dissenting.
As I am not disposed to concur in the majority view, I must respectfully dissent and set forth my views herein.
On December 2, 1988, Delores Walden, Alberta Glenn, Willie Lee Anderson, Willie Bell Johnson, Zion Anderson, Jonathan Anderson, Charles McIntyre and Wayne Mitchell (plaintiffs), “individually and as next of kin and heirs . . .” of James Edward Anderson, filed an action against John D. Archbold Memorial Hospital, Inc., and members of the hospital’s staff (defendants) for allegedly causing the death of James Edward Anderson on January 14, 1987. More specifically, plaintiffs alleged that James Edward Anderson died after he was severely burned while a patient of defendant hospital and that the fire was the result of “negligent” patient treatment; “negligent” patient supervision and sub-standard medical care, provisions and facilities. Plaintiffs’ complaint was not set-out in counts, nor were damages segregated according to cause of action. Instead, plaintiff alleged general negligence and sought “compensatory and punitive damages,” damages for “great physical and mental pain and suffering, . . . permanent scarring, medical expenses, loss of life, loss of enjoyment of life, funeral expenses, and lost earnings.” Plaintiffs also sought “reasonable attorney’s fees and costs. . . .”
On February 8, 1989, plaintiffs dismissed the complaint without prejudice and on August 3, 1989, they filed a renewal action “individually and as next of kin . . .’’of James Edward Anderson. (Plaintiff Willie Lee Anderson was not included as a party to the renewal action.) Plaintiffs sought the same damages as alleged in the original complaint, but alleged medical malpractice, negligence and wrongful death in separate counts. Defendants later answered and moved to dismiss, claiming that plaintiffs “have no cognizable right to recover for the wrongful death of James Edward Anderson, or his conscious *281pain and suffering or any final expenses [and that] the applicable statute of limitations has run against the party or parties who could lawfully present such claims.” More specifically, defendants argued that the wrongful death action should be dismissed because it was not prosecuted by the decedent’s spouse, children or administrator; that the claims for pain and suffering, medical expenses, funeral expenses and other costs should be dismissed because it was not prosecuted by the decedent’s spouse, children or administrator; that the claims for pain and suffering, medical expenses, funeral expenses and other costs should be dismissed because it was not prosecuted by the administrator of the decedent’s estate and that all claims should be dismissed “[s]ince no person having the right to sue did so prior to the expiration of the [two-year statutes] of limitations. . . . Alternatively, [defendants argued that] if any of those plaintiffs who originally sued are a surviving spouse, child or parent of James Edward Anderson, having dismissed the previous action and having not brought the renewal action in the right capacity, the claim should likewise be dismissed.”
In response, plaintiffs argued that “there is no requirement that they plead their capacity with any more specificity [and that they are] the real parties in interest in this case.” However, plaintiffs went on and stated that if they “have failed in any manner on any cause of action to properly allege their capacity to maintain the actions, [then] the same can and should be cured by amendment [so that subsequent actions by the proper party will] not be barred by the statute of limitations.” Plaintiffs subsequently amended the renewed complaint and named Wayne Mitchell and Charles McIntyre as illegitimate children of James Edward Anderson and designated Alberta Glenn “as Personal Representative of the estate of JAMES EDWARD ANDERSON. . . .”
On November 28, 1989, the trial court entered a “FINAL ORDER ON DEFENDANTS’ MOTION TO DISMISS” and found, in pertinent part, that “[t]here are two allegedly illegitimate children of James Edward Anderson among the group of plaintiffs who denominated themselves as heirs and next of kin of James Edward Anderson . . .; [that there] has been no administrator appointed to the estate of James Edward Anderson ... as of the date of this order[; that the] statute of limitations for a suit alleging personal injuries . . . ran on December 5, 1988; [that the] statute of limitations for a suit alleging wrongful death ran on January 13, 1989; [that the] right of action for personal injuries under the survival statute (OCGA section 9-2-41) can be prosecuted only by the administrator of the decedent’s estate; [that the] right of action for funeral, medical and other expenses resulting from the injury and death of a deceased is in the administrator of the deceased’s estate (OCGA section 51-4-5 (b)); [and that the] *282right of action for wrongful death of a parent belongs to the children, if there is no surviving spouse (OCGA section 51-4-2). . . .” The trial court then “ORDERED AND ADJUDGED THAT:
“A. Any and all claims for the wrongful death of James Edward Anderson are in [Wayne] Mitchell and Charles McIntyre, his alleged illegitimate children.
“B. The plaintiffs’ amendment to their renewed and recommenced complaint to reflect that this is an action by [Wayne] Mitchell, by Pauline Mitchell, his next friend, and Charles McIntyre, made prior to the entry of this pre-trial order, is hereby allowed and ordered.
“C. The plaintiffs’ amendment to their renewed and recommenced complaint to change the capacity of Alberta Glenn to administrator of the estate of James Edward Anderson, deceased, to include claims for conscious pain and suffering, funeral, medical and other expenses, punitive damages, and attorneys’ fees and costs, is barred by the statute of limitations, and even though made prior to the entry of this pre-trial order, is hereby disallowed and dismissed upon defendants’ motion.
“D. Since the statute of limitations ran prior to the appointment of any administrator of the estate of James Edward Anderson, deceased, plaintiffs, in their individual or representative capacities, are forever barred from claims for recovery of conscious pain and suffering, funeral, medical and other expenses, punitive damages, and attorneys’ fees and costs.
“E. Plaintiffs shall be given the opportunity of immediate review by the Court of Appeals of my findings of fact and conclusions of law, including my disallowance of the amended complaint to the extent that it seeks to maintain an action by an administrator seeking recovery for claims of conscious pain and suffering, funeral, medical and other expenses, punitive damages, and attorney fees and cost.”
In my view, this Court granted plaintiffs’ appeal to determine whether the trial court erred in failing to substitute proper parties to the various causes of action and in holding that the statutes of limitation cut off the administrator’s claims for statutory damages under OCGA § 51-4-5 (b) and damages stemming from the decedent’s OCGA § 9-2-41 tort claim.
“Every action shall be prosecuted in the name of the real party in interest. . . . No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” OCGA § 9-11-17 (a). Under this Code subsec*283tion, defendants’ OCGA § 9-11-12 (b) (6) motion to dismiss based on the prosecution of a suit by improper parties should have been “treated as a matter in abatement [and] the erring parties], rather than having judgment entered against [them, should have been] precluded from proceeding with the suit until the error [had been] corrected by the substitution of the proper party plaintiff[s].” Amica Mut. Ins. Co. v. Fleet Multi Fuel Corp., 178 Ga. App. 859, 861 (344 SE2d 742).
Decided October 16, 1990. James C. Banks, for appellants. William U. Norwood III, for appellees.Therefore, I would hold that the trial court erred in entering judgment for defendants based on expirations of the applicable statutes of limitation and in failing to substitute the real parties in interest to the various causes of action. More specifically, in my view, the record indicates that an administrator of the decedent’s estate should have been appointed and substituted to prosecute the OCGA § 9-2-41 survival action and the OCGA § 51-4-5 (b) action for statutory damages. The record also shows Wayne Mitchell and Charles McIntyre have not been declared children of the deceased. Under the particular facts and circumstances of the case sub judice, I find that the genuine issues of material fact remain as to the real parties in interest to the wrongful death action. The trial court could have resolved this question by acting on plaintiffs’ response to defendants’ motion to dismiss, i.e., that “[i]f plaintiffs have failed in any manner on any cause of action to properly allege their capacity to maintain the actions, the same can and should be cured by amendment.” See Tarver v. Martin, 175 Ga. App. 689 (1) (334 SE2d 18). Accordingly, the case sub judice should be reversed and remanded for the trial court to substitute an administrator to proceed with the OCGA § 9-2-41 survival action and the OCGA § 51-4-5 (b) action for statutory damages. The trial court should be directed to resolve the issues of whether Wayne Mitchell and Charles McIntyre are illegitimate children of the deceased and, based on its findings, substitute the real party/parties in interest to the wrongful death action as is prescribed in OCGA § 51-4-1 et seq.
I am authorized to state that Presiding Judge Deen and Presiding Judge Banke join in this dissent.