After Willie Johnson died, his widow, Catherine Johnson, filed an amendment to their pending medical malpractice action to add a claim for wrongful death. The defendants below, Dr. Eileen Byrd, Dr. Frazier Todd, and Wesley Chapel Foot and Ankle Center, LLC hereinafter collectively, “Dr. Byrd”, filed a motion for summary judgment, arguing that the medical malpractice statute of repose barred the wrongful death claim because Mrs. Johnson filed the claim more than five years after Dr. Byrd’s allegedly negligent medical treatment. The trial court denied Dr. Byrd’s motion on this basis.1 Having granted Dr. Byrd’s application for an interlocutory appeal from the denial of summary judgment on this basis, we affirm the trial court’s ruling for the reasons that follow. In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Citations and punctuation omitted. Benton v. Benton , 280 Ga. 468, 470 629 SE2d 204 2006.
Viewed in the light most favorable to Mrs. Johnson, the record reveals the following undisputed facts. Dr. Byrd, a podiatrist, treated Mr. Johnson for pain in his heel on February 25, 1999. Dr. Byrd placed a soft cast on Mr. Johnson’s foot and prescribed pain medication but did not prescribe anti-inflammatory medication. Less than three weeks later, lack of blood circulation in Mr. Johnson’s foot and leg necessitated the amputation of his leg. Within two years after Dr. Byrd treated Mr. Johnson, Mr. and Mrs. Johnson filed a medical malpractice action, State Court of Fulton County Civil Action No. 01VS015152, asserting claims for personal injury and for loss of consortium, respectively. The Johnsons alleged that Dr. Byrd’s treatment fell below the standard of care, given Mr. Johnson’s history of diabetes, peripheral vascular disease, and other vascular problems, and that the negligent medical care proximately caused the amputation.
