Crowe v. Humana, Inc., 439 S.E.2d 654 (Ga. 1994). · Go Syfert
Crowe v. Humana, Inc., 439 S.E.2d 654 (Ga. 1994). Cases Citing This Book View Copy Cite
40 citation events (30 in the last 25 years) across 2 distinct courts.
Strongest positive: Cleaveland v. Gannon (gactapp, 2008-01-28)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Cleaveland v. Gannon (2×)
Ga. Ct. App. · 2008 · confidence medium
Crowe v. Humana, 263 Ga. 833, 834 (1) ( 439 SE2d 654 ) (1994).” (Punctuation omitted.) Id.
discussed Cited as authority (rule) Kaminer v. Canas (2×)
Ga. · 2007 · confidence medium
Crowe v. Humana, 263 Ga. 833, 834 (1) ( 439 SE2d 654 ) (1994).
discussed Cited as authority (rule) Stafford-Fox v. Jenkins
Ga. Ct. App. · 2006 · confidence medium
This Court agreed in Gillis v. Palmer, 178 Ga. App. 608, 609 ( 344 SE2d 446 ) (1986), citing to the holding in Lumbermen’s, supra. Similarly, in Crowe v. Humana, Inc., 263 Ga. 833, 834 ( 439 SE2d 654 ) (1994), the Supreme Court held that the plain language of OCGA § 9-3-71 (a) foreclosed tolling the limitation period until the patient discovered a causal connection between the injury and the alleged negligence, and we recognized this holding in Ford v. Dove, 218 Ga. App. 828, 830 ( 463 SE2d 351 ) (1995), overruled on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 ( 526 SE2d 609 ) (1…
examined Cited as authority (rule) Canas v. Al-Jabi (5×) also: Cited "see"
Ga. Ct. App. · 2006 · confidence medium
Crowe v. Humana, Inc., 263 Ga. at 833-834 (1).
discussed Cited as authority (rule) Williams v. Devell R. Young, M.D., P.C.
Ga. Ct. App. · 2000 · confidence medium
In Crowe v. Humana, Inc., 263 Ga. 833, 834 ( 439 SE2d 654 ) (1994), the court held: The Crowes, however, ask us to hold that the cause of action “arose,” and thus the period of limitation commenced, when they discovered that the appellees’ negligence caused Ashley’s injuries.
discussed Cited "see" Kenneth Swallows v. Donna Adams-Pickett (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See generally Crowe v. Humana, Inc., 263 Ga. 833, 834 (1) ( 439 SE2d 654 ) (1994). 4.
discussed Cited "see" Swallows v. Adams-Pickett (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See generally Crowe v. Humana, Inc., 263 Ga. 833 , 834 (1), 439 S.E.2d 654 (1994). 4.
discussed Cited "see" Ford v. Dove (2×)
Ga. Ct. App. · 1995 · signal: see · confidence high
See Crowe v. Humana, 263 Ga. 833 (1) ( 439 SE2d 654 ). “[initiating the period of limitation in a medical malpractice action when the alleged negligence is first discovered would be contrary to the plain language of §§ 9-3-71 and 9-3-73.” Id. at 834.
discussed Cited "see, e.g." Oliver v. Sutton (2×)
Ga. Ct. App. · 2000 · signal: see also · confidence medium
See also Crowe v. Humana, Inc., 263 Ga. 833, 834 (1) ( 439 SE2d 654 ) (1994) (applying OCGA § 9-3-73 (b)).
Retrieving the full opinion text from the archive…
CROWE Et Al.
v.
HUMANA, INC. Et Al.
S93A1371.
Supreme Court of Georgia.
Feb 7, 1994.
439 S.E.2d 654
Hart & McIntyre, George W. Hart, for appellants., Whitehurst & Frick, Elaine W. Whitehurst, Stephen P. Riexinger, Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, Smith, Gambrell & Russell, David M. Brown, S. David McLean, Jr., Marianne Maher, for appellees.
Sears-Collins.
Cited by 17 opinions  |  Published
Sears-Coixins, Justice.

Appellant Ashley Crowe was born on July 15, 1984. On August 3, 1985, Ashley suffered fever, seizures, and respiratory distress, and was taken to the Humana Hospital emergency room, where she was treated by appellees McNeill and Greenwald. An oxygen deficiency caused Ashley permanent brain damage, and she was transferred that same day to another hospital. On February 14, 1992, Ashley Crowe’s parents (the Crowes) filed a medical malpractice action against Humana, McNeill, and Greenwald, on their own and Ashley’s behalf. The Crowes alleged that in January 1992 they discovered that the appellees had been negligent in their treatment of Ashley, and that the appellees’ negligence had caused Ashley’s brain damage. The trial court found that the cause of action was time barred by OCGA § 9-3-73 (b), and dismissed the complaint. We affirm.

1. The two-year period of limitation in an action for medical malpractice begins on the date on which the injury arising from the alleged negligence occurs. OCGA § 9-3-71 (a). Minors are subject to the period of limitation provided in § 9-3-71 (a), except that if a minor was less than five years old when a cause of action for medical malpractice “arose,” the minor has two years from her fifth birthday to bring a medical malpractice action. OCGA § 9-3-73 (b). The issue here is when a child’s cause of action arises for purposes of § 9-3-73 (b). If the cause of action arises on the date on which the injury arising from the alleged negligence occurs, § 9-3-71 (a), then Ashley’s cause of action is barred because her injury occurred on August 3,[*834] 1985. As she was less than five years old at that time, she had until on or around July 15, 1991, two years after her fifth birthday, to bring a cause of action for medical malpractice.

The Crowes, however, ask us to hold that the cause of action “arose,” and thus the period of limitation commenced, when they discovered that the appellees’ negligence caused Ashley’s injuries. [1] We find that initiating the period of limitation in a medical malpractice action when the alleged negligence is first discovered would be contrary to the plain language of §§ 9-3-71 and 9-3-73. Therefore, as the suit was not filed within the time prescribed by § 9-3-73 (b), the trial court correctly found that the complaint was time barred.

2. The appellants contend that as applied to Ashley Crowe, OCGA § 9-3-73 (b) violates constitutional equal protection guarantees by excluding minors bringing medical malpractice actions from the general period of disability provided by OCGA § 9-3-90, and by establishing an arbitrary and unreasonable period of disability. We find that the question of the constitutionality of OCGA § 9-3-73 (b) was resolved adversely to the appellants in Smith v. Cobb-County Kennestone Hosp., 262 Ga. 566 (423 SE2d 235) (1992), where we held that “the separate classification of minors for purposes of medical malpractice actions could accomplish the stated legislative objectives [of § 9-3-73 (b)],” id. at 570, and that it was not unconstitutional to “reduce minors’ period of disability from eighteen to five years, thereby limiting the period within which minors could bring medical malpractice claims,” id. at 571. Furthermore, in Mansfield v. Pannell, 261 Ga. 243 (404 SE2d 104) (1991), we considered whether § 9-3-73 violated equal protection as applied to minors who had passed their fifth birthday at the time the statute was enacted. As those minors could receive a grace period of significantly less than two years, if any, under the statute as written, we found that the statute was not “rational,” id. at 244. However, we construed the statute to mean “that no action will be barred before two years from the effective date” of the statute, id. at 245, and that as construed the statute was “constitutional, rational, and consistent with the intent of the legislature,” id.

3. Finally, the Crowes contend that if Ashley Crowe’s cause of action did accrue on August 3, 1985, application of current § 9-3-73 (b) to bar her suit would be an unconstitutional retroactive applica[*835] tion of the law, because at that time § 9-3-73 specifically adopted the tolling provisions of § 9-3-90 for medical malpractice actions, under which her suit would be timely. The Crowes argue that former § 9-3-73 conveyed substantive rights to minors and incompetents, and as the revised version of § 9-3-73 affects those rights, it may operate prospectively only.

Decided February 7, 1994 Reconsideration denied February 25, 1994. Hart & McIntyre, George W. Hart, for appellants. Whitehurst & Frick, Elaine W. Whitehurst, Stephen P. Riexinger, Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, Smith, Gambrell & Russell, David M. Brown, S. David McLean, Jr., Marianne Maher, for appellees.

In Smith v. Cobb County Kennestone Hosp., we specifically addressed this issue and held that it was controlled by this court’s opinion in Allrid v. Emory Univ., 249 Ga. 35 (285 SE2d 521) (1982), where we stated that

“[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.” [Cit.]

Id. at 37. Ashley Crowe’s injury occurred before she turned five, and her fifth birthday was on July 15, 1989. Therefore, she had until July 15, 1991 to bring suit, which was six years after her August 3, 1985 injury, and which gave her a graice period of four years above the general two-year period of limitation in medical malpractice actions. We find that this “was a reasonable time for her rights to be protected.” Smith at 572.

Judgment affirmed.

All the Justices concur.
1

The Court of Appeals has held that the period of limitation in a medical malpractice action began when the injury was first discovered. Vitner v. Miller, 208 Ga. App. 306 (430 SE2d 671) (1993) (cert. granted; appeal withdrawn). We note that the Crowes do not assert that the cause of action commenced when the injury itself was first discovered, but, rather, when the alleged negligence was discovered. Furthermore, it is undisputed that Ashley Crowe’s injury was manifest on the same day it occurred, if not shortly thereafter. Therefore, the issue addressed in Vitner is not presented by the facts or contentions of this case.