                              FOURTH DIVISION
                                BARNES, P. J.,
                            RAY and MCMILLIAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   October 28, 2015




In the Court of Appeals of Georgia
 A15A1572. PIEDMONT HOSPITAL, INC. v. D. M.
 A15A1573. COLQUITT v. D. M.

      MCMILLIAN, Judge.

      Piedmont Hospital (“Piedmont”) and Dr. James DeWayne Colquitt assert that

the statute of repose for medical malpractice actions bars D. M.’s claims for

negligence and fraud in connection with the failure to inform him of the results of a

blood test performed while he was a patient at Piedmont. Thus, they contend that the

trial court erred in denying their motions for summary judgment.

      On May 11, 2005, Colquitt performed an appendectomy on D. M. at Piedmont

after D. M. presented at the hospital’s emergency room complaining of abdominal

pain.1 During the surgery, a Piedmont staff member was inadvertently exposed to D.

      1
       We review the grant or denial of summary judgment de novo, viewing the
evidence in a light most favorable to the nonmoving party. See Giles v. Swimmer, 290
M.’s blood or other bodily fluids, and Piedmont policy dictated that D. M.’s blood be

tested for blood-borne pathogens, including HIV, to determine the risk of the

employee’s exposure. Piedmont’s laboratory first used a sample of D. M.’s blood

already in the lab’s possession to perform a rapid HIV test. On the morning of May

12, 2005, the rapid HIV test showed a presumptively positive result for HIV,

necessitating a second confirmatory test, but Piedmont’s lab did not have a sufficient

blood sample for further testing. D. M. was asked to supply a further sample, and at

first he refused. However, after Colquitt explained that a blood test was needed to

protect the Piedmont employee, D. M. agreed to give another sample, although he

expressed reluctance about hearing the results of the test at that time. D. M. was

discharged from the hospital the same day, with Colquitt’s instruction to make a

follow-up appointment.

      Piedmont used the new blood sample drawn from D. M. to perform a “more

sensitive” in-house HIV test and an outside lab test, both of which showed that D. M.

was positive for HIV. The second in-house HIV test result was verified on May 13,




Ga. 650, 651-652 (1) (725 SE2d 220) (2012).

                                          2
2005, and the final confirmatory test result was received on May 14, 2005.2 Colquitt

did not call D. M. to inform him of these results, planning instead to tell him in

person at the follow-up appointment, although he did report the results to D. M.’s

primary care physician. However, D. M. never scheduled a follow-up appointment

with Colquitt or called him or anyone else to determine the results of his HIV tests.

D. M. was not tested for HIV for another six years, until May 2011. After learning

that the results of that test were “indicative of an AIDS diagnosis,” D. M. obtained

his Piedmont medical records and learned for the first time of the positive results of

the 2005 HIV tests.

      D. M. filed the lawsuit in this case on May 10, 2013, almost eight years after

the HIV tests revealed a positive result, asserting claims for professional negligence,

negligence per se under OCGA § 31-22-9.2 (d), ordinary negligence, and fraud. D.

M. later amended his complaint to assert additional claims for negligence per se,

alleging that Colquitt and Piedmont breached duties imposed under OCGA §§ 24-12-

21 and 31-12-2 (b) to inform the Georgia Department of Public Health and him that

he had tested positive for HIV. Piedmont and Colquitt subsequently moved for


      2
        For ease of reference, we will refer to all three HIV blood tests collectively
as the “HIV tests.”

                                          3
summary judgment on the ground that OCGA § 9-3-71 (b), the statute of repose

applicable to medical malpractice claims, barred D. M.’s claims against them.

      Following a hearing, the trial court issued an order on December 16, 2014 (the

“December 16 order”), in which it found that the statute of repose would be

applicable only to the one count of D. M.’s complaint expressly asserting a claim for

“professional negligence.” However, the trial court also found that D. M. had

effectively abandoned that claim and struck it from the complaint.3 The trial court

further noted that D. M. had expressly withdrawn his claims for negligence per se

against Piedmont. After making these findings, the trial court denied summary

judgment as to the remaining claims because they “do not complain of ‘the propriety

of a professional decision.’” On December 19, 2014, D. M. filed a “Second Amended

Complaint” that omitted any claims for negligence per se against either defendant.4

Accordingly, only D. M.’s claims for ordinary negligence and fraud remain.



      3
        D. M. has not appealed this ruling and thus, D. M. no longer has an express
claim for professional negligence.
      4
         By letter dated December 18, 2014, D. M.’s counsel informed the court that
this amendment “crossed in the mail” with the December 16 Order and that D. M.
planned to amend his complaint “to conform to the Order after [Colquitt’s] requested
certification of immediate review is denied.” No further amendment appears in the
record.

                                         4
      Subsequently, at the request of Piedmont and Colquitt, the trial court set aside

its December 16 order and reentered it “verbatim” on January 14, 2015. The trial

court also issued a certificate for immediate review of that order, and this Court

granted the resulting applications for interlocutory appeal filed by Colquitt and

Piedmont.

      1. We first address D. M.’s argument that we should decline to exercise

jurisdiction in this case. He asserts that the trial court used the procedure of setting

aside and reentering the December 16 order to improperly grant Piedmont and

Colquitt an extension of time for filing their interlocutory applications in violation

of Court of Appeals Rule 30 (g), which provides that “[n]o extension of time shall be

granted for filing of interlocutory applications or responses to interlocutory

applications.” However, the Supreme Court of Georgia has approved a trial court’s

use of a similar procedure, noting that “[s]ummary judgment orders [that] do not

dispose of the entire case are considered interlocutory and . . . are subject to revision

at any time before final judgment.” (Citation and punctuation omitted.) See

Canoeside Properties, Inc. v. Livsey, 277 Ga. 425, 427 (1) (589 SE2d 116) (2003).

And Court of Appeals Rule 30 (g) is not intended to limit the authority of a trial court

to revise its interlocutory orders. In any event, the rules of the appellate courts “are

                                           5
directory only, and not jurisdictional.” Park v. Minton, 229 Ga. 765, 768 (1) (194

SE2d 465) (1972). Accordingly, we find no error by the trial court and conclude that

the applications were timely filed and properly invoked the jurisdiction of this Court.

      2. Piedmont and Colquitt argue on appeal that the trial court erred in denying

their motions for summary judgment because all of D. M.’s claims constitute an

“action for medical malpractice” under OCGA § 9-3-705 and thus are barred by the

statute of repose set forth in OCGA § 9-3-71 (b).




      5
          That statute provides:

      As used in this article, the term “action for medical malpractice” means
      any claim for damages resulting from the death of or injury to any
      person 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.
      (Emphasis supplied.) OCGA § 9-3-70.

                                            6
      Under the statute of repose, an action for medical malpractice must be brought

within five years from the date on which the negligent or wrongful act or omission

occurred. OCGA § 9-3-71 (b). And as our Supreme Court has explained,

      A statute of repose stands as an unyielding barrier to a plaintiff’s 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 omitted.) Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005).

      “The test for determining when OCGA § 9-3-71 (b)’s period of repose begins

is based on the determination of when the negligent act causing the injury occurred.”

Schramm v. Lyon, 285 Ga. 72, 73 (1) (673 SE2d 241) (2009). In this case, D. M.

alleges that Piedmont and Colquitt were negligent in failing to inform him of the

positive HIV results from the HIV tests in May 2005, and it is undisputed that he did

not file his complaint until May 2013, almost three years outside the statutory period

of repose.

      Nevertheless, by its terms, OCGA § 9-3-71 applies only to claims for medical

malpractice, not to claims for ordinary negligence, and D. M.’s complaint contains

a claim designated as “ordinary negligence.” “While complaints against professionals

                                          7
may state a claim based on ordinary as well as professional negligence, the

complaint’s characterization of the claims as professional or ordinary negligence does

not control.” Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 82 (2)

(666 SE2d 401) (2008). Rather, “[w]e must look to the substance of the action against

a medical professional in determining whether the action is one for professional or

simple negligence.” (Citation omitted.) Atlanta Women’s Health Group v. Clemons,

287 Ga. App. 426, 427 (651 SE2d 762) (2007). This determination presents a

question of law for the court. Wellstar Health System, Inc. v. Painter, 288 Ga. App.

659, 662 (655 SE2d 251) (2007).

      Under Georgia law, “[t]he confidential relationship between doctor and patient

creates a duty to inform the patient of his or her condition.” (Citations and

punctuation omitted.) In re Carter, 288 Ga. App. 276, 287 (4) (653 SE2d 860) (2007).

See also Oliver v. Sutton, 246 Ga. App. 436, 438 (540 SE2d 645) (2000). And this

Court has found that “a lawsuit premised upon a breach of this duty is a classic

medical malpractice action.” Carter, 288 Ga. App. at 287 (4) (a). See also Stafford-

Fox, 282 Ga. App. at 671 (2) (holding that failure to inform patient of vitamin

deficiency stated claim for medical malpractice); Peace v. Weisman, 186 Ga. App.

697, 699-700 (3) (368 SE2d 319) (1988) (noting that a treating physician’s failure to

                                          8
inform a patient of his condition constituted medical malpractice, but finding no

physician-patient relationship existed in that case where doctor performed the

examination on behalf of the Department of Human Resources). As this Court

explained in Peace,

      [t]here are three essential elements imposing liability [in a medical
      malpractice case] upon which recovery is bottomed: (1) [t]he duty
      inherent in the doctor-patient relationship; (2) the breach of that duty by
      failing to exercise the requisite degree of skill and care; and (3) that this
      failure be the proximate cause of the injury sustained. . . . [S]uch cases
      [are] called “classic medical malpractice actions.”


(Citations and punctuation omitted.) 186 Ga. App. at 698 (1).

      This authority, and in particular the Carter case, controls our analysis here. In

Carter, a newborn was screened for sickle cell anemia at birth in accordance with

OCGA §§ 31-12-6 and 31-12-7. Under OCGA § 31-12-7 (b), where the screening test

shows a positive result, “it shall be the duty of the examining physician or the

[Department of Public Health] to inform the parents of such child that the child is so

afflicted.” Although the child’s test showed a positive result and attempts were made

to inform the parents, the notification was never successfully delivered. At the age of

12, the child, who had received no treatment for the disease in the interim, suffered


                                           9
a debilitating stroke, and the parents sued the child’s treating physicians, among

others, for failing to notify them of the child’s condition. Carter, 288 Ga. App. at

278-279. This Court found that any duty on the part of the physicians to provide such

notice “arose in the context of a medical malpractice claim,” and, in fact, presented

a classic medical malpractice claim.6 Id. at 288 (4) (a). The Court found, however,

that the parents’ claims were barred because they had failed to attach an expert

medical affidavit to their complaint. Id.

      D. M. similarly asserts that the duty of Colquitt and Piedmont to inform him

of the positive results on the HIV tests arose under Georgia statutory law. See OCGA

§ 31-22-9.2 (d) and (g) (2).7 Pretermitting the scope of the duty to inform a patient of

      6
         The Court also held that the statutory reporting requirement created no strict
liability claim against the physicians. Carter, 288 Ga. App. at 283 (1).
      7
         OCGA § 31-22-9.2 (d) requires that a “health care provider ordering an HIV
test shall provide medically appropriate counseling to the person tested with regard
to the test results. Such medically appropriate counseling shall only be required when
the last confirmatory test has been completed.” OCGA § 31-22-9.2 (g) (2) applies
where a health care provider has been exposed to bodily fluids and the patient refuses
the HIV test. In such a case, an HIV test may be performed

      when at least one other health care provider who is otherwise authorized
      to order an HIV test concurs in writing to the testing, the patient is
      informed of the results of the test and is provided counseling with regard
      to those results, and the occurrence of that test is not made a part of the

                                            10
a positive HIV test under these provisions, we find that, as in Carter, D. M.’s claims

based on the failure of Colquitt and Piedmont to notify him of the positive HIV test

results, even if designated as ordinary negligence or fraud claims, arise out of the

breach of a professional duty to inform D. M. of his medical condition and thus must

be considered classic medical malpractice claims. See Carr, 293 Ga. App. at 83 (2)

(fraud claim based on allegation that nurses did not render services with the

appropriate standard of care properly treated as a claim for medical malpractice);

Thompson v. Long, 225 Ga. App. 719, 721 (4) (484 SE2d 666) (1997) (physical

precedent only) (mere fact that plaintiff alleged that doctor’s conduct was intentional

does not mean that claims were not medical malpractice claims).8

      We note that our Supreme Court has found a “tension” in the case law

regarding the proper analysis to be applied in determining whether a claim presents


      patient’s medical records, where the test results are negative, without the
      patient’s consent.


OCGA § 31-22-9.2 (g) (2). OCGA § 31-22-9.2 has been amended since 2005, but not
in any material way that would affect our analysis.
      8
        But see Labovitz v. Hopkinson, 271 Ga. 330, 334 (3) (519 SE2d 672) (1999)
(no expert affidavit necessary for actions alleging intentional or fraudulent acts by
attorney because “OCGA § 9-11-9.1, by its very language, is applicable only to those
professional malpractice actions alleging professional negligence”).

                                          11
a question of medical malpractice or ordinary negligence. Deen v. Stevens, 287 Ga.

597, 611 (3) (698 SE2d 321) (2010). The Court noted that one line of cases hold “that

only when the claim goes to the propriety of a professional decision rather than to the

efficacy of conduct in the carrying out of a decision previously made does it sound

in professional malpractice rather than simple negligence.” (Punctuation omitted.) Id.

at 610 (3) (citing Upson County Hosp., Inc. v. Head, 246 Ga. App. 386, 389 (1) (540

SE2d 626) (2000) and Robinson v. Med. Center of Central Ga., 217 Ga. App. 8, 10

(456 SE2d 254) (1995)). But other cases hold that actions against even

nonprofessionals may be considered medical malpractice under the language of

OCGA § 9-3-70 where “such claims ‘aris(e) out of’ the provision of professional

services.” Id. (citing Baskette v. Atlanta Center for Reproductive Medicine, 285 Ga.

App. 876, 880-881 (648 SE2d 100) (2007); Stafford-Fox v. Jenkins, 282 Ga. App.

667, 672 (639 SE2d 610) (2006)).

      We need not resolve this tension here, however, because under either analysis,

D. M.’s claims must be considered medical malpractice claims. The first line of cases

distinguishes between claims that “[call] into question the conduct of the professional

in his area of expertise,” which assert claims of medical malpractice, and claims that

address “[a]dministrative, clerical, or routine acts demanding no special expertise[,]”

                                          12
which “fall in the realm of simple negligence.” Head, 246 Ga. App. at 389 (1).

Because the claims in this case constitute a “classic medical malpractice action,” they

necessarily implicate the breach of a professional duty. Thus, they cannot be

considered as claims arising out of administrative, clerical, or routine acts and

likewise cannot be considered as claims for ordinary negligence. And a claim

asserting a beach of a professional duty to inform a medical patient of his condition,

clearly “arises out of” the provision of medical services as broadly defined under the

plain terms of OCGA § 9-3-70.

       Accordingly, we find that D. M.’s claims are subject to the five-year statute

of repose under OCGA § 9-3-71 (b).

      3. D. M. argued below, however, that Piedmont and Colquitt should be

equitably estopped from asserting the statute of repose as a defense because the

failure to inform D. M. of the positive HIV tests constituted fraud and/or gross

negligence that deterred him from filing a claim. See generally Rosenberg v. Falling

Water, Inc., 289 Ga. 57, 60 (709 SE2d 227) (2011) (describing how a defendant may

be equitably estopped from asserting a defense based on the statute of repose). The

trial court did not address this issue because it found that D. M. had abandoned his

only claim for medical malpractice; however, it acknowledged that if this ruling were

                                          13
reversed on appeal, “it will then be necessary to address the matter of equitable

estoppel.” Piedmont and Colquitt nevertheless urge us to address this issue on appeal

as part of our de novo review of the trial court’s order, but D. M. argues that we

should remand the matter for consideration by the trial court. We agree with D. M.

      Piedmont and Colquitt contend that the trial court erred in denying their motion

for summary judgment. Thus, they are not urging us to engage in a “right-for-any-

reason analysis” to affirm the grant of summary judgment; rather, they are asking us

to pursue a “wrong-for-any-reason” analysis to reverse the denial of their motion.

However,

      [w]hen this Court reviews a decision of a trial court on a motion for
      summary judgment, it sits as a court for the correction of errors of law.
      An error of law has as its basis a specific ruling made by the trial court.
      And although in certain instances an appellate court can review a record
      and determine that a summary judgment ruling was right for some
      reason other than that given by the trial court, an appellate court should
      not consider whether the trial court was “wrong for any reason.”


(Citations and punctuation omitted.) Williams v. United Community Bank, 313 Ga.

App. 706, 707-708 (722 SE2d 440) (2012). See also Strength v. Lovett, 311 Ga. App.

35, 44 (2) (b) (714 SE2d 723) (2011).



                                          14
      Here, the trial court expressly declined to rule on the issue of whether Colquitt

and Piedmont are equitably estopped from asserting a statute of repose defense based

on its erroneous determination that no medical malpractice claims remained. Because

the trial court did not reach the issue of equitable estoppel in denying the motions for

summary judgment, we find that the issue is outside the proper scope of our review

in this appeal. We therefore vacate the trial court’s order and remand the case for

consideration of D. M.’s claim of equitable estoppel. See Strength, 311 Ga. App. at

44 (2) (b). See also Community Renewal and Redemption, LLC v. Nix, 279 Ga. 840,

842 (2) (621 SE2d 722) (2005) (declining to apply a “right-for-any-reason” analysis

where denial of summary judgment was based on an erroneous legal theory and trial

court’s ruling left other issues unresolved); City of Gainesville v. Dodd, 275 Ga. 834,

838-839 (573 SE2d 369) (2002) (appellate courts retain discretion in determining

whether to apply the right-for-any-reason rule and consider alternative legal theories

not addressed by the trial court on summary judgment, or to vacate order and remand

for the trial court to consider alternative legal theories in the first instance).

      Judgments vacated and cases remanded. Barnes, P. J., and Ray, J., concur.




                                           15
