Craven v. Lowndes County Hospital Authority

Benham, Justice,

dissenting.

Because I am persuaded that OCGA § 9-3-71 (b) denies equal protection of the law to those victims of medical malpractice whose injuries do not manifest before five years after the act of malpractice, I must dissent to the affirmance of the grant of summary judgment to appellees. Since the rights involved in this case are too substantial to be considered under the extremely relaxed “rational basis” test, I of*661fer in this opinion an intermediate level of scrutiny which I believe this court should apply in equal protection cases involving such rights.

1. The first step in an equal protection analysis, must necessarily be the selection of the appropriate standard to apply. Georgia has typically employed a two-tiered analysis, applying strict scrutiny to cases involving fundamental rights or suspect classifications, and applying a “rational relation” test to all other cases. See Fortson v. Weeks, 232 Ga. 472, 488 (208 SE2d 68) (1974), Justice Hall’s special concurrence. The parties to this case agree that appellant is not a member of a suspect class and is not, on that basis, entitled to strict scrutiny of the classifications established by the statute. Appellees assert that the appropriate standard to apply if strict scrutiny is not called for is the “rational relation” standard. However, I suggest there is a third choice and propose that we adopt an intermediate standard of review which may be called the “substantial relation” test.

In Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 835 (353 SE2d 515) (1987), this court included the intermediate standard in a discussion of which standard to apply in a consideration of an equal protection challenge tó the charitable immunity doctrine. The standard was briefly described there as requiring that a classification be substantially related to an important governmental objective. A clear and persuasive articulation of the standard may be found in Carson v. Maurer, 120 NH 925 (424 A2d 825) (1980). In that case, the New Hampshire Supreme Court considered an equal protection challenge to a statute concerning medical malpractice actions and concluded that the rational relation, or rational basis test was not adequate to a proper treatment of the issue.

Although the right to recover for personal injuries is not a “fundamental right,” ... it is nevertheless an important substantive right. . . . [T]he rights involved herein are sufficiently important to require that the restrictions imposed on those rights be subjected to a more rigorous judicial scrutiny than allowed under the rational basis test. Consequently, . . . classifications [creating such restrictions] “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation” in order to satisfy State equal protection guarantees.

Id. at 424 A2d 830-831. Recognizing that the U. S. Supreme Court had chosen to restrict the substantial relation test to cases involving distinctions based on illegitimacy and gender, New Hampshire’s Supreme Court chose to use the more rigorous standard as a matter of *662state constitutional law, not federal constitutional law, noting that it was not confined to federal constitutional standards and was free to grant individuals more rights than the U. S. Constitution requires. This court has also recognized its power to grant broader rights under the Georgia Constitution than are granted by the U. S. Constitution. Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992), fn. 1 and cases cited therein.

The language used by the New Hampshire Supreme Court in Carson, “fair and substantial relation to the object of the legislation,” has sometimes been used by this court when applying the “rational basis” test. See, e.g., Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566 (423 SE2d 235) (1992); Mansfield v. Pannell, 261 Ga. 243 (404 SE2d 104) (1991); Clark v. Singer, 250 Ga. 470 (298 SE2d 484) (1983); Allrid v. Emory Univ., 249 Ga. 35 (285 SE2d 521) (1982); Bickford v. Nolen, 240 Ga. 255 (240 SE2d 24) (1977). In other cases, this court has used the more traditional formulation, that a classification does not deny equal protection if it bears a rational relation to the purpose of the legislation. See, e.g., Henry v. State, 263 Ga. 417, 418 (434 SE2d 469) (1993); Nix v. Long Mountain Resources, 262 Ga. 506 (422 SE2d 195) (1992). That statement of the rational relation test is similar to that pronounced in Cannon v. Ga. Farm Bureau Mut. Ins. Co., 240 Ga. 479, 482 (241 SE2d 238) (1978), to be the standard under the Georgia Constitution:

Under the equal protection guarantee of our State Constitution [cit.], classification in legislation is permitted when the classification is based on rational distinctions, and the basis of the classification bears a direct and real relation to the object or purpose of the legislation. [Cits.]

For the sake of clarity, I would adopt the following standards to be applied to equal protection challenges under the Georgia Constitution. Ordinarily, classifications will be upheld if they are based on rational distinctions and the basis of the classification bears a direct and real relation to the object of the legislation. Id. When a classification infringes on substantive rights, it will be upheld only if it is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relation to the object of the legislation. Perini v. State, 245 Ga. 160 (264 SE2d 172) (1980). When fundamental rights or suspect classifications are involved, a challenged enactment will be upheld only if the classification is necessarily related to a compelling governmental objective. Henry, supra.

The right infringed upon in the present case is the right of some medical malpractice plaintiffs to resort to the courts to recover damages. The right to recover for such damages is provided by statute. *663OCGA § 51-1-9. Such rights are termed substantive rights. Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988). This case, therefore, involves an infringement of substantive rights, calling for application of the substantial relation standard. In other words, the statute in question, which creates two classes of medical malpractice plaintiffs, one of which may pursue recovery of damages and the other of which cannot, should not be upheld unless the classification is reasonable, not arbitrary, and rests upon some ground of difference having a fair and substantial relation to the object of the legislation.

2. Having established the standard I believe should be used, I turn now to the objective or purpose of the legislation at issue.

In Clark v. Singer, supra, we identified the interest behind OCGA § 9-3-71 as eliminating stale claims. Indeed, that justification still applies to the statute of limitation, but the amended version of OCGA § 9-3-71 is directed toward other interests as well. Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury makes it difficult for insurers to . . . assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause.

Majority at p. 658. Thus, in addition to the elimination of stale claims, a statute of repose seeks to eliminate what is sometimes called the “long tail” problem, a long period of potential liability. It is asserted that reduction of that problem is necessary to keep health care affordable and accessible to the public. I recognize, therefore, that elimination of stale claims and reduction of the “long tail” of liability, the purposes of the statute being challenged by appellants, are legitimate state objectives. The question now is whether the legislature’s classification of medical malpractice plaintiffs is reasonable, not arbitrary and bears a fair and substantial relation to those objectives.

In the abstract, I have no hesitation in declaring that a statute of repose is an appropriate response to the “long tail” problem. However, based on evidence in the record of this case that many injuries, exemplified by those suffered by appellant, may take more than five years after an act of medical malpractice to manifest, I cannot conclude that the classification created by OCGA § 9-3-71 (b) is reasonable, not arbitrary, and bears a fair and substantial relation to the objective of minimizing the “long tail” problem. The record does not support a conclusion that five years is the point at which elimination of many meritorious claims will significantly improve the problem of long-term liability. That being so, I must conclude that the choice of *664five years is arbitrary. While the elimination of those claims which accrue after five years would certainly reduce liability, and thereby have a substantial relation to the object of the legislation, I cannot agree that the relation of that classification to the purpose of the legislation is fair in its impact on those whose injuries manifest after five years. I reach this conclusion reluctantly, recognizing the enormous challenge the legislature faces in attempting to balance the rights of claimants against the needs of society. Nonetheless, I am compelled to find that the five-year statute of repose in OCGA § 9-3-71 (b) denies equal protection of the law to those whose right of action is abrogated before it accrues. Accordingly, I would reverse the grant of summary judgment to appellees.

Decided December 2, 1993 Reconsideration denied December 17, 1993. Bennett, Wisenbaker, Bennett & Williams, Michael S. Bennett, Williams & Henry, Philip C. Henry, Davis, Gregory & Christy, Hardy Gregory, Jr., for appellant. Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Alexander & Vann, William U. Norwood III, for appellees.

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