Allrid v. Emory University

• Decision Date: 07 September 1983
• Docket Number: Nos. 39887,39920,s. 39887
• Citation: Allrid v. Emory University, 306 S.E.2d 905, 251 Ga. 367 (Ga. 1983)
• Parties: ALLRID v. EMORY UNIVERSITY. EMORY UNIVERSITY v. ALLRID.
• Court: Georgia Supreme Court

Page 905

306 S.E.2d 905

251 Ga. 367

ALLRID v. EMORY UNIVERSITY.

EMORY UNIVERSITY v. ALLRID.

Nos. 39887, 39920.

Supreme Court of Georgia.

Sept. 7, 1983.

George W. Hart, Philip C. Henry, Hart & Sullivan, Candler, Cox, Andrews & Hansen, W. Edward Andrews, Atlanta, for Julie Allrid, extrx., et al.

J. Bruce Welch, Freeman & Hawkins, John A. Gilleland, Daryll Love, Powell, Goldstein, Frazer & Murphy, Robert Pennington, Troutman, Sanders, Lockerman & Ashmore, Atlanta, for Emory University et al.

Philip C. Henry, Hart & Sullivan, P.C., J. Bruce Welch, Freeman & Hawkins, Robert Pennington, Troutman, Sanders, Lockerman & Ashmore, Kirk McAlpin, King & Spalding, Atlanta, for Robert F. Johnson et al.

GREGORY, Justice.

This case was in this court on a previous occasion. Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521 (1982). (Hereafter referred to as Allrid I ). We affirmed the grant of a partial summary judgment to defendant Emory University, noting that a "supplier of dangerous chattel" claim remained which had not been addressed by the trial court. The trial court thereafter addressed this claim and granted what purported to be a full summary judgment to Emory. The Court of Appeals affirmed the trial court's finding as to the products liability claim, but reversed in part because it determined that Mrs. Allrid had a viable wrongful death claim which had not been addressed by the trial court. The Court of Appeals noted that, in Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983), this court "held that the statute of limitations for medical malpractice claims cannot constitutionally be applied to wrongful death claims asserting medical malpractice as the cause of death." Allrid v. Emory University, supra, 166 Ga.App. 130, 303 S.E.2d 486 (1983). The Court of Appeals offered, "as obiter dicta," its opinion that Allrid I and Clark v. Singer, supra, are inconsistent. We granted certiorari to determine if our opinion in Allrid I conflicts with Clark v. Singer, supra. We conclude there is no conflict between the two opinions, but affirm the judgment of the Court of Appeals.

In 1979 James Barber Allrid and his wife, Julie Allrid, brought suit against Emory University and Tenneco Chemicals, Inc. The complaint alleged that Emory negligently treated James Barber Allrid in 1956, using the radioactive substance thoratrast, resulting in his total disability in 1979. The complaint alleged an amount of medical expenses incurred by Mr. Allrid and that future medical expenses would be incurred. A demand for judgment in the amount in excess of $10,000 was made.

Mr. Allrid died October 17, 1979. Julie Allrid was substituted as a party in her capacity as the executrix of his estate. She was already a party in her individual capacity.

Emory moved for summary judgment alleging that Mr. Allrid's claims for damages due to personal injury and for lost wages and medical expenses were barred by the statute of limitations. See OCGA § 9-3-71 (Code Ann. § 3-1102). Afterward, plaintiff filed an amendment which contained an incidental reference to wrongful death. We agree with the Court of Appeals that this amendment sufficed, under notice pleading, to state a claim for wrongful death. During argument before the trial court on Emory's motion for summary judgment, reference was made to the wrongful death claim, but Emory never amended its motion to attack the wrongful death claim. ¹ The trial court granted Emory's motion for summary judgment on the ground the suit was untimely.

In Allrid I, we affirmed the grant of summary judgment as to the personal injury claims. We addressed plaintiff's equal protection challenge to the distinction made between medical malpractice cases involving foreign objects left in the patient's body and all other medical malpractice cases. Any other constitutional argument made was obscure, and certainly did not focus attention upon the equal protection challenge later sustained in Clark v. Singer, supra. That challenge was based upon the distinction between medical malpractice wrongful death claims and all other wrongful death claims. Allrid I holds that the...