Deen v. Stevens

Decision Date23 July 2010
Docket NumberNo. S10A0258.,S10A0258.
Citation287 Ga. 597,698 S.E.2d 321
PartiesDEEN, et al.v.STEVENS, et al.
CourtGeorgia Supreme Court

Savage, Turner, Pinson & Karsman, Brent J. Savage, Kathryn H. Pinckney; Clark & Williams, Nathan T. Williams, Savannah, for appellants.

Hall, Booth, Smith & Slover, Norman D. Lovein, Steven P. Bristol, Brunswick, for appellees.

NAHMIAS, Justice.

The primary question presented in this appeal is whether the Georgia statute that suspends the operation of the tolling statutes for mental incompetence in medical malpractice actions irrationally discriminates against the mentally incompetent in violation of the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section I, Paragraph II of the Georgia Constitution of 1983. The trial court rejected this constitutional claim and dismissed the appellants' dental malpractice action based on the two-year malpractice statute of limitation. We affirm largely for the reasons stated by the Eleventh Circuit in the related case of Deen v. Egleston, 597 F.3d 1223 (11th Cir.2010), which is consistent with this Court's earlier decision in Kumar v. Hall, 262 Ga. 639, 644, 423 S.E.2d 653 (1992).

We also review the trial court's grant of summary judgment to the defendants on causes of action styled as simple negligence rather than dental malpractice, which were added to the complaint after the filing of the motion to dismiss based on the malpractice statute of limitation. The defendants produced evidence in support of their summary judgment motion showing that there was no genuine issue of material fact as to these causes of action so that they were entitled to judgment as a matter of law. In response, plaintiff pointed to disputed factual issues in the record, but none of those issues, upon analysis, are material to the purported simple negligence claims. Accordingly, we also affirm the grant of summary judgment to the defendants on those claims.

1. On July 18, 2005, a dentist, Shannon Egleston, D.D.S. of Gentle Dental, examined Kenneth Deen and diagnosed multiple dental problems including a cavity, a failing bridge, and a periapical abscess around his upper left incisor where an earlier root canal had stopped working effectively. Dr. Egleston developed a treatment plan for Mr. Deen and referred him for an appointment the next day with the defendant endodontist, Randolph M. Stevens, D.D.S., to determine whether a re-treatment (that is, removing the old root canal and doing a new one) could be performed to save the upper left incisor and provide a base for repairing the failing bridge.

After examining Mr. Deen, Dr. Stevens concluded that re-treatment was appropriate, but not until the swelling from the infection had been reduced. He prescribed Mr. Deen an antibiotic to be taken four times a day for the next two weeks, explained the medication schedule and the importance of taking the antibiotic to reduce the infection, and instructed him to schedule an appointment for the re-treatment a week or two later after the antibiotic had taken effect and the swelling had gone down. Mr. Deen did not schedule the re-treatment, however, because he could not afford to pay the $900 it would cost him under his insurance plan.

Two weeks later, on August 4, 2005, Mr. Deen returned to Gentle Dental to undergo the second component of Dr. Egleston's treatment plan for him-a gross debridement to remove the large amounts of plaque and bacteria that had collected on Mr. Deen's teeth over the years. In Dr. Egleston's view, the appropriateness of the gross debridement was unrelated to the status of Mr. Deen's tooth infection. She testified in her deposition that, if anything, the gross debridement would have helped clear up the infection by removing plaque and bacteria from Mr. Deen's teeth.

A week later, on August 11, 2005, Dr. John Shutack performed a diagnostic spinal cord procedure called a lumbar myelogram on Mr. Deen. Mr. Dean collapsed at his home a few days later. Mr. Deen was diagnosed with subdural empyema, a life-threatening brain infection, and he spent the next four months in the hospital. He was permanently disabled until his death in April 2009.

On August 13, 2007, Linda Deen filed suit on behalf of herself and her husband against Dr. Shutack and others involved in the spinal cord procedure. Seven months later, on March 10, 2008, Ms. Deen filed the complaint in this case against Dr. Stevens and his professional corporation, alleging that the endodontist committed dental malpractice by recommending re-treatment instead of extraction, failing to refer Mr. Deen to an oral surgeon for a tooth extraction, prescribing him 150 milligrams per day of the antibiotic instead of 300 milligrams per day, and not recognizing the need for immediate extraction despite noting significant drainage of pus. On March 21, 2008, Ms. Deen filed suit in federal court against Dr. Egleston for dental malpractice and other causes of action. Six weeks later, on May 7, 2008, the probate court appointed Ms. Deen as her husband's conservatrix.

Dr. Stevens and his professional corporation answered and moved to dismiss the complaint based on the two-year statute of limitation for dental malpractice claims. See OCGA § 9-3-71(a) ([A]n 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.”). In response, Ms. Deen conceded that she filed the complaint more than two years after Dr. Stevens treated Mr. Deen, but she argued that the malpractice claims were nevertheless timely under the tolling provision for mental incompetence. See OCGA §§ 9-3-90(a) (“Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.”), 9-3-91 (“If any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.”); Kumar v. Hall, 262 Ga. at 643-644, 423 S.E.2d 653 (holding that “mental retardation or mental illness” as used in OCGA § 9-3-90 includes mental incompetence). Ms. Deen acknowledged the non-tolling statute applicable to medical malpractice claims. See OCGA § 9-3-73(b) ( “Notwithstanding Article 5 of this chapter, all persons who are legally incompetent because of mental retardation or mental illness ... shall be subject to the periods of limitation for actions for medical malpractice....”). She contended, however, that it was unconstitutional because it discriminated against the mentally incompetent in violation of equal protection. Ms. Deen also amended the complaint to add causes of action for simple negligence based on the alleged failure of Dr. Stevens's staff to follow his instructions to communicate certain information to Mr. Deen and Dr. Egleston.

Rejecting the constitutional argument, the trial court granted the defendants' motion to dismiss on the ground that the malpractice claims were time-barred, and the court later granted the defendants' motion for summary judgment on the purported simple negligence claims. Ms. Deen appealed to the Court of Appeals, which transferred the case to this Court in light of the constitutional question presented. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II(1) (“The Supreme Court ... shall exercise exclusive appellate jurisdiction in ... all cases in which the constitutionality of a law ... has been drawn in question.”).

2. It is undisputed that Ms. Deen did not file the complaint in this case until March 10, 2008, more than two years after Mr. Deen's one and only visit to Dr. Stevens on July 29, 2005. Ms. Deen argues that applying the non-tolling statute to her complaint violates equal protection by arbitrarily discriminating against mentally incompetent adults. Ms. Deen's argument on appeal is premised primarily on the federal district court's opinion in her related case against Dr. Egleston, but that opinion has since been reversed by the United States Court of Appeals for the Eleventh Circuit. See Deen v. Egleston, 597 F.3d 1223, reversing 601 F.Supp.2d 1331 (S.D.Ga.2009). We agree with the Eleventh Circuit's thorough and well reasoned analysis upholding the non-tolling statute against equal protection attack.

(a) First, we set forth the statutory scheme. As mentioned above, the statute of limitation for bringing an action for medical malpractice, which includes dental malpractice, see OCGA § 9-3-70(a)(1), is two years from the injury. OCGA § 9-3-71(a). Georgia law generally tolls statutes of limitation during periods of mental incompetence. See OCGA §§ 9-3-90(a) and 9-3-91. However, a statute first enacted in 1976 expressly excludes medical malpractice actions from the tolling provisions for mental incompetence. See Ga. L. 1976, p. 1363, § 3 (codified as amended at OCGA § 9-3-73(b)). Some rationales for the non-tolling statute are expressed in the statute itself:

The findings of the General Assembly under this Code section include, without limitation, that a reasonable relationship exists between the provisions, goals, and classifications of this Code section and the rational, legitimate state objectives of providing quality health care, assuring the availability of physicians, preventing the curtailment of medical services, stabilizing insurance and medical costs, preventing stale medical malpractice claims, and providing for the public safety, health, and welfare as a whole.

OCGA § 9-3-73(f).

(b) Next, we review the Eleventh Circuit's analysis in Deen v. Egleston, noting two points at the outset. First, while the federal courts analyzed the constitutional issue...

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