High Court Upholds Med-Mal Exemption; JUSTICES SPLIT 5-2 to Reject Challenge to 1987 Statute of Limitations

Fulton County Daily Report (Atlanta)

THE SUPREME COURT OF GEORGIA has joined a federal appeals court in rejecting a challenge to a 1987 Georgia statute of limitations that makes it more difficult for plaintiffs to bring certain medical malpractice cases.

The justices split 5-2 over the issue in a decision issued in late July. The majority upheld the statute that exempts most med-mal cases from the usual rule that allows the statute of limitations to be tolled for minors or those who are incapacitated due to mental disability.

The 34-page majority opinion, by Justice David E. Nahmias, relied heavily on a February opinion by the 11th U.S. Circuit Court of Appeals that rejected a similar challenge to the statute in a related malpractice case. He wrote that it is not the role of courts to weigh the policy arguments on both sides of tort reform.

"[I]nstead," he wrote, quoting from the 11th Circuit opinion, "it is quite enough to note the existence of a viable, ongoing debate' and to find, in accordance with the Eleventh Circuit, that the General Assembly's 'approach to a particularly thorny legislative problem— embodied in its statutes of limitations—is rational.'"

Joined in dissent by Justice Robert Benham, Chief Justice Carol W. Hunstein blasted the majority's reasoning. "This statutory classification is so arbitrary and unreasonable that it makes the standard of review the majority claims to apply into nothing more than a 'rubber stamp' approval of legislation that favors the politically powerful at the expense of our mentally disabled citizens and our injured children," she wrote. "As jurists we cannot shirk our constitutional duties and sanction the denial of 'equal protection of the laws' to our most vulnerable citizens."

The case was brought on behalf of Kenneth Deen, who was diagnosed with a brain infection in 2005 after problems with an infected tooth. Deen was hospitalized for months in 2005 and subsequently resided in Brunswickarea nursing homes. Deen's wife and, later, his mother were appointed as Deen's conservator to handle his affairs. He died last fall.

Before he died, Deen's family brought a series of lawsuits against various medical and dental providers, but the one addressed by the Supreme Court on Friday was brought against endodontist Randolph M. Stevens, who saw Deen once on a referral by dentist Shannon Egleston, who is also a defendant.

The suits against Egleston and Stevens were brought after the two-year statute of limitations had run out, but the Deen family's lawyers challenged the tolling rules.

Presiding over the Egleston case in federal court, U.S. District Judge Anthony A. Alaimo ruled that it would be unconstitutional to apply the statute of limitations to bar Deen's suit, writing that "[t]he impetus behind the special legislation for medical malpractice cases appears to have been based on either misunderstanding of the problem of healthcare expenses, or an outright boondoggle." But in February, shortly after Alaimo died at age 89, an 11th Circuit panel reversed.

Deen's lawyers had a second opportunity to get the rule declared unconstitutional in the case against Stevens in Glynn County State Court. Sitting by designation because another judge had recused, Ware County Judge Douglas L. Gibson rejected the challenge and dismissed the dental malpractice claims based on the statute of limitations, leading to last month’s ruling.

Joined by Presiding Justice George H. Carley and Justices P. Harris Hines, Harold D. Melton and Hugh P. Thompson, Nahmias noted the court wasn't required to follow the 11th Circuit opinion. But he said the majority found it persuasive and consistent with the state Supreme Court's earlier opinion in Kumar v. Hall, 262 Ga. 639 (1992). The Deen family's lawyers had argued there were factual differences between that case and theirs, but they did not persuade the majority.

Nahmias wrote that the U.S. Supreme Court already had rejected the idea that legislation affecting the mentally disabled differently than other people should be reviewed by courts under a standard stricter than an inquiry into whether the legislation had a rational basis. He noted the Georgia Legislature was concerned about the proliferation of medical malpractice suits and wanted to ensure access to quality health care and stabilize the market for medical insurance, concluding, "It follows logically that eliminating or reducing the number of exceptions to the statute of limitations will advance these goals as well, however incrementally."

Hunstein countered that even if the Legislature's goals were rational, exempting medmal cases from the usual tolling rule wasn't a rational way to achieve those goals.

"The devastating impact of an act of medical malpractice that takes a vibrant, competent human being and transmutes him or her into someone so mentally incapacitated that they are left legally incapable of handling their own affairs is hard for anyone who has not experienced such a nightmarish situation to truly imagine," wrote Hunstein. "Yet OCGA § 9-3-73 (b) eliminates any emotional recovery period for the family and friends of such a person. This statute forces families devastated by their loved one's debilitated condition to focus on matters such as law suits and attorneys, deadlines and depositions, guardians and expert witnesses, rather than on caring for their loved one, optimizing his or her recovery, addressing their own emotional turmoil and handling all of the other demands placed on them by the tragically-changed needs of their loved one."

The winning appellate argument was made by Steven P. Bristol of Hall Booth Smith & Slover's Brunswick office. "I'm pleased with the result, not unsurprisingly," said Bristol. "I thought the companion case in the 11th Circuit was well reasoned."

Separate wrongful death suits against Egleston and Stevens have been filed and can go forward without a statute of limitations problem.