*1 Honey’s summary judgment granting summary motion for judgment Georgia I Power. And because believe trial court granted Honey summary judgment should have basis, on this I do necessary Honey’s argument find it to consider that the trial by impermissibly weighing grant- also court erred the evidence and ing summary judgment Georgia Power issue whether Georgia property. Power abandoned condemned Judge joins

I am authorized to state Chief Barnes dissent. Decided March April

Reconsideration denied Greer, Turner, Greer, & W.Dan field, Robert H. Stans Stansfield appellant. for Stephenson Ballard, Waters, Waters, & William M. Troutman Douglas Lynette Sanders, appellee. Henderson, A. Smith, E.

A07A2237. LYON et al. v. SCHRAMM et al. 178) Judge.

Adams, August Lyon Betty 29, 2006, an filed action for medical malpractice arising “overwhelming post-splenectomy out of an in- (OPSI) years fection” having she suffered in 2004, 22 spleen removed.1 She that none the various years preceding doctors she over saw the five her lawsuit ever told asplenic patients life-threatening her that faced the OPSI, risk of they prescribed guard against that infections that can never recommended vaccines to OPSI,

lead to and that never advised her to sign take antibiotics at the of a cold as also is recommended. She eventually complications OPSI, contracted resulted the need significant amputate part legs. of both of her arms and (and eight practices) sued whom she had seen regular specialized during for unrelated care five an electric transmission line must be commenced within either or from the date acquisition, depending location, capacity property on its or the owner across passes may require utility pay compensation the easement reconvey additional (c) (1), applicable petitions easement. And April OCGA 22-1-2 for condemnation filed after 2006, p. 39, 25,§ provides may Ga. L. property owners obtain a recon- veyance property compensation of condemned property or additional if the condemned is not put public years. use within five 1 Her claim is loss husband’s of consortium. *2 only (five malpractice preceding her She claims of lawsuit.2 limited her August 29, between 2001 those acts of occurred (the filed) through years prior to suit was 2004 the date injury). doctors her The trial dismissed three of the date of court Sharon) (Schramm, begun earlier Barnes, whom she had to see and ground August five-year statute of 29, 2001 on the that the than they Lyon, provided repose had run when medical care from regardless The committed thereafter. whether begun recently that date whom to see more than she Parker) (Modi, Faribrother, their Wooten, Franklin, and withdrew the trial to dismiss and remain in the suit. asserts motions or treated erred each time the three doctors examined court they again duty April 2001, of care. She 29, breached her after running repose begin construed should be contends statute risks to inform about the occasion that the doctors failed on each having preventative a related measures associated with and spleen. ruling appeal, a de review of a trial court’s we conduct novo Penny McBride, 282 Ga. 590 a motion to dismiss. v.

on 561) (2006). allegations role is whether the Our “to determine SE2d light complaint, to the in the most favorable when construed of plaintiff, plaintiffs favor, disclose in the and with all doubts resolved certainty relief under not be entitled to with that the would provable any facts.” Id. state of appeal two-year is not issue The statute limitation Lyon’s

apparently less than OPSI because the begins filed suit and the statute limitation two before she (a). § injury. But, unlike the See OCGA 9-3-71 run from the date of begins repose when an act limitation, the statute of to run (b); § negligence App. Atha, See OCGA 9-3-71 Christian of 267 Ga. is committed. 895) (2004) (statute repose on focuses 186 injury). provides: omission, act not the two-year [the Notwithstanding limitation], in no brought may for be event more than five an action years date on which the wrongful act or omission occurred. (b). bar before the The statute of can a claim OCGA 9-3-71 (one appellees) May for example, Lyon Dr. For visited Schramm pain pain, at other poison ivy. and On March she saw Schramm for foot abdominal exam, congestion. drip, cough post-nasal physical for for a times for a sore throat and (an prenatal regard appellee) Similarly, Lyon in March 1999 for care with Dr. Sharon visited child; again post-partum cough care in connection him for a her second she later visited her third child. words, accrues, in other even before occurs. See (2) (437 Hosp. County Auth., Craven v. Lowndes 308) (1993). legislature As said, Court has “the may may past transgressions conclude that time arrive when are longer Finally, “by definition, actionable.” Id. a statute of (Citations ‘tolled’,” ultimate cannot be reason. omitted.) punctuation Sonyika, Simmons v. e.g., See, Canas, Kaminer v. *3 691) (2007) (statute of not “tolled until such time [doctors] occupy treating physicians”). as to the ceased status of setting question duty

Thus, aside the of a doctor’s questions situation and us, other obvious not before the sole issue purposes this case is whether for the of the of the three relevant doctors can be said have to committed new and separate Lyon, or each time saw whether alleged properly their more recent omissions are more seen as a alleged or in continuation of negligence, merely some the sense same as their earlier negligence. or a failure correct earlier “Three elements are a essential establish medical duty patient; claim: the doctor’s duty to his the doctor’s breach of that through requisite degree the failure to exercise of the skill and proximately care; [Cit.]” and an caused tbe doctor’s failure. Haughton Canning, For repose, purposes only the of the statute of we are concerned the duty breach, i.e., two: first case, the act or omission. In this Lyon alleges, experts aver, her the doctors knew she spleen, duty precautions had no a inform spleen, her of the risks and having yet associated with not a failed to do each so on of her problem concluding visits to see We them. find that she has alleged separate each omissions for time she visited doctors. Georgia recently agreed Court of has with this Court that only “it would be absurd to hold aas matter of law that a can doctor misdiagnose patient regardless length once, a of the treatment (Punctuation omitted.) patient’s or the course of the illness.” Ka (1). miner, 282 Ga. at 835 Weconclude it would also be absurd to hold only patient during doctor can fail to warn a once the course say Indeed, of treatment. who can which failure to inform caused the plaintiff arguably s OPSI, the last one. example, For Belinfante, Allen v. (1995), plaintiff the filed suit in June that her surgeon

oral failed warn her of health serious risks associated with implants jaw problems during surgery he certain eight used to treat her earlier. The trial court held the claims were barred two-year five-year the statute of limitation the repose. appeal, plaintiff argued timely that her suit was “due occurring tolling within two of . . . . . . because of. . . fraud continuing surgery alternatively, at tort.” Id. or, that there was a (3). s claims did This Court held that survival depend on theories: those tolling upon rest either a

Survival of their cause does not following surgery applica- two-year or time frame viability continuing tort, tion of the doctrine of a questioned light legislative changes. which has been plaintiffs warn or Rather, held, of failure to Id. give the Court danger implants “alleged to have notice of the specific surgery the time times: the time of three [about government] implants] [a alert December [the defendant’s] Mrs. Allen in 1992 or examination of the time (3). though barred, events Id. Even the first two 1993.” at 757 surgeon her of time that the failed “advise the last problems suspected with the health hazards associated known implants” running *4 negligence separate that commenced the a act of was case, of limitation and the statute of, in both the statute that repose.3 of suggest arguments that the statute raise several begun at of have to run the time be construed to

of should Lyon. First, the doctors contend failure to warn their “misdiagnosis.” They reason case of is barred because this is a Lyon already of a a or disease lack had medical condition that merely alleged properly spleen that failed to that she has They regarding then on several occasions. her condition advise running holding misdiagnosis apply of the starts case that a law diagnose multiple consti- failures to do not of limitation and continuing negligence a Frankel v. of nor tort. additional acts tute 147) (1994). (444 App. Brahn 222, 213 SE2d See also Clark, Ga. 223 (595 (2004); Young App. Young, v. 705, 708 SE2d v. 690) (2002) (continuous Williams, SE2d in of used to alter statute limitation doctrine could not be treatment medical alleging misdiagnosis). malpractice cases misdiagnosis reasoning line of A is that this critical flaw begins run with limitation, of law concerns the statute case 3 610) (2006) Jenkins, App. 667, (2) (plaintiff u. Ga. n. 2 SE2d See also 282 Stafford-Fox diagnosis a inform alleged separate misdiagnosis a but failure to of correct claims (2) (532 108) (2000) consequences); Ajayi, SE2d v. 194 Herndon informing patient significance keeping (complaint of that in not doctor malpractice); follow-up appointment failing him was a claim for afterward to contact 861) (1985) Sues., 570 v. Gen. Business Ga. Leon Jones Feed & Grain (annual negligence). separate give tax constitutes failure to same advice injury. misdiagnosis

the injury an cases, occurrence And most misdiagnosis. occurs Melton, time of the Walker v. (1) (b) (489 63) (1997). App. 149, Thus, Ga. cases, those subsequent misdiagnosis does not a new create cause action complete already i.e., tort, there is a a act and injury. When the doctors this case for the failed first time advise Lyon having spleen, completed about not a no and no tort Accordingly, misdiagnosis reasoning occurred. is not relevant present repose, here. The case involves the which is triggered by negligence, injury. act an Thus, without misdiagnosis inapposite.4 case law is present misdiag-

Furthermore, case does even not involve Lyon symptoms nosis. never consulted of the defendants with (OPSI), her and there is no evidence that she had it at the misdiagnosed diagnosed time. The doctors could have her They condition. also contend failure warn about the asplenic misdiag- ramifications of condition is tantamount ato again, injury, But, nosis. failure warn caused immediate provides finding is which what the basis that no cause action repeating misdiagnosis. arises thereafter the same argue The doctors more recent events only previous should be seen as a failure to correct negligence, prior and the mere failure correct a act of negligence. Taylor,Bishop not a is new act of See Lee, Jankowski & (2) (273 Ga. But the rule Jankowski subsequent accrues, is once a cause of action failure to lessen the *5 negligence effect the earlier is not a new act of but “a rather failure avoid the ultimate effect breach earlier (2). mitigate damages.” a failure their own Id. at In 807 the she present Lyon’s case, cause of action did not until accrue injury, contracted OPSI. Prior to she that had no and there was no damage mitigate. Thus the doctors’ later acts of to warn failure did prior negligence. not constitute a mere failure correct a act of support also contend that can be found based Young, App. final outcome in M.D., Williams v.Devell R. P.C., 258 Ga. (575 (2002), by drawing Lyon’s parallel SE2d claim asplenic that failed to educate her about her condition. In the appearance Court, Williams in this the Court noted primary negligence regarding addition to her claim of dislocated Young foot, bones claimed that the doctor had “failed treatment, subsequent “When an occurs to the date of the statute of Zirkle, limitation commences from the date is App. discovered.” Whitaker v. 188 Ga. 706, 708 properly v. her diabetic condition.” See Williams educate her about 737) App. Young, M.D., P.C., 247 Ga. Devell R. (2000). by Supreme opinion was reversed This Court’s first treatment doctrine could Court, which held that the continuous Young Williams, v. to alter the statute of limitation. be used Young’s Following remand, claims were this Court ruled that Young, by See Williams v. barred the statute of limitation. therefore App. specific mentioned above was not at 824. But the upon remand; nor does that decision in the decision issued discussed necessarily dispose allegation. draw no conclu We therefore decision about the issue before us. sions from that argue above, is Belinfante, mentioned The doctors also distinguishable received new infor- in that case the doctor implants concerning government warning about the mation required patient’s to her. condition, which he was to disseminate to whether the was an issue of fact as But this Court found that there of the second new information at the time doctor was aware of the by the statute of warn, which event was barred event of failure to (3). Yet the claim at 757 Belinfante, limitation. involving Ga. ground that the not dismissed on the event was third point implant in time. not new to the doctor at that information was receiving depend did not on the doctor The decision Belinfante patient’s affecting care. information new Eyzaguirre Baker,

The doctors’ reliance on 47) (2003), misplaced. case, In the court is also or should that the knew was based on a finding decision years prior more than five have known by filing barred the statute suit, his claim was therefore (1). regard repose. to the continuous treatment at 55 With Id. Supreme deciding that the

doctrine, assumed without this Court application rejection of statute of to the statute of the doctrine’s Court’s applied not be to the that it also could limitation meant rely opinion repose. doctrine. Id. does not on that rate, At our Georgia Finally, Court the recent decision controlling in this case. is, terms, not v. Canas its own Kaminer *6 diagnose alleged plaintiff that two doctors had failed Kaminer, the respectively, beginning in 1991 and AIDS his condition yet continuing until 2001. thereafter, he did not file suit and Supreme first addressed The Court Kaminer, 282 Ga. at 830. two-year of limitation. the the claims were barred whether (2). (1), doing, held that Canas was In so the Court Id. injured at misdiagnosis, (a) in “the 1992, because a case of in 1991 and long plaintiffs ‘injury’ has been in OCGA 9-3-71 as used negligent diagnosis.” original Id. at 836. to the confined application addressed Court then the the statute of begun and held the that it to run on dates that the doctors allegedly negligent committed their acts omissions and that it (3). Kaminer, could not be tolled. 282 Ga. at 837-838 But the Court applicable “However, on, went are dates the same as those on which the respectively, to run in limitations started 1991 and misdiagnoses initially Id. when were reached.” (3). already only This is because the so Court had held that the injuries dates; in Kaminer occurred on those and therefore the negligence associated was one-in-the-same event. The any subsequent negligence Court did not consider whether acts of only were barred because it needed to negligence completed address the acts alleged associated torts only in In words, the case. other it needed to address the acts negligence proximate injury that were the cause in that case. Any subsequent negligence injury in acts of no were resulted and injured by therefore not considered. Because was Canas the doctors corresponding in 1991 and limited acts point they years to that in or before, time were more than five old. present case,

In the there is no limitation because was such there injury any repeated negligence; no simultaneous acts of it is misdiagnosis not a case later, like Kaminer. The came And the has that the (their proximately by any caused or all of the doctors’ omissions inform) only years failures to within, within, five of when she filed suit. plaintiffs summary, Schramm, Barnes, have independent

and Sharon committed acts of within years prior five suit. It was error to dismiss them. We therefore (and portion granted reverse that of the trial court’s orders that their practices’) motions to dismiss. holding nullify Assembly

Our does the intent the General to abolish action five simply Rather, we conduct. hold that under the facts of repeated separate case, the doctors’ incidents of failure to warn are conduct, some of which occurred within five prior appellees’ reasoning, to her suit. Under the be would patient just immunized from a recent failure to warn duty years ago. first breached their to warn more than five find We support proposition. for this Judgment part part. Johnson, J., and reversed P. affirmed Ellington Phipps, JJ., Andrews, J., Blackburn, J., concur. P. P. part. Mikell, J., concur dissent *7 Judge, concurring Presiding dissenting in in ANDREWS, part. Betty Lyon malpractice August medical filed a action on by alleging during Joseph that, the course of her treatment H. Barnes, M.D., Sharon, M.D., Schramm, Thomas E. and C. Steven physicians M.D., all three knew or should have known that she did spleen,5 they negligently not have a and that failed advise her overwhelming post-splenectomy about risk of the an infection (OPSI) living spleen faced she as a result of without a and the preventative measures she could have risk.6 Ms. taken reduce the Lyon alleged knowledge, that, without she with “lived an high avoidably contracting beginning OPSI, risk” of in that eventually September developed ensuing 2004, she OPSI and com plications amputation legs. parts that resulted in of of her arms Lyon’s joined asserting Ms. husband of action a loss consor tium claim. physicians

All three moved for on the dismissal basis § repose (b), provides OCGA 9-3-71 that “in which may malpractice brought event an action for medical be more than negligent wrongful five after the date on which the act or Lyon physician negli- omission occurred.” Ms. contends that each gently during given failed advise her courses to her treatment by September by 2004; Dr. Barnes from December 1997 to Dr. September by 2004; Sharon from March 1999 to and Dr. Schramm August May Lyon’s from 2000 to 2004. Because Ms. malpractice arising negli- action from the gence was filed more than five occurrence the first by alleged negligent physician, correctly each omission the trial court against physicians found all that the action three was barred (b). § five-year Canas, in OCGA 9-3-71 Kaminer Ga. 837-838 Kaminer, Court reversed this Court’s decision (2006), Al-Jabi, Canas v. supra, operation rev’d, Kaminer, which dealt with five- (b) year in a OCGA 9-3-71 similar based misdiagno- physicians (repeated two serial medical sis), treating patient over course of an began underlying AIDS Dr. course of condition. Kaminer’s treatment spleen surgically age shows had her 1982 at the The record that Ms. removed in injuries of 18 as a she suffered an automobile accident. result Sharon, professional corporation employed Dr. Barnes and Dr. professional corporation employed Dr. Schramm also named as defendants on the were principle respondeat superior basis for the liable under physician employees. *8 May patient February 1991 and ended when she last saw the began May

15, 2001, and Dr. Al-Jabi’s course of treatment patient Kaminer, and ended when he last saw the on March App. 830; Al-Jabi, 282 Ga. at 282 Ga. at 768-769. In a medical malpractice patient alleged action filed on December repeated negligent diagnose as a result of failure to by physician. AIDS condition over the course of treatment each Supreme five-year Kaminer, 282 Ga. at 830. The Court held that the period repose commenced to run from the first act of (misdiagnosis) by physician, subsequent negligent each not from acts occurring during the course of treatment. Id. at 837-838. Accord- ingly, repose when the Court held that “the statute of . . . patient’s] [the diagnose has run on claim for the failure to expiration five-year condition,” his AIDS the Court ruled that repose period including negli- action, abolished the entire cause of gent physicians omissions that occurred when saw the patient years within five date the action was filed. Id. at 838. approving portion analysis Moreover, in the Al-Jabi opinion, correctly Kaminer held that this Court found “that five-year period [in commencement of that of limitation OCGA (b)] § [the physicians] 9-3-71 was not tolled until such time as ceased occupy treating physicians. supra Al-Jabi, the status of Canas v. at in (a).” Kaminer, 282 Ga. at 838. As we noted point, Al-Jabi on this Assembly malprac-

if the General intended for the medical abrogate only tice statute of practice those medical mal- actions filed more than five after the date on negligent wrongful which the act or omission occurred and more than five after the date on which treatment provider provided. ended, the health care it could have so (Emphasis original.) Al-Jabi, at 776. (b) five-year in OCGA 9-3-71 runs from alleged act, reason, is not tolled for and abolishes expiration period

a cause of action after of the limitation whether or not an has occurred and the cause of action has accrued. 27) (2005); Sonyika, Wright Simmons v. Robinson, v. statute of Because the

repose expired physicians as to all three before the medical malpractice correctly filed, action was the trial court dismissed all (and physicians malpractice three from the action from the deriva- claim), correctly physi- tive loss of consortium dismissed the (and professional corporations cians’ from the action claim) from the derivative loss of consortium to the extent the claims against corporations liability were based on vicarious for the alleged malpractice physicians. opinion agree majority portions

I with the to the extent it affirms *9 denying of the trial court’s order to other dismissal defendants appeal. action not involved this respectfully reasons, I

For these concur dissent in and part. Presiding Judge

I am authorized to state that Blackburn Judge join opinion. Mikell 27, Decided March April

Reconsideration denied

Ragland Ragland, appellants. Jones, & Daniel A.

Greenberg Traurig, Mazziotti, III, Thomas J. John B. Merchant Major Monyak, Fain, Brown, Brennan, & Richard W. Peters & appellees. Jeffrey Peters, Bazinet, S. Jonathan C. v. ALFA GENERAL

A07A2387. LAMBERT INSURANCE CORPORATION. 889) Judge.

Adams, Eugene Christopher appeals Lambert the trial court’s order denying summary judgment, granting summary motion for but his judgment declaring Corporation Alfa Insurance General policyholder, affirmatively Self, its Bruce elected to reduce his bodily injury coverage person per $25,000 uninsured motorist per $50,000 accident. We affirm. May person passengers Lambert and another Dodge

in Selfs when it struck driven Caravan vehicle by Stephanie Reese, Marie an uninsured motorist. Reese and Both passenger accident; Self were killed Lambert and the other (UM) originally survived. Self cover- maintained uninsured motorist age per person per $100,000 $300,000 on the minivan of presented accident. But Alfa change affidavit evidence that elected to Self person coverage per per $25,000 $50,000 the UM regard, agent’s accident as of March Self came to his following signed change office and written statement: “Please my Dodge Caravan effective 3-04-05.” Alfa U/M 25/50/25 subsequently issued a new declaration dated March provided: