concurring specially.
I concur in the conclusion that the suit was barred by the statute of repose, OCGA § 9-3-71 (b). The action was not even filed within five years from discovery of the alleged misdiagnosis in January 1988, much less within five years of the alleged misdiagnosis. As the Supreme Court recognized in Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 660 (437 SE2d 308) (1993), even if the injury from the negligent act occurs outside the period legislatively designated for the accrual of rights (here five years), it is not actionable because the *148passage of time abolishes the cause of action.
One of the policy considerations for making a right of action finite is the practical recognition that time erodes evidence, memories, and the availability of witnesses. Craven, supra at 659, referring to Clark v. Singer, 250 Ga. 470, 472 (298 SE2d 484) (1983). The fulfillment of that purpose is evident on the face of the complaint here, as one of the doctors accused of malpractice, Dr. Meltzer, has died in the interim and thus will be unable to defend the actions he took or did not take in 1984. The risk of this happening increases over the course of time. Of course, on the plaintiffs’ side is the fact that a wrongful death action could not be brought until June 3, 1993, the date of Steven Braden’s death, although a suit for medical malpractice did not have to await the happening of that extreme end of the continuum of injury.
The majority opinion recites some of the enumerations of error posed by appellants. In addition, appellants enumerate as errors the rejection of the claims that the statute is fundamentally unfair and violates the Georgia Constitution, Art. I, Sec. I, Pars. I, II, XII, and XXVIII; and that it violates state and federal constitutional due process requirements. In the trial court, plaintiffs attacked constitutionality on three bases: state constitutional equal protection (Ga. Const. Art. I, Sec. I, Par. II), as to which they urged adoption of the dissent in Craven, supra; the constitutional prohibition of retroactive law (Ga. Const. Art. I, Sec. I, Par. X), as to which they relied on the dissent in Wright v. Robinson, 262 Ga. 844 (426 SE2d 870) (1993); and, in composite, fundamental fairness as embodied in the Georgia Constitution, Art. I, Sec. I, Pars. I, II, XII and XXVIII, and the due process and equal protection clauses of the federal constitution.
The trial court was cognizant of the various bases propounded in support of unconstitutionality, reciting them in its order, and it expressly rejected each ground. Thus, having been properly raised and ruled on, these separate bases were ripe for appellate determination of their merits. Blackston v. Dept. of Natural Resources, 255 Ga. 15, 17-18 (1) (334 SE2d 679) (1985). Compare Kelly v. City of Atlanta, 217 Ga. App. 365 (457 SE2d 675) (1995). See Atlanta Independent School System v. Lane, 266 Ga. 657 (469 SE2d 22) (1996).
Nevertheless, the Supreme Court transferred the appeal to this Court, giving the reason that only the application of established constitutional law is involved, as the majority recites. However, Craven, supra, only resolved the equal protection issue, and Kumar v. Hall, 262 Ga. 639, 644 (2) (423 SE2d 653) (1992), addressed only the constitutionality of OCGA § 9-3-73 (b), not OCGA § 9-3-71 (b), and then only against an attack that it violated equal protection and due process guarantees under the state and federal constitutions. Thus it appears that all constitutional grounds have not been resolved by the *149Supreme Court. I do not agree in the majority’s ostensible ruling that these grounds are without merit. We are without jurisdiction to decide them. Ga. Const. Art. VI, Sec. VI, Par. II (1); Harper v. State, 213 Ga. App. 611, 612 (1) (445 SE2d 300) (1994).
Decided June 14, 1996 Reconsideration denied July 9, 1996 The Johnson Law Firm, A. Blair Dorminey, for appellant. Sullivan, Hall, Booth & Smith, Michael A. Pannier, for appellees.I also cannot concur in the statement that “this court has no jurisdiction to address a constitutional issue, except in limited circumstances.” Majority at 146. We often, properly, decide issues of whether behavior is constitutionally permissible or not, such as in search and seizure cases and in Section 1983 actions. The application of both state and federal constitutional protections is left to this court to review. This is illustrated in Atlanta Gas Light Co. v. Ga. Pub. Svc. Commn., 212 Ga. App. 575, 576 (442 SE2d 860) (1994).
Finally, I do not concur in the exception stated as “other than” to our lack of jurisdiction to determine the constitutionality of a state law. There is no exception. What Blackwell v. State, 180 Ga. App. 253, 254 (349 SE2d 13) (1986), describes “as exception” is not an exception at all. Application of what has already been settled by the Georgia Supreme Court or the United States Supreme Court involves a different inquiry altogether; it takes constitutionality as a given, not as an issue.