Kumar v. Hall

Sears-Collins, Justice,

dissenting.

I agree with the majority that under the law in this area prior to the adoption of the Official Code of Georgia Annotated (the Code), the statute of limitation would have been tolled for a person suffering from a traumatic brain injury, such as the appellee in this case, just as it would have been for any legally incompetent person. (Majority, p. 643). The majority relies on § 1-1-2 to hold that'the language used in the present version of §§ 9-3-90 and 9-3-73 (b) is just as inclusive. (Majority, p. 643). That is where I disagree.

It is the job of the legislature to enact statutes. In fact many of the battles fought in the legislature concern what the words of a statute will be. Consequently, when certain words are chosen to convey legislative intent, those words are sanctified with the policy-making authority of the legislature, and their plain meaning cannot be ignored unless its application would lead to an absurd or impossible result. Moreover, it is also for the legislature to amend a statute if the language used does not convey the intended meaning.

In § 9-3-90, the legislature specifically adopted three distinct categories of persons for whom tolling provisions will apply: minors, those persons legally incompetent due to mental retardation, and those persons legally incompetent due to mental illness. Likewise, the exception to the tolling provision found in § 9-3-73 (b) refers specifically to only those same distinct categories of individuals. There is nothing unclear about the language used in either statute. Rather, the plain language in each statute excludes those persons who are legally incompetent due to reasons other than mental retardation or mental illness.

Such persons are not without the benefit of tolling, however. Under the common law, a statute of limitation was tolled ifor any legally incompetent person until the incompetency was removed. See R. Pound, The History of the Common Law 444 (1913); Dicken v. Johnson, 7 Ga. 484, 492 (1849). The common law is still in force in Georgia, except where it has been “changed by express statutory enactment or by necessary implication.” Robeson v. Intl. Indem. Co., 248 Ga. 306, 307 (282 SE2d 896) (1981); OCGA § 1-1-10.6 The legislature *646has not changed the common law regarding tolling by including only the mentally ill and mentally retarded in § 9-3-90, it has merely codified in part that fundamental rule. Those persons who are legally incompetent for reasons other than mental illness or mental retardation still retain the common law tolling benefit. However, there was no common-law exception to tolling for malpractice actions. Therefore, the exception in § 9-3-73 (b) should be imposed pursuant to its plain meaning: only upon the mentally retarded and mentally ill. Had the legislature intended to encompass within the exception contained in § 9-3-73 (b) persons who are incompetent for reasons other than mental retardation or mental illness, it would have done so specifically, as it has in other areas.7

Decided December 3, 1992 Reconsideration denied December 18, 1992. Love & Willingham, Daryll Love, Allen Willingham, for appellants, (case no. S92A1007). Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., for appel*647lants (case no. S92A1008).

*646In this case, the appellee had no brain injury when he entered into the appellants’ care. The appellee’s brain injury was sustained only after his brain was deprived of oxygen due to a malfunctioning chest tube, allegedly due to the appellants’ malpractice. Far from being absurd or impossible, the result of the application of the plain language of the exception in § 9-3-73 (b) in this case is to prohibit a defendant who may have precipitated a plaintiffs incapacity from benefiting from a tolling exception purportedly created by that incapacity.

For the above reasons, I would hold that the appellee, who is neither mentally retarded nor mentally ill, but is legally incompetent due to a traumatic brain injury, should receive the benefit of preexisting common law tolling provisions, and that the trial court properly declined to grant summary judgment.

I am authorized to state that Justice Benham and Justice Hun-stein join in this dissent.

*647Davis, Gregory & Christy, Hardy Gregory, Jr., Dehler & Griffin, Mark F. Dehler, James L. Bentley III, for appellees.

OCGA § 1-1-10 (b) states as follows:

The following laws and parts of laws are not repealed by the adoption of this *646Code and shall remain of full force and effect until otherwise repealed, amended, superseded, or declared invalid or unconstitutional:
An Act for reviving and enforcing certain laws therein mentioned and adopting the common laws of England as they existed on May 14, 1776. . . . [Id. (c) (1).]

See, for example, OCGA § 29-5-1, which allows a probate court to appoint a guardian for persons who are incapacitated due to “mental illness, mental retardation, mental disability, advanced age, physical illness or disability, chronic use of drugs or alcohol, detention by a foreign power, disappearance, or other cause. ..." (Emphasis supplied.) See also OCGA § 37-3-1 (16.1), which provides that “traumatic brain injury” shall not be considered “mental illness” for purposes of treatment.