Deen v. Stevens

HUNSTEIN, Chief Justice,

dissenting.

I respectfully dissent to the majority opinion upholding as constitutional a statute that eliminates the tolling of the two-year medical malpractice statute of limitation for those persons who are rendered mentally incompetent as a result of the conduct of health care professional defendants.

Since the earliest days of Georgia’s existence as a state, we have undertaken to safeguard the legal interests of our weakest and most vulnerable citizens by tolling the running of statutes of limitation until the removal of their disabilities. Whether denominated as “idiots, lunatics or infants,” Act of December 18, 1817, § 1, Lamar’s Compilation of Georgia Laws, 1810-1819, p. 31, or “[mjinors and persons who are legally incompetent because of mentad retardation or mental illness,” OCGA § 9-3-90 (a), we have recognized that these categories of persons lack the ability to handle their legal affairs and that it offends all notions of decency and fairness for the law to require them to take legal action when they are so obviously incapable of doing so on their own.

With the enactment of OCGA § 9-3-73 (b), however, the Legislature chose to strip these most vulnerable citizens of the tolling protection historically granted to them. “[A]ll persons who are legally incompetent because of mental retardation or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article.” (Emphasis supplied.) Id. By so providing, the Legislature carved out a special exception to the traditional *614tolling accorded to all of these vulnerable citizens except for those who would bring medical malpractice actions. As pertains to this case, this exception adversely affects in particular those mentally incompetent persons whose legal incompetency results from the conduct of the very health care professionals against whom the medical malpractice action would be initiated.

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. 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.

Kenneth Deen was a mentally competent human being capable of handling his own legal affairs at the beginning of August 2005. By the end of that month he was permanently disabled and mentally incompetent3 due, according to the lawsuit Linda Deen filed on behalf of herself and Mr. Deen, to alleged acts of malpractice by appellees in this case, among others. While the Deens’ suit against the parties directly involved in the spinal cord procedure was filed within two years of that procedure, the suit alleging appellees’ dental malpractice was not filed within two years of their alleged negligent acts or omissions, although it was filed prior to the probate court’s appointment of Ms. Deen as her husband’s conservator. In response to appellees’ motion to dismiss based on OCGA § 9-3-73 (b), the Deens challenged the constitutionality of this statute on the basis that it treats mentally incompetent medical malpractice plaintiffs *615different from mentally incompetent plaintiffs who seek to bring any other type of civil lawsuit. It is the majority’s affirmance of the trial court’s rejection of this challenge to which I object.4

The equal protection clause is in our Constitution to protect our weakest and most vulnerable citizens. It prohibits the State from treating similarly situated parties differently via the creation of disparate categories. See Kelley v. Dept. of Human Resources, 269 Ga. 384, 386 (3) (498 SE2d 741) (1998). Even accepting, arguendo, that the mentally incompetent are not entitled to treatment as a suspect class despite the reprehensible treatment to which they have been accorded historically,5 the majority errs by finding any rational reason for the Legislature to treat mentally incompetent medical malpractice plaintiffs any different than mentally incompetent plaintiffs seeking to bring other civil tort actions.

As applicable to our equal protection clause, under the rational basis test a State legislative classification is permitted when the classification is based on rational distinctions and bears a direct and real relation to the legitimate object or purpose of the legislation. City of Atlanta v. Watson, 267 Ga. 185 (1) (475 SE2d 896) (1996). See also Nichols v. Gross, 282 Ga. 811, 813 (653 SE2d 747) (2007) (for equal protection purposes, classification created by the government need only bear a reasonable relationship to a legitimate goal). The majority relies upon the “rational, legitimate objectives” stated by the General Assembly in OCGA § 9-3-73 (f). While these objectives are rational and legitimate, they simply have no rational relationship to the classification created by subsection (b) in excluding medical malpractice actions from the tolling provisions for mentally incompetent plaintiffs. Five of the six objectives enumerated by the *616General Assembly in subsection (f) are unquestionably so attenuated from the classification created in subsection (b) as to render the distinction irrational and irrelevant. Eliminating any tolling of the statute of limitation and requiring mentally incompetent persons to file suit within two years after the date of the malpractice bears no relationship whatsoever to providing quality healthcare; assuring the availability of physicians; preventing the curtailment of medical services; stabilizing insurance and medical costs; or providing for the public safety, health and welfare as a whole. Id. at (f). As to the sixth objective, “preventing stale medical malpractice claims,” that goal was fulfilled by the Legislature’s enactment for the first time of a five-year statute of “ultimate repose and abrogation” for medical malpractice actions. Id. at (c). As we have recognized, a statute of ultimate repose cannot be tolled for any reason. Simmons v. Sonyika, 279 Ga. 378 (614 SE2d 27) (2005). Hence, because the statute of repose would bar any medical malpractice claim filed by a mentally incompetent plaintiff more than five years after the date on which the act or omission occurred, no possible relevant connection exists between subsection (b) and this stated objective.

Although the majority lists these objectives, it makes no effort to explain how they or the objective identified by the Eleventh Circuit, namely, ensuring access to affordable healthcare, Maj. Op. at 600, are rationally related to the irrational classification created by OCGA § 9-3-73 (b). Instead, the majority justifies its holding on the basis that there has been “vigorous public debate with ‘powerful arguments on both sides of the issue,’ [cit.]” Maj. Op. at 606, and contends that it is “not the role of the courts” to weigh policy arguments and to decide which course is “most prudent,” but that “ ‘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 [sic] — is rational.’ [Cit.]” Maj. Op. at 606.

This language in the majority’s opinion reveals that it has confused the wisdom of legislation with its constitutionality. As I have frequently stressed in opinions I have authored, it is not the role of courts to be concerned with the wisdom of an act passed by our State Legislature and signed into law by our State Executive. E.g., DeKalb County v. Perdue, 286 Ga. 793 (8) (692 SE2d 331) (2010); Dev. Auth. of DeKalb County v. State of Ga., 286 Ga. 36 (4) (684 SE2d 856) (2009). Whether a statute is prudent or rash, whether it is directed toward substantive or trivial concerns, whether it should be enacted in light of the arguments for or against it — those matters address themselves to the wisdom of the enactment. However, it is uncontrovertedly the role of this Court to be concerned with the constitutionality of any Georgia statute, Art. *617VI, Sec. VI, Par. II (1), Ga. Const, of 1983, regardless of whether or not there has been “vigorous public debate” over “ ‘a particularly thorny legislative problem.’” Maj. Op. p. 606. Public debate, regardless how “vigorous,” can never serve to shield legislation from constitutional review.

Decided July 23, 2010.

The classification adopted in OCGA § 9-3-73 (b), by denying mentally incompetent plaintiffs in medical malpractice actions the same tolling of the statute of limitation accorded all other mentally incompetent plaintiffs in every other type of civil claim, has no rational relationship to the goals set forth in OCGA § 9-3-73 (f). It is not rational to treat mentally incompetent people the same way we treat mentally competent people. It is not rational to toll limitation periods for mentally incompetent people for purposes of every civil cause of action except for the one type of civil action — medical malpractice — where tolling is most essential. It is not rational to encumber these medical malpractice plaintiffs’ access to the courts to obtain redress for their catastrophic injuries by eliminating the tolling period these plaintiffs need in order to hold accountable the parties responsible for those injuries. It is not rational to create the cruel reality where the families of these catastrophically injured plaintiffs would be better situated legally if their loved one died immediately rather than survived in a state of mental incompetence — better situated legally because, with their loved one dead, at least then the family would have breathing space until an executor or administrator was appointed before they would have to deal with the legal turmoil arising from the defendants’ acts of malpractice. See OCGA § 9-3-92 (five-year tolling for unrepresented estate).

How can we consider “rational” the disparate treatment that OCGA § 9-3-73 (b) accords our most vulnerable citizens in medical malpractice actions? 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. As jurists we cannot shirk our constitutional duties and sanction the denial of “equal protection of the laws” to our most vulnerable citizens. It follows that I would strike down OCGA § 9-3-73 (b) as violative of the equal protection clause and reverse the trial court’s grant of appellees’ motion to dismiss.

I am authorized to state that Justice Benham joins in this dissent.

*618Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney, Clark & Williams, Nathan T. Williams, for appellants. Hall, Booth, Smith & Slover, Norman D. Lovein, Steven P Bristol, for appellees.

It is unquestioned in this case that Kenneth Deen is not legally incompetent “because of mental retardation or mental illness” under the plain meaning of those words. Rather than recognizing that the unambiguous language of OCGA § 9-3-73 (b) does not encompass the separate category of persons such as Deen who are rendered legally incompetent because of traumatic brain injury, this Court in Kumar v. Hall, 262 Ga. 639 (423 SE2d 653) (1992) relied on an ill-reasoned 1979 opinion from the Court of Appeals to judicially rewrite this statute so as to include persons who are mentally incompetent for any reason. Id. at 643 (1) (b). Although I joined in the dissent to that case, its holding is not based upon a clearly demonstrable historical error, e.g., Bloomfield v. Liggett & Myers, 230 Ga. 484 (198 SE2d 144) (1973) (this Court mistakenly interpreted a constitutional provision by relying on an unofficial, inaccurate account of convention discussions compiled by a newspaper reporter). Accordingly, I adhere to the doctrine of stare decisis and accept the flawed interpretation of OCGA § 9-3-73 (b) in Kumar as the law of this State.

Because I would find that appellants’ suit is timely filed, it is not necessary to address the manner in which the majority resolves appellants’ simple negligence claims.

Although society’s recognition of the inability of mentally incompetent persons to handle their legal affairs led to the early enactment of tolling statutes, see, e.g., Act of December 18, 1817, § 1, Lamar’s Compilation of Georgia Laws, 1810-1819, supra, there was little, if any, societal recognition of the right of mentally incompetent persons to he accorded equal respect under the law. See, e.g., Buck v. Bell, 274 U. S. 200 (47 SC 584, 71 LE 1000) (1927), in which the United States Supreme Court joined in the mistreatment of individuals with mental disability when it rejected the argument that state-imposed sterilization of a woman based on her mental disability was unconstitutional, with language by Justice Oliver Wendell Holmes that

[w]e have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State, ... in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.... Three generations of imbeciles are enough.

Id. at 207.