Deen v. Egleston

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 26, 2010
No. 09-11458 JOHN LEY
________________________ CLERK

D. C. Docket No. 08-00037-CV-2

LINDA DEEN, individually and
in her capacity as Temporary Administrator
of the Estate of Kenneth Deen,

Plaintiff-Appellee,

versus

SHANNON EGLESTON, D.M.D.,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(February 26, 2010)

Before BLACK, MARCUS and HIGGINBOTHAM,* Circuit Judges.

MARCUS, Circuit Judge:

*
Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit,
sitting by designation.
 The central question raised by this appeal is whether a Georgia legislative

scheme governing statutes of limitations for tort claims in medical malpractice is

rationally related to the state’s interest in providing for the health and welfare of its

citizens. The district court struck down, under the Equal Protection Clause, a state

statute that did not exempt the “legally incompetent” from the general two-year

statute of limitations. In so doing, however, the district court overlooked the

essential principle that matters of social and economic policy, particularly when

they come to bear on the health and welfare of a state’s citizens, are

quintessentially legislative in nature. After thorough review, we hold that

Georgia’s legislative scheme is rationally related to a legitimate state interest,

reverse the denial of summary judgment for appellant Shannon Egleston, D.M.D.,

and remand for further proceedings consistent with this opinion.

I.

A.

We consider the unsettling facts of this case in a light most favorable to the

appellee Linda Deen, the non-movant. On July 18, 2005, Kenneth Deen went to

the dentist because his gums were swollen and there was pus draining out of them.

He went to Gentle Dental in Brunswick, Georgia, where he was evaluated by

Shannon Egleston, D.M.D. Dr. Egleston referred Deen to Randolph M. Stevens,

2
D.D.S., an endontist.

The next day, Deen went to see Dr. Stevens, who informed him that his

tooth (number nine) was infected. Dr. Stevens prescribed an antibiotic for Deen

and planned a root canal; he also called Gentle Dental to advise the office of his

diagnosis. But no one at Gentle Dental wrote down in Deen’s chart that Dr.

Stevens had called, let alone document his recommended course of treatment.

On August 4, 2005, Deen returned to Gentle Dental, where he received a full

mouth debridement from a hygienist. A full mouth debridement is more invasive

than a typical cleaning. It is appropriate when there is a heavy build-up of calculus

on the teeth, and is typically performed when a patient has not had a dental

cleaning in some time. Deen’s chart does not reflect that any dentist saw him on

that day, even though Georgia law requires that a dentist examine every patient

who receives a cleaning.

During this period, Deen was also suffering from a bad back. Attempting to

discern the source of the problem, he had a CAT scan of his lumbar spine on June

10, 2005, and a lumbar myelogram on August 11. He was having headaches as

well, which he attributed to the back problem. His headaches got so bad that on

August 14 he decided to go to the emergency room. Doctors there performed a

blood patch, a procedure by which they “put blood in the spinal area where the

3
lumbar puncture was done to allow it to clot to ease his headache.”

The headaches persisted nonetheless, and on August 18, one of Deen’s eyes

began to bulge so that the surrounding tissue covered the white of the eye. Deen

went back to the emergency room that evening, where he was given morphine and

a prescription for eye medicine. He was discharged at around two in the morning.

At around ten in the morning on August 19, Deen went back to the hospital

to have a CAT scan of his brain. He was behaving abnormally that morning. In

the car on the way to the hospital, he attempted to light a cigarette using a water

bottle. Once he arrived at the hospital, Deen was unable to correctly answer

several basic health questions posed to him by a nurse, including whether he

smoked or whether he had cancer. Hospital staff performed the scan nevertheless

and Deen was discharged in the early afternoon.

Later that afternoon, Linda Deen learned that the CAT scan had revealed

swelling of the brain, and that she was to bring Kenneth back to the hospital

immediately. She found him napping in a chair, but when she tried to take him to

the hospital, she could not wake him. He had a temperature of 106, and she called

911.

He was rushed by ambulance to the Southeast Georgia Regional Medical

Center, where he was admitted to the surgical intensive care unit (“SICU”).

4
Doctors performed a battery of tests, including a lumbar puncture, a bronchoscopy,

and a CAT scan. It was around 10 p.m. when Linda Deen was first able to see her

husband; at that point, he was intubated, unconscious, and noncommunicative:

“you could tell he was very sick. His eye was still very swollen, protruding.” He

was diagnosed with a subdural empyema resulting in brain damage, and was

rendered permanently disabled.

Linda Deen spent that night (and every night, for about five weeks) in the

SICU by his side. His treatment at the hospital, meanwhile, continued. Over the

next few days, doctors performed a number of other tests and procedures: a CAT

scan, an MRI scan, an infectious disease consult, and a craniectomy, whereby

doctors removed a part of his skull. And on September 13, doctors decided to

extract tooth number nine from Deen’s mouth. It was only after this extraction that

one doctor first suggested to Linda Deen that it was the problem tooth that had

caused Kenneth Deen’s rapid and dramatic medical decline.

Deen was discharged from the hospital in December of 2005. He could

move both of his arms, but his lower mobility was extremely limited: “He could

lift his legs very little up off of his bed and he would try to push them out. You

could see he was trying but he was not capable of getting them to move outward.”

He could recognize people, he could smile, he could follow commands, he was

5
able to communicate, but he could only say one word. Over the coming months

and years, Deen moved from nursing home to nursing home, where he underwent

physical therapy, occupational therapy, and speech therapy, all with varying

degrees of success.

Linda Deen sued several of Kenneth Dean’s treating physicians and the

hospital on August 13, 2007. During discovery for that case, Linda Deen obtained,

for the first time, “specific medical information to confirm that the infected tooth

was the cause of Kenneth’s subdural empyema and resulting brain damage.”

B.

On March 21, 2008, Linda Deen, alleging diversity jurisdiction, sued Dr.

Egleston in the United States District Court for the Southern District of Georgia.

She did so individually and as next friend of her husband.1 The suit alleged

professional medical malpractice arising from Kenneth Deen’s visits to Gentle

Dental on July 18 and August 4, 2005. Linda Deen claimed that Dr. Egleston had

been medically negligent by, among other things, performing a full mouth

debridement which, according to Deen, “caused huge amounts of bacteria to have

1
Georgia law provides that, “[i]f an infant or incompetent person does not have a duly
appointed representative, he may bring an action by his next friend or by a guardian ad litem.”
O.C.G.A. § 9-11-17(c). Sadly, during the pendency of this action, Kenneth Deen died. Linda
Deen, therefore, appears before this Court individually and as temporary administrator of the
estate of Kenneth Deen. See Fed. R. Civ. P. 25(a)(1).
We note separately that Kenneth Deen’s April 2009 death is not at issue in this case.

6
been dumped into the blood stream.” She sought compensatory damages and

damages for pain and suffering and loss of consortium. She alleged damages in

excess of $10,000. An amended complaint followed, adding counts for negligence

per se, simple negligence, and constructive fraud.

Dr. Egleston moved for summary judgment, arguing, among other things,

that the medical malpractice claim was barred by Georgia’s two-year statute of

limitations for actions in medical malpractice. The alleged malpractice occurred

on either July 18 or August 4, 2005, but the lawsuit was not filed until March 21,

2008, more than two years later.

On February 13, 2009, the district court granted in part and denied in part

the motion for summary judgment. As an initial matter, the court asserted subject

matter jurisdiction over the case, even though Deen had pled only $10,000 in

controversy, because “it appear[ed] that substantially more than $75,000 [was] at

stake in this litigation.” Deen v. Egleston, 601 F. Supp. 2d 1331, 1334 (S.D. Ga.

2009). The district court then proceeded to grant the motion as to the claims of

simple negligence, negligence per se, and constructive fraud. Id. at 1347. The

court, however, held the statute of limitations unconstitutional as applied to Deen.

Id.

The district court first reviewed Georgia’s legislative scheme, noting that the

7
mentally incompetent are usually entitled to tolling of the statute of limitations, but

that there is no tolling for the mentally incompetent in medical malpractice. See id.

at 1340. It then applied what it claimed to be rational basis review, though there is

some indication that the court was applying some sort of heightened standard. See

id. at 1342, 1343. It concluded that the legislative scheme violated the Equal

Protection Clause.

The court stated that none of the recited legislative objectives was served by

denying the mentally incompetent the benefits of tolling in cases of medical

malpractice, see id. at 1344-45, and that there was no rational basis for treating the

mentally incompetent differently from those asserting medical malpractice suits

under the foreign object rule, those making contribution claims, or those who had

been killed by medical malpractice, see id. at 1345-46. It concluded that the

legislation “rests on an ‘irrational prejudice’ against the mentally incompetent.”

Id. at 1346 (quoting City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,

450 (1985)).

The district court certified the case for interlocutory appeal, see id. at 1347,

and a panel of this Court granted Egleston’s subsequent petition to appeal under 28

U.S.C. § 1292(b), see Order at 1, Egleston v. Deen, No. 09-90006-H (11th Cir.

Mar. 24, 2009). This timely appeal followed. Deen later filed a cross-appeal,

8
which this Court dismissed. See Order at 1, Deen v. Egleston, No. 09-11458-FF

(11th Cir. Aug. 14, 2009).

II.

“We review a district court’s grant or denial of summary judgment de novo,

considering all the facts and reasonable inferences in the light most favorable to the

nonmoving party.” Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1277 (11th Cir.

2009). Under Rule 56 of the Federal Rules of Civil Procedure, “summary

judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986)). We review the constitutionality of a challenged statute de novo as

well. Harris v. Mexican Specialty Foods, Inc., 564 F.3d 1301, 1308 (11th Cir.

2009).

“[A] diversity suit should not be dismissed unless ‘it is apparent, to a legal

certainty, that the plaintiff cannot recover [the requisite amount in controversy].’”

Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1268 (11th Cir. 2000) (second

alteration in original) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303

U.S. 283, 289 (1938)).

9
 A.

In answering the constitutional question before us, we begin by carefully

considering the statutes of limitations and tolling provisions in operation in the

state of Georgia. Of particular relevance to our discussion today is the two-year

statute of limitations for medical malpractice actions: “Except as otherwise

provided in this article, an action for medical malpractice shall be brought within

two years after the date on which an injury or death arising from a negligent or

wrongful act or omission occurred.” O.C.G.A. § 9-3-71(a).

In Georgia, there are a pair of tolling provisions that apply generally to the

legally incompetent. The first protects the legally incompetent from injuries

occurring during the period of legal incompetence: “Minors and persons who are

legally incompetent because of mental retardation or mental illness, who are such

when the cause of action accrues, shall be entitled to the same time after their

disability is removed to bring an action as is prescribed for other persons.” Id. § 9-

3-90(a). The second protects those whose legal incompetence takes hold after a

cause of action has accrued: “If any person suffers a disability specified in Code

Section 9-3-90 after his right of action has accrued and the disability is not

voluntarily caused or undertaken by the person claiming the benefit thereof, the

limitation applicable to his cause of action shall cease to operate during the

10
continuance of the disability.” Id. § 9-3-91.

Tolling under Georgia law, however, works very differently in cases of

medical malpractice. Notably, tolling is unavailable for the legally incompetent in

cases of medical malpractice: “Notwithstanding Article 5 of this chapter, all

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.”

Id. § 9-3-73(b).

But there is tolling under Georgia law for other medical malpractice

plaintiffs. First, medical malpractice cases arising under the foreign object rule

enjoy the benefit of tolling, id. § 9-3-73(e) (“The limitations of subsections (b) and

(c) of this Code section shall not apply where a foreign object has been left in a

patient’s body.”), but such actions must be brought within one year of discovery,

id. § 9-3-72 (“The limitations of Code Section 9-3-71 shall not apply where a

foreign object has been left in a patient’s body, but in such a case an action shall be

brought within one year after the negligent or wrongful act or omission is

discovered.”). Second, the tolling provisions that apply to unrepresented estates,

id. § 9-3-92 (“The time between the death of a person and the commencement of

representation upon his estate or between the termination of one administration and

11
the commencement of another shall not be counted against his estate in calculating

any limitation applicable to the bringing of an action, provided that such time shall

not exceed five years.”), trump the medical malpractice non-tolling provisions,

Goodman v. Satilla Health Servs., Inc., 658 S.E.2d 792, 794 (Ga. Ct. App. 2008).2

Third, and finally, under the rules of contribution, see O.C.G.A. § 51-12-32(b) (“If

judgment is entered jointly against several trespassers and is paid off by one of

them, the others shall be liable to him for contribution.”), the defendant in a

medical malpractice suit may sue an adjudicated joint-tortfeasor for contribution

after the medical malpractice statute of limitations has run, Va. Ins. Reciprocal v.

Pilzer, 599 S.E.2d 182, 183 (Ga. 2004).

In short, under Georgia law, the statute of limitations for actions in medical

malpractice is two years. The legally incompetent are generally permitted to toll

actions until their legal incompetence passes, but may not toll in cases of medical

malpractice. Nevertheless, three discrete categories of parties -- foreign object

plaintiffs, unrepresented estates, and contribution claimants -- may toll their

medical malpractice actions.

The Georgia legislature codified its rationale for the tolling provisions in

2
“[W]e may rely on the interpretation of a state’s intermediate courts absent some
indication from the state’s highest court to the contrary.” Myers v. Cent. Fla. Invs., Inc., — F.3d
—, 2010 WL 20987, at *11 n.5 (11th Cir. Jan. 6, 2010).

12
cases of medical malpractice. It explained:

The findings of the General Assembly under this Code section
include, without limitation, that a reasonable relationship exists
between the provisions, goals, and classifications of this Code section
and the rational, legitimate state objectives of providing quality health
care, assuring the availability of physicians, preventing the
curtailment of medical services, stabilizing insurance and medical
costs, preventing stale medical malpractice claims, and providing for
the public safety, health, and welfare as a whole.

O.C.G.A. § 9-3-73(f). We proceed, then, with the express understanding that

Georgia has fashioned its statutes of limitations regarding medical malpractice in

an attempt to ensure to its citizens affordable access to quality healthcare, and that

one part of this effort is to stem what it perceived as the filing of stale medical

malpractice suits.

B.

The Fourteenth Amendment of the federal Constitution states: “No state

shall . . . deny to any person within its jurisdiction the equal protection of the

laws.” U.S. Const. amend. xiv, cl. 1. This statement “is essentially a direction that

all persons similarly situated should be treated alike.” City of Cleburne, Tex. v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S.

202, 216, (1982)). “The general rule is that legislation is presumed to be valid and

will be sustained if the classification drawn by the statute is rationally related to a

legitimate state interest.” Id. at 440 (citing Schweiker v. Wilson, 450 U.S. 221,

13
230 (1981) (additional citations omitted)). “This standard is easily met.” Leib v.

Hillsborough County Pub. Transp. Comm’n, 558 F.3d 1301, 1306 (11th Cir. 2009).

This is called rational basis review, and affords states “wide latitude” when

crafting “social or economic legislation.” City of Cleburne, 473 U.S. at 440 (citing

U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 174 (1980)) (additional citation omitted).

State legislatures are afforded this discretion because it is the job of the states

themselves, acting through “democratic processes,” to rectify “improvident

decisions.” Id.; see also FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993)

(“The Constitution presumes that, absent some reason to infer antipathy, even

improvident decisions will eventually be rectified by the democratic process and

that judicial intervention is generally unwarranted no matter how unwisely we may

think a political branch has acted.”) (citation and quotation marks omitted).

“The equal protection obligation imposed by the Due Process Clause of the

Fifth Amendment is not an obligation to provide the best governance possible.”

Schweiker, 450 U.S. at 230. Because it is fundamentally the people who are

empowered to overturn unwise social and economic laws, the role of the judiciary

is accordingly limited: “equal protection is not a license for courts to judge the

wisdom, fairness, or logic of legislative choices.” Beach Commc’ns, 508 U.S. at

313. Rather, courts passing on social and economic legislation must exercise

14
restraint: “In areas of social and economic policy, a statutory classification that

neither proceeds along suspect lines nor infringes fundamental constitutional rights

must be upheld against equal protection challenge if there is any reasonably

conceivable state of facts that could provide a rational basis for the classification.”

Id.; see also City of Cleburne, 473 U.S. at 441-42 (noting that federal courts should

be “very reluctant . . . to closely scrutinize legislative choices as to whether, how,

and to what extent” state economic and social interests should be pursued). Courts,

ultimately, are looking for “plausible reasons” for legislative action. Beach

Commc’ns, 508 U.S. at 313-14 (citation omitted).

We recognize that the rational basis inquiry is “not a toothless one,”

Schweiker, 450 U.S. at 234 (citation and quotation marks omitted), and there are

limits to the latitude afforded states. “The State may not rely on a classification

whose relationship to an asserted goal is so attenuated as to render the distinction

arbitrary or irrational. Furthermore, some objectives -- such as a bare . . . desire to

harm a politically unpopular group -- are not legitimate state interests.” City of

Cleburne, 473 U.S. at 446-47 (quotation marks and citation omitted).

Nevertheless, as this Court stated last year,

under rational basis review, a state has no obligation to produce
evidence to sustain the rationality of a statutory classification. Rather,
a statute is presumed constitutional, and the burden is on the one
attacking the law to negate every conceivable basis that might support

15
 it, even if that basis has no foundation in the record. Under rational
basis review, a court must accept a legislature’s generalizations even
when there is an imperfect fit between means and ends.

Leib, 558 F.3d at 1306 (quotation marks and citations omitted).

C.

There is some question in this case as to what standard of review the district

court applied. While in some instances the court professed to apply rational basis

review, see, e.g., Deen v. Egleston, 601 F. Supp. 2d 1331, 1343 (S.D. Ga. 2009)

(“To withstand rational basis review, legislation that discriminates against the

mentally incapacitated must be rationally related to a legitimate government

purpose.”), at other times the court seemed to require something more, see, e.g., id.

(“The Supreme Court . . . demonstrated in Cleburne that the courts should

undertake a robust, searching form of rational basis review where the challenged

law discriminates against the mentally incapacitated.”).

As we’ve noted already, however, social and economic policy is generally

subject to rational basis review. Beach Commc’ns, 508 U.S. at 313. Indeed, City

of Cleburne itself disavowed any heightened standard for legislation reaching the

mentally retarded:

Because mental retardation is a characteristic that the government may
legitimately take into account in a wide range of decisions, and
because both State and Federal Governments have recently committed
themselves to assisting the retarded, we will not presume that any

16
 given legislative action, even one that disadvantages retarded
individuals, is rooted in considerations that the Constitution will not
tolerate.

City of Cleburne, 473 U.S. at 446. We, therefore, apply rational basis review to

our examination of this legislation, and to the extent that the district court applied

scrutiny in excess of that standard, it was error.

The district court, after quoting from Georgia’s legislative goals,

acknowledged that “[e]nsuring access to affordable healthcare is a legitimate

legislative objective.” Deen, 601 F. Supp. 2d at 1343-44. We agree.

Nevertheless, the district court went on to say that Georgia’s “aim is not reasonably

furthered by discriminating against incapacitated adults’ medical malpractice

claims.” Id.

The court then entered into an extensive discussion of the failures of tort

reform. It wrote:

Experience and experimentation in the states has shown that medical
malpractice lawsuits are not a major driver of skyrocketing healthcare
costs. The Court doubts whether medical malpractice lawsuits were
ever a real part of the healthcare problem, with respect to rising costs,
in this country. The impetus behind the special legislation for medical
malpractice cases appears to have been based on either
misunderstanding of the problem of healthcare expenses, or an
outright boondoggle. Although medical malpractice suits have been
stifled, healthcare costs continue to soar. If malpractice lawsuits were
a problem in limiting affordable, quality healthcare at one time, the
facts no longer support the idea that lawsuits remain part of the
problem. Study after study shows malpractice costs as averaging

17
 around one percent of healthcare costs, but expenses continue to rise
at an alarming rate.

Id. at 1344. (citations omitted). The district court later observed, “[m]alpractice

costs make up about one percent of healthcare costs, and claims brought by

incapacitated persons beyond the limitations period make up an extremely small

proportion of all malpractice claims.” Id. at 1345. Therefore, it concluded that

limiting medical malpractice suits could bear no rational relationship to the

legitimate state interest in providing quality healthcare.

Others disagree. In fact, numerous courts have discussed at considerable

length how limiting malpractice actions is indeed rationally related to the goals of

improving healthcare. The Ninth Circuit, for example, reasoned that, out of a

concern for fairness towards doctors, statutes of limitations are an appropriate way

to limit liability. It said, “essential justice requires prevention of the imposition of

liability upon physicians who, because of the passage of time, have become

disempowered to present meritorious defenses. At some point in time, claims must

be held to have become barred.” Owens v. White, 380 F.2d 310, 315 (9th Cir.

1967). A weak statute of limitations, the court reasoned,

would subject physicians to the possibility of liability, or at least to
the embarrassment and expense of litigation, upon claims of mistaken
diagnosis of any illness, however great may have been the lapse of
time between the date of cessation of the doctor-patient relationship
and the formal prosecution of the claim.

18
Id. at 316. The court further noted that medical malpractice, as opposed to other

forms of negligence, was particularly suited to a hardy statute of limitations:

Even in its present stage of advanced development, medicine is not an
exact science. Symptoms and diseases thought at one time, even
recently, to fall into one category are later discovered, through the
evolution of the science, to fall into another. If the trier of fact should
be convinced, upon the basis of new knowledge, that a mistaken
diagnosis was made, the defendant’s task of establishing that his
conduct did not fall below the standard of care which prevailed in his
profession at the time and place of the alleged error could prove
insurmountable in the event of sufficient lapse of time.

Id. The Ninth Circuit reasoned that a weak statute of limitations would subject

doctors to stale, indefensible claims in which injury is unclear and the duty of care

ever-shifting.

The Eighth Circuit has reached a similar conclusion. See Fitz v. Dolyak,

712 F.2d 330, 333 (8th Cir. 1983) (“[T]he purpose of statutes of limitation is to

prevent fraudulent and stale actions from arising after a great lapse of time while

preserving for a reasonable period the right to pursue a claim.”). The Seventh

Circuit, for its part, focused on the effects of medical malpractice suits on liability

insurance:

Creating a shorter period of limitations in which to commence actions
against health care providers is clearly a rational legislative response
to the fiscal uncertainties in the health care industry. The ability to
commence an action at an indefinite time in the future would no doubt
prevent insurance companies from accurately computing the actuarial

19
 risk of future claims and compound the escalation of medical costs.
Although the Act does contain a $500,000 cap per injury which serves
to limit liability for each incident, the statute of limitations serves to
limit the number of potential claims outstanding.

Douglas v. Hugh A. Stallings, M.D., 870 F.2d 1242, 1248 (7th Cir. 1989). If

insurance companies have to weigh the costs of defending decades-old suits, the

court reasoned, then it would become more difficult for them to provide doctors

with insurance, which in turn leads to lesser care.

Perhaps the strongest statement on the subject has come from the Supreme

Court of Maine. It wrote:

A statute of limitation, by definition arbitrary, is enacted to provide
potential defendants with the assurance of eventual repose from
claims made stale by the passage of time. It is of necessity a potent
element in any reform of tort law. We have heretofore recognized that
“[t]he production of evidence and records necessary to meet [medical]
malpractice claims becomes progressively more difficult with time.”
As a court, we must assume that [the statute of limitations] represents
the Legislature’s considered judgment concerning the most effective
manner of decreasing the premium costs of medical professional
liability insurance.

Maine Med. Ctr. v. Cote, 577 A.2d 1173, 1176-77 (Me. 1990) (citations omitted)

(first and second alterations in original). Here, the critical point is that the passage

of time, more so with medical malpractice than with other forms of negligence,

renders a defense more difficult.

The themes these courts have sounded are forceful and consistent.

20
Defending law suits is hard; defending malpractice suits is harder; and defending

old malpractice suits is harder still. These courts have reasonably concluded that

being forced to defend stale malpractice suits increases the cost of liability

insurance and renders the practice of medicine that much more expensive.

Moreover, the rationales offered by these courts dovetail with the rationales offered

by the state of Georgia: providing quality care, ensuring that there are enough

doctors and medical services, stabilizing the market for medical insurance, barring

old claims, and generally promoting public safety, health, and welfare.

We express no opinion in the ongoing debate over healthcare reform. We do

not determine whether medical malpractice lawsuits are a significant driver of

rising healthcare costs, nor whether tort reform has proven effective at improving

access to quality care. We do not consider these matters because, in order to

resolve the case before us, we do not have to. Rather, it is quite enough to note the

existence of a viable, ongoing debate, and determine that Georgia’s approach to a

particularly thorny legislative problem -- embodied in its statutes of limitations --

is rational. What the district court did was wade far too deeply into the debate.

There are powerful arguments on both sides of the issue, and it is for the legislature

to weigh them and decide on that course which is most prudent. It is not the

province of the federal courts to substitute their personal notions of sound public

21
policy for those chosen by the legislature.

The district court offered alternative grounds for its holding as well,

reasoning that the differential treatment of the legally incompetent, foreign object

plaintiffs, unrepresented estates, and contribution claimants violated equal

protection. See Deen, 601 F. Supp. 2d at 1345-46. Yet we again conclude that the

actions of the Georgia legislature were reasonable.

As the district court noted, many states have considered whether it is

reasonable to treat foreign object plaintiffs differently from other medical

malpractice claimants. The Supreme Court of Arizona, for instance, lambasted

such laws. It said:

The act under consideration abolishes the discovery rule for many
types of claims against health care providers, no matter how
meritorious the claim. It is difficult to find a compelling or even
legitimate interest in this. It may be argued, of course, that the high
premiums in malpractice cases work an economic hardship on
physicians and that, therefore, the special statute of limitations should
be sustained as a necessary “relief measure” for health care providers.
We doubt the factual premise for such an argument. More
importantly, however, we believe that the state has neither a
compelling nor legitimate interest in providing economic relief to one
segment of society by depriving those who have been wronged of
access to, and remedy by, the judicial system.

Kenyon v. Hammer, 688 P.2d 961, 976 (Ariz. 1984).3 The Supreme Court of

3
We note briefly, although it goes without saying, that the opinions of state supreme
courts do not bind us on questions of federal constitutional law. Cf. World Harvest Church, Inc.
v. Guideone Mut. Ins. Co., 586 F.3d 950, 957 (11th Cir. 2009) (“When we address issues of state

22
Colorado spoke out similarly against these internal distinctions:

[T]he two exceptions created by the legislature also manifest a
governmental interest in preserving medical malpractice claims where
the claimant has sustained an injury but lacks any reasonable
opportunity to discover the act or omission which caused the injury.
The classification which results in the denial of the discovery rule to
patients whose conditions are negligently misdiagnosed does not
further this legitimate governmental interest and, therefore, lacks a
rational relationship to that goal.

Austin v. Litvak, 682 P.2d 41, 50 (Colo. 1984). Other courts have echoed this

reasoning. See Carson v. Maurer, 424 A.2d 825, 833 (N.H. 1980), overruled on

other grounds by Cmty. Res. for Justice, Inc. v. City of Manchester, 917 A.2d 707

(2007) (“[T]he [discovery] rule and the fundamental equitable considerations

underlying it appl[y] to medical malpractice cases generally. As such, the

legislature may not abolish the discovery rule with respect to any one class of

medical malpractice plaintiffs.”); Frohs v. Greene, 452 P.2d 564, 565 (Or. 1969)

(“On a theoretical basis it is impossible to justify the applicability of the discovery

rule to one kind of malpractice and not to another.”); Yoshizaki v. Hilo Hospital,

433 P.2d 220, 223-24 (Haw. 1967) (“The injustice of barring the plaintiff’s action

before she could reasonably have been aware that she had a claim is patent.”);

law, . . . we are bound by the decisions of the state supreme court.”). Moreover, the state cases
we have discussed arise under different factual and legal circumstances. For instance, Kenyon v.
Hammer, which was decided on state grounds, see 688 P.2d 961, 963 (Ariz. 1984), subjected the
relevant legislation to strict scrutiny, see id. at 975. Nevertheless, we recite the arguments here
to the extent that they have bearing on the question of rational basis review we confront.

23
Warrington v. Charles Pfizer & Co., 80 Cal. Rptr. 130, 133 (Ct. App. 1969).

But the fact that these courts believe that a legislative scheme is arbitrary

does not make it so. We are again faced with the question of legislative balancing

for which there exist strong arguments on both sides. In fact, the Supreme Court of

Georgia has expressed its belief that the very legislative scheme we consider today

is perfectly rational. In Allrid v. Emory University, the court acknowledged the

scheme “to be an extremely harsh limitation in application because it has the effect,

in many cases, of cutting off rights before there is any knowledge of injury.” 285

S.E.2d 521, 524 (Ga. 1982). Nevertheless, it concluded that the Georgia legislature

had a sound reason for the purported inconsistency:

[W]hen a physician places a foreign object in his patient’s body
during treatment, he has actual knowledge of its presence. His failure
to remove it goes beyond ordinary negligence so as to be classified by
the legislature as a continuing tort which tolls the statute of limitations
until the object is discovered. The purpose of the legislature in
making a distinction between the two types of medical malpractice
was to allow the plaintiff’s claim which does not rest on professional
diagnostic judgment or discretion to survive until actual discovery of
the wrongdoing. In such situations the danger of belated, false or
frivolous claims is eliminated.

Id. at 524-25 (quoting Dalbey v. Banks, 264 S.E.2d 4, 5 (Ga. 1980)). The court’s

statement that the state legislature had a legitimate purpose in enacting this

legislative scheme is well-taken. And, as Dr. Egleston notes, Georgia is not alone

in this view. See Fitz v. Dolyak, 712 F.2d 330, 333 (8th Cir. 1983) (“In contrast to

24
the propriety of a diagnosis or adequacy of treatment, the presence or absence of

foreign objects inadvertently left in the body may be easily verified after the

passage of time.”); Choroszy v. Tso, 647 A.2d 803, 808 (Me. 1994) (“The

distinction between foreign-object plaintiffs and other medical malpractice victims

can be justified on an evidentiary basis; finding the object in the plaintiff’s body

provides irrefutable evidence of negligence.”); Hawley v. Green, 788 P.2d 1321,

1324 (Idaho 1990); Hanflik v. Ratchford, 848 F.Supp. 1539, 1546 (N.D. Ga. 1994)

(“Plaintiffs have directed this Court’s attention to nothing that would indicate that

the Georgia General Assembly’s studied choice, made in a context in which all

interested parties were able to contribute, was irrational.”).

The justification offered by the Georgia Supreme Court in Allrid is

defensible and rational, and that is all that the law requires. It is highly unlikely

that a litigant will attempt to game the foreign object rule, whereas a broader

discovery rule, which would toll the statute of limitations for the legally

incompetent, could be manipulated more easily by plaintiffs. Again, plaintiffs bear

the burden of “negat[ing] every conceivable basis” for legislation, see Leib, 558

F.3d at 1306, and Deen cannot do that here.

For similar reasons, the state of Georgia has a rational basis for

distinguishing between the legally incompetent on the one hand and unrepresented

25
estates on the other. Injury in medical malpractice cases can be difficult to detect,

particularly after the passage of time. See Owens v. White, 380 F.2d 310, 316 (9th

Cir. 1967) (“[N]ot even the fact of injury can always be clear.”). Courts and

legislatures are unquestionably concerned about “false [and] frivolous claims,” see

Allrid v. Emory Univ., 285 S.E.2d 521, 525 (Ga. 1982), and negligence is “more

easily verified” when a patient dies, cf. Fitz v. Dolyak, 712 F.2d 330, 333 (8th Cir.

1983) (“In contrast to the propriety of a diagnosis or adequacy of treatment, the

presence or absence of foreign objects inadvertently left in the body may be easily

verified after the passage of time.”); Choroszy v. Tso, 647 A.2d 803, 808 (Me.

1994) (“The distinction between foreign-object plaintiffs and other medical

malpractice victims can be justified on an evidentiary basis; finding the object in

the plaintiff’s body provides irrefutable evidence of negligence.”). Simply put, a

legislature may rationally treat an unrepresented estate differently from a mentally

incompetent person for precisely the same reasons that it may treat a foreign object

plaintiff differently: the likelihood of falsity and frivolity is reduced.

We find persuasive the reasoning of the Ninth Circuit, which recently

considered an Oregon statute of limitations that also distinguished between

unrepresented estates and other claimants. The court explained the issue this way:

George Fields argues that the Oregon wrongful death statutes of
limitations and repose violate equal protection because they

26
 impermissibly discriminate between claimants whose decedents
happen to live for more than three years after discovering the injury
causing the death and five years of sustaining the injury causing death,
as in Laura’s case, and claimants whose decedents die within three
years of discovering the injury causing death and five years of
sustaining the injury causing death.

Fields v. Legacy Health Sys., 413 F.3d 943, 955 (9th Cir. 2005). The court

rejected an equal protection challenge, reasoning that barring the suits of living

claimants, while permitting the suits of dead claimants, withstood rational basis

review: “the classifications made in the Oregon statutes of limitations and repose

are rationally related to the legitimate legislative ends of avoiding stale claims and

limiting the costs of litigation and medical care.” Id. We agree with this

reasoning, and conclude that Georgia’s distinction between the legally incompetent

and unrepresented estates is rational as well.

As for contribution claims, the clear language of the statute itself establishes

that negligence is not at issue in a claim for contribution: “If judgment is entered

jointly against several trespassers and is paid off by one of them, the others shall be

liable to him for contribution.” O.C.G.A. § 51-12-32(b). Moreover, the Supreme

Court of Georgia has made it clear that a contribution claim against a medical

professional may only survive the medical malpractice statute of limitations if the

third-party defendant has already been found liable: “In a claim for contribution

based on a judgment, the tort liability has been established, so [defendant’s]

27
liability in this action depends not on proof she was negligent, but on the existence

of the judgment against her and the payment by the plaintiff of more than the

plaintiff’s share.” Va. Ins. Reciprocal v. Pilzer, 599 S.E.2d 182, 183 (Ga. 2004).

In fact, the Supreme Court of Georgia explicitly noted that the statute of

limitations for contribution claims would not permit a defendant to sue a third-

party defendant on a theory of contribution if that third party defendant had not

already been found liable:

Those cases differ from the present case in that this action is based on
a judgment conclusively establishing joint tort liability whereas the
cited cases were based on the alleged but undetermined joint tort
liability of the defendants. Here, the plaintiff and the defendant in the
contribution action were adjudicated to be joint tortfeasors in the
underlying tort action while the defendants in the cited cases had not
been, and the plaintiffs there were required to establish that the
defendants were joint tortfeasors with the plaintiffs.

Id. Rather, a claim for contribution rests on a prior finding of liability and a

judicial determination of damages. See id. Because the nature of the proof in a

claim for contribution is so vastly different from that in a medical malpractice suit,

there is a rational basis for distinguishing between the two classes of plaintiffs.

A contribution claim among joint tortfeasors can hardly be said to increase

the exposure of the medical community to malpractice damages. A claim for

contribution filed by one medical professional against another merely apportions

losses among the liable in a manner adjudicated to be equitable; it does not provide

28
an additional means for liability. While the contribution rule will assuredly

disfavor some medical professional someday, it does not increase the exposure for

the industry.

Even allowing a claim for contribution brought by a non-medical

professional against a medical professional does not undermine the state’s goals of

tort reform. Cf. Zielinski v. Zappala, 470 F. Supp. 351, 354 (E.D. Pa. 1979)

(holding that a non-medical professional need not arbitrate a claim for contribution

against a surgeon, despite a strong state interest in tort reform and a statute

requiring arbitration for claims of malpractice). The state can have no legitimate

interest in forcing non-medical professionals to pay for behavior of medical

professionals who are adjudicated negligent; not even the staunchest supporter of

tort reform would suggest otherwise.

While allowing that these contribution claims might force a doctor or a

dentist to pay for stale negligence claims, it would never force a doctor or dentist to

defend against the same. See Pilzer, 599 S.E.2d at 184 (“[L]iability here does not

depend on proof of . . . negligence.”). And it is the defense of stale claims with

which legislators are concerned. See, e.g., Owens v. White, 380 F.2d 310, 315 (9th

Cir. 1967) (“[E]ssential justice requires prevention of the imposition of liability

upon physicians who, because of the passage of time, have become disempowered

29
to present meritorious defenses.”). The state of Georgia has rational reasons,

therefore, to allow a claim for contribution to outlive the statute of limitations for

medical malpractice claims.

D.

Finally, Deen argues that Georgia employs this legislative scheme in order

to improperly favor some parties over others. She cites to Kenyon v. Hammer, 688

P.2d 961 (Ariz. 1984), which offered an impassioned denunciation of the type of

legislative scheme we examine today. The Arizona court said:

[T]he state has neither a compelling nor legitimate interest in
providing economic relief to one segment of society by depriving
those who have been wronged of access to, and remedy by, the
judicial system. If such a hypothesis were once approved, any
profession, business or industry experiencing difficulty could be made
the beneficiary of special legislation designed to ameliorate its
economic adversity by limiting access to the courts by those whom
they have damaged. Under such a system, our constitutional
guarantees would be gradually eroded, until this state became no more
than a playground for the privileged and influential.

Id. at 976.

The argument goes too far. Statutes of limitations, according to the Supreme

Court, represent “a public policy about the privilege to litigate.” Chase Sec. Corp.

v. Donaldson, 325 U.S. 304, 314 (1945). As the Court explained in detail,

Statutes of limitation find their justification in necessity and
convenience rather than in logic. They represent expedients, rather
than principles. They are practical and pragmatic devices to spare the

30
 courts from litigation of stale claims, and the citizen from being put to
his defense after memories have faded, witnesses have died or
disappeared, and evidence has been lost. They are by definition
arbitrary, and their operation does not discriminate between the just
and the unjust claim, or the voidable and unavoidable delay. They
have come into the law not through the judicial process but through
legislation. . . . He may, of course, have the protection of the policy
while it exists, but the history of pleas of limitation shows them to be
good only by legislative grace and to be subject to a relatively large
degree of legislative control.

Id. (internal citation and footnote omitted).

Legislatures, in other words, always choose who may have access to court.

The question is whether such choice is rationally related to legitimate objectives.

See Leib v. Hillsborough County Pub. Transp. Comm’n, 558 F.3d 1301, 1306

(11th Cir. 2009). We consider this question with due appreciation for the difficulty

that is legislative line-drawing. As Justice Holmes wrote long ago,

When a legal distinction is determined, as no one doubts that it may
be, between night and day, childhood and maturity, or any other
extremes, a point has to be fixed or a line has to be drawn, or
gradually picked out by successive decisions, to mark where the
change takes place. Looked at by itself without regard to the necessity
behind it the line or point seems arbitrary. It might as well or nearly
as well be a little more to one side or the other. But when it is seen
that a line or point there must be, and that there is no mathematical or
logical way of fixing it precisely, the decision of the legislature must
be accepted unless we can say that it is very wide of any reasonable
mark.

Louisville Gas Co. v. Coleman, 277 U.S. 32, 41 (1928) (Holmes, J., dissenting).

Deen has failed to show that Georgia’s actions are wide of the mark.

31
 Moreover, the legislative scheme does not evince any animus towards the

mentally retarded, as the district court suggested. See Deen v. Egleston, 601 F.

Supp. 2d 1331, 1346 (S.D. Ga. 2009). The Georgia laws this Court must evaluate

refer generally to the “legally incompetent because of mental retardation or mental

illness.” O.C.G.A. §§ 9-3-90(a), 9-3-73(b). This includes the mentally retarded,

the mentally ill, and those who are incapacitated by the very negligence alleged in

the suit. See Kumar v. Hall, 262 Ga. 639, 643 (1992). This stands in stark contrast

to the legislation that was struck down in City of Cleburne, Texas v. Cleburne

Living Center, 473 U.S. 432, 450 (1985), which contemplated those whom it

termed the “feeble-minded,” id. at 436. The mere inclusion of the mentally

retarded in the statute’s definition of the legally incompetent does not suggest that

animus towards the retarded motivated the statute.

The Georgia legislature, concerned about the proliferation of medical

malpractice suits and their adverse impact on the quality of healthcare, is lawfully

permitted to fashion “a partial solution to a far more general problem.” Schweiker

v. Wilson, 450 U.S. 221, 238 (1981). And it is not for this Court to substitute its

judgment for that of the Georgia legislature. Quite simply, there is a rational basis

underlying Georgia’s legislative scheme. Accordingly, we REVERSE the partial

denial of summary judgment of the district court and REMAND for further

32
proceedings consistent with this opinion.

REVERSED and REMANDED.

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