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Balotin v. Simpson

The 5-year statute of repose barred the plaintiffs' claims arising from the defendants' alleged failure to notice a pancreatic tumor on a March 2001 CT scan.

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Kenneth and Julie Simpson collectively, “the Simpsons” filed a medical malpractice claim against several medical providers, including Dr. Robert Balotin and Radiology Associates of Houston County. The defendants moved to dismiss the complaint, arguing it was brought beyond the five-year statute of repose. The trial court denied the motion, and we granted the defendants’s application for interlocutory appeal. For reasons that follow, we reverse. Summary judgment is appropriate when the record establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.1 We conduct a de novo review of a trial court’s ruling on a motion for summary judgment, construing the evidence in a light favorable to the nonmovant.2

Viewed in this manner, the record reveals that in October 2005, the Simpsons filed suit against Dr. Thomas Johnson and his radiology practice, alleging that Dr. Johnson negligently read a CT scan and failed to notice a pancreatic tumor.3 During the February 8, 2006 deposition of Dr. Johnson, the Simpsons learned that a March 2001 CT scan read by Dr. Balotin also revealed the tumor seen in the subsequent CT scan interpreted by Dr. Johnson.

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