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Abend v. Klaudt

The 5-year statute of repose in O.C.G.A. § 9-3-71 b does not bar a foreign object medical malpractice action that is timely filed within the 1-year limitation period for that type of suit.

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This appeal arises from a medical malpractice action brought by Betty Klaudt against Dr. Melvin N. Abend.1 Dr. Abend contends that the trial court erred by denying his motion for summary judgment in which he claimed that the action is barred by the one-year statute of limitations in OCGA § 9-3-72 applicable to foreign objects left in a patient’s body, and by the five-year statute of repose in OCGA § 9-3-71 b applicable to medical malpractice actions.

We conclude that a jury issue remains as to whether Klaudt complied with the one-year limitation period of § 9-3-72 which requires that, where a foreign object is left in a patient’s body, the action “shall be brought within one year after the negligent or wrongful act or omission is discovered.” We further find as a matter of law that the five-year statute of repose in § 9-3-71 b does not bar a foreign object medical malpractice action timely filed within the one-year period set forth in § 9-3-72. Accordingly, we affirm the denial of Dr. Abend’s motion for summary judgment.

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