The plaintiff/appellee, Sallie M. Battle, filed the instant medical malpractice action on February 6, 1990, against appellants/defend *875 ants, Dr. Friedrich Christopher Bieling and Atlanta Obstetrics & Gynecology Group, P. A. (Atlanta Obstetrics), the professional association for which Bieling was employed, based upon Bieling’s failure to exercise the requisite degree of care in ordering an unindicated and unnecessary single unit of blood for a transfusion conducted during Battle’s hysterectomy of February 9, 1982. Allegedly, as a result of Bieling’s negligent conduct in ordering the blood, Battle contracted Acquired Immune Deficiency Syndrome (AIDS). Both Bieling and Atlanta Obstetrics denied liability. After the commencement of discovery, both moved for summary judgment, and the motion was denied by the trial court. We granted their application for interlocutory review of the trial court’s denial of the motion.
In her deposition of April 26, 1990, Battle stated that she was in good health prior to 1982. She further stated therein that her gynecologist advised her that she had developed a thyroid tumor 1 and her family physician referred her to Bieling for the removal of the tumors. During the surgery performed for the removal of the tumors, she received a blood transfusion. However, the possibility of a blood transfusion was not previously discussed with her by Bieling. Approximately five or six days after her initial release from the hospital, Battle was readmitted to the hospital based upon her complaints of fevers and chills. At that time, a battery of tests was conducted and the results of the testing were negative. During the second hospitalization Battle had another blood transfusion ordered by Dr. Bieling. Upon her release from the hospital following the second hospitalization, Battle underwent periods of time in which she felt infirm. Although she sought medical treatment for her weakened condition from Dr. McClatchey in 1983 and 1989 and thought that she might possibly have AIDS, it was not until January 1989, that she was diagnosed with the disease. Battle maintains that she is not an IV drug user and her sexual activity has been limited to her two husbands prior to their deaths. 2 She contends that her past behavior eliminates two of the known risk factors associated with the disease, and concludes that she acquired the disease during the first blood transfusion. This conclusion is, in part, based upon her infirm condition after the hysterectomy which warranted hospitalization. Based upon an investigation of the possible donors of the unit of blood in question, Battle maintains that one of the three donors had the AIDS virus. It is undisputed and Battle admits in interrogatory answers that the *876 transmission of AIDS was not a known risk of blood product use recognized in the medical community in February 1982.
In his affidavit filed in support of the motion for summary judgment, Bieling, a board-certified obstetrician and gynecologist, opined that the care and treatment rendered to Battle was within that degree of skill and care which, under similar conditions and like surrounding circumstances, is ordinarily employed by the medical profession generally. Before he concluded that a blood transfusion was necessary during Battle’s hysterectomy, he mentally performed a risk benefit analysis to determine the necessity for transfusing Battle and considered those risks of blood transfusions which were known within the medical community generally. AIDS as a risk of a blood transfusion was completely unknown at that time, and Bieling would have had no reason to advise Battle of the risk of same. As she was not injured by any of the known risks of receiving a blood transfusion, of which Bieling might have advised her, his failure to do so is of no consequence. On admission for a total hysterectomy on February 9, 1982, Battle’s admitting diagnosis was fibroids and rectal bleeding. During surgery, Battle was diagnosed as having excessive bleeding and Dr. Bieling concluded that she needed the blood transfusion because of her below normal blood count and because of the sudden, rapid blood loss in the early stages of the surgery.
1. Bieling and Atlanta Obstetrics assert that the trial court erred in failing to grant their motion for summary judgment because Battle’s claim is barred by the statute of repose prescribed in medical malpractice actions in OCGA § 9-3-71. We agree.
Generally, “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” OCGA § 9-3-71 (a). Subsection (b) of that same Code section, however, provides that “[notwithstanding subsection (a) . . . in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” Although the legislature did not specifically indicate therein that this statute of ultimate repose could not be applied to injuries which occurred prior to July 1, 1985, the appellate courts of this state have repeatedly applied OCGA § 9-3-71 (b) to causes of actions which accrued prior to the enactment of the statute. Recently, in
Bradway v. American Nat. Red Cross,
Regardless of the desirability of arriving at a particular state of the law, this court has no authority to legislate, and any such changes such as the measuring point of the statute of repose must be addressed to' the legislature, unless the subject statute is unconstitutional, which is not within this court’s authority to declare. “ ‘[W]here a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. (Cits.)’ [Cit.]”
Hollowell v. Jove,
The subject action was brought more than five years after the date of the alleged negligent act, and is clearly barred by the statute of ultimate repose. “Pursuant to OCGA § 9-3-71 (b), no action for medical malpractice may be brought after five years from the date of the alleged negligent act
even if the injury arising from that act did not occur within five years.”
(Emphasis supplied.)
Whitaker v. Zirkle,
Although Battle asserts that the statute of repose violates Art. I, Sec. X, Par. I, of the Georgia Constitution, which prohibits the retroactive application of statutes, the
Hunter
court noted that “there is no question of retroactivity here, as the amended (1985) version of OCGA § 9-3-71
was in effect at the time that the action was filed.
There being no attack upon the validity of the amended statute, nothing in it compels the conclusion that the amended version should not apply to actions filed after its effective date.”
Hunter,
supra at 22.
*878
(Emphasis supplied.) Although Battle asserts otherwise,
Hunter
involved the application of both the statute of limitation as well as the statute of repose found in OCGA § 9-3-71. Contrary to the contentions espoused by Battle, we have noted that “[s]tatutes of limitation and statutes of repose ‘look only to remedy and not to substantive rights,’ see
Dixie Constr. Co. v. Williams,
In
Lasoya v. Sunay,
In the case sub judice, “[a]s the complaint was
filed
after the effective date of the statutory amendment, no issue of retroactivity is involved
(Hunter v. Johnson,
2. Additionally, under the facts of this case, Bieling and Atlanta Obstetrics were entitled to summary judgment as a matter of law because it is undisputed that the contraction of AIDS by Battle was not the natural or foreseeable proximate result of a blood transfusion known within the medical community in 1982. “ ‘[P]hysicians are under the duty to exercise only such reasonable care in looking after and protecting a patient that the patient’s condition, which is known by the physician, may require. Accordingly, no physician is required to guard against or take measures to prevent that which a reasonable physician under similar circumstances would not see or anticipate as likely to happen.’. . . [Cit.]”
Brannen v. Prince,
Judgment reversed.
Notes
The medical records show that Battle was diagnosed with uterine fibroids (tumors) and rectal bleeding on February 7, 1982.
Battle’s first husband died of a heart attack while her second husband died of cancer. There is nothing in the record that establishes that either of her husbands was not HIV positive at the time of their deaths.