dissenting.
I respectfully dissent.
This case raises issues of first impression as to: (a) whether judicial estoppel should be a bar to a medical malpractice action because the plaintiff failed to schedule the undiscovered malpractice claim as an asset at the time of filing in a Chapter 7 bankruptcy petition; and (b) whether the trial court abused its discretion in denying the motion for reconsideration of the grant of summary judgment so as to allow the plaintiff to show that she was amending and reopening the bankruptcy to schedule such claim, which claim she discovered after the discharge in bankruptcy.
On January 2, 1996, Kathy Thompson Cochran underwent an epidural catheterization of her spine as part of the delivery of her baby at Emory University d/b/a Crawford Long Hospital. In October 1996, Cochran, an employee of a CT scanning facility, volunteered for a scan to be performed on her spine as part of the calibration of a new machine. The radiologist discovered a foreign body in her spine but did not identify the foreign body at that time or how it got there. Subsequently, on August 19, 1997, Cochran went to a personal injury law firm regarding the foreign object in her spine to determine if there was a potential claim against anyone, and these lawyers sent her to be examined in Athens by a radiologist to determine if there was a potential claim. The radiologist could only confirm the presence of a foreign body but could neither identify it nor determine the source. Finally on October 27, 1997, for the first time, the original radiologist, on request of plaintiff’s counsel for a reevaluation of the CT scan, determined that the foreign body was a catheter tip. Since plaintiff’s only catheterization was during her delivery, then this determination also identified the source, cause, and potential defendant for the first time. At this time, plaintiff knew for the first time that she had sustained a potentially actionable tortious injury, resulting from her epidural catheterization by the defendant.
However, previously on March 11, 1997, Mr. and Mrs. Cochran filed for bankruptcy under Chapter 7. At that time, they informed their bankruptcy attorney of the presence of the foreign body in her spine, which was all that they knew then; the bankruptcy lawyer advised them that in his opinion there existed no viable claim for medical malpractice, because the object was unidentifiable, and therefore, the claim did not have to be scheduled in the bankruptcy petition as a potential claim. On June 27, 1997, the Cochrans were *743discharged in bankruptcy without the possible malpractice claim ever being scheduled.
On December 31,1997, plaintiff sued the defendant in the State Court of Fulton County after her discharge in bankruptcy. On February 10, 1998, the defendant answered the suit without raising the defense of judicial estoppel. On October 16, 1998, defendant filed its motion for summary judgment, raised for the first time the defense of judicial estoppel, and attached a copy of plaintiff’s bankruptcy petition to its motion, showing that the malpractice claim had not been scheduled in the bankruptcy petition.
On January 25,1999, the trial court granted the motion for summary judgment on the defense of judicial estoppel. On February 15, 1999, plaintiff moved for reconsideration of the grant of summary judgment based on judicial estoppel and submitted a copy of a motion to reopen the bankruptcy petition dated February 10, 1999, which scheduled the malpractice action. An extension of time to file the notice of appeal was granted. On March 30, 1999, the trial court denied the motion for reconsideration, because the amended bankruptcy petition was untimely.
(a) The harsh federal doctrine of judicial estoppel came into Georgia law through Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454 (442 SE2d 265) (1994), in which the plaintiff had filed bankruptcy and scheduled the defendants, their former counsel; after the reorganization had been approved, plaintiff sued its lawyers for pre-bankruptcy malpractice to reach their errors and omissions coverage as an asset on claims intentionally not scheduled in the bankruptcy petition. Judicial estoppel was applied to prevent the use. of intentional self-contradiction to obtain unfair advantage for the plaintiff against its former lawyers. Id. at 455.
Thus, the essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine does not require reliance or prejudice before a party may invoke it. These cases involve primarily the obligation placed upon the debtor in a . . . bankruptcy case to file a list of assets in which [the debtor] must disclose any litigation which might arise from pre-bankruptcy matters. Compliance with disclosure requirements is essential to maintaining a bankruptcy case. In . . . light of the stringent disclosure requirements under [the bankruptcy law], the failure to disclose such information is viewed as amounting to a denial that such claims ex*744ist. This de facto denial triggers the application of several types of issue preclusion to bar subsequent attempts to prosecute such actions. . . . While plaintiff attempts to excuse [her] failure to list the claims against defendant [ ] in the bankruptcy court by invoking the theory that [she] exercised “reasonable diligence” in investigating the potential causes of action which had been brought to [her] attention, this begs the question since plaintiff’s knowledge of even a potential claim was subject to the disclosure requirements and provide [s] a sufficient basis for the application of judicial estoppel [where she was aware of a potential claim]. [Here we can] accept the suggestion that plaintiff’s argument that circumstances are such as to warrant a deliberate change of position by [her] on the issue of whether [she] has claims against defendant[ ] without imposition of judicial estoppel [because her bankruptcy lawyer told her that she had no cause of action]. Cases adopting such a theory involve parties who[, as here,] are able to demonstrate how they were actively misled by the information available to them. Here, any deficiency in plaintiff’s perceptions is [not] shown as arising from the press to complete the process within the bankruptcy court in a time frame which was advantageous to plaintiff [but to the absence of discoverable information that there existed a foreign object in her spine that was caused by the defendant as a potential medical malpractice claim].
(Citations and punctuation omitted.) Id. at 455-456.12
The facts and circumstances of this case raise for the first time what is a justifiable failure to schedule so as to avoid the doctrine of judicial estoppel and what constitutes a potential claim also for purposes of judicial estoppel. These issues, from the facts and circumstances of this case, should have been considered by the trial court in determining whether or not to reconsider its grant of summary judgment in the first place and whether or not the motion for summary judgment had been appropriately granted.
In this case, plaintiff was aware that there was a possible prob*745lem with her spine, because there was information of a foreign body in her spine of unknown origin, but plaintiff was uncertain if there was a potential claim and sought guidance from her bankruptcy counsel who told her that this was not a potential claim that had to be scheduled. However, she had no actual knowledge that the foreign body constituted a tort action as a real potential claim until the personal injury lawyer advised her after her discharge in bankruptcy and the diagnosis by the radiologist in Athens confirmed the existence of a foreign body in her spine. Even then, there was no potential claim until the foreign body was identified and a potential defendant identified, who could be potentially liable. A fact question exists as to whether a potential cause of action arose with the October 1997 identification of the foreign body as a catheter tip or at an earlier date, starting the statute of limitation running by discovery of the injury. This identification of the catheter tip occurred over seven months after the filing of the bankruptcy complaint and three months after the discharge in bankruptcy.
Unlike the investigation of ordinary tort claims, this case required repeated and expensive diagnostic medical testing, medical expert opinion, and sophisticated legal advice from a medical malpractice lawyer to determine: (1) injury, i.e., presence of the catheter tip in her spine; (2) causation, i.e., catheter tip breaking off during the epidural catheterization at delivery; and (3) violation of a standard of care by physicians, technicians, or hospital personnel during delivery. Prior to these determinations, there existed no potential tort claim for medical malpractice.
Thus, all of these factors should have been considered by the trial court in reconsidering its grant of summary judgment under the totality of the circumstances, because the trial court should have recognized that this case involved issues of first impression that did not fit prior opinions.
(b) The defendant initially raised the affirmative defense of the statute of limitation in its answer and made this defense one of the two grounds for summary judgment; however, apparently realizing that the discovery rule raised factual issues as to discovery for jury determination, the defendant withdrew its motion on this ground for summary judgment and proceeded with the defense of judicial estoppel only. See Spivey v. Whiddon, 260 Ga. 502, 504 (397 SE2d 117) (1990).
If a plaintiff cannot be deemed to have discovered an injury so that they are under a duty of reasonable care to investigate and determine the cause of the injury for purposes of the statute of limitation as a fact question for the jury, then the same standard should apply to determine when a potential claim should be known for purposes of scheduling for bankruptcy, giving rise to judicial estoppel for *746failure to do so. Under OCGA § 9-3-72, a one-year statute of limitation after the discovery of a foreign body negligently left in the plaintiffs body was created. The General Assembly recognized the “mischief needing correction,” which was “the injustice of a claim being barred before its existence became known to the injured party.” Spivey v. Whiddon, supra. Thus, the statute of limitation as to negligently leaving a foreign body in the plaintiff does not begin to run until two years after the negligence occurred or in the exercise of ordinary care the plaintiff discovered or should have discovered the object causes the statute to begin to run, whichever is later. Id. at 504. See also Abend v. Klaudt, 243 Ga. App. 271, 272-273 (1) (531 SE2d 722) (2000). Whether the plaintiff exercised ordinary care to discover the foreign body is a mixed question of law and fact for a jury. Id. at 273. Thus, the General Assembly created a public policy that a right of action cannot be lost without knowledge of such right. Id. Until the discovery of a foreign body in a plaintiff, even the statute of repose does not commence to rim. Id. at 275-276 (2).
However, the discovery rule as to when a plaintiff should realize that they have a potential cause of action against someone for injury, causing the statute of limitation to begin to run, should have equal application to the doctrine of judicial estoppel, i.e., until the plaintiff is aware of or reasonably should be aware of a potential claim, because it is patently unfair to create an absolute bar to liability for lack of discovery of the potential claim without reaching the merits. There should be no duty to schedule the claim on the bankruptcy petition until the cause of action has been discovered as a potential claim. To allow judicial estoppel for failure to schedule a potential claim in bankruptcy prior to the claim having been discovered is to perpetuate an injustice as grave as the General Assembly sought to correct as a matter of public policy through the discovery rule.
“The bankruptcy schedule [ ] clearly required disclosure of the present claims, specifically requiring disclosure of all contingent and unliquidated claims of any nature including . . . counterclaims of the debtor and rights to setoff claims.” (Punctuation omitted.) Byrd v. JRC Towne Lake, 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997) (physical precedent only). This holding points out definite claims that are both known and vested; these are not theoretical possibilities as claims. Id. If Georgia courts impose the federal doctrine of judicial estoppel, then such imposition ihust be done in a manner compatible with Georgia public policies.
In this case, the plaintiff did not know that there existed a potential malpractice claim until after her discharge in bankruptcy when in October 1997 she learned that there was a catheter tip in her spine. That the plaintiff was earlier aware of the presence of a foreign body in her spine is not determinative of her knowledge of a potential *747claim. A bankrupt cannot disclose and schedule a claim of which the bankrupt, as here, is unaware. See Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455-456. The case law in Georgia depends upon the knowledge and appreciation of the potential cause of action by the plaintiff-bankrupt and the intentional decision not to schedule such potential claim to gain an unfair advantage for the doctrine of judicial estoppel to apply.13 In this case, there exists a material issue of fact regarding plaintiff’s knowledge of a potential claim prior to and during the pendency of the bankruptcy action for jury determination along with the defense of the statute of limitation. The trial court in exercising its sound discretion to reconsider the grant of summary judgment should have considered these factors raised by the facts and circumstances of this case, as well as evidence of efforts to amend the bankruptcy petition.
(c) Plaintiff contends that the trial court abused its discretion in failing to set aside the grant of the motion for summary judgment to consider evidence that plaintiff had sought to set aside the discharge in bankruptcy and to reopen the action so that she could amend the petition to schedule the malpractice claim. The trial court abused its discretion in not setting aside its order for the foregoing reasons, as well as in not allowing the plaintiff to produce evidence that the bankruptcy was being reopened and the claim properly scheduled; such action compels the plaintiff to do what they should have done for the benefit of creditors, eliminating the basis for judicial estoppel from taking inconsistent positions in different courts and does not permit the defendant to hide from liability on the merits for any medical malpractice based on some theoretical misuse of the court systems that is readily correctable without creating an injustice equally as grave. If the affront to justice through inconsistent positions in different courts can be corrected at any time, then the trial court to assure that justice is not denied anyone — plaintiff, defendant, or bankruptcy creditors — should permit such correction of the bankruptcy petition to occur to protect the integrity of the entire judicial *748system. “Let justice prevail or the heavens fall.”14
The defense of judicial estoppel is not designed to protect the litigant from their own liability on the merits, but to protect the integrity of the judiciary from injustice from intentional manipulation by allowing a plaintiff to take self-contradictory and inconsistent positions in one court in order to obtain an unfair advantage in another forum provided for suitors seeking justice. See Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455; Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Therefore, the ends of justice are always served by allowing the bankruptcy action to be amended or reopened to schedule a potential claim as an asset of the bankruptcy estate rather than applying the doctrine of judicial estoppel blindly as a bar to liability without an adjudication on the merits. See Johnson v. Trust Co. Bank, supra; see also Jowers v. Arthur, 245 Ga. App. 68 (537 SE2d 200) (2000). Such claim as an asset, unless abandoned by the bankruptcy court to the plaintiff, would inure to the benefit of plaintiff’s creditors, and a trustee in bankruptcy would be substituted for the plaintiff in this action; therefore, innocent creditors would wrongfully suffer from blindly applied judicial estoppel in the name of justice. See Jowers v. Arthur, supra at 70; United Technologies Corp. v. Gaines, 225 Ga. App. 191, 192 (483 SE2d 357) (1997).
(d) Further, under Georgia law a personal injury claim as a chose in action cannot be assigned to anyone else; however, our courts have held that federal bankruptcy law preempts state public policy vesting such action in the trustee in bankruptcy. OCGA § 44-12-24; Spoon v. Johnson, 247 Ga. App. 754 (545 SE2d 328) (2001); Denis v. Delta Air Lines, 248 Ga. App. 377 (546 SE2d 805) (2001). When a bankruptcy is filed, the trustee in bankruptcy becomes the real party in interest, but Georgia public policy prohibits the trustee from assigning to the plaintiff their own personal injury action. United Technologies Corp. v. Gaines, supra. However, the trustee can abandon under federal bankruptcy law the personal injury claim to the plaintiff. Denis v. Delta Air Lines, supra at 380. Thus, in granting summary judgment to the plaintiff’s claim on the basis of judicial estoppel, we create a res judicata issue as to the trustee’s derivative claim against the tortfeasor granting the tortfeasor immunity to liability when this doctrine is to prevent injustice. The creditors in bankruptcy, whom we claim to seek to protect, and the plaintiff lose and the defendant wins. Judicial estoppel should not be a defense in bar but a defense in abatement, causing the action to be dismissed *749without prejudice and refiled after it has been scheduled in bankruptcy court with the trustee as the real party in interest or the claim abandoned.
Decided October 5, 2001 Hicks, Massey & Gardner, Frederick V. Massey, Robert M. Gardner, Jr., for appellant. Weinberg, Wheeler, Hudgins, Gunn & Dial, Johnathan T. Krawcheck, for appellee.Thus, judicial estoppel has not been applied when the plaintiff opens and amends the bankruptcy petition after discharge to schedule the tort claim.15 When the bankruptcy petition has been amended to set forth the tort claim, such bankruptcy petition and the tort complaint no longer are inconsistent so that the doctrine of judicial estoppel no longer has applicability, even if the plaintiff was forced to do what was right through judicial action. See Jowers v. Arthur, supra at 70; Johnson v. Trust Co. Bank, supra at 652.
Further, as a matter of sound public policy a physician, as a professional, should not escape professional liability for medical malpractice except as provided within the defenses normally available under malpractice jurisprudence, because each such finding of liability for professional negligence protects the public from failure to adhere to the ordinary standard of care by physicians in general.16
An important fact omitted from the summary of the case in the opinion, which was tried before me as the trial judge, was that the reorganization barred defendant-former counsels’ substantial unpaid fees that were scheduled in the bankruptcy and in the malpractice action could not be used in either counterclaim or set-off by the defendants. In the absence of such facts from the opinion but in the record, this may only be inferred from the opinion. It is interesting to note that no other judicial estoppel case has the defendant appear in the bankruptcy in any capacity and then as a defendant in a subsequent suit, which was an important factor in the federal cases.
Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455-456 (awareness of legal malpractice claims prior to bankruptcy); see also Harper v. GMAC Mtg. Corp., 245 Ga. App. 729, 731 (1) (538 SE2d 816) (2000) (pending action listed on bankruptcy schedule as an action for injunction and declaratory relief but made no mention of damages); Smalls v. Walker, 243 Ga. App. 453, 456-457 (2) (532 SE2d 420) (2000) (intentional failure to schedule personal injury claims arising prior to bankruptcy); Reagan v. Lynch, 241 Ga. App. 642, 643 (524 SE2d 510) (1999) (breach of contract arising prior to bankruptcy not scheduled); Wolfork v. Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999) (whole court) (When a tort claim arises after a Chapter 13 filing, there is a duty to amend and file, which was not done.); Byrd v. JRC Towne Lake, supra at 506 (aware of the injuries from a car collision prior to filing for Chapter 13 but intentionally omitted the claim); Hyre v. Denise, 214 Ga. App. 552, 556 (9) (449 SE2d 120) (1994) (intentional failure to schedule potential pre-bankruptcy tort claims).
Rough translation of the Latin motto in the courtroom of the Supreme Court of Georgia.
McBride v. Brown, 246 Ga. App. 149 (538 SE2d 863) (2000); Jowers v. Arthur, supra; Smalls v. Walker, supra at 456 (2); Wolfork v. Tackett, supra at 634 (whole court); Clark v. Perino, 235 Ga. App. 444, 446 (1) (509 SE2d 707) (1998); Johnson v. Trust Co. Bank, supra at 651-652.
Keenan v. Plouffe, 267 Ga. 791, 793-794 (2) (482 SE2d 253) (1997); Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988).