dissenting.
I respectfully dissent because I find: (1) that the two-year statute of limitation in OCGA§ 9-3-71 (a) bars the medical malpractice action against all the defendants, and (2) that the five-year statute of repose in OCGA § 9-3-71 (b) bars the wrongful death action against Dr. Cleaveland and Dr. Entrekin.
1. On October 29,2004, William and Jane Gannon filed a medical malpractice action against Mr. Gannon’s urologist, Dr. Cleaveland, and against his primary care physicians, Dr. Entrekin and Dr. Goodrich, along with their professional corporation, Internal Medicine Associates of Rockdale, PC. (IMA) (hereafter collectively referred to as the medical defendants).13 As shown by the allegations of the complaint and the record, the medical malpractice action was brought on the following basis: Mr. Gannon had kidney cancer when Dr. Cleaveland first treated him in June 2000, when Dr. Entrekin first treated him in July 2000, and when Dr. Goodrich first treated him in April 2001; that despite the fact that Mr. Gannon had a mass *883on his kidney and other symptoms of kidney cancer when the medical defendants saw and treated him, they negligently failed to diagnose that he had kidney cancer and negligently failed to provide him with treatment for the cancer; that if the medical defendants had properly diagnosed the kidney cancer and treated it, more likely than not the cancer would have been cured; and because the medical defendants failed to properly diagnose and treat the kidney cancer, the cancer progressed and metastasized over time, spreading throughout Mr. Gannon’s body and becoming an incurable and terminal illness.
The medical defendants moved for summary judgment on the basis that the two-year statute of limitation for medical malpractice actions in OCGA § 9-3-71 (a) expired before the complaint was filed in October 2004. Under OCGA § 9-3-71 (a), “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.” This plainly means that the two-year limitation period commenced to run from the occurrence of an injury arising from the alleged malpractice. Young v. Williams, 274 Ga. 845, 846-847 (560 SE2d 690) (2002). In most cases where the alleged medical malpractice is misdiagnosis and failure to treat, the injury begins immediately upon the misdiagnosis. Kaminer v. Canas, 282 Ga. 830 (653 SE2d 691) (2007). “Thus, in most misdiagnosis cases, the two-year statute of limitations ... begin [s] to run ... on the date that the doctor negligently failed to diagnose the condition and, thereby, injured the patient.” Id at 832 (1). Moreover, “[bjecause OCGA § 9-3-71 (a) provides that the period of limitation begins to run at the time of injury, initiating the period of limitation in a medical malpractice action at some other point, such as when the alleged negligence is first discovered!,] would be contrary to the plain language of the statute. Crowe v. Humana, 263 Ga. 833, 834 (1) (439 SE2d 654) (1994).” (Punctuation omitted.) Id.
In the present case, the injury beginning immediately upon the first misdiagnosis by each of the medical defendants was that, as a consequence of the misdiagnosis, Mr. Gannon continued to suffer from the undiagnosed and untreated kidney cancer that continued to progress and metastasize over a period of time. Stafford-Fox v. Jenkins, 282 Ga. App. 667, 669-670 (639 SE2d 610) (2006); Kaminer, 282 Ga. at 833 (1). This conclusion necessarily follows from the malpractice complaint itself, which is based on allegations that the misdiagnosis and failure to treat the existing kidney cancer when it could have been cured was the continuing and proximate cause of the progressive growth and metastasis of the cancer throughout Mr. Gannon’s body, for which recovery is sought. On these allegations, logic dictates that the medical malpractice action relies on the claim that an injury arose from the initial misdiagnosis by each medical *884defendant — an injury which began immediately upon each misdiagnosis and continued as the untreated cancer progressed. The allegations of the complaint were supported by medical evidence in the record, including evidence that, at the time of the alleged misdiagnoses, a cancerous mass existed on Mr. Gannon’s kidney, which the medical defendants failed to recognize as cancer. Accordingly, Mr. Gannon was injured when Dr. Cleaveland, Dr. Entrekin, and Dr. Goodrich allegedly failed to diagnose and treat the existing kidney cancer in 2000 and 2001. Because the medical malpractice action was filed in October 2004, more than two years after an injury arising from misdiagnosis by the medical defendants, the action was barred by the two-year statute of limitation in OCGA § 9-3-71 (a).
This result cannot be avoided by concluding, as the majority does, that the two-year statute of limitation in OCGA § 9-3-71 (a) did not commence to run until Mr. Gannon suffered a new or different injury which arose from the misdiagnosis, but which occurred some period of time subsequent to the misdiagnosis. The majority concludes that, when the untreated kidney cancer progressed and metastasized into a terminal cancer condition some period of time subsequent to the misdiagnosis, this was a subsequent injury from which the statute of limitation commenced to run on October 31, 2002, when Mr. Gannon experienced a symptom of the metastasized cancer by feeling a lump in his neck. A similar new or subsequent injury theory was rejected in Kaminer, when the Supreme Court addressed an attempt to revive the previously rejected “continuing treatment doctrine.” Kaminer, 282 Ga. at 832 (1). As the Supreme Court explained in Kaminer, when a progressive disease is misdiagnosed and left untreated, the injury which begins immediately upon the misdiagnosis does not become a “new injury” for purposes of the statute of limitation when the untreated disease eventually worsens as “the direct proximate continuing result of the original misdiagnoses.” Id. at 834 (1). Instead, “[w]here, as here, the patient’s symptoms of his untreated condition worsen over time, for statute of limitations purposes, the ‘injury’ occurred at the time of the alleged misdiagnosis.” (Citations and punctuation omitted.) Id. The continuing omission on the part of the medical defendants to properly diagnose and treat Mr. Gannon as his untreated kidney cancer progressed, metastasized, and became a terminal condition, “was a failure to avoid the ultimate effect of their earlier breaches and a failure to mitigate their own damages, [but] [i]t was not an act inflicting new harm.” (Citation and punctuation omitted.) Id. at 835 (1); Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 807 (273 SE2d 16) (1980). It follows that there was no different or additional cause of action for a new or subsequent injury from which to run the statute of limitation at a later date.
*885This conclusion is required by the legislature’s decision to commence the running of the two-year statute of limitation in OCGA § 9-3-71 (a) from the date that the patient first incurs an injury arising from the alleged malpractice. Because a patient’s cause of action for malpractice can accrue no sooner than the date the patient first incurs an injury arising from the alleged malpractice, the date chosen by the legislature to commence the statute of limitation is the earliest possible date from which the limitation period can run. Shessel v. Stroup, 253 Ga. 56, 57-58 (316 SE2d 155) (1984); Jankowski, 246 Ga. at 805-806; OCGA § 51-1-8. Accordingly, when Mr. Gannon incurred an injury arising from and beginning immediately upon the first misdiagnosis by each medical defendant, his cause of action against each defendant for any injury arising from the misdiagnosis accrued on those dates, and the two-year statute of limitation in OCGA § 9-3-71 (a) commenced to run from those dates. This is true even though Mr. Gannon’s kidney cancer had not yet progressed to the terminal condition for which he later sued to recover, and therefore he had not yet incurred all or even the greater part of the injury which ultimately arose from the misdiagnosis. Jankowski, 246 Ga. at 806-807; Kaminer, 282 Ga. at 834-835 (1). Once the cause of action accrued for injury arising from and occurring immediately upon the initial misdiagnosis of the kidney cancer, this was a complete cause of action, which triggered the running of the statute of limitation on the claim that the subsequent growth and metastasis of the cancer arose from the same misdiagnosis. Jankowski, 246 Ga. at 806-807; Kaminer, 282 Ga. at 834-835 (1). Moreover, under OCGA § 9-3-71 (a) the statute of limitation commenced to run from the date of the first injury arising from the initial misdiagnosis of the kidney cancer even if Mr. Gannon had no knowledge at the time that he had kidney cancer. Kaminer, 282 Ga. at 834 (1). Although commencing the two-year limitation period in OCGA § 9-3-71 (a) from the date of injury without any requirement that the patient knew or should have known about the injury can cut off rights in some cases before there is any knowledge of injury, prescribing periods of limitation is a legislative, not a judicial function, and, as the Supreme Court has observed, “the legislature has the power, within constitutional limitations, to make such provisions.” (Citation and punctuation omitted.) Kaminer, 282 Ga. at 838 (4); Young, 274 Ga. at 847.14
*886The majority relies in part on Walker v. Melton, 227 Ga. App. 149 (489 SE2d 63) (1997), as support for its contention that the statute of limitation does not run from the date of the initial misdiagnosis because this case falls within a “subsequent injury” exception. But the “subsequent injury” exception recognized in Walker does not apply in this case. In Walker, we concluded that, because “the injuries sued for arose after the date of the misdiagnosis that caused them,” the statute of limitation did not commence to run until the date of those subsequent injuries. Id. at 150. The facts in Walker were unique. An x-ray of Walker’s spine after he was injured in an automobile accident showed that he sustained a “35 percent compression fracture of a vertebra” in the accident. Dr. Melton, the radiologist who read the x-ray in May 1992, failed to recognize any fracture, so Walker received no treatment for the fracture. In January 1994, after experiencing an episode of back pain, Walker was treated by another physician, who took an x-ray of his spine which showed that he had a 66 percent compression fracture of the same vertebra. In May 1995, Walker sued Dr. Melton claiming he misdiagnosed the initial x-ray in May 1992. Because the suit was filed more than two years after the May 1992 misdiagnosis, Dr. Melton asserted that the two-year statute of limitation in OCGA § 9-3-71 (a) barred the suit. The medical evidence showed that Walker’s vertebra fracture progressively worsened from a 35 percent fracture at the time of the misdiagnosed x-ray in May 1992, to a 66 percent fracture when Walker was properly diagnosed and treated in January 1994. But the medical evidence also showed that Dr. Melton’s misdiagnosis did not cause the initial worsening from 35 percent to 50 percent because the fracture would have worsened to that degree even with proper diagnosis and treatment. Thus, Walker’s suit alleged that the misdiagnosis only caused the subsequent worsening from 50 percent to 66 percent. Since the worsening from 50 percent to 66 percent did not occur at the time of the May 1992 misdiagnosis, but at some point in time subsequent to the May 1992 misdiagnosis, we found that Walker sued only for an injury which occurred subsequent to the misdiagnosis, and that the statute of limitation commenced to run from the subsequent injury. Id. at 149-150.
Walker shows that the statute of limitation in OCGA § 9-3-71 (a) commences to run from an injury which occurred some period of time subsequent to the alleged misdiagnosis where the “subsequent injury” is the first injury arising from the misdiagnosis. If an injury arising from the misdiagnosis occurs immediately upon the misdiagnosis (as in most cases, including the present case), the limitation period in OCGA § 9-3-71 (a) commences to run from the first injury, despite the fact that the misdiagnosed condition progressively worsens and the patient incurs additional and subsequent injury also *887arising from the same misdiagnosis. Jankowski, 246 Ga. at 806-807; Kaminer, 282 Ga. at 834 (1).
The majority also relies on Whitaker v. Zirkle, 188 Ga. App. 706 (374 SE2d 106) (1988), for its conclusion that the injury for which Mr. Gannon sought recovery was the metastasis of the kidney cancer; that this injury occurred at some point subsequent to the misdiagnosis, and that, because the jury could find that Mr. Gannon experienced no symptoms of the metastasized cancer until he felt the lump in his neck on October 31, 2002, that was the date on which the two-year statute of limitation commenced to run. Whitaker cannot be squared with the plain application of the statute of limitation in OCGA § 9-3-71 (a) and should be overruled to the extent it is inconsistent with the statute.
In Whitaker, the patient, Zirkle, had a suspicious mole and surrounding tissue removed from her back in May 1978 and examined at that time by a pathologist, Dr. Whitaker. Because Dr. WhiI taker diagnosed the removed tissue as containing no cancer, Zirkle received no further treatment. Zirkle did not experience any symptoms of cancer until May 1985, when she noticed nodules on her body, which were diagnosed as containing metastasized cancer. A reexamination of the tissue sample initially examined by Dr. Whitaker revealed that it contained malignant melanoma cancer cells, which Dr. Whitaker failed to detect in 1978. Zirkle’s treating physician diagnosed her in 1985 as suffering from melanoma cancer which had metastasized to other parts of her body from the site of the mole removed in 1978. Id. at 706. In May 1986, Zirkle and her husband sued Dr. Whitaker for medical malpractice claiming that the metastasized cancer she discovered in 1985 was an injury arising from Dr. Whitaker’s 1978 misdiagnosis. As Whitaker made clear:
Plaintiffs do not allege the misdiagnosis caused Mrs. Zirkle to have cancer; the basis of plaintiffs’ claims is that she had cancer all along. The injury complained of is the subsequent metastasis of cancerous cells which remained at the site where the mole was removed. The subsequent metastasis allegedly would not have occurred if the cancer had been properly diagnosed and treated at the time of the original biopsy.
Id. at 708. Dr. Whitaker asserted that the two-year statute of limitation in OCGA § 9-3-71 (a) barred the malpractice suit. Id. at 706-707. Whitaker identified the relevant issue as the date Zirkle’s injury occurred; recognized that in most misdiagnosis cases the injury begins immediately upon the misdiagnosis, but then observed I that Zirkle “suffered no further symptoms of cancer until shortly *888before cancer was properly diagnosed in 1985, some seven years after the initial misdiagnosis.” Id. at 707-708. Based on this record, Whitaker found that, if the cancer Zirkle had in 1978 at the time of the misdiagnosis was localized near the site of the mole and had not yet metastasized, then the injury for which she sued — the subsequent metastasized cancer — occurred at some later date. Id. at 708. Thus, Whitaker held that, “[w]hen an injury occurs subsequent to the date of medical treatment, the statute of limitation commences from the date the injury is discovered.” Id. Because Zirkle did not discover she had cancer until it was properly diagnosed in 1985, Whitaker held that the two-year limitation period in OCGA § 9-3-71 (a) commenced to run from the date Zirkle discovered the cancer in 1985, and that the suit was timely filed in 1986.
Whitaker erred by focusing on the fact that Zirkle’s suit alleged that the subsequent metastasis of her untreated cancer arose from the 1978 misdiagnosis, while ignoring the fact that, as an immediate consequence of the 1978 misdiagnosis, Zirkle continued to suffer from the untreated cancer that progressively spread and metastasized over a period of time. Because Zirkle suffered an injury which arose from and occurred immediately upon the 1978 misdiagnosis, this triggered the running of the statute of limitation from that date, even if Zirkle had not yet incurred the subsequent metastasis. Kaminer, 282 Ga. at 834 (1); Jankowski, 246 Ga. at 807.
Whitaker also erred by appending a discovery rule to OCGA § 9-3-71 (a) to toll the commencement of the statute of limitation until the date Zirkle discovered the cancer. As stated above, the plain language of OCGA§ 9-3-71 (a) precludes use of a discovery rule to toll or delay commencement of the two-year limitation period until the patient discovers the injury. Kaminer, 282 Ga. at 834 (1). In the present case, the majority concludes that a jury could find that Mr. Gannon did not discover he had metastatic cancer until he found a lump in his neck on October 31,2002, and that the malpractice action was timely filed less than two years later on October 29, 2004. Yet the entire basis for the medical malpractice claim is that Mr. Gannon had kidney cancer when the medical defendants misdiagnosed his condition in 2000 and 2001, and that, as a result of the misdiagnosis, he continuously suffered from untreated cancer which progressed until it metastasized and became a terminal condition. Moreover, the medical evidence in the record, including evidence that a cancerous mass was in Mr. Gannon’s kidney at the time of the misdiagnosis, shows that Mr. Gannon suffered an injury arising from and occurring immediately upon each initial misdiagnosis. An injury arose because, at the time of each misdiagnosis, he had untreated kidney cancer which continued to grow and metastasize as a result of each misdiagnosis and failure to treat. On this record, the two-year limitation 1 *889period in OCGA § 9-3-71 (a) commenced to run when Mr. Gannon suffered immediate and continuous injury at the time of the alleged misdiagnosis in 2000 and 2001. Nevertheless, the majority tolls the commencement of the limitation period until the point that Mr. Gannon discovered he had metastasized cancer. This Court again refuses to disavow use of a discovery rule despite the clear directive of the legislature in OCGA § 9-3-71 (a) and numerous pronouncements by the Supreme Court that a discovery rule is contrary to the plain language of the statute. See Stafford-Fox, 282 Ga. App. at 673-680 (Andrews, P. J., concurring specially).
The majority notes that the Supreme Court’s decision in Kaminer acknowledged a line of cases decided by this Court originating in and represented by Whitaker. Kaminer expressly declined to address the continuing viability of Whitaker and similar cases decided by this Court, which purport to involve “the most extreme circumstances in which the plaintiff remains asymptomatic for a period of time following the misdiagnosis.” (Citation and punctuation omitted.) Kaminer, 282 Ga. at 837 (2). Kaminer also reiterated that a rule which tolls the limitation period until a patient discovers the injury is contrary to the plain meaning of OCGA § 9-3-71 (a). Kaminer, 282 Ga. at 832 (1). Perhaps a jury could find that, for a period following the misdiagnosis, Mr. Gannon was “asymptomatic” because he did not experience pain, suffering or other symptoms of the cancer left in his body as a result of the misdiagnosis. But that is not the issue in this case. The issue is what the record shows with respect to an injury arising from the misdiagnosis and when that injury first occurred. The medical malpractice claim and the undisputed medical evidence supporting the claim shows that a cancerous mass was found in Mr. Gannon’s kidney at the time of the misdiagnosis; that it was not recognized as cancer, and that it was left in his kidney untreated where it grew and metastasized. Whether or not Mr. Gannon knew about it, the untreated cancerous mass itself was evidence of an injury immediately arising from the misdiagnosis. The mass on his kidney was also a medical symptom of the cancer, so in that sense Mr. Gannon was not “asymptomatic” for any period following the misdiagnosis. Put simply, how can a doctor misdiagnose an “asymptomatic” condition? Without any symptom — known to the patient or not — there is no way to claim that a doctor should have diagnosed the condition. The limitation period in OCGA § 9-3-71 (a) commenced to run on the misdiagnosis claim when Mr. Gannon incurred an injury immediately arising from the alleged failure to diagnose and treat the cancerous mass on his kidney.
2.1 conclude that the five-year statute of repose in OCGA§ 9-3-71 (b) bars the wrongful death cause of action against Dr. Cleaveland and Dr. Entrekin. That cause of action was based on allegations that *890medical malpractice by Dr. Cleaveland and Dr. Entrekin in June and July 2000 caused Mr. Gannon’s death. Because the alleged malpractice by Dr. Cleaveland and Dr. Entrekin occurred more than five years before the wrongful death action was asserted in September 2005, the five-year statute of repose in OCGA § 9-3-71 (b) barred the action against these defendants.15 Braden v. Bell, 222 Ga. App. 144 (473 SE2d 523) (1996).
Decided November 30, 2007 Reconsiderations denied December 14,2007 Owen, Gleaton, Egan, Jones & Sweeney, Rolfe M. Martin, for appellant (case no. A07A0837).Based on Wesley Chapel Foot and Ankle Center v. Johnson, 286 Ga. App. 881 (650 SE2d 387) (2007), the majority concludes that the wrongful death action was timely brought after the expiration of the statute of repose because it was added by amendment to a medical malpractice action timely filed within the applicable statute of limitation. Although I find for the above-stated reasons that the statute of limitation expired before the malpractice action was filed, the majority holds to the contrary. Accordingly, for the reasons stated in my dissent in Wesley Chapel, I reiterate my belief that Wesley Chapel was wrongly decided and should be overruled. I also write to add that, because I would find that the statute of limitation expired before the malpractice action was filed, there would be no timely filed malpractice action to amend, and therefore the exception to the statute of repose in Wesley Chapel would not apply.
I am authorized to state that Judge Ruffin joins in this dissent, and that Presiding Judge Smith joins in this dissent as to Division 1 only.
IMA was named as a defendant on the basis that it was liable under the principle of respondeat superior for the alleged malpractice of its employees, Dr. Entrekin and Dr. Goodrich. Ms. Gannon sought recovery against the medical defendants for loss of consortium with her husband, Mr. Gannon. After Mr. Gannon died in July 2005, Ms. Gannon, as the representative of Mr. Gannon’s estate, was substituted in his place as plaintiff.
With respect to the medical malpractice statute of limitation, the Supreme Court held that a prior version of OCGA § 9-3-71, which commenced the limitation period from the date of the alleged negligent act, was unconstitutional only to the extent that the limitation period could expire and cut off a cause of action before an injury occurred and the cause of action accrued. Shessel, 253 Ga. at 56; Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983).
The record shows that Dr. Goodrich first treated Mr. Gannon inApril 2001,less than five years before the wrongful death action was asserted in September 2005. Accordingly, the statute of repose does not bar this action against Dr. Goodrich, nor does it bar this action against IMA to the extent that the claim against IMA is based on alleged malpractice by Dr. Goodrich.