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Esener v. Kinsey9/13/1999
urt properly denied the motion, because issues for jury determination exist as to plaintiff's exercise of diligence in order for the doctrine of equitable estoppel to prevent the defendant from asserting the defense of the statute of repose. See Beck v. Dennis, supra; Hill v. Fordham, supra.
Whether by discovery, which delays the accrual of the action, or by infancy, incompetency, or fraud, which may toll the statute of limitation for up to five years, however, nothing stops the abrogation of the action by the statute of repose; five years after the negligent or wrongful act or omission occurred, despite any non-discovery or any tolling, the medical malpractice action or potential action ceases to exist by abrogation of law under the statute of repose. OCGA §§ 9- 3-71 (b); 9-3-73 (c); [Cits.]. Charter Peachford Behavioral Health Sys., Inc. v. Kohout, 233 Ga. App. 452, 456-457 (504 SE2d 514) (1998) (physical precedent only.) ("Charter").
In the foregoing quotation, relied upon by Dr. Esener, Charter referred only to the effect of OCGA § 9-3-96 tolling the statute of repose and did not involve the doctrine of equitable estoppel that prevents the defendant from relying upon the statute of repose, when his fraud concealed the cause of the injury . While statutes of repose cannot be tolled, actual fraud concealing the negligence can estop the defendant from asserting the defense of the statute of repose through the doctrine of equitable estoppel. Hill v. Fordham, supra at 357-358.
Judgment affirmed. Blackburn, P. J., and Barnes, J., concur.
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