Clarke, Chief Justice.
In August 1986, when he was 15 years old, appellant (Craven) had a mole on his back examined. Appellee (Santos) performed a biopsy and diagnosed it as noncancerous. From August 1986, until September 1991, Craven experienced no pain or other symptoms of cancer. In September 1991, however, a physician advised Craven that the growth on his back was cancerous. Subsequent investigations showed [658]*658that the biopsy done in 1986 revealed a malignant melanoma which was misdiagnosed as benign.
Craven filed this medical malpractice complaint on September 3, 1992, naming Dr. Santos and Lowndes County Hospital Authority as defendants. The trial court granted summary judgment to the defendants concluding that the claim was barred by OCGA § 9-3-71 (b), the medical malpractice statute of repose. Craven appealed on two grounds: first, that OCGA § 9-3-71 (b) denies him equal protection of the law; second, that defendants are estopped from relying on the statute because their misrepresentation to him hid the injury until the claim was time barred.
1. The statute in question does two things. It imposes a statute of limitation and superimposes on that a statute of repose. As originally enacted, the act of the legislature simply provided for a statute of limitation for malpractice actions and read, as follows:
Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred. OCGA § 9-3-71.
In 1985, the legislature amended the statute by dividing it into four subsections. Subsection (a), of the amended statute is similar to the above language and reads as follows:
(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred. OCGA § 9-3-71 (a).
Subsections (b), (c) and (d) were added to the statute and read as follows:
(b) 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.
(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.
(d) Nothing contained in subsection (a) or (b) of this Code section shall be construed to repeal Code Section 9-3-73, which shall be deemed to apply either to the applicable statutes of limitation or repose. OCGA § 9-3-71 (b)-(d).
[659]*659Relying on Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983), and Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), appellant contends that OCGA § 9-3-71 (b) creates an arbitrary classification of plaintiffs in medical malpractice cases. The first classification is those victims of medical malpractice who discover bodily harm within five years of the date of the negligent act or omission. The second classification includes those persons who discover their injuries more than five years after the date of the negligent act or omission. The statute allows the first group to bring an action against the defendant. The second group has no cause of action because the statute says it is abrogated and is in a state of ultimate repose. Appellant argues these classifications are “arbitrary and not based on some difference having a fair and substantial relation to the object of the legislation.” He concedes that the legislature has the power to establish statutes of repose, but he contends that the legislature may not impose a time-triggered abrogation of a cause of action to some groups of claimants but not for others. The parties agree the plaintiff is not a member of a suspect class and is not entitled to strict scrutiny. Therefore, we apply the rational basis test.
Under this test, the court will uphold the statute if, under any conceivable set of facts, the classification bears a rational relationship to a legitimate end of government not prohibited by the Constitution. Allrid v. Emory University, 249 Ga. 35 (285 SE2d 521) (1982). Those challenging the statute bear the responsibility to “convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U. S. 93, 111 (99 SC 939, 59 LE2d 171) (1979).
In Clark v. Singer, supra, we identified the interest behind OCGA § 9-3-71 as eliminating stale claims. Indeed, that justification still applies to the statute of limitation, but the amended version of OCGA § 9-3-71 is directed toward other interests as well. Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury makes it difficult for insurers to adequately assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause. Therefore, we conclude that the purpose of the statute of repose is rational. Our decisions in both Clark v. Singer, supra, and Shessel v. Stroup, supra, support this finding.
2. Clark and Shessel invalidated the pre-1985 statute of limitation because the statute barred the cause of action before it accrued. Shessel found no “substantial relation in this . . . classification to the object of a limitation statute.” 253 Ga. at 59. This case deals with a different situation. The pre-1985 statute was a statute of limitation. [660]*660As such, its clear purpose is to eliminate stale claims. A special concurrence noted that although a statute of limitation should not bar a claim before it accrued, a statute of repose could abolish a claim before its accrual. Shessel, 253 Ga. at 60 (Clarke, J., concurring specially). The distinction between the statute of limitation and the statute of repose 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.
Hill v. Fordham, 186 Ga. App. 354, 357 (367 SE2d 128) (1988).
Free access — add to your briefcase to read the full text and ask questions with AI
Clarke, Chief Justice.
In August 1986, when he was 15 years old, appellant (Craven) had a mole on his back examined. Appellee (Santos) performed a biopsy and diagnosed it as noncancerous. From August 1986, until September 1991, Craven experienced no pain or other symptoms of cancer. In September 1991, however, a physician advised Craven that the growth on his back was cancerous. Subsequent investigations showed [658]*658that the biopsy done in 1986 revealed a malignant melanoma which was misdiagnosed as benign.
Craven filed this medical malpractice complaint on September 3, 1992, naming Dr. Santos and Lowndes County Hospital Authority as defendants. The trial court granted summary judgment to the defendants concluding that the claim was barred by OCGA § 9-3-71 (b), the medical malpractice statute of repose. Craven appealed on two grounds: first, that OCGA § 9-3-71 (b) denies him equal protection of the law; second, that defendants are estopped from relying on the statute because their misrepresentation to him hid the injury until the claim was time barred.
1. The statute in question does two things. It imposes a statute of limitation and superimposes on that a statute of repose. As originally enacted, the act of the legislature simply provided for a statute of limitation for malpractice actions and read, as follows:
Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred. OCGA § 9-3-71.
In 1985, the legislature amended the statute by dividing it into four subsections. Subsection (a), of the amended statute is similar to the above language and reads as follows:
(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred. OCGA § 9-3-71 (a).
Subsections (b), (c) and (d) were added to the statute and read as follows:
(b) 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.
(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.
(d) Nothing contained in subsection (a) or (b) of this Code section shall be construed to repeal Code Section 9-3-73, which shall be deemed to apply either to the applicable statutes of limitation or repose. OCGA § 9-3-71 (b)-(d).
[659]*659Relying on Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983), and Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), appellant contends that OCGA § 9-3-71 (b) creates an arbitrary classification of plaintiffs in medical malpractice cases. The first classification is those victims of medical malpractice who discover bodily harm within five years of the date of the negligent act or omission. The second classification includes those persons who discover their injuries more than five years after the date of the negligent act or omission. The statute allows the first group to bring an action against the defendant. The second group has no cause of action because the statute says it is abrogated and is in a state of ultimate repose. Appellant argues these classifications are “arbitrary and not based on some difference having a fair and substantial relation to the object of the legislation.” He concedes that the legislature has the power to establish statutes of repose, but he contends that the legislature may not impose a time-triggered abrogation of a cause of action to some groups of claimants but not for others. The parties agree the plaintiff is not a member of a suspect class and is not entitled to strict scrutiny. Therefore, we apply the rational basis test.
Under this test, the court will uphold the statute if, under any conceivable set of facts, the classification bears a rational relationship to a legitimate end of government not prohibited by the Constitution. Allrid v. Emory University, 249 Ga. 35 (285 SE2d 521) (1982). Those challenging the statute bear the responsibility to “convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Vance v. Bradley, 440 U. S. 93, 111 (99 SC 939, 59 LE2d 171) (1979).
In Clark v. Singer, supra, we identified the interest behind OCGA § 9-3-71 as eliminating stale claims. Indeed, that justification still applies to the statute of limitation, but the amended version of OCGA § 9-3-71 is directed toward other interests as well. Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury makes it difficult for insurers to adequately assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause. Therefore, we conclude that the purpose of the statute of repose is rational. Our decisions in both Clark v. Singer, supra, and Shessel v. Stroup, supra, support this finding.
2. Clark and Shessel invalidated the pre-1985 statute of limitation because the statute barred the cause of action before it accrued. Shessel found no “substantial relation in this . . . classification to the object of a limitation statute.” 253 Ga. at 59. This case deals with a different situation. The pre-1985 statute was a statute of limitation. [660]*660As such, its clear purpose is to eliminate stale claims. A special concurrence noted that although a statute of limitation should not bar a claim before it accrued, a statute of repose could abolish a claim before its accrual. Shessel, 253 Ga. at 60 (Clarke, J., concurring specially). The distinction between the statute of limitation and the statute of repose 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.
Hill v. Fordham, 186 Ga. App. 354, 357 (367 SE2d 128) (1988). This amounts to a recognition that the legislature may conclude that the time may arrive when past transgressions are no longer actionable. The long history of such conclusions emphasizes their rationality. From the biblical time of the Year of Jubilee to the present day, policymakers have exercised the right to “wipe the slate clean” after a fixed period of time. In doing this, there is the clear distinction between a statute of limitation “barring” an action, and a statute of repose providing for the abolition of a cause of action after the passage of the time provided. We cannot say that the legislature acted irrationally when it amended the statute in question.
3. Appellant also contends that the trial court erroneously granted summary judgment for defendant on the issue of whether its representations should estop the assertion of the statute of repose as a defense. Fraud on the part of a defendant will toll a statute of repose. Hill v. Fordham, supra at 358.
To make out a claim of equitable estoppel, the plaintiff must show fraud by offering evidence of a known failure to reveal negligence. Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (358 SE2d 486) (1987). Nothing in this record shows that appellees had any knowledge of negligent practice. “A mere misdiagnosis ‘is insufficient to raise an issue of fraud.’ ” Id. at 203.
Judgment affirmed.
All the Justices concur, except Benham, Sears-Collins and Hunstein, JJ., who dissent.