). Pharmacist subject to statute. - Georgia statute of limitations for medical malpractice is applicable to an action brought against a pharmacist notwithstanding the fact that a pharmacist is not engaged in the practice of medicine. Faser v. Sears, Roebuck & Co., 674 F.2d 856, 1982 U.S. App. LEXIS 19641 (11th Cir. 1982). Action based upon the conduct of a pharmacist in dispensing medication upon a doctor’s prescription constitutes an “action for medical malpractice” within the meaning of O.C.G.A. § 9-3-70. Robinson v. Williamson, 245 Ga. App. 17, 537 S.E.2d 159, 2000 Ga. App. LEXIS 895 (2000), cert. denied, No. S00C1805, 2001 Ga. LEXIS 95 (Ga. Jan. 19, 2001). Applicability to optometrist. - Statute setting limitation and repose for medical malpractice actions applied to alleged professional negligence by an optometrist. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475, 1993 Ga. App. LEXIS 1335 (1993), cert. denied, No. S94C0215, 1994 Ga. LEXIS 159 (Ga. Jan. 21, 1994). Cause of action against an optometrist involving misdiagnosis of a disease which led to glaucoma and enucleation of the plaintiff’s eye accrued at the time of the first manifestation of glaucoma, not at time of the misdiagnosis four years earlier, and, thus, the action was not barred by the statute of limitations. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475, 1993 Ga. App. LEXIS 1335 (1993), cert. denied, No. S94C0215, 1994 Ga. LEXIS 159 (Ga. Jan. 21, 1994). Physician’s intentional acts. - Plaintiff’s claims based on defendant physician’s intentional acts were medical malpractice claims barred by the five-year statute of repose. Thompson v. Long, 225 Ga. App. 719, 484 S.E.2d 666.

Claims for emotional pain and distress sounded in professional malpractice and were subject to the five-year statute of repose. Thompson v. Long, 225 Ga. App. 719, 484 S.E.2d 666. Dental malpractice. - Trial court erred by granting a dentist summary judgment in a dental malpractice suit as being filed outside the two-year limitations period because the court erred by ruling that the patient’s consultation with an oral surgeon working with the dentist ended the tolling caused by the dentist’s fraudulent concealment of the cause of action. MacDowell v. Gallant, 323 Ga. App. 61, 744 S.E.2d 836, 2013 Ga. App. LEXIS 502 (2013), aff’d, 295 Ga. 329, 759 S.E.2d 818, 2014 Ga. LEXIS 490 (2014). Appellate court properly reversed the grant of summary judgment to a dentist because the statutory period of limitation was tolled where the second dentist the patient consulted provided professional services to the patient jointly with the first. Gallant v. MacDowell, 295 Ga. 329, 759 S.E.2d 818, 2014 Ga. LEXIS 490 (2014). Although an oral surgeon told a dental patient that the reconstruction process was taking too long and that the patient’s reconstruction was too narrow, material issues of fact remained as to whether the surgeon’s communications gave the patient actual notice of the dentist’s malpractice and fraudulent concealment for purposes of the statute of limitations. MacDowell v. Gallant, 344 Ga. App. 856, 811 S.E.2d 513, 2018 Ga. App. LEXIS 144 (2018), cert. denied, No. S18C0963, 2018 Ga. LEXIS 626 (Ga. Aug. 27, 2018). Decisions Under § 9-3-33 Editor’s notes. - The following decisions were decided under Code Section 9-3-33 prior to applicability of this section. Failure to inform as fraud tolling statute. - Physician has duty to inform patient of nature and character of any operation that is performed, and when the physician goes beyond the physician’s authority and conceals such fact from the patient, the physician’s failure to inform the patient constitutes fraud on the pa-

tient and tolls the statute of limitation. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542, 1972 Ga. App. LEXIS 1301 (1972). When statute runs when fraud involved. - In malpractice action involving fraud, statute of limitations commences to run when patient either learns of fraudulently concealed fact or in exercise of diligence should have become aware thereof. Wolfe v. Virusky, 306 F. Supp. 519, 1969 U.S. Dist. LEXIS 8805 (S.D. Ga. 1969). Effect of intentionally inducing patient to refrain from inquiry. - Action for malpractice was not barred by statute of limitations even though the plaintiff knew of the injury immediately after the operation since the defendants, who stood in confidential relationship with the plaintiff, knowingly and intentionally induced the plaintiff to refrain from making further inquiry as to the plaintiff’s condition, which was in fact permanent and which was known to be permanent. Colvin v. Warren, 44 Ga. App. 825, 163 S.E. 268, 1932 Ga. App. LEXIS 539 (1932). Negligent misdiagnosis of broken back. - Under former Code 1933, § 31004 (see now O.C.G.A. § 9-3-33), plaintiff’s right of action for negligent misdiagnosis of a broken back did not accrue until the plaintiff’s discovery thereof in October 1975, assuming that in the exercise of ordinary care the plaintiff could not have discovered the injury earlier. Simons v. Conn, 151 Ga. App. 525, 260 S.E.2d 402, 1979 Ga. App. LEXIS 2621 (1979), superseded by statute as stated in Hart v. Eldridge, 158 Ga. App. 834, 282 S.E.2d 369, 1981 Ga. App. LEXIS 2436 (1981). When surgeon negligently leaves a foreign object in the body of patient, there exists a continuing tort so long as such object remains undetected, and the statute of limitations does not begin to run on the cause of action until its presence is known to the patient or until the patient, by the exercise of ordinary care, could have learned of it. Parker v. Vaughan, 124 Ga. App. 300, 183 S.E.2d 605, 1971 Ga. App. LEXIS 902 (1971) (for comments, see 8 Ga. St. B.J. 244 (1971), and 23 Mercer L. Rev. 697 (1972)).

RESEARCH REFERENCES Am. Jur. 2d. 61 Am. Jur. 2d, Physicians, Surgeons, and Other Healers, § 298 et seq. Am. Jur. Pleading and Practice Forms. 19B Am. Jur. Pleading and Practice Forms, Physicians, Surgeons, and Other Healers, § 783. Am. Jur. Proof of Facts. Discovery Date in Medical Malpractice Litigation, 26 POF3d 185. C.J.S. 54 C.J.S., Limitations of Actions, § 249 et seq. 70 C.J.S., Physicians, Surgeons, and Other Health Care Providers, § 74. ALR. When statute of limitations commences to run against actions against physicians, surgeons, or dentists for malpractice, 74 A.L.R. 1317; 144 A.L.R. 209, 80 A.L.R.2d 368; 70 A.L.R.3d 7. Statute of limitations applicable to malpractice action against physician, surgeon, dentist, or similar practitioner, 80 A.L.R.2d 320; 70 A.L.R.4th 535. When statute of limitations commences to run against malpractice action against physician, surgeon, dentist, or similar practitioner, 80 A.L.R.2d 368; 70 A.L.R.3d 7. Applicability, to negligence action against hospital, of statute of limitations applicable to malpractice and related actions against physicians, surgeons, or the like, 89 A.L.R.2d 1180. Applicability, in action against nurse in her professional capacity, of statute of limitations applicable to malpractice, 8 A.L.R.3d 1336. When statute of limitations commences to run against malpractice action based on leaving foreign substance in patient’s body, 70 A.L.R.3d 7. When statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures, 93 A.L.R.3d 218.

Medical malpractice statutes of limitation minority provisions, 62 A.L.R.4th 758; 71 A.L.R.5th 307. Medical malpractice: who are “health care providers,” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1. Medical malpractice: negligent catheterization, 31 A.L.R.5th 1. Medical-malpractice countersuits, 61 A.L.R.5th 307. Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient’s cause of action, 14 A.L.R.6th 301. When statute of limitations begins to run in case of dental malpractice, 17 A.L.R.6th 159. Effect of fraudulent or negligent concealment of patient’s cause of action on timeliness of action under medical malpractice statute of repose, 19 A.L.R.6th 475. Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - products liability cases, 93 A.L.R.6th 463. Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - wrongful death cases, 94 A.L.R.6th 111. Application of relation back doctrine permitting change in party after statute of limitations has run in state court action - medical malpractice cases against physicians and other individual health care providers, 95 A.L.R.6th 85. Application of relation-back doctrine permitting change in party after statute of limitations has run in state court action - medical malpractice cases in actions involving hospitals, clinics, and the like, 100 A.L.R.6th 139. Estoppel to Assert Statute of Limitations or Statute of Repose in Action for Malpractice of Health Care Provider, 45 A.L.R.7th Art. 3.