William D. Johnson and Karen Johnson sued Waycross Urology Clinic, P.C. and Dr. Ronald L. Tomlinson for medical malpractice and loss of consortium relating to surgery Tomlinson performed in 1987. The defendants answered, denying liability, and moved for summary judgment following discovery. The trial court denied the motion but certified the issue for immediate review, and this court granted Tomlinson’s application for interlocutory appeal. Because this action is barred by the running of the five-year statute of repose, we reverse. William Johnson sought treatment from Tomlinson for a kidney stone in 1987. The doctor tried to retrieve the stone non-surgically with a scope, but was unsuccessful. On July 2, 1987, Tomlinson removed the stone by making an abdominal incision and then cutting into Johnson’s ureter, which is the tube running between the kidney and bladder where the stone was lodged. Before stitching the incision in the ureter, Tomlinson placed a stent, which is essentially a hollow tube, inside the ureter and attached it with a single dissolving stitch. He then closed the incisions, leaving a temporary drain through the abdomen. After seven days in the hospital, the temporary drain was removed and Johnson was discharged with instructions to return to Tomlinson in 30 days. Nine days after he was discharged, which was fourteen days after the surgery, Johnson called the doctor to report that he had passed the stent, and the doctor told him to bring the device to his follow-up appointment. At that appointment, Tomlinson removed the abdominal staples, checked his urine, and discharged him with no follow-up instructions.
Johnson experienced no problems with his kidneys or bladder after the surgery. Twelve years later, in 1999, Johnson fell and injured his back. After some tests in the emergency room, his physician determined that his left kidney was enlarged. Subsequent tests determined that the kidney was not functioning at all, because an obstruction had developed in the ureter, and Johnson ultimately had the kidney removed. He sued Tomlinson and his practice, alleging that the doctor committed malpractice by not replacing the stent so it remained in place for 30 days, and in not advising him to have a follow-up test some months after the surgery to ensure that the ureter was not blocked. He amended his complaint to allege that Tomlinson intentionally concealed the facts that the stent needed to be replaced and that he needed follow-up.
