dissenting.
I respectfully dissent because I believe that Lewis’s action was time-barred and, therefore, that the trial court erred in denying Sidlow’s motion for summary judgment. Viewed in favor of the plaintiff as the nonmoving party,2 the record shows that Lewis, who suffered from diabetes, was treated by Sidlow, a licensed podiatrist, from June 1996 to June 2000. On June 1, 2000, Sidlow diagnosed Lewis with Charcot’s right foot.3 On June 10, 2000, an MRI revealed extensive complications of Lewis’s right foot, including, but not limited to, osteomyelitis. Consequently, Lewis’s right leg was amputated below the knee on July 13, 2000. Lewis filed his complaint on June 19, 2002,4 and his amended complaint on July 18, 2002, alleging, among other things, that his
*118right leg is now permanently injured and damaged as a result of defendants’ failure to, in a reasonable and timely manner, diagnose, treat, and manage the complications of diabetes mellitus, infection, and fracture as each was exhibited by the plaintiff during his course of treatment with the defendants. These complications included, but are not limited to cellulitis, osteomyelitis, neuropathic foot pathology, and calcaneal fracture.
Based on Sidlow’s notes from his treatment of Lewis on March 6, 2000, Lewis’s expert witness, Michael Dente, D.P.M., opined that Lewis had a Charcot event in his right foot on March 6 that Sidlow failed to diagnose and treat. In his deposition, Dente testified as follows:
3/6 of 2000 is when everything changed. It’s like a red flag just went straight up. Everything has been going along routinely, everyone is cool until 3/6/2000. Something happened to make Dr. Sidlow sit down and change what he’s been saying. . . . He’s talking about the way his boot is breaking down----He’s actually making a note to himself... that that right foot has quite a bit of subtaylor pronation, which is medial arch flattening, which is right in the — the whole thing about Charcot is where the medial column collapses, and you usually get a lateral fracture.
Later in the deposition, the following exchange also took place between Sidlow’s counsel and Dente:
[Counsel:] Doctor, based on your professional medical opinion, do you think on March 6, 2000, [Lewis] had a Charcot event in his right foot?
[Dente:] Acute?
[Counsel:] Acute or otherwise.
[Dente:] Yes.
[Counsel:] Yes?
[Dente:] Yes. . . .
[Counsel:] In your professional medical opinion ... do you believe that [Lewis] had a right Charcot foot on March 6, 2000?
*119[Dente:] Yes.
[Counsel:] And is it your opinion, Doctor, that [Sidlow] failed to appreciate it and treat it on March 6, 2000?
[Dente:] Yes.
Relying on Dente’s testimony, appellants filed their motion for summary judgment, arguing that the statute of limitation began to run on the date of the misdiagnosis, or, more precisely, the nondiagnosis, March 6, 2000. Under controlling precedent, Lewis was, as a matter of law, “injured” on March 6, 2000, by Sidlow’s failure to diagnose and treat the newly severe foot problem.
OCGA § 9-3-71 (a) mandates that “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.”5 In cases involving a failure to diagnose, the applicable limitation period runs from the date of the alleged misdiagnosis.6 This is because
in most misdiagnosis cases, the injury begins immediately upon the misdiagnosis due to the pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated. The misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis; thus, the fact that the patient did not know the medical cause of his suffering does not affect the applicability of OCGA § 9-3-71 (a).7
“Because the statute of limitation is an affirmative defense, . . . the burden [is] on [Sidlow] to show its applicability.”8
Lewis maintains that the limitation period could not have commenced on March 6, 2000, because he had no symptoms of the injury on that date. According to Lewis’s wife, the injury did not manifest itself to Lewis until a few days before his June 1 visit, when he *120complained of pain and fever.9 We disagree. Dente, Lewis’s own expert, unequivocally testified that Lewis had a Charcot’s right foot on March 6, 2000, and that Sidlow misdiagnosed the injury at that time.
Appellee further contends that the law governing the commencement of the statute of limitation in misdiagnosis cases does not apply here because the negligent act was not the misdiagnosis but the failure to treat. Lewis explains that the complained of injury “is not a Charcot foot, but rather osteomyelitis, gangrene, and loss of limb [,] which developed after the proper diagnosis was made on June 1, 2000,” (emphasis omitted) but was not treated by Sidlow. This argument has been decided adversely to Lewis.10
Although the injuries that Lewis argues are the basis of his suit occurred after the proper diagnosis was made on June 1, 2000, Dente testified that the injuries were caused by Lewis’s Charcot foot.11 In Surgery Assoc. v. Kearby 12 this court rejected a similar argument advanced by the plaintiff. There, the plaintiffs lower left leg and foot were amputated after he developed gangrene, and he argued that his injury did not occur until the amputation.13 We held that “[t] he amputation was part of the course of treatment of the massive infection resulting from the improper diagnosis, and not the injury.”14 Similarly here, there was evidence that the disease process that caused the amputation of Lewis’s leg resulted from the improper diagnosis on March 6, 2000.
Lewis argues that Oliver v. Sutton15 is dispositive of this case because it involved a failure to diagnose and failure to treat. In Oliver,16 the proper diagnosis was made on January 11, 1996, nine months after the plaintiff presented with complaints of pain on April 11,1995. The plaintiff filed his complaint on January 8,1998, arguing that the statute of limitation had begun to run on the date of the *121proper diagnosis. We concluded, however, that the injury and improper treatment occurred on or before April 11, 1995, when the injury had physically manifested itself to the plaintiff.17 Therefore, we held that “any claim of misdiagnosis [was] time-barred, as [was] any claim of improper treatment based on the misdiagnosis.”18
The claim that survived the statute of limitation in Oliver was the failure to disclose the correct diagnosis,19 which is not asserted in Lewis’s action. Lewis quotes dicta from Oliver for the proposition that the failure to treat after June 1 was a separate negligent act and that his damages were those injuries suffered after that date.20 However, our reference to damages in Oliver was made to explain the measure of damages, if any, that may have resulted from the failure to disclose the diagnosis, not the failure to diagnose/treat claim.21 Therefore, contrary to Lewis’s argument, Oliver is not helpful to his case as it does not conclude that the failure to treat was a separate act of negligence.22
Although Lewis’s argument appears to be a variation of the continuous treatment doctrine,23 he adamantly maintains that it is not. Nonetheless, we note that our Supreme Court rejected the continuous treatment doctrine in Young v. Williams.24
Because the record clearly shows that Lewis had an injury in March 2000, and that Sidlow failed to treat the condition, the trial court erred in denying Sidlow’s motion for summary judgment.
I am authorized to state that Presiding Judge Andrews joins in this dissent.
*122Decided December 1, 2004 Reconsideration denied December 16, 2004 Owen, Gleaton, Egan, Jones & Sweeney, Roger E. Harris, Gretchen M. Holt, for appellants. H Harold Chambers, Jr., Charles F. Fenton III, for appellee.Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). See also Urban v. Lemley, 232 Ga. App. 259 (501 SE2d 529) (1998).
Lewis’s expert witness defined Charcot’s Neuropathy as “a type of arthritic condition involving the midfoot of a person, heralded by a hyperemic event in which the blood flow increases to the infected limb, causing blood pooling, [and] demineralization of the bone fractures.” He also testified that “[l]eft untreated it will lead to secondary osteomyelitis, [and] loss of limb in most instances.”
The record reflects that Sidlow filed a motion to dismiss on July 23, 2002, arguing that Lewis’s claim was time-barred because it was filed on June 19, 2002, and Lewis last visited Sidlow on June 1, 2000. The trial court apparently denied the motion, finding that the statute *118was tolled for 17 days by Sidlow’s untimely response to Lewis’s medical records request. We need not address this issue for two reasons: (1) Sidlow has not challenged the denial of his motion to dismiss, and (2) the evidence shows that the statute of limitation expired on March 6, 2002.
See Young v. Williams, 274 Ga. 845, 848 (560 SE2d 690) (2002) (reiterating that “the period of limitation under the current statute begins with the occurrence of an injury, not the performance of a negligent act”).
Harrison v. Daly, 268 Ga. App. 280, 283 (601 SE2d 771) (2004); Oliver v. Sutton, 246 Ga. App. 436, 437 (540 SE2d 645) (2000). Accord Walker v. Melton, 227 Ga. App. 149, 150 (1) (b) (489 SE2d 63) (1997).
(Footnote omitted.) Harrison, supra. See also Brahn v. Young, 265 Ga. App. 705, 707-708 (2) (595 SE2d 553) (2004); Williams v. Young, 258 Ga. App. 821, 823 (575 SE2d 648) (2002); Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994).
(Citations omitted.) Walker, supra at 151 (1) (b). See OCGA§ 9-11-8 (c).
Because the deposition of Lewis’s wife was not included in the record for our consideration, we cannot consider this statement. See, e.g., Pabey v. State, 262 Ga. App. 272, 274 (585 SE2d 200) (2003) (“[t]his Court is unable to consider matters outside the record ..., and thus we cannot consider any references to the ... deposition [cited by appellee]”) (citation omitted).
See Surgery Assoc. v. Kearby, 199 Ga. App. 716 (405 SE2d 723) (1991).
See Hughley v. Frazier, 254 Ga. App. 544, 547 (1) (562 SE2d 821) (2002) (physical precedent only) (where plaintiff argued that incontinence that resulted from surgery, which would not have occurred had the proper diagnosis been made earlier, was a new injury commencing the running of the statute of limitation, court held that the alleged injury was a part of the course of treatment of the condition resulting from the alleged misdiagnosis and was not a new injury).
Supra.
Id. at 717-718.
(Citation omitted.) Id. at 718.
Supra.
Id.
Id. at 438.
(Citation and footnote omitted.) Id.
Id. at 438-439.
Id. at 439.
Id.
See also Frankel v. Clark, supra (injury occurred when symptoms manifested themselves to the plaintiff, and defendant’s failure to correct “previous negligence” did not constitute “additional acts of negligence”).
The continuing treatment doctrine provides:
If the treatment by the doctor is a continuing course and the patient’s illness, injury or condition is of such a nature as to impose on the doctor a duty of continuous treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated — unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.
(Citation omitted.) Williams v. Young, 247 Ga. App. 337, 340 (543 SE2d 737) (2000), rev'd, Young v. Williams, supra.
Supra.