JAMES L. CHAPPUIS v. DANIEL REFAI
CourtCourt of Appeals of Georgia
Date FiledOctober 14, 2026
DocketA26A1203
StatusPublished
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Full Opinion
FIFTH DIVISION
BROWN, C. J.,
MERCIER, P. J., and EPPS, J.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 14, 2026
In the Court of Appeals of Georgia
A26A1203. CHAPPUIS et al. v. REFAI et al.
MERCIER, Presiding Judge.
Following the dismissal of a medical malpractice action seeking contribution
from Dr. Daniel Refai and Emory Healthcare, Inc. (sometimes collectively referred
to as “Defendants”), Dr. James L. Chappuis and certain affiliated medical companies
(sometimes referred to as “the Chappuis parties”)1 appeal, contending, among other
things, that the trial court erred when it determined that the applicable statute of
repose had not been tolled by a bankruptcy action. For the reasons set forth below, we
affirm.
1
These companies include James L. Chappuis, M.D., P.C., Atlanta
Orthopaedic Surgery Center, LLC, aka Envision Orthopedics and Spine, LLC.
The standard of review for this matter is settled. “In ruling on a motion to
dismiss, the trial court must accept as true all well-pled material allegations in the
complaint and must resolve any doubts in favor of the plaintiff. We review the trial
court’s ruling de novo.” Cunningham v. Gage, 301 Ga. App. 306, 307 (686 SE2d 800)
(2009).
Viewed in this light, the record shows that, on April 23, 2019, Dr. Chappuis
performed spinal surgery on Cindy Davis. Two days later, Davis suffered
complications and sought treatment at Emory University Hospital, where Dr. Refai
performed emergency surgery on May 9, 2019, and a second surgery on May 13, 2019.
Thereafter, on February 11, 2020, Davis filed a medical malpractice action against the
Chappuis parties, contending that Dr. Chappuis made errors in the surgery he
performed and caused Davis to suffer the complications that led to the subsequent
surgeries by Dr. Refai.2
Davis’s action against the Chappuis parties proceeded along the usual course
until July 12, 2024; on that date, after hearings regarding Davis’s request for
discovery-related sanctions, the trial court struck Dr. Chappuis’s answer to Davis’s
2
Davis died on June 4, 2020, and her estate took over the lawsuit, adding a
claim for wrongful death.
2
action, finding that there had been numerous willful failures to produce documents
and that Dr. Chappuis gave “false and deliberately misleading sworn testimony about
the existence of the evidence[.]” The trial court also entered default judgment against
Dr. Chappuis.3
On July 14, 2024, the Chappuis parties filed Chapter 11 bankruptcy petitions.
During the pendency of this ensuing bankruptcy action, Davis’s medical malpractice
claim, and the damages flowing therefrom, were mediated, and a settlement was
reached. Subsequently, on November 21, 2024, the Chappuis parties filed a motion
to voluntarily dismiss the bankruptcy petition, and a hearing on that motion was held
on December 10, 2024. At this hearing, the Chappuis parties reported that a
settlement had been reached with Davis, and, in order to effectuate that settlement,
dismissal of the bankruptcy action would be necessary. At the hearing, the bankruptcy
court expressed an intention to grant the motion to dismiss, but it raised certain issues
that the parties had to work out before it could enter a dismissal. To this end, the
bankruptcy court instructed the parties to work together to draft a proposed order for
3
The trial court noted, however: “The issue of Dr. Chappuis’s ability to argue
alternate and/or intervening causation of Cindy Davis’s injuries is still before the
[c]ourt.”
3
the court to review. Ultimately, the bankruptcy court entered an order dismissing the
bankruptcy action on December 27, 2024.
On the same day as the bankruptcy hearing, December 10, 2024, the Chappuis
parties filed the underlying action for contribution against the Defendants, contending
that Dr. Refai’s own acts of medical malpractice contributed to Davis’s injuries and,
ultimately, her death.4 Subsequently, the Defendants filed a motion to dismiss this
lawsuit, contending that it was barred by Georgia’s medical malpractice statute of
repose. The Chappuis parties countered that the contribution lawsuit was timely, as
the statute of repose had been tolled by Section 108(a) of the federal Bankruptcy
Code. After consideration, the trial court determined that the statute of repose had not
been tolled, and it entered an order dismissing the Chappuis parties’ case against the
Defendants. This appeal followed.
The pivotal question now before us is whether the Chappuis parties’ medical
malpractice action against the Defendants was timely filed, and the answer requires
4
On December 9, 2024, the Chappuis parties first attempted to file the action
against the Defendants, but failed to pay the necessary fees, causing that initial filing
to be rejected. See Division 2, infra.
4
analysis of the applicable state statute of repose as well as other potential tolling
provisions under both state law and the federal Bankruptcy Code.
Georgia imposes a five-year statute of repose on actions for medical
malpractice. OCGA § 9-3-71(b) (“[I]n 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.”). In this case, the alleged malpractice committed by Dr. Refai
occurred/was completed on May 13, 2019, and, absent tolling, the statute of repose
would have run on May 13, 2024, five years later. During the COVID-19 pandemic,
however, our Supreme Court issued an “Order Declaring Statewide Judicial
Emergency,” which tolled all filing deadlines for a four-month period from March 14,
2020, until July 14, 2020, including deadlines imposed by statutes of repose. See
Golden v. Floyd Healthcare Mgmt., 319 Ga. 496, 503(3) (904 SE2d 359) (2024).
Therefore, the COVID-19 Emergency Order extended the filing deadline for
Chappuis’s action by four months, until September 13, 2024. This four-month tolling,
however, would not make Chappuis’s current action against the Defendants timely.
The federal Bankruptcy Code, however, must also be considered in this case.
Rule 108 of that Code provides:
5
(a) If applicable nonbankruptcy law, an order entered in a nonbankruptcy
proceeding, or an agreement fixes a period within which the debtor may
commence an action, and such period has not expired before the date of
the filing of the petition, the trustee may commence such action only
before the later of–
(1) the end of such period, including any suspension of such period
occurring on or after the commencement of the case; or
(2) two years after the order for relief.[5]
11 USC § 108. In other words, limitation periods on actions that may be brought by
a bankruptcy trustee (on behalf of the debtor) are effectively tolled and extended. See,
e. g., Roach v. Option One Mtg. Corp., 598 FSupp2d 741, 755(II)(C)(2) (ED Va. 2009)
(extension “is limited to circumstances where … a claim is both commenced during
the pendency of the bankruptcy proceedings and commenced by someone acting as
the bankruptcy trustee [or debtor-in-possession]” (emphasis omitted)); MHI
Shipbuilding v. Nat’l Fire Ins. Co. of Hartford, 286 B.R. 16, 25(III)(B)(2) (D. Mass.
2002) (“[A] debtor in possession generally reverts back to being a mere debtor after
the pendency of the bankruptcy proceeding has ended, and once this reversion occurs,
the debtor can no longer take advantage of the statute of limitations extension.”
5
In a Chapter 11 case, the “order for relief” is the “commencement of a
voluntary case,” which in turn is the filing with the bankruptcy court of the petition
by the debtor. 11 USC § 301.
6
(quotation marks omitted)). In short, “[t]he purpose of Section 108(a) is to extend the
amount of time for a trustee or debtor in possession to file suit (regardless of the
source of the limitations period)[.]” Id. at 26(III)(B)(3).
A federal appellate court tasked with construing this rule has expressly
determined that Rule 108(a) applies to and preempts deadlines set forth in state
statutes of repose. Stanley v. Trinchard, 579 F3d 515 (5th Cir. 2009). That court
explained:
The subject of bankruptcy falls within the express constitutional powers
of Congress, and bankruptcy law therefore takes precedence over state
laws under the Supremacy Clause. U.S. Const., art. VI. Section 108(a)
is written broadly to extend any “period [fixed inter alia by ‘applicable
nonbankruptcy law’] within which the debtor may commence an
action.” The statute’s clear purpose is to afford bankruptcy trustees
extra time to assess and pursue potential assets of the debtor’s estate.
Congress drew no distinction among the state law vehicles that govern
time limits for filing suit, whether statutes of limitations or prescription,
repose or peremption. The language of Section 108(a) compels the conclusion
that Congress expressly extended the time for pursuing any action that would
otherwise be time-barred under state law.
Id. at 519(II) (emphasis added).
Importantly, however, another federal court has also opined that, where a
bankruptcy petitioner chooses to voluntarily dismiss a bankruptcy action, the
petitioner also chooses to relinquish the benefit of tolling.
7
[T]his result is consistent with the purpose of § 108(a), as “the benefit
of the extension granted by § 108(a) is for the benefit of the estate, and
is, effectively, personal to the trustee.” In re Marshall, 307 B.R. 517, 520
(Bankr.E.D.Va. 2003); see also In re Ranasinghe, 341 B.R. 556, 564
(Bankr.E.D.Va. 2006) (observing that the “stated policy behind § 108 ...
[is to] allow[ ] the trustee additional time to discover and evaluate
potential causes of action after stepping into the shoes of the debtor”
(internal quotation omitted)). Thus, where the bankruptcy proceeding
is voluntarily abated, neither a bankruptcy estate, nor a bankruptcy
trustee, exist to receive the benefit of a § 108(a) extension. This is
sensible, as a contrary rule would lead to an absurd result—namely, any
potential plaintiff could obtain an automatic extension of a statute of
limitations that expires less than two years from a given date simply by
filing a bankruptcy petition and then voluntarily dismissing it
immediately thereafter. Moreover, the result reached here is also consistent
with the analogous and well-settled principle that a “‘statute of limitations is
not tolled by bringing an action that later is dismissed voluntarily....’” Neal
v. Xerox Corp., 991 FSupp. 494, 498 (E.D.Va. 1998) (quoting 9 Charles
A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2367
(1995)); see also Braxton v. Va. Folding Box Co., 72 F.R.D. 124, 126
(E.D.Va. 1976) (“Where an action is voluntarily dismissed without
prejudice, the parties are left as if the action had never been brought.”).
Roach, 598 FSupp2d at 756(II)(C)(2) (emphasis supplied). In short, a “plaintiff [who
chooses] to abate [his or] her bankruptcy proceeding [also chooses] to relinquish any
benefit pursuant to § 108(a) that filing a bankruptcy proceeding may have given to [his
or] her bankruptcy trustee.” Id.6
6
We note that a debtor in possession generally retains the same rights and is
subject to the same limitations as a trustee. See 11 USC § 1107. It follows, then, that
the benefit of tolling under Rule 108 and the limitation discussed in Roach would be
8
In this case, the Chappuis parties filed a Chapter 11 bankruptcy petition on July
14, 2024, prior to the time that the Georgia statute of repose applicable to a medical
malpractice claim against the Defendants expired on September 13, 2024. On
November 21, 2024, however, the Chappuis parties filed a motion to voluntarily
dismiss the bankruptcy petition, and, on December 10, 2024, the bankruptcy court
stated its intention to grant the dismissal (and a dismissal order was entered on
December 27, 2024). Therefore, well before the time that the medical malpractice
contribution action was ultimately filed against the Defendants on December 10, 2024,
the Chappuis parties had chosen to voluntarily abate the bankruptcy action and
relinquish the benefit of tolling under Rule 108(a). Roach, 598 FSupp at 756(II)(C)(2).
Under these circumstances, the Chappuis parties’ medical malpractice action against
the Defendants was untimely, and the trial court properly dismissed it.
2. The Chappuis parties also contend that the trial court erred by denying their
motion to revert the filing date of their medical malpractice action against the
Defendants. But the grant or denial of a motion to revert a filing date is within a trial
court’s discretion, and, absent abuse of that discretion, we will not substitute our
equally applicable to both.
9
judgment for the trial court’s, even if we might have reached a different conclusion.
Dannenfelser v. Squires, 365 Ga. App. 819, 822-23(1) (879 SE2d 506) (2022).
The record indicates that, although the Chappuis parties attempted to file the
medical malpractice action against the Defendants on December 9, 2024, that filing
was rejected for failing to properly pay filing fees. This rejection required the
Chappuis parties to refile, which they successfully did on December 10, 2024. When
considering the motion to revert, the trial court found that “[t]he fee requirements for
filing in Fulton County Superior Court are readily available to the public[,]” and it
attributed Dr. Chappuis’s rejected filing to a lack of diligence and a lack of any “effort
to confirm the required fees before filing.” The trial court concluded: “Plaintiffs’
failures to exhibit even slight diligence, despite having the knowledge and opportunity
to correctly file on time, do not demonstrate a situation warranting reversion.” The
Chappuis parties have raised nothing on appeal that would indicate that the trial court
abused its broad discretion in this regard, and, as such, we find no error in the trial
court’s denial of the motion to revert. See Dannenfelser, 365 Ga. App. at 822-823(1)
n.14.7
7
Moreover, we note that, to the extent that the Chappuis parties contend that
reversion of the filing date would have any effect on the timeliness of their medical
10
Judgment affirmed. Brown, C. J., and Epps, J., concur.
malpractice action against the Defendants, that contention is obviated by Division 1,
supra.
11