Gliemmo v. Cousineau

• Citation: 694 S.E.2d 75,287 Ga. 7
• Decision Date: 15 March 2010
• Docket Number: No. S09A1807.,S09A1807.
• Parties: GLIEMMO et al.v.COUSINEAU et al.
• Court: Supreme Court of Georgia

287 Ga. 7
694 S.E.2d 75

GLIEMMO et al.
v.
COUSINEAU et al.

No. S09A1807.

Supreme Court of Georgia.

March 15, 2010.

694 S.E.2d 76

Oates & Courville, Samuel W. Oates, Jr., Traci G. Courville, Columbus; Bondurant, Mixson & Elmore, Michael B. Terry, Nicole G. Iannarone, Kamal Ghali, Atlanta, for appellants.

Hall, Booth, Smith & Slover, Roger S. Sumrall; Carlock, Copeland & Stair, Wade K. Copeland, Ashley E. Sexton, Atlanta, for appellees.

Alston Bird, Angela T. Burnette, Donna P. Bergeson; Owen, Gleaton, Egan, Jones & Sweeney, H. Andrew Owen, Jr.,

694 S.E.2d 77

Jonathan C. Lippert, Amy J. Kolczak, Atlanta, amici curiae.

CARLEY, Presiding Justice.

Carol and Robert Gliemmo (Appellants) brought a medical malpractice action against emergency room doctor Mark Cousineau, Emergency Medical Specialists of Columbus, P.C., and St. Francis Hospital, Inc. (Appellees). After Appellees answered the complaint, Appellants filed a challenge to the constitutionality of OCGA § 51-1-29.5(c), which provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

The trial court rejected the constitutional challenge, but issued a certificate of immediate review. Appellants applied for interlocutory review, and this Court granted the application to consider the constitutionality of the statute. Appellants filed a timely notice of appeal.

1. Appellants contend that OCGA § 51-1-29.5(c) is a special law that violates the uniformity clause of the Georgia Constitution because it sets forth a gross negligence standard of liability only for certain emergency care providers. The uniformity clause provides:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Ga. Const. of 1983, Art. III, Sec. VI, Par. IV(a). Thus, “[t]o violate [this] constitutional provision, the statute in question must either be a general law which lacks uniform operation throughout the state or a special law for which provision has been made by existing general law.” Lasseter v. Ga. Public Service Comm., 253 Ga. 227, 229(2), 319 S.E.2d 824 (1984). This Court has found a statute to be a special law where it “deals with a limited activity in a specific industry during a limited time frame.” Lasseter v. Ga. Public Service Comm., supra (special law applied to only one power plant converting from petroleum to coal). See also Celotex Corp. v. St. Joseph Hosp., 259 Ga. 108, 110, 376 S.E.2d 880 (1989) (special treatment for certain asbestos claims). Conversely, “ ‘[a] law which operates uniformly upon all persons of a designated class is a general law within the meaning of the Constitution, provided that the classification thus made is not arbitrary or unreasonable.’ [Cit.]” Terrell County v. Albany/Dougherty Hosp. Auth., 256 Ga. 627, 630(6), 352 S.E.2d 378 (1987). Indeed, a law operating uniformly throughout the State, but from which the General Assembly excepts certain persons or things, is still a general law McAllister v. American Nat. Red Cross, 240 Ga. 246, 248(2), 240 S.E.2d 247 (1977).

In Terrell County v. Albany/Dougherty Hosp. Auth., supra, this Court rejected a claim that the Hospital Care for Pregnant Women Act, OCGA § 31-8-40 et seq., is an unconstitutional special law. That Act “requires certain hospitals to provide emergency care to pregnant women in labor....” Terrell County v. Albany/Dougherty Hosp. Auth., supra at 627, 352 S.E.2d 378. Moreover, like OCGA § 51-1-29.5(c), that Act provides that there is no civil liability thereunder unless a physician, nurse, medical assistant, hospital or its agent or employee “has been grossly negligent in the provision of such services....” OCGA § 31-8-44. In rejecting the claim that the Act is unconstitutional special legislation, this Court found that it “operates statewide and is applicable to all hospitals authorized to operate as provided in the statute.” Terrell County v. Albany/Dougherty Hosp. Auth., supra at 630(6), 352 S.E.2d 378.

Unlike this case, the gross negligence standard of care was not specifically attacked in

694 S.E.2d 78

Terrell County. However, that provision was enacted as part of the legislation that was expressly found not to be a special law. Ga. L.1984, pp. 1389, 1393, § 1; Ga. L.1985, pp. 829, 834, 841, § 3. Likewise, OCGA § 51-1-29.5(c) is not a special law affecting only a limited activity in a specific industry during a limited time frame. Rather, as with the Hospital Care for Pregnant Women Act, it is a general law because it operates uniformly upon all health care liability claims arising from emergency medical care as provided in the statute, and as fully discussed in Division 3 of this opinion, that “classification of the designated class is neither arbitrary nor unreasonable. [Cit.]” State v. Martin, 266 Ga. 244, 246(4), 466 S.E.2d 216 (1996). See also Lasseter v. Ga. Public Service Comm., supra (“requirement of reasonable classification comes from the equal protection guarantee”).

The dissent misses the fundamental point that Terrell County expressly held that an attack on the Hospital Care for Pregnant Women Act as special legislation must fail because that Act, like the statute in this case, operates uniformly throughout the State and does not make an arbitrary or unreasonable classification. Instead, the dissent focuses on standing, a wholly unrelated issue that was not even addressed in Terrell County. Moreover, the dissent mistakenly relies on Celotex Corp. v. St. Joseph Hosp., supra, to find that OCGA § 51-1-29.5(c) is a special law. Celotex is something of an anomaly since it has never been relied upon by another court to find a statute to be a special law, and its analysis has instead been rejected by other courts in similar cases. Independent School Dist. No. 197 v. W.R. Grace & Co., 752 F.Supp. 286, 293(I)(B)(1) (D.Minn.1990) (noting that defendant could cite only one case, Celotex, to support argument that asbestos revival statute was unconstitutional special legislation); Wyatt v. A-Best Products Co., 924 S.W.2d 98, 107(V) (Tenn.App.1995) (noting that Celotex is the only case in conflict with conclusion that an asbestos-claims exception statute is not unconstitutional). Moreover, Celotex is distinguishable from this case. The statute in that case became effective in April 1988 and applied to revive only actions against manufacturers or suppliers of asbestos “ ‘which might otherwise be barred prior to July 1, 1990, as a result of expiration of the applicable period of limitation....” Celotex Corp. v. St. Joseph Hosp., supra at 109, 376 S.E.2d 880. The statute further required any such action to “be commenced no later than July 1, 1990.’ ” Celotex Corp. v. St. Joseph Hosp., supra. In finding that statute to be a special law, this Court noted that it dealt “ ‘with a limited activity in a specific industry during a limited time frame....’ [Cit.]” Celotex Corp. v. St. Joseph Hosp., supra at 110, 376 S.E.2d 880. Unlike the statute in Celotex, OCGA § 51-1-29.5(c) does not contain any time restrictions. Furthermore, rather than dealing with such a narrow activity as a limited class of asbestos claims, the statute here has a much broader scope. It is not limited to claims based on a specific type of emergency medical care, and instead, it applies generally to all health care liability actions throughout the State which arise from emergency medical care as set forth in the statute. See Development Auth. of DeKalb County v. State of Ga., 286 Ga. 36, 40(3), 684 S.E.2d 856 (2009) (statute not a special law where it “applies generally to ‘(a)ny authority’ that meets the criteria in [the statute]”). Therefore, contrary to the dissent and as noted above, the statute in this case, unlike that in Celotex, is not a special law.

“Our State Constitution only requires a law to have uniform operation; and that means that it shall apply to all persons, matters, or things which it is intended to affect. If it operates alike on all who come within the scope of its provisions, constitutional uniformity is secured. Uniformity does not mean universality. This constitutional provision is complied with when the law operates uniformly upon all persons who are brought within the relations and circumstances provided by it” [Cits.]

State v. Martin, supra. As a general law that operates alike on all who come within its scope, OCGA § 51-1-29.5(c) complies with the uniformity provision of the Georgia Constitution.

2. Because OCGA § 51-1-29.5(c) is a general law, it “does not violate Art. III,

694 S.E.2d 79

Sec. VI, Par. IV(c), Ga. Const. of 1983, which prohibits special laws relating to the rights or status of private persons.” (Emphasis in original.) State v. Martin, supra at 246(5), 466 S.E.2d 216.

3. Appellants claim that OCGA § 51-1-29.5(c) violates the Georgia equal protection guarantee because the statute only applies to malpractice actions involving emergency medical care in a hospital emergency department, and does not include actions arising from medical care provided outside of hospital emergency departments.

The Georgia equal protection clause provides that “[n]o person shall be denied the equal protection of the laws.” Ga. Const. of 1983, Art. I, Sec. I, Par. II. This clause,

which is construed to be consistent with its federal counterpart, requires that the State treat

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