dissenting.
Willie Frank Johnson died while his cause of action for personal injury arising from medical malpractice was pending against Wesley Chapel Foot and Ankle Center, LLC, Dr. Eileen Byrd, and Dr. Frazier Todd (the medical defendants). After Mr. Johnson’s widow and estate representative, Catherine Johnson, was substituted as plaintiff on the medical malpractice personal injury action, she amended the complaint to add a cause of action asserting that Mr. Johnson’s wrongful death arose from the same medical malpractice. At issue is whether the medical defendants were entitled to summary judgment on the basis of their claim that the five-year statute of repose in OCGA § 9-3-71 (b) applicable to medical malpractice actions barred the cause of action asserting that the wrongful death arose from the medical malpractice. Because the claim that Mr. Johnson’s death arose from the medical malpractice asserted a new and distinct cause of action for medical malpractice, and the new cause of action was added by amendment to the complaint more than five years after the alleged medical malpractice occurred, it was barred by expiration of the statute of repose. Accordingly, the trial court erred by denying summary judgment to the medical defendants.
Pursuant to OCGA § 9-3-70,
the term “action for medical malpractice” means any claim for damages resulting from the death of or injury to any *887person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
Under this section, Mrs. Johnson’s claim that the medical defendants’ negligent medical acts or omissions caused Mr. Johnson’s wrongful death was an action for medical malpractice. Causes of action seeking damages for personal injury and for wrongful death arising out of medical malpractice are separate and distinct medical malpractice causes of action, even though they arise out of the same alleged medical malpractice and are asserted in the same complaint. Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 867 (463 SE2d 5) (1995); Smith v. Mem. Med. Center, 208 Ga. App. 26, 27-28 (430 SE2d 57) (1993).
Mrs. Johnson asserted that Mr. Johnson’s wrongful death arose from medical malpractice acts or omissions that occurred on February 25, 1999. This gave rise to a medical malpractice cause of action based on wrongful death which accrued when Mr. Johnson died on October 18,2002. Williams v. Dept. of Human Resources, 272 Ga. 624, 626 (532 SE2d 401) (2000). Subsection (b) of OCGA§ 9-3-71 sets forth a statute of ultimate repose which provides that “in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” Wright v. Robinson, 262 Ga. 844-845 (426 SE2d 870) (1993); OCGA § 9-3-71 (c). Accordingly, the statute of repose expired on this cause of action on February 25, 2004, over 16 months after the cause of action accrued. Because the trial court had not entered a pretrial order in the pending medical malpractice action, Mrs. Johnson could have amended the complaint pursuant to OCGA § 9-11-15 (a) “without leave of court at any time” prior to expiration of the statute of repose to add a new medical malpractice cause of action based on the wrongful death claim. Deering v. Keener, 282 Ga. 161 (646 SE2d 262) (2007); Cochran v. White, 269 Ga. App. 182, 184 (603 SE2d 509) (2004). She failed to do so, however, and did not amend the complaint to assert the new medical malpractice cause of action based on wrongful death until October-15, 2004, over seven months after the five-year statute of repose in OCGA § 9-3-71 (b) expired.
As opposed to a statute of limitation, which is a procedural rule barring an already accrued action not brought within a period of time, *888a statute of repose abolishes a cause of action after the passage of time, whether or not the claim has accrued. Wright, 262 Ga. at 845; Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 659 (437 SE2d 308) (1993).
A statute of repose stands as an unyielding barrier to a plaintiffs right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.
(Citations and punctuation omitted.) Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005). When the five-year statute of repose expired on February 25, 2004, the cause of action asserting that Mr. Johnson’s wrongful death arose out of the medical malpractice was destroyed and no longer existed. Id.; Braden v. Bell, 222 Ga. App. 144 (473 SE2d 523) (1996). It follows that Mrs. Johnson could not amend the pending complaint on October 15, 2004, to assert a nonexistent cause of action.
Moreover, there is no basis for the trial court’s conclusion that the relation back provisions of OCGA § 9-11-15 (c) save the cause of action asserted in the amended complaint from the expiration of the statute of repose. Under OCGA § 9-11-15 (c),
[w]henever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.
Even if the wrongful death claim arose out of the same medical malpractice conduct asserted in the pending claim for personal injury, the above provisions of OCGA § 9-11-15 (c) are “liberally construed to effect its purpose of ameliorating the impact of [an expired] statute of limitation.” Morris v. Chewning, 201 Ga. App. 658, 659 (411 SE2d 891) (1991). Where the initial complaint gives a defendant fair notice of the conduct, transaction, or occurrence called into question by the amended complaint, the relation back provisions of OCGA § 9-11-15 (c) recognize that allowing the amendment does not deprive the defendant of the protection from stale claims provided by the statute of limitation. Id. at 659-660; Gordon v. Gillespie, 135 Ga. App. 369, 375 (217 SE2d 628) (1975). But when the legislature enacted the five-year medical malpractice statute of repose in OCGA § 9-3-71 (b), it considered interests in addition to elimination of stale *889claims by the two-year statute of limitation in OCGA § 9-3-71 (a). These interests were identified in Craven, 263 Ga. at 658, where the court found that:
Decided July 16, 2007 Reconsideration denied July 31, 2007 Hall, Booth, Smith & Slover, James E. Looper, Jr., Elizabeth N. Neff, Jason D. Hergenroether, W. Scott Henwood, for appellants. James W. Howard, for appellees.Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury [makes] it difficult for insurers to adequately assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause.
In light of these interests, the court found that imposition of a medical malpractice statute of repose in OCGA § 9-3-71 (b) abolishing causes of action five years after the occurrence of the alleged malpractice was a rational and constitutional exercise of legislative power. Id. at 659-660. Although the relation back provisions of OCGA § 9-11-15 (c) can be used to ameliorate a statute of limitation’s procedural bar to an existing action, these provisions cannot be used to resurrect a cause of action abolished by a statute of repose. Wright, 262 Ga. at 845, n. 1.1 respectfully dissent.
I am authorized to state that Judge Phipps and Judge Mikell join in this dissent.