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 311 9-3-71 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 312 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, 9-3-71 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 313 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 9-3-71 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 314 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 9-3-71 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). 315 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 9-3-71 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 316 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. 9-3-71 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- 317 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 9-3-71 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. 318 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- 9-3-71 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)). 319 9-3-72