The Georgia Supreme Court recently issued an opinion in Deen v. Stevens, 287 Ga. 597 (2010) that affects the rights of injured Georgia residents. In July, 2005, Kenneth Deen went to a dental clinic complaining of swelling and infection around a tooth. The clinic referred Deen to an endodontist who specialized in diseases of mouth tissue. The following month, Deen collapsed and was rushed to the hospital where physicians determined that he had suffered brain damage. He remained hospitalized until his death in April, 2009.
In March, 2008, his wife Linda Deen filed a lawsuit against the endodontist. The endodontist moved to dismiss the case, arguing that the case was filed after the two year statute of limitations for medical malpractice cases, and that under O.C.G.A. § 9-3-73, that two year limitation also applies to those who are legally incompetent. Deen’s attorneys countered that applying the non-tolling provisions of O.C.G.A. § 9-3-73 to her case violated her constitutional right to equal protection by discriminating against mentally incompetent adults.
Writing for the majority, Justice David Nahmais concluded that “the statute of limitations for bringing an action for medical malpractice…which includes dental malpractice…is two years from the injury. Georgia law generally tolls statutes of limitations during periods of mental incompetence. However, a statute first enacted in 1976 expressly excludes medical malpractice actions from the tolling provisions for mental incompetence.” The majority concluded that this provision was constitutional because the state has legitimate interests in “preventing the curtailment of medical services, stabilizing insurance and medical costs, preventing stale malpractice claims, and providing for the public safety, health, and welfare as a whole.”
In a ten page dissent joined by Justice Benham, Justice Hunstein countered that the 1976 law was unconstitutional because “the Legislature chose to strip these most vulnerable citizens of the tolling protection historically granted to them…” She continued: “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 O.C.G.A. § 9-3-73(b) as violative of the equal protection clause and reverse the trial court’s grant of appellees’ motion to dismiss.”
Deen obviously deals a blow to mentally incompetent victims of medical malpractice. Perhaps the better lesson, though, is that regardless of the type of claim people have (personal injury, wrongful death, medical malpractice), they cannot sit on their rights. Contact a lawyer before it’s too late.
