Burns v. Radiology Associates of Gwinnett, PC

214 Ga. App. 76 (1994)

BURNS v. RADIOLOGY ASSOCIATES OF GWINNETT, P. C. et al.

A94A0959.

Court of Appeals of Georgia.

Decided July 15, 1994.

MacDowell & Associates, C. Frederick MacDowell, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., for appellees.

Judge Harold R. Banke.

The appellant filed an action on March 16, 1989, alleging that the appellees misread a chest x-ray taken of his wife on March 19, 1984, revealing cancer in her left lung, which allowed the cancer to spread *77 to both lungs and caused her death on October 18, 1987. The case was filed within the two-year wrongful death statute of limitation and the five-year medical malpractice statute of repose in compliance with OCGA § 9-3-71 (a) and (b). On November 2, 1990, the appellant voluntarily dismissed the action and refiled it on April 24, 1991, as provided by OCGA § 9-2-61. He appeals from an order entered October 4, 1993, granting the appellees' motion to dismiss the wrongful death action as barred by the statute of repose.

This case is controlled by Wright v. Robinson, 262 Ga. 844, 846 (1) (426 SE2d 870) (1993), in which the Supreme Court concluded "that the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose. A voluntary dismissal terminates the action completely. [Cit.] `An action renewed pursuant to OCGA § 9-2-61 (a) is an action de novo.' [Cits.] . . . [I]t logically follows that a new suit on a nonexisting cause of action cannot proceed." Accordingly, the trial court properly dismissed the action in this case.

Judgment affirmed. Birdsong, P. J., and Blackburn, J., concur.