concurring specially.
I concur with the majority to the extent that the 1985 statutory change may in effect be discovery-of-the-injury rule, at least when occurrence is simultaneous with knowledge of the occurrence. That is the case here, unless the occurrence itself was even before August 26.
The 1985 Act made it two years after the date the injury occurred. That is the same language which the Georgia Supreme Court implied in Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984), would be acceptable: “We hold that OCGA § 9-3-71 is a denial of equal protection and therefore unconstitutional as applied to personal injury claims in which injury occurs more than two years after the negligent or wrongful act or omission occurred.” (Emphasis supplied.) Shessel, supra at 59.
Since Shessel equates that event with accrual, there is little difference between OCGA § 9-3-71 (two years from the date on which the injury occurred) and OCGA § 9-3-33 (two years after right of action accrues), except that OCGA § 9-3-71 tailors the general accrued language to more specifically state it as meaning, in medical malpractice, the date the injury occurs.
If there is a discovery-of-the-injury rule in Georgia, it would make no difference in this case whether it is part of OCGA § 9-3-71 or not, because the occurrence was simultaneous with or even earlier than knowledge of the occurrence. The limitation period for filing suit began running no later than August 26.
I am authorized to state that Judge Johnson joins in this special concurrence.