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Schramm v. Lyon

The 5-year statute of repose did not bar the plaintiff's claims, arising from her development of an overwhelming post-splenectomy infection OPSI and her resulting partial loss of limbs.

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In 1982, Betty Lyon had her spleen removed as a result of injuries she received in an automobile accident. In September 2004, Lyon developed overwhelming post-splenectomy infection OPSI, a condition which resulted in significant physical injuries, including the amputation of parts of her arms and legs. Lyon filed a medical malpractice action on August 29, 2006, against eight physicians and their practices who had treated her in the five years prior to the filing of the action. The complaint as subsequently amended alleged that each doctor failed to advise and warn her about the risk of developing OPSI, failed to inform her of preventative measures she should have taken to reduce the risk of developing OPSI, and failed to prescribe appropriate medications and vaccinations which would have prevented infections that can lead to OPSI.

Three defendants, Doctors Schramm, Barnes and Sharon, each of whom Lyon had first seen prior to August 29, 2001, moved to dismiss the claims against them on the basis of the statute of repose, OCGA § 9-3-71 b, which provides 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.” The trial court granted the motion, holding that the statute of repose began to run from the date the doctors first provided medical care to Lyon regardless of whether they committed subsequent negligent acts. The Court of Appeals reversed, Lyon v. Schramm , 291 Ga. App. 48 661 SE2d 178 2008, and this Court granted certiorari to the Court of Appeals to consider whether the relevant claims were barred by the five-year statute of repose. For the reasons that follow, we find the claims are not barred by the statute of repose and we affirm.

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