Does the five-year statute of repose in OCGA § 9-3-71 b bar a medical malpractice action filed within the repose period —but not brought by the real party in interest —when the real party in interest is substituted as the proper party plaintiff after expiration of the repose period On the present facts, we find that it does not. Ali Memar was the plaintiff named in the caption of a complaint filed on June 6, 2002, which set forth two separate medical malpractice actions against Toncred M. Styblo, M. D. and others.1 One action alleged that Dr. Styblo negligently caused the wrongful death of Memar’s wife, Zeinab Broomand,2 and another action alleged that Broomand’s estate was entitled to recover for her pain and suffering prior to death and for medical and funeral expenses. See Waldroup v. Greene County Hosp. Auth. , 265 Ga. 864, 867 463 SE2d 5 1995 actions for personal injury and for wrongful death arising out of the same alleged medical malpractice are separate and distinct causes of action even though asserted in the same complaint. This appeal concerns only the action seeking to recover damages for the estate.
Although no other entity was named in the caption of the complaint as a plaintiff along with Ali Memar, the substance of the complaint rather than the caption controls, and the substance of the allegations in the complaint shows that the separate malpractice action seeking to recover for Broomand’s pain and suffering prior to death and for medical and funeral expenses was brought by “the estate of Zeinab Broomand.” Anderson v. Bruce , 248 Ga. App. 733, 735-736 548 SE2d 638 2001. The estate of Broomand, however, was not the proper party plaintiff to bring this action because “an estate is not a legal entity which can be a party plaintiff to legal proceedings,” and the exclusive right to bring an action on behalf of Broomand’s estate resided in the estate’s legal representative, executor, or administrator. Orange County Trust Co. v. Estate of Takowsky , 119 Ga. App. 366 166 SE2d 913 1969. Neither was Ali Memar the proper party plaintiff to bring the action for Broomand’s estate when the complaint was filed in June 2002 because, at that time, he was not the legal representative, executor, or administrator of the estate. The record shows that, after Broomand died intestate in August 2001, her son, Farid Memar, was appointed administrator of her estate in a March 2003 probate court order. At that point, Farid Memar became the proper party plaintiff to bring an action for the estate, but he was never substituted as the plaintiff. After Farid Memar resigned as administrator of the estate, Ali Memar was appointed on July 20, 2006, as administrator of the estate by order of the probate court. On July 25, 2006, Ali Memar amended the complaint to show that, as administrator of the estate, he was bringing the malpractice action for the estate. On this record, Dr. Styblo and the two Emory defendants filed a motion for partial summary judgment in August 2006, seeking dismissal of the estate’s malpractice action on the basis that it was barred by the five-year statute of repose in OCGA § 9-3-71 b.3 This appeal is from the trial court’s order granting the motion and dismissing the estate’s action.
