597 F.3d 1223 (11th Cir. 2010), 09-11458, Deen v. Egleston

Docket Nº:09-11458.
Citation:597 F.3d 1223
Opinion Judge:MARCUS, Circuit Judge:
Party Name:Linda DEEN, individually and in her capacity as Temporary Administrator of the Estate of Kenneth Deen, Plaintiff-Appellee, v. Shannon EGLESTON, D.M.D., Defendant-Appellant.
Attorney:Morton Gerald Forbes, Scot Vanderver Pool, Forbes, Foster & Pool, Savannah, GA, for Egleston. Brent J. Savage, Kathryn Hughes Pinckney, William H. Pinson, Jr., Savage, Turner, Pinson & Karsman, Savannah, GA, for Deen.
Judge Panel:Before BLACK, MARCUS and HIGGINBOTHAM,[*] Circuit Judges.
Case Date:February 26, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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597 F.3d 1223 (11th Cir. 2010)

Linda DEEN, individually and in her capacity as Temporary Administrator of the Estate of Kenneth Deen, Plaintiff-Appellee,


Shannon EGLESTON, D.M.D., Defendant-Appellant.

No. 09-11458.

United States Court of Appeals, Eleventh Circuit.

February 26, 2010

Page 1224

Morton Gerald Forbes, Scot Vanderver Pool, Forbes, Foster & Pool, Savannah, GA, for Egleston.

Brent J. Savage, Kathryn Hughes Pinckney, William H. Pinson, Jr., Savage, Turner, Pinson & Karsman, Savannah, GA, for Deen.

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

Before BLACK, MARCUS and HIGGINBOTHAM,[*] Circuit Judges.

MARCUS, Circuit Judge:

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.



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, 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 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

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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" ). 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 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."


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

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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 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 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...

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