Rose v. Hamilton Medical Center, Inc.

Beasley, Judge,

concurring specially.

It is true that the medical and other expenses incurred by the parent are barred in this suit. The child cannot recover them because they are not damages to the child but losses sustained by the parent, who is legally obligated to maintain the child until majority or other loss of parental power. OCGA §§ 19-7-2; 19-7-1. The parent, who is not a plaintiff anyway, cannot recover them because, being her cause of action, she has lost it by not exerting her right within the two-year statute of limitation applicable to her claim for damages resulting to her. OCGA § 9-3-71.

This dichotomy, of course, creates two causes of action, one being that of the child who suffered the injury and one being that of the parent who sustained attendant expenses. But as discussed, all of the medical expenses sought will not be recoverable by the parent because she will not be obligated for those incurred after the child reaches majority. Pruitt v. Pierce, 100 Ga. App. 808, 809 (3) (112 SE2d 327) (1959). That stands to reason, because the elements of any negligence action are four: duty, breach, causation, and damages. *185Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982). And where one does not have compensable damages, the fourth element is missing, injuria absque damno. 1 AmJur2d 597, Actions, § 69, and cases cited.

Decided July 31, 1987 Rehearing denied September 11, 1987 Charles B. Tanksley, Kenneth M. Henson, Jr., for appellant. George W. Hart, John T. Minor III, for appellees. Don C. Keenan, David S. Bills, amici curiae.

It is perhaps unfortunate that the difference in the rights of each, and the statute’s tolling only as to the child’s rights, creates potentially two lawsuits. The parents must bring theirs “within two years after the date on which the negligent or wrongful act or omission occurred.” OCGA § 9-3-71. The child need not then join in but may wait and file years later, within two years after he reaches majority. OCGA § 9-3-90 (a). Or he may, as he has done here, file before majority for the medical and other expenses which will be incurred after majority. The major question consuming time and money in each suit will be liability, a question that is identical in both suits. But the legislature has not seen fit to consolidate the actions and avoid not only the duplication of the resources of litigants and courts alike but also the possibility of inconsistent verdicts. Compare New Jersey Statutes Annotated §§ 2A:14-2.1; 59:8-8.