concurring specially.
I agree with the majority that the trial court properly granted summary judgment to the defendant doctor in this medical malpractice case, based on the statute of repose, but I concur specially as I do not agree with all that is said. We need not decide that Mr. Howell had an “injury” — vascular disease caused by years of smoking — when he first saw Dr. Zottoli, and need not consider whether the doctor’s subsequent attenuated contacts with Howell caused “new *482injuries.” Instead, based on the expert’s testimony that Zottoli breached the standard of care when he first saw Howell by failing to diagnose, treat, and warn Howell about his cardiovascular risk factors, the statute of repose began running from that initial visit. The doctor’s continued failure to diagnose, treat, and warn Howell of his risk factors was simply continued negligent treatment for the same medical condition. Additionally, the record does not indicate that treatment protocols changed in the interim, a factor the Supreme Court of Georgia considered in Schramm v. Lyon, 285 Ga. 72 (673 SE2d 241) (2009) in determining that subsequent negligent acts began new periods of repose. While Howell may indeed have had vascular disease when he first saw Zottoli, that condition did not arise from Zottoli’s negligence. Howell’s risk factors by themselves were not injuries for which he could have sued Zottoli; the injury resulting from Zottoli’s failure to diagnose, treat, and warn occurred when Howell suffered a fatal heart attack. But the statute of repose ran five years after Zottoli’s initial negligence and Howell’s suit was not filed within that time period.
“The statute of repose imposes an absolute limit on the time within which an action may be brought. Because the statute of repose is unrelated to the accrual of the cause of action, it runs from the date on which the negligent or wrongful act or omission occurred or was discovered.” (Citation and punctuation omitted.) Christian v. Atha, 267 Ga. App. 186, 187 (598 SE2d 895) (2004); see also Bush v. Sreeram, 298 Ga. App. 68, 70 (3) (679 SE2d 87) (2009).
The majority’s analysis of recent Supreme Court of Georgia medical malpractice cases involving the statutes of repose and limitation is thoughtful and scholarly. The distinctions between some of those cases are not easy to apply to new fact patterns. Compare Kaminer v. Canas, 282 Ga. 830, 834 (1) (653 SE2d 691) (2007) (statute of repose began running when plaintiffs doctors first failed to diagnose and treat pediatric AIDS); Amu v. Barnes, 283 Ga. 549, 551 (662 SE2d 113) (2008) (new statute of limitation began running when plaintiffs treatable colon condition developed into untreatable metastatic cancer, although two years passed after doctor’s initial failure to diagnose); Cleaveland v. Gannon, 284 Ga. 376, 377 (1) (667 SE2d 366) (2008) (statute of limitation began when plaintiffs treatable kidney cancer developed into untreatable metastatic cancer); and Schramm v. Lyon, supra, 285 Ga. 72 (new statute of repose began running upon each failure to warn post-splenectomy plaintiff of infection risk).
As former Chief Justice Sears noted in her concurrences in Amu, 283 Ga. 554 and Cleaveland, 284 Ga. at 383, “no meaningful distinction” exists between those two cases and Kaminer except that the first two cases involved men with cancer and Kaminer involved *483a child with AIDS. Fortunately, this court need not sort through this confusion here because the defendant’s negligent act occurred more than five years before suit was filed, and thus the statute of repose applies.
Decided February 24, 2010. Ashman, Lasky & Cooper, Jeffrey W. Lasky, James B. Stevens, Simon J. Weinstein, for appellant. Brennan & Wasden, Joseph B Brennan, for appellee.For these reasons, I respectfully concur specially.