Allrid v. Emory University

• Decision Date: 17 February 1982
• Docket Number: No. 38012,38012
• Citation: 249 Ga. 35,285 S.E.2d 521
• Parties: ALLRID, Extrx., et al. v. EMORY UNIVERSITY, et al.
• Court: Georgia Supreme Court

Page 521

285 S.E.2d 521

249 Ga. 35

ALLRID, Extrx., et al. v. EMORY UNIVERSITY, et al.

No. 38012.

Supreme Court of Georgia.

Feb. 17, 1982.

George W. Hart and Philip C. Henry, Phillips, Hart & Mozley, W. Edward Andrews, Candler, Cox, Andrews & Hansen, Daniel S. Reinhardt, Troutman, Sanders, Lockerman & Ashmore, Kirk M. McAlpin, King & Spalding, Atlanta, for Julie Allrid, extrx., et al.

J. Bruce Welch, Freeman & Hawkins, Daryll Love, Powell, Goldstein, Frazer & Murphy, Robert S. Wiggins, Atlanta, for Tenneco Chemicals, Inc., et al.

GREGORY, Justice.

In February, 1956, following a series of convulsions, James Allrid was admitted to Emory University Hospital (Emory) for the purpose of undergoing a cerebral angiogram. This diagnostic test is performed by injecting an x-ray contrast medium into the carotid artery in the neck. A series of x-rays is taken as the contrast medium passes through the brain's arterio-venous system in order to diagnose obstructions or other abnormalities. Both a right-side and a left-side carotid study were performed on Allrid. It is undisputed that Diodrast, a non-radioactive contrast medium was used in the right-side study. The record does not clearly reflect what contrast medium was used in the left-side study, but plaintiff alleges that Thorotrast, a radioactive substance which gradually destroys body tissues, was used.

The record indicates that between February, 1956 and March, 1979, Allrid suffered from sore throats, the cause of which his physicians were unable to determine. Allrid was admitted to Crawford Long Hospital in March, 1979. At that time his physician determined that "despite an apparent history for patient having received Diodrast [in the left-side study]..., the present appearance suggests Thorotrast having been received instead" as "any other material would no longer be visible on x-rays." Emory records indicated that Diodrast alone had been used as the contrast medium in conducting the angiogram. In October, 1979 Allrid and his wife brought this action against Emory University and Tenneco Chemicals, Inc., a manufacturer of Thorotrast, alleging that their combined acts of negligence were the proximate cause of his injuries. Allrid subsequently died. His widow proceeds as executrix in this action. She appeals from the trial court's order granting summary judgment to Emory University Hospital. We affirm.

(1)(a) Plaintiff first argues that the trial court erred in determining that her claim is barred by the statute of limitations for medical malpractice actions, Code Ann. § 3-1102. This section provides that "an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred."

Insofar as medical malpractice actions are concerned, this section replaced Code Ann. § 3-1004 which provided that an action for medical malpractice "shall be brought within two years after the right of action accrues." One exception to the limitations of Code Ann. § 3-1102 is "where a foreign object has been left in a patient's body," but the term "foreign object [does] not include a chemical compound." Code Ann. § 3-1103. Under the latter section "an action shall ... be brought within one year after such negligent or wrongful act or omission is discovered."

Code Ann. § 3-1102 became effective July 1, 1976. Simultaneously the legislature provided for a one year grace period prior to giving Code Ann. § 3-1102 retrospective application. "No action for medical malpractice which would be barred before July 1, 1977, by the provisions of this Chapter but which would not be so barred by the provisions of Title 3, [i.e., Code Ann. § 3-1004] in force immediately prior to July 1, 1976, shall be barred until July 1, 1977." Code Ann. § 3-1105.

The trial court correctly found that, since the alleged negligent act occurred in February, 1956 and suit was not brought until October, 1979, plaintiff's claim was barred under Code Ann. § 3-1102. Clark v. Randall, 155 Ga.App. 806, 272 S.E.2d 769 (1980). Plaintiff argues, however, that the enactment of Code Ann. § 3-1102 effected a substantive change in her vested right to bring this lawsuit, and may not be applied retroactively to bar her claim. Enger v. Erwin, 245 Ga. 753, 267 S.E.2d 25 (1980); Code Ann. § 102-104. Implicit in plaintiff's argument is the assumption that any right to bring this lawsuit had vested at the time Code Ann. § 3-1102 removed medical malpractice actions from the ambit of Code Ann. § 3-1004.

In a personal injury case, "a cause of action accrues when exposure to the hazard first produces ascertainable injury." Everhart v. Rich's, Inc., 229 Ga. 798, 802, 194 S.E.2d 425 (1972). Plaintiff acknowledges, as she must, that her claim did not become a cognizable action until Allrid had suffered an ascertainable injury.

"[T]he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result." U-Haul Co. v. Abreu & Robeson, 247 Ga. 565, 566, 277 S.E.2d 497 (1981); Mobley v. Murray County, 178 Ga. 388(1), 173 S.E. 680 (1933). The record discloses two injuries claimed by plaintiff to have been related to use of Thorotrast: (1) the sore throats Allrid experienced from 1956 to 1979 and (2) Allrid's debilitated physical condition in March, 1979 and subsequent death. If plaintiff contends her cause of action relates to the sore throats Allrid first experienced in 1956, her claim would have been barred by Code Ann. § 3-1004 because Allrid waited more than two years after his cause of action accrued to bring this lawsuit. If plaintiff's claim is that the ascertainable injury occurred in March, 1979, no cause of action accrued until that time; thus, her right to bring this lawsuit did not come into being until over two years after Code Ann. § 3-1004 had been repealed and Code Ann. § 3-1102 had been enacted. It cannot be said that the enactment of Code Ann. § 3-1102 operated to deprive plaintiff of a vested right. We, therefore, conclude that Code Ann. § 3-1102 has not been unconstitutionally applied to plaintiff.

While we are constrained by the terms of Code Ann. Ch. 3-11 to reach this result, we find Code Ann. § 3-1102 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. Nonetheless, the legislature has the power, within constitutional limitations, to make such provisions.

(b) "A statute of limitation is remedial in nature. The legislature can constitutionally provide for the retrospective application of a remedial statute provided a time be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights." Jaro, Inc. v. Shields, 123 Ga.App. 391, 392, 181 S.E.2d 110 (1971). Plaintiff takes the position that the one year grace period provided by Code Ann. § 3-1105 is, as a matter of law, an unreasonable time period in which claimants may protect their rights. However, we agree with the trial court that, in effect, the grace period provided in Code Ann. § 3-1105 is not simply one year, "but one year plus the number of years which have passed between the date of the alleged wrongful act and the effective date of Code Ann. § 3-1102; or in this case one plus [over] twenty years. When viewed in this appropriate context, the one year grace period provided in § 3-1105 is reasonable."

No cause of action which existed on July 1, 1976, the effective date of Code Ann. § 3-1102, was immediately barred by the statute. Every such cause of action survived for at least the grace period of one year. Code Ann. § 3-1105. Some causes of action became barred by the statute after the grace period but before two years had elapsed. (This is so because the date on which the breach occurred was within one year preceding the effective date of the statute. All other such causes of action are governed by the two year limitations period as set out in Code Ann. § 3-1102.)

The theory advanced by plaintiff and expressed in Hart v. Eldridge, 158 Ga.App. 834, 282 S.E.2d 369 (1981), will not be followed. There the Court of Appeals indicated that, during the grace period, Code Ann. § 3-1004 would continue to be applied. We do not interpret Code Ann. § 3-1105 in that manner. We interpret Code Ann. § 3-1105 to mean that Code Ann. § 3-1102 is effective beginning July 1, 1976, but that no action will be barred under its terms until July 1, 1977.

(c) Plaintiff next argues that Code Ann. Ch. 3-11 violates equal protection of the laws. Plaintiff concedes that the standard of review in this case is the "rational basis" test. This standard requires that classifications created by a state "must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Bickford v. Nolen, 240 Ga. 255, 256, 240 S.E.2d 24 (1977).

We have held that a separate classification of medical malpractice actions under Code Ann. Ch. 3-11 is a rational exercise of legislative power. Hamby v. Neurological Associates, P.C., et al., 243 Ga. 698, 256 S.E.2d 378 (1979). Plaintiff argues, however, that Code Ann. § 3-1102 and § 3-1103, supra, create "arbitrary classifications among medical malpractice plaintiffs." Plaintiff maintains that providing a separate statute of limitations for actions where a foreign object is left in a patient's body" bears no substantial relationship to the governmental interest sought to be protected."

In Dalbey v. Banks, 245 Ga. 162, 163-4, 264 S.E.2d 4 (1980), we held that "[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...