Craven v. Lowndes County Hosp. Authority

• Decision Date: 02 December 1993
• Docket Number: No. S93A0825,S93A0825
• Citation: 437 S.E.2d 308,263 Ga. 657
• Parties: Henry Cole CRAVEN v. LOWNDES COUNTY HOSPITAL AUTHORITY, d/b/a South Georgia Medical Center et al.
• Court: Georgia Supreme Court

Page 308

437 S.E.2d 308

263 Ga. 657

Henry Cole CRAVEN v. LOWNDES COUNTY HOSPITAL AUTHORITY, d/b/a South Georgia Medical Center et al.

No. S93A0825.

Supreme Court of Georgia.

Dec. 2, 1993.

Reconsideration Denied Dec. 17, 1993.

Michael S. Bennett, Bennett, Wisenbaker, Bennett & Williams, Valdosta, Philip C. Henry, Williams & Henry, Atlanta, Hardy Gregory, Jr., Davis, Gregory & Christy, Cordele, for Henry Cole Craven.

Wade H. Coleman, Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Valdosta, William U. Norwood III, Alexander & Vann, Thomasville, for Lowndes County Hosp. Authority.

CLARKE, Chief Justice.

In August, 1986, when he was fifteen years old, Appellant (Craven) had a mole on his back examined. Appellee (Santos) performed a biopsy and diagnosed it as noncancerous. From August, 1986, until September, 1991, Craven experienced no pain or other symptoms of cancer. In September, 1991, however, a physician advised Craven that the growth on his back was cancerous. Subsequent investigations showed that the biopsy done in 1986 revealed a malignant melanoma which was misdiagnosed as benign.

Craven filed this medical malpractice complaint on September 3, 1992, naming Dr. Santos and Lowndes County Hospital Authority as defendants. The trial court granted summary judgment to the defendants concluding that the claim was barred by OCGA § 9-3-71(b), the medical malpractice statute of repose. Craven appealed on two grounds: first, that OCGA § 9-3-71(b) denies him equal protection of the law; second, that defendants are estopped from relying on the statute because their misrepresentation to him hid the injury until the claim was time barred.

1. The statute in question does two things. It imposes a statute of limitations and superimposes on that a statute of repose. As originally enacted, the act of the legislature simply provided for a statute of limitations for malpractice actions and read as follows:

"Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred." OCGA § 9-3-71.

In 1985, the legislature amended the statute by dividing it into four subsections. Subsection (a) of the amended statute is similar to the above language and reads as follows:

"(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred." OCGA § 9-3-71(a).

Subsections (b), (c) and (d) were added to the statute and read as follows:

"(b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.

(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) of this Code section is intended to create a five-year statute of ultimate repose and abrogation.

(d) Nothing contained in subsection (a) or (b) of this Code section shall be construed to repeal Code Section 9-3-73, which shall be deemed to apply either to the applicable statutes of limitation or repose." OCGA § 9-3-71(b)-(d).

Relying on Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983), and Shessel v. Stroup, 253 Ga. 56, 316 S.E.2d 155 (1984), appellant contends that OCGA § 9-3-71(b) creates an arbitrary classification of plaintiffs in medical malpractice cases. The first classification is those victims of medical malpractice who discover bodily harm within five years of the date of the negligent act or omission. The second classification includes those persons who discover their injuries more than five years after the date of the negligent act or omission. The statute allows the first group to bring an action against the defendant. The second group has no cause of action because the statute says it is abrogated and is in a state of ultimate repose. Appellant argues these classifications are "arbitrary and not based on some difference having a fair and substantial relation to the object of the legislation." He concedes that the legislature has the power to establish statutes of repose, but he contends that the legislature may not impose a time-triggered abrogation of a cause of action to some groups of claimants but not for others. The parties agree the plaintiff is not a member of a suspect class and is not entitled to strict scrutiny. Therefore, we apply the rational basis test.

Under this test, the court will uphold the statute if, under any conceivable set of facts, the classification bears a rational relationship to a legitimate end of government not prohibited by the Constitution. Allrid v. Emory University, 249 Ga. 35, 285 S.E.2d 521 (1982). Those challenging the statute bear the responsibility to "convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision maker." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979).

In Clark v. Singer, supra, we identified the interest behind OCGA § 9-3-71 as eliminating stale claims. Indeed, that justification still applies to the statute of limitations, but the amended version of OCGA § 9-3-71 is directed toward other interests as well. Because of the nature of the practice of medicine, uncertainty over the causes of illness and injury makes it difficult for insurers to adequately assess premiums based on known risks. Furthermore, the passage of time makes it more difficult to determine the cause of injury, particularly in diseases where medical science cannot pinpoint the exact cause. Therefore, we conclude that the purpose of the statute of repose is rational. Our decisions in both Clark v. Singer, supra, and Shessel v. Stroup, supra, support this finding.

2. Clark and Shessel invalidated the pre-1985 statute of limitations because the statute barred the cause of action before it accrued. Shessel found no "substantial relation in this ... classification to the object of a limitation statute." 253 Ga. at 59, 316 S.E.2d 155. This case deals with a different situation. The pre-1985 statute was a statute of limitation. As such, its clear purpose is to eliminate stale claims. A special concurrence noted that although a statute of limitation should not bar a claim before it accrued, a statute of repose could abolish a claim before its accrual. Shessel, 253 Ga. at 60, 316 S.E.2d 155 (Clarke, J., concurring specially). The distinction between the statute of limitation and the statute of repose is clear.

"A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable."

Hill v. Fordham, 186 Ga.App. 354, 357, 367 S.E.2d 128 (1988). This amounts to a recognition that the legislature may conclude that the time may arrive when past transgressions are no longer actionable. The long history of such conclusions emphasizes their rationality. From the biblical time of the Year of Jubilee to the present day, policymakers have exercised the right to "wipe the slate clean" after a fixed period of time. In doing this, there is the clear distinction between a statute of limitation "barring" an action, and a statute of repose providing for the abolition of a cause of action after the passage of the time provided. We cannot say that the legislature acted irrationally when it amended the statute in question.

3. Appellant also contends that the trial court erroneously granted summary judgment for defendant on the issue of whether its representations should estop the assertion of the statute of repose as a defense. Fraud on the part of a defendant will toll a statute of repose. Hill v. Fordham, supra at 358, 367 S.E.2d 128.

To make out a claim of equitable estoppel, the plaintiff must show fraud by offering evidence of a known failure to reveal negligence. Hendrix v. Schrecengost, 183 Ga.App. 201, 202, 358 S.E.2d 486 (1987). Nothing in this record shows that appellees had any knowledge of negligent practice. "A mere misdiagnosis is 'insufficient to raise an issue of fraud'." Id. at 203, 358 S.E.2d 486.

Judgment affirmed.

All the Justices concur, except BENHAM, SEARS-COLLINS and HUNSTEIN, JJ., who dissent.

BENHAM, Justice, dissenting.

Because I am persuaded that OCGA § 9-3-71(b) denies equal protection of the law to those victims of medical malpractice whose injuries do not manifest before five years after the act of malpractice, I must dissent to the affirmance of the grant of summary judgment to appellees. Since the rights involved in this case are too substantial to be considered under the extremely relaxed "rational basis" test, I offer in this opinion an intermediate level of scrutiny which I believe this court should apply in equal protection cases involving such rights.

1. The first step in an equal protection analysis must necessarily be the selection of the appropriate standard to apply. Georgia has typically employed a two-tiered analysis, applying strict scrutiny to cases involving fundamental rights or suspect classifications, and applying a "rational relation" test to all other cases. See Fortson v. Weeks, 232 Ga. 472, 488, 208 S.E.2d 68 (1974), Justice Hall's special concurrence. The parties to this case agree that appellant is not a member of a suspect class and is not, on that basis, entitled to strict scrutiny of the classifications established by the statute. Appellees assert that the appropriate standard to apply if strict scrutiny is not called for is the "rational relation" standard. However, I suggest there is a third choice and propose that we adopt an intermediate standard of review which...