Siler v. Block, A92A0703
Decision Date | 20 May 1992 |
Docket Number | No. A92A0703,A92A0703 |
Citation | 204 Ga.App. 672,420 S.E.2d 306 |
Parties | SILER et al. v. BLOCK et al. |
Court | Georgia Court of Appeals |
William Q. Bird, Steven R. Wisebram, Atlanta, for appellants.
Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Mark E. Robinson, Atlanta, for appellees.
Barbara Siler, individually and as next friend of her minor son Daniel Todd Siler, brought this action naming as defendants Block, the physician who had provided her with obstetrical care and treatment, and the professional corporation through which he practices. Defendants allegedly administered the drug Provera negligently, so that the minor plaintiff was seriously and permanently injured.
Defendants began rendering obstetrical care and treatment to Barbara Siler in 1975, and Daniel was born in October of that year. Barbara instituted the original action in December 1986 and dismissed it without prejudice in August 1990 pursuant to OCGA § 9-11-41(a). She filed the present action in February 1991, within six months of dismissing the original complaint. Daniel was age 15 when the suit was refiled. The trial court granted defendants' motion for summary judgment, concluding that this action is barred by OCGA § 9-3-73(c)(2)(A).
1. Plaintiffs contend that they had a right to dismiss the earlier action and renew it under OCGA § 9-2-61(a). That section provides in pertinent part: "When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state ... either within the original period of limitations or within six months after discontinuance or dismissal, whichever is later...."
A recommenced action Archie v. Scott, 190 Ga.App. 145, 146(2), 378 S.E.2d 182 (1989); also see Rakestraw v. Berenson, 153 Ga.App. 513, 266 S.E.2d 249 (1980).
Defendants contend that this action is barred by OCGA § 9-3-73(c)(2)(A), which is the statute of repose applicable to medical malpractice actions brought by or on behalf of minors and others with legal disabilities. Defendants argue that the right to dismiss and renew under OCGA § 9-2-61 tolls the statute of limitation but not the statute of repose.
The distinction between limitation and repose is stated in Hill v. Fordham, 186 Ga.App. 354, 357(2), 367 S.E.2d 128 (1988): See also Daniel v. American Optical Corp., 251 Ga. 166, 304 S.E.2d 383 (1983).
Statutory limitations for medical malpractice actions are found in OCGA §§ 9-3-70 through 9-3-74. OCGA § 9-3-71(a) generally requires an action for medical malpractice to 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(b) states that "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." Thus, subsection (a) creates a two-year statute of limitation, and subsection (b) creates a five-year statute of ultimate repose and abrogation. See subsection (c).
Prior to 1987, OCGA § 9-3-73 provided that "[t]he disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice." In 1987, the General Assembly amended this Code section by designating the foregoing as subsection (a), adding "Except as provided in this Code section" at the beginning of subsection (a), and adding subsections (b) through (g).
Subsection (b) states: According to subsection (c), this is a statute of limitation.
In pertinent part, subsection (c) states: According to subsection (d), this is a statute of repose. Siler's suit is in this category.
Under subsection (g), no action barred before July 1, 1987, by the 1987 amendment but not...
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Hoffner v. Johnson
...a set period of years from the alleged negligent act or omission, constitutes a statute of repose. See, e.g., Siler v. Block, 204 Ga.App. 672, 420 S.E.2d 306, 307 (1992); Ferrara v. Wall, 323 Ill.App.3d 751, 257 Ill.Dec. 553, 753 N.E.2d 1179, 1181 (2001); Sills v. Oakland Gen. Hosp., 220 Mi......
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Coen v. Aptean, Inc.
...("[T]he legislature never intended for the dismissal and renewal statutes to overcome the statute of repose."); Siler v. Block , 204 Ga. App. 672, 674 (1), 420 S.E.2d 306 (1992) ("[T]he renewal provisions of OCGA § 9-2-61 (a) may not be used to avoid the bar of the statute of repose."). We ......
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...is not, however, tolled by O.C.G.A. § 9-2-61(a). Wright v. Robinson, 262 Ga. 844, 846, 426 S.E.2d 870 (1993); Siler v. Block, 204 Ga.App. 672, 673, 420 S.E.2d 306 (1992), aff'd 263 Ga. 257, 429 S.E.2d 523 (1993). The undisputed facts in this case establish that more than five years elapsed ......
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