After the death of Trina Elliott, her estate remained unrepresented for 344 days, until Sharon Simmons was appointed administrator. In that representative capacity, Ms. Simmons later brought suit in the Superior Court of Fulton County against Southside Healthcare, Inc., two of its physicians, and one nurse, alleging medical malpractice in the treatment of Ms. Elliott. Because Southside became a federally supported health center during the period of treatment, the United States of America intervened, substituted itself as a defendant, and removed the case to the United States District Court for the Northern District of Georgia. The district court dismissed the United States as a party based upon Ms. Simmons’ failure to exhaust state administrative remedies, and remanded the case to the state court. She later filed this action in the federal district court against the United States. By consent order, Ms. Simmons agreed to dismiss the state court action and to amend her federal complaint to join Southside, one physician, and one nurse Appellees. By the time Ms. Simmons filed the amended complaint, however, it had been more than five years since the alleged negligent acts of Appellees, but less than five years since her appointment as administrator. The district court dismissed the state court claims against Appellees, holding that such claims were barred by the applicable five-year statute of ultimate repose, which reads as follows: “Notwithstanding subsection a of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” OCGA § 9-3-71 b. On appeal, the United States Court of Appeals for the Eleventh Circuit certified the following question: “Will Georgia law allow the unrepresented estate statute, OCGA § 9-3-92, to toll the ultimate statute of repose in medical malpractice actions, OCGA § 9-3-71 b, by the period during which the estate went unrepresented” Simmons v. Sonyika , 394 F3d 1335, 1340-1341 II 11th Cir. 2004. In pertinent part, OCGA § 9-3-92 provides that “the time between the death of a person and the commencement of representation upon his estate . . . shall not be counted against his estate in calculating any limitation applicable to the bringing of an action . . . .” That statute applied only to statutes of limitation when it was enacted nearly 150 years ago, long before the adoption of legislation creating any statutes of repose. Ga. L. 1855-1856, pp. 233, 235, 237, § § 21, 40; Wright v. Robinson , 262 Ga. 844, 846 1 426 SE2d 870 1993. “The subsequent enactment of OCGA § § 9-3-71 and 9-3-73 clearly distinguishes between the statutes of limitation and the statutes of repose.” Siler v. Block , 204 Ga. App. 672, 674 1 420 SE2d 306 1992. Indeed, OCGA § 9-3-71 c expressly designates OCGA 9-3-71 b as “a five-year statute of ultimate repose and abrogation,” differentiating it from the “two-year statute of limitations” created by OCGA § 9-3-71 a. The distinction between the statute of limitation and the statute of repose in OCGA § 9-3-71 is clear. “A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable.” Cit. Craven v. Lowndes County , 263 Ga. 657, 660 2 437 SE2d 308 1993. See also Pafford v. Biomet , 264 Ga. 540, 543 1 448 SE2d 347 1994.
A statute of repose stands as an unyielding barrier to a plaintiff’s right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. Cit. The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists. Cit. Wright v. Robinson , supra at 845 1 citing Massachusetts cases.
