However, it is with the greatest reluctance that I join the dissent of Judge Sognier with regard to Division 2 of the majority opinion. I certainly understand the motivation of the majority because of the recent Supreme Court decisions of Clark v. Singer, 250 Ga. 470 ( 298 S.E.2d 484) (1983) and Hart v. Eldridge, 250 Ga. 526 ( 299 S.E.2d 560) (1983). If the rationale of Clark had been applied at the time of the rendition of the decision in Allrid v. Emory Univ., 249 Ga. 35 ( 285 S.E.2d 521) (1982), appellant's cause of action for wrongful death would not have been held to be barred by the statute of limitation.
Thus, our holding in Ogletree I is the law of the case and must be followed. Both defendants cite this court's opinion in Hart v. Eldridge, 163 Ga. App. 295 (1) ( 293 S.E.2d 550) (1982), rev'd on other grounds 250 Ga. 526 ( 299 S.E.2d 560) (1983), in support of their argument against the application of the law of the case rule. The facts of Hart are distinguishable. Whereas the case now before us involves the application and interpretation of the common law, Hart involved the interpretation of a statute which, in the interim between the two appearances of the case before this court, was interpreted differently by the Georgia Supreme Court. More importantly, on certiorari of our holding in Hart to the Supreme Court, the Supreme Court expressly did not address the issue of whether this court's opinion violated the law of the case rule because, as the court noted, its opinion reversing this court's second ruling effectively restored our initial ruling.
More importantly, on certiorari of our holding in Hart to the Supreme Court, the Supreme Court expressly did not address the issue of whether this court's opinion violated the law of the case rule because, as the court noted, its opinion reversing this court's second ruling effectively restored our initial ruling. See Hart v. Eldridge, 250 Ga. 526 ( 299 S.E.2d 560) (1983) [(Hart III)]. Thus, even in Hart, the law of the case effectively prevailed.
Pursuant to the provisions of OCGA § 9-3-71, the two-year statute of limitation for wrongful death cases emanating from medical malpractice, such as the wrongful death averments in this case, begins to run from the date of death, not from the negligent act or omission of the practitioner. See generally Hart v. Eldridge, 250 Ga. 526 ( 299 S.E.2d 560); Clark v. Singer, 250 Ga. 470 ( 298 S.E.2d 484). Thus, the statute of limitation as to all wrongful death claims averred in the complaint would not expire until March 6, 1993, and appellee could not invoke the 45-day grace period of OCGA § 9-11-9.
BIRDSONG, Judge. Our judgment in Hart v. Eldridge, 163 Ga. App. 295 ( 293 S.E.2d 550) has been reversed in part by the Supreme Court on certiorari ( Hart v. Eldridge, 250 Ga. 526 ( 299 S.E.2d 560)). In Division 2 of our decision at p. 298, we held that the statute of limitations pertaining to medical malpractice (OCGA § 9-3-71 (Code Ann. § 3-1102)) governed the complaint filed by Mrs. Hart even though the alleged misfeasance (the misreading of an X-ray) failed to disclose an aneurysm that subsequently caused the death of Mr. Hart.
Similarly, "in the great majority of jurisdictions which have considered the question, the limitation period applicable to a cause of action for wrongful death — whether contained in the statute creating the cause of action or in general statutes of limitation — begins to run from the date of death." Speiser, Wrongful Death and Injury, § 11:10 (1999); see also Richardson v. Knud Hansen Mem'l Hosp., 744 F.2d 1007, 1011 (3rd Cir. 1984) (applying Virgin Islands law to hold "that the accrual date for the action is the date of death," not date of injury); Iida v. Allied Signal, Inc., 854 F. Supp. 702, 712 (D.Hawaii 1994) (holding that wrongful death action brought within two years of date of death from asbestosis but more than two years after diagnosis accrued at time of death of decedent rather than at time of injury); Hart v. Eldridge, 299 S.E.2d 560, 561 (Ga. 1983) ("[S]tatute of limitations for a wrongful death action emanating from medical malpractice begins to run from the date of death, not from the date of the negligent act or omission of the practitioner."); Chapman v. Cardiac Pacemakers, Inc., 673 P.2d 385, 386-87 (Idaho 1983) (certified question from federal district court) ("[T]he law is clear that a cause of action for wrongful death accrues on the death of the injured party, and not before. This is so because the cause of action did not accrue to the decedent. . . .The cause of action which accrues to an injured person during his lifetime is altogether separate from the cause of action accruing to the person's heirs should he [or she] die of that injury."); Farmers Bank and Trust Co. v. Rice, 674 S.W.2d 510, 512 (Ky. 1984) ("[T]he statute of limitations for wrongful death actions runs from the death of the decedent, even though there was no viable action for personal injury or medical negligence or malpractice at the time of death.")
and not the four-year period of the Alabama Medical Liability Act, . . . would be applicable to an action for wrongful death arising out of an act of medical malpractice."); McMickens v. Waldrop, 406 So.2d at 869 ("Our decision should not be construed as holding that the legislature could not modify or change the two-year period now a part of the Wrongful Death Statute; we only hold that by passage of the Medical Malpractice Act, the legislature did not affect that two-year period."); Clark v. Singer, 250 Ga. 470, 472, 298 S.E.2d 484, 486 (1983) (application of medical malpractice statute of limitations to medical malpractice wrongful death actions held unconstitutional because it created "two classes of wrongful death claimants in medical malpractice actions: (1) those whose spouse, child or parent died within two years of the negligent or wrongful act or omission, and (2) those whose spouse, child or parent died more than two years after the negligent or wrongful act or omission"); Hart v. Eldridge, 250 Ga. 526, 527, 299 S.E.2d 560, 561 (1983) ("[S]tatute of limitations for a wrongful death action emanating from medical malpractice begins to run from the date of death, not from the date of the negligent act or omission of the practitioner."); Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 786-87, 673 P.2d 385, 386-87 (1983) (certified question from federal district court) ("[T]he law is clear that a cause of action for wrongful death accrues on the death of the injured party, and not before.
the statute [of limitation] runs against the death action only from the date of death, even though at that time the decedent's own action would have been barred while he was living"); Bregant v. Fink, 724 S.W.2d 337, 338 (Mo.Ct.App. 1987) ("[A]n action for a death resulting from malpractice is a wrongful death action, not a malpractice action."); Krowicki v. St. Elizabeth Hosp., 494 N.Y.S.2d 590, 591 (N.Y.App. Div. 1985) (holding that action for wrongful death was governed by two year period of limitation for commencement of wrongful death actions, and not by the two and one half year period applying to medical malpractice actions, notwithstanding fact that death allegedly resulted from medical malpractice); Farmers Bank and Trust Co. v. Rice, 674 S.W.2d 510, 512 (Ky. 1984) ("[T]he statute of limitation for wrongful death actions runs from the death of the decedent, even though there was no viable action for personal injury or medical negligence or malpractice at the time of death."); Hart v. Eldridge, 299 S.E.2d 560, 561 (1983) ("statute of limitations for a wrongful death action emanating from medical malpractice begins to run from the date of death, not from the date of the negligent act or omission of the practitioner"); Chapman v. Cardiac Pacemakers Inc., 673 P.2d 385, 386-87 (1983) (certified question from federal district court) ("[T]he law is clear that a cause of action for wrongful death accrues on the death of the injured party, and not before. This is so because the cause of action did not accrue to the decedent . . . . The cause of action which accrues to an injured person during his lifetime is altogether separate from the cause of action accruing to the person's heirs should he [or she] die of that injury.");Ness v. St. Aloisius Hospital, 301 N.W.2d 647, 652-53 (N.D. 1981) (holding that medical malpractice statute of limitations is not applicable in wrongful death actions, even though wrongful death action is based upon medical malpractice); Shaughnessy v. Spray, 637 P.2d 182, 187 (1981) ("[T]h