DEEN v. STEVENS

The themes these courts have sounded are forceful and consistent. 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.

Id. It follows logically that eliminating or reducing the number of exceptions to the statute of limitation will advance these goals as well, however incrementally. See id. at 1238 ("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.`" (quoting Schweiker v. Wilson, 450 U. S. 221, 238 ( 101 SC 1074, 67 LE2d 186) (1981)).

We agree with the Eleventh Circuit that it is unnecessary to wade deeply into the ongoing debate over healthcare reform to determine whether the non-tolling statute is rationally related to the type of legitimate governmental interests identified by our Legislature. As the Eleventh Circuit said, "[w]e 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." Deen v. Egleston, 597 F3d at 1233. That is because, as the Supreme Court of the United States has emphasized, "`[t]he 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.`" Id. at 1230 (quoting FCC v. Beach Communications, Inc., 508 U. S. at 314). The existence and strength of the connection between medical malpractice claims generally and the objectives the General Assembly sought to further in enacting the non-tolling statute are subject to vigorous public debate with "powerful arguments on both sides of the issue." Id. at 1233. It is not the role of the courts, however, "to weigh [those policy arguments] and decide on that course which is most prudent"; instead, "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 — is rational." Id.

The dissent acknowledges that "[w]hether 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 it or against it — those matters address themselves to the wisdom of the enactment." Dissenting Op. at 616. Despite saying that and citing cases which applied that principle to rational basis review of Georgia statutes, the dissent then suggests that we must do something different in assessing the "constitutionality of any Georgia statute." Id. In fact, the deferential standard of review the dissent first endorses is the one this Court is applying today and the one we have consistently and correctly used in deciding the constitutionality of statutes challenged on equal protection grounds where the legislation does not affect a suspect class or fundamental right. See, e.g., Gliemmo, 287 Ga. at 12 ("Indeed, the equal protection argument made by Appellants `boils down to nothing more than [a] claim that the General Assembly has made a bad policy judgment . . . and [such a claim] should be directed to the General Assembly and the Governor rather than this Court.`" (citation omitted)). The dissent's rejection of our analysis again suggests, incorrectly, that heightened review is required in this context.

Even if one believed that it was appropriate for judges, on rational basis review, to try to wade into the healthcare debate and attempt to identify the relevant empirical data, analyze them, and make policy judgments based on them, the dissent makes no effort to do so. Instead, the dissent would invalidate an "act passed by our State Legislature and signed into law by our State Executive," Dissenting Op. at 616, based not on empirical evidence or careful policy evaluation but rather on "notions of decency and fairness," id. at 613. Moreover, and despite its rhetoric, the dissent indicates that it would uphold the five-year ultimate statute of repose for medical malpractice claims, which also is not tolled based on the plaintiffs mental incompetency, because it "fulfill[s]" the Legislature's goal of preventing stale medical malpractice claims. See id. at 616. See also OCGA § 9-3-71 (b), (c); Nichols v. Gross, 282 Ga. 811, 814-815 ( 653 SE2d 747) (2007) (rejecting equal protection challenge to statute of repose as discriminating between medical malpractice and all other professional malpractice claims). In other words, the dissent would find that allowing the mentally incompetent only two years to file a medical malpractice action is utterly "arbitrary and unreasonable," Dissenting Op. at 617, but allowing them only five years to file suit is just fine. Under rational basis review, such line-drawing is the work of legislators, not judges.

Finally, like the Eleventh Circuit, we do not believe that the General Assembly's retention of other tolling provisions, in whole or in part, renders irrational its nullification of the tolling provision for mental incompetence in general medical malpractice claims. Ms. Deen points in particular to the tolling provisions for unrepresented estates, see OCGA § 9-3-92, and foreign objects left in the body, see OCGA §§ 9-3-72, 9-3-73 (e). However, these tolling provisions are supported by justifications that do not translate fully to the mental incompetence context. As the Eleventh Circuit observed, statutes of limitation, particularly in the medical malpractice arena, are based in significant part on legislative concern about false or frivolous claims that serve no remedial purpose but drive up the overall cost of healthcare. See Deen v. Egleston, 597 F3d at 1234-1235. The General Assembly could rationally conclude that where the patient has actually died, or a medical instrument or other foreign object has been found in his or her body, the risk of false or frivolous claims of medical malpractice is sufficiently reduced that any gain from suspending the tolling provisions would be outweighed by the loss of a remedy in meritorious cases. Id. at 1235. See also Allrid v. Emory Univ., 249 Ga. 35, 38 ( 285 SE2d 521) (1982) (upholding the general medical malpractice statute of limitation against equal protection attack, holding that the different limitation period for foreign-object cases has a rational basis). In short, the General Assembly was not required to suspend the operation of all tolling provisions in order to justify suspending the tolling provision for mental incompetence. See Schweiker, 450 U. S. at 238 (upholding "a partial solution to a far more general problem" under rational basis review).

(c) The Eleventh Circuit's rejection of Ms. Deen's equal protection challenge to the non-tolling statute is also consistent with this Court's 1992 opinion in Kumar v. Hall. Ms. Deen contends that Kumar is not controlling because of factual differences between that case and this one. Some distinctions exist, but they do not change the outcome of the equal protection analysis.

In Kumar, we held that the tolling provisions of OCGA §§ 9-3-73 (b) and 9-3-90 applied to mental incompetence. See 262 Ga. at 643-644. We then held that the mentally incompetent injured party, Carl Hall, had suffered no deprivation of equal protection or due process from the application of the non-tolling statute. See id. at 594. The dissent says that it will follow Kumar's statutory holding as stare decisis, see Dissenting Op. at 614, n. 3, but it ignores the equal protection holding in the same precedent.

Ms. Deen emphasizes that in Kumar, we expressly declined to predict how an equal protection challenge would fare in "hypothetical situations in which an incompetent person might fail to meet the deadline of the statute of limitations because no person took an interest in his case, or because the person or persons who did act on his behalf lacked the ability to bring suit before the deadline." Id. She also points to the stipulated facts of Kumar, which included that the injured party "had a legal guardian to act on his behalf, and that his guardian retained counsel specifically to investigate the possibility of bringing a malpractice suit," and she notes the absence of any suggestion in Kumar that the plaintiff and her counsel "were in any respect unable to properly evaluate Carl Hall's malpractice claim and file it before the period of limitations ran." Id.

Ms. Deen posits three factual differences between Kumar and this case: (1) Mr. Deen was mentally incompetent; (2) Ms. Deen has no medical or legal expertise; and (3) Mr. Deen was not represented by a guardian or conservator until May 7, 2008, after the two-year statute of limitation had expired. The first distinction does not in fact exist, because the injured parties in both this case and Kumar were alleged to be mentally incompetent. See id. at 592. The second purported distinction is pure speculation, as nothing in the Kumar opinion suggests that Mr. Hall's guardian had any medical or legal expertise either, nor for that matter do most mentally competent plaintiffs in medical malpractice cases.

The third alleged difference — that Mr. Hall had an appointed guardian before the statute of limitation expired, while Mr. Deen did not — is also illusory. A guardian was not appointed for Mr. Hall until more than two years after the treatment that allegedly caused his injury. See id. at 640. Furthermore, like the guardian in Kumar, Ms. Deen felt no need to wait for a formal appointment as her husband's conservatrix before obtaining counsel and pursuing medical malpractice claims on his behalf. In Kumar, the guardian was appointed on May 2, 1988, after the expiration of the statute of limitation, but she had already retained legal counsel on or about March 17, 1988, to inquire into, and prosecute if appropriate, medical malpractice claims on behalf of her mentally incompetent son, Mr. Hall. See id. In this case, by the time Ms. Deen was formally appointed conservatrix on May 7, 2008, she not only had obtained legal counsel to investigate a possible medical malpractice suit, but already had filed three lawsuits for medical and dental malpractice on her husband's behalf.

Accordingly, Kumar is controlling, and the trial court properly rejected Ms. Deen's equal protection challenge to the non-tolling statute for mental incompetence in medical malpractice actions. Moreover, as the analysis in Division 2 (b) indicates, we would reject Ms. Deen's equal protection challenge in the first instance even without the support of Kumar. As we did in Kumar, we expressly reserve judgment on "hypothetical situations in which an incompetent person might fail to meet the deadline of the statute of limitation because no person took an interest in his case, or because the person or persons who did act on his behalf lacked the ability to bring suit before the deadline." Id. at 644.

3. Ms. Deen also contends that the trial court erred in granting summary judgment to the defendants on the three claims she added after the defendants moved to dismiss the original complaint based on the medical malpractice statute of limitation. She describes these causes of action as simple negligence claims, not dental malpractice claims, which would make them timely, since the non-tolling statute is not applicable to ordinary negligence claims based on personal injury. Specifically, Ms. Deen contends that Dr. Stevens's staff negligently failed to follow his instructions: (1) to advise Mr. Deen of less expensive treatment alternatives that he could afford; (2) to tell Mr. Deen that he needed to make another appointment with Dr. Stevens; and (3) to report to Dr. Egleston the severity of the infection so that she could treat him appropriately. Ms. Deen insists that these claims do not call into question Dr. Stevens's professional judgment and challenge only his staffs performance of administrative or clerical duties to communicate what Dr. Stevens told them to Mr. Deen and Dr. Egleston. We will refer to these three causes of action as "negligent messenger" claims.

Ms. Deen argues that a case from this Court may be read to support the proposition that negligent messenger claims sound in simple negligence rather than medical malpractice. In Jones v. Bates, 261 Ga. 240 ( 403 SE2d 804) (1991), the plaintiff alleged that the defendants committed simple negligence and medical malpractice by leaving him unattended after surgery with a surgical lamp with the heat shield removed close to his foot, while his leg was still anesthetized, with the result that his foot was severely burned. See id. at 242. We upheld the trial court's dismissal of the medical malpractice cause of action for failure to file the required expert affidavit with the original complaint, but we reversed the dismissal of the simple negligence cause of action. We said that, "[s]imply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a `medical malpractice' action," and "not every suit which calls into question the conduct of one who happens to be a medical professional is a `medical malpractice' action." Id. at 242 (citation omitted). We also said that "[m]edical malpractice exists only where the act or omission by the professional requires the exercise of expert medical judgment." Id.

Ms. Deen also points to the Court of Appeals' decisions holding that only when the claim "goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made" does it sound in professional malpractice rather than simple negligence. Upson County Hosp. v. Head, 246 Ga. App. 386, 389 ( 540 SE2d 626) (2000) (citing Robinson v. Med. Center of Central Ga., 217 Ga. App. 8, 10 ( 456 SE2d 254) (1995)). The rule is that "[administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence" rather than medical malpractice. Id. Consequently, the Court of Appeals has determined that "a nurse's failure to activate an alarm, as a doctor ordered, [is] ordinary negligence," and that "claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment allege[] ordinary negligence." Id. (footnotes omitted).

In response, the defendants ask us to rule broadly that negligent messenger claims are always subject to the two-year statute of limitation for medical malpractice claims, arguing that by definition such claims "aris[e] out of" the provision of professional services by a licensed professional. See OCGA § 9-3-70 ("As used in this article, the term `action for medical malpractice' means any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person. . . ."). This view may find support in recent decisions of the Court of Appeals. See Stafford-Fox v. Jenkins, 282 Ga. App. 667, 672 ( 639 SE2d 610) (2006) (reversing denial of summary judgment on claims against professional corporation that staffs negligent failure to convey lab reports and other documents to the doctor caused him to misdiagnose the patient's severe vitamin B-12 deficiency because "[a]lthough this is a claim against the professional corporation based on ordinary negligence of its nonprofessional employees, the claimed damages still arose out of the misdiagnosis by [the doctor] involving the exercise of medical skill and judgment" (emphasis in original)); Baskette v. Atlanta Center for Reproductive Medicine, 285 Ga. App. 876, 880-881 ( 648 SE2d 100) (2007) (affirming grant of summary judgment on claim that now-infertile donor's stored sperm had all been thawed and used in the first attempt at impregnation due to staffs negligent failure to mark the specimen to indicate that no additional sperm would be available, because the donor's injury still arose out of the doctor's professional decision to employ conventional IV Frather than alternative procedure that would not have depleted the entire supply of stored sperm on the first attempt).

To decide this appeal, however, we need not resolve any tension between Robinson, Head, and similar cases on the one hand and Stafford-Fox and Baskette on the other, because we can decide this case under straightforward summary judgment principles. The defendants' summary judgment motion was properly supported, so Ms. Deen was required to come forward with some evidence showing, or supporting reasonable inferences of, a genuine issue of material fact. See City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 536-537 ( 422 SE2d 651) (1992); Yurevich v. Williams, 302 Ga. App. 162, 162 ( 690 SE2d 476) (2010). Ms. Deen failed to do so.

(a) The Staffs Alleged Failure to Advise Mr. Deen of Less Expensive Treatment Alternatives as Instructed by Dr. Stevens. Dr. Egleston referred Mr. Deen to Dr. Stevens to determine whether re-treatment or less costly extraction was the appropriate course in Mr. Deen's situation. It was Dr. Stevens's professional opinion that Mr. Deen's tooth should be re-treated, not extracted. Assuming that opinion was correct, as we must do if this is a simple negligence claim and not a medical malpractice claim, a less expensive extraction procedure was not the proper course of treatment for Mr. Deen. Ms. Deen has produced no evidence that Dr. Stevens thought that less expensive treatment alternatives were available and appropriate and told his staff to convey that information to Mr. Deen; her allegations in this regard are mere speculation. Accordingly, Ms. Deen has failed to carry her burden to show that there is a genuine issue for trial on this claim, and summary judgment in favor of the defendants was appropriate.

(b) The Staff's Alleged Failure to Tell Mr. Deen that He Needed to Make Another Appointment with Dr. Stevens. The defendants produced Dr. Stevens's deposition testimony that he personally advised Mr. Deen of the need to schedule another appointment with him to perform the re-treatment procedure. Ms. Deen has set forth no specific facts by affidavit or otherwise contradicting Dr. Stevens's testimony. To the contrary, Ms. Deen's own deposition testimony shows that Mr. Deen knew that he needed to set up an appointment to see Dr. Stevens to have the re-treatment done but did not do so because he could not afford the procedure.

Ms. Deen focuses on what Dr. Stevens's staff did, not what Dr. Stevens did, and argues that there is a genuine issue of fact regarding whether the staff also told Mr. Deen that he needed to make another appointment. However, even genuine issues of fact will not prevent the entry of summary judgment if the disputed facts are not "material" to the legal issues in the case. OCGA § 9-11-56 (c) ("The judgment sought shall be rendered forthwith 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. . . ."). A plaintiff cannot avoid summary judgment by pointing to contradictory evidence in the record on an issue that makes no difference to the legal analysis. See Porter v. Felker, 261 Ga. 421, 421 ( 405 SE2d 31) (1991). See also Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 247-248 ( 106 SC 2505, 91 LE2d 202) (1986) ("[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." (emphasis in original)); id. at 249-250 ("[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." (citations omitted)).

There is undisputed record evidence that Dr. Stevens informed Mr. Deen of the need to set up an appointment for the re-treatment procedure, and that Mr. Deen understood that he needed to do so but did not do it because of financial constraints. Thus, even assuming a factual dispute as to whether Dr. Stevens's staff also told Mr. Deen he needed to make another appointment, that dispute would not be material. Accordingly, the summary judgment for the defendants on this claim was also proper.

(c) The Staff's Alleged Failure to Report to Dr. Egleston the Severity of the Infection So that She Could Treat Him Appropriately. Ms. Deen argues that summary judgment on this claim was inappropriate because the record contains conflicting evidence on whether Dr. Stevens or anyone in his office contacted Dr. Egleston to inform her of Dr. Stevens's findings and recommendations, which allegedly affected Mr. Deen's subsequent treatment by Dr. Egleston's office. This argument founders on the fact that Dr. Egleston stated unequivocally in her deposition that such information would not have made any difference in how she treated Mr. Deen. Dr. Egleston was asked repeatedly about the connection between the infection examined by Dr. Stevens and her decision to have Mr. Deen undergo a gross debridement two weeks later. She testified clearly that in her professional opinion, the infection was a separate issue from the gross debridement and that, if anything, she would view a gross debridement as beneficial to Mr. Deen because it would remove some of the bacteria and plaque collected on his teeth. Thus, the dispute about whether and when Dr. Stevens or his staff informed Dr. Egleston of his findings and conclusions was immaterial to his subsequent treatment by her office, and summary judgment was proper.

Judgment affirmed. All the Justices concur, except Hunstein, C. J., and Benham, J, who dissent.