We affirmed the trial court’s order granting in part and denying in part motions for summary judgment filed in Derek Canas’s action against Ayman Al-Jabi, M.D., Sharon J. Kaminer, M.D., the Board of Regents of the University System of Georgia d/b/a Medical College of Georgia Hospitals and Clinics “the Board”, and MCG Health, Inc. “MCGHI”. Canas v. Al-jabi et al. , 282 StateplaceGa.App. 764 639 SE2d 494 2006. In Division 1, we concluded that there was evidence that, years after Al-Jabi and Kaminer first failed to diagnose Canas’s pediatric AIDS, he presented the doctors with significant changes in the manifestations of his condition such that a jury could infer that they committed new and separate acts of medical malpractice and, further, that a jury could infer that Canas suffered a resulting injury which was distinct from the injury he sustained at the time of the original misdiagnoses. placeStateId.at 770-786 1. In Division 1 a, we held that, to the extent Canas filed his complaint within five years of any such new negligent acts and omissions, his malpractice claim is not abrogated by the statute of repose. placeStateId.at 777-778 1 a. In Division 1 b, we held that, to the extent Canas filed his complaint within two years after that the injury resulting from the later misdiagnoses occurred, his medical malpractice claim is not barred by the statute of limitation. placeStateId.at 785-786 1 b. Accordingly, we affirmed the trial court’s order denying in part the motions for summary judgment. The Supreme Court of Georgia granted the appellants’ petitions for writ of certiorari, to consider whether this Courterred in holding that, if a plaintiff in a misdiagnosis case presents with additional or significantly increased symptoms of the same misdiagnosed disease, the medical malpractice statute of limitations and statute of repose do not bar the plaintiff’s claims.Kaminer v. Canas , 282 placeStateGa.830, 831 653 SE2d 691 2007. Upon consideration, the Supreme Court determined that we did err. placeStateId.at 831-838 1, 3, 4. As a result, the trial court erred in granting only partial summary judgment on Canas’s malpractice claim. Accordingly, our judgment in Division 1 of Canas v. Al-Jabi et al. , 282 placeStateGa. App. at 770-786, is vacated, and the judgment of the Supreme Court is made the judgment of this Court.1
The grant of certiorari did not reach two divisions of our opinion: Division 2 holding that the Board and MCGHI are not entitled to judgment as a matter of law on Canas’s failure to warn claim and that Canas’s failure to warn claim against Kaminer is embraced within his claim against her for medical malpractice and Division 3 affirming the trial court’s order qualifying Canas’s expert witnesses. We have reviewed those divisions and conclude that they are consistent with the Supreme Court’s ruling. As a result, our holdings in our judgment in Canas v. Al-Jabi et al. , 282 Ga. App. at 786-796 2, 3 became binding upon return of the remittitur and remain the judgment of this Court. Shadix v. PlaceName CarrollPlaceTypeCounty274 placeStateGa.560, 563-564 1 554 SE2d 465 2001.
