Allrid v. Emory University

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion, it is appropriate to make a few observations.

The status of the law in the areas outlined in the majority as related to professional malpractice and the statute of limitations points up a three-pronged most difficult, discriminatory dilemma of differing dimensions of disparity.

First. As pointed out in the majority opinion, if the patient does not immediately die the statute runs two years from the time of the non-ascertained wrongful act in a malpractice case, while on the other hand, if the patient becomes a vegetable after the wrongful non-ascertainable act and lives another fifty years, suit may then be brought for wrongful death, if related to the original wrongful act, at this late date.

Second. As Judge Eberhardt pointed out in Parker v. Vaughan, 124 Ga. App. 300, 304 (183 SE2d 605) (1971), “I am unable to justify the establishment of one standard as to the commencement of the *135running of the statute of limitation in a malpractice action against an attorney and another standard to be applied to a malpractice against a doctor.” See also my dissent in Banks v. Dalbey, 150 Ga. App. 779, 781 (258 SE2d 701) (1979). The majority opinion was overruled in this case by the Supreme Court in Dalbey v. Banks, 245 Ga. 162 (264 SE2d 4) (1980). My dissent in Banks, supra at 783, discusses the possible applicability of the res ipsa loquitur doctrine in common knowledge rare situations accounting and explaining the reasons for this separate treatment.

The General Assembly may have provided this exception in this rare medical malpractice area, such as a doctor leaving a sponge in a patient’s body after an operation, because of the “common knowledge doctrine” which is intertwined with and includes a type of res ipsa loquitur rule in these unusual situations. See generally “Res Ipsa Loquitur and Medical Malpractice in Georgia: A Reassessment,” 17 Ga. Law Rev. 33, 76 (1982). “To put it more bluntly, medical defendants, as a class, are not deserving of any special dispensation from inferences of negligence that may be logically drawn from the circumstances. One suspects, but cannot prove, that underlying the judicial condemnation of res ipsa loquitur in malpractice cases is the instinct to provide just such protection.”

Third. There appears to be generally a less harsh rule applicable to professional malpractice (medical and/or legal) where the statute of limitations immediately runs from the date of the unascertained wrongful act, except in the former where the patient dies, and further except for the rare sponge-type case, on the one hand, and, a more harsh rule on the other hand for wrongful acts committed by non-professional lay persons where the statute does not run against them until the wrongful act is ascertained... “accrues when exposure to the hazard first produces ascertainable injury.” Everhart v. Rich's, Inc., 229 Ga. 798, 802 (194 SE2d 425) (1972). (Emphasis supplied.) Compare Wellston Co. v. Sam N. Hodges, Jr. & Co., 114 Ga. App. 424 (151 SE2d 481) (1966). “Ascertainable” may be five, ten or twenty-five years later in non-professional wrongful acts whereas as to professional malpractice the statute would already have run from the date of the non-ascertainable wrongful act.

The majority opinion further cites as authority for equal justice one of the two or three greatest lawyers of the ancient world, Marcus Tullius Cicero.1 The latter denounced the “double standard” rule that some were to be above the law, fed out of one spoon, and others *136below the law, fed out of a different spoon.

The case under review must be reversed because of the reasons set forth in the well reasoned majority opinion pertaining to most complex areas of the law.

Indeed, Cicero’s succinct definition of true law in his De República as right reason in agreement with nature should not go ignored in our modern world.