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2018 Georgia Code 9-3-73 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 9-3-73 Case Law from Google Scholar Amendments to OCGA 9-3-73

TITLE 9 CIVIL PRACTICE

Section 3. Limitations of Actions, 9-3-1 through 9-3-115.

ARTICLE 4 LIMITATIONS FOR MALPRACTICE ACTIONS

9-3-73. Certain disabilities and exceptions applicable.

  1. Except as provided in this Code section, the disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice.
  2. Notwithstanding Article 5 of this chapter, all persons who are legally incompetent because of intellectual disability or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article. A minor who has not attained the age of five years shall have two years from the date of such minor's fifth birthday within which to bring a medical malpractice action if the cause of action arose before such minor attained the age of five years.
  3. Notwithstanding subsections (a) and (b) of this Code section, in no event may an action for medical malpractice be brought by or on behalf of:
    1. A person who is legally incompetent because of intellectual disability or mental illness more than five years after the date on which the negligent or wrongful act or omission occurred; or
    2. A minor:
      1. After the tenth birthday of the minor if such minor was under the age of five years on the date on which the negligent or wrongful act or omission occurred; or
      2. After five years from the date on which the negligent or wrongful act or omission occurred if such minor was age five or older on the date of such act or omission.
  4. Subsection (b) of this Code section is intended to create a statute of limitations and subsection (c) of this Code section is intended to create a statute of repose.
  5. The limitations of subsections (b) and (c) of this Code section shall not apply where a foreign object has been left in a patient's body. Such cases shall be governed by Code Section 9-3-72.
  6. 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.
  7. No action which, prior to July 1, 1987, has been barred by provisions relating to limitations of actions shall be revived by this article, as amended. No action which would be barred before July 1, 1987, by the provisions of this article, as amended, but which would not be so barred by the provisions of this article and Article 5 of this chapter in force immediately prior to July 1, 1987, shall be barred until July 1, 1989.

(Code 1933, § 3-1104, enacted by Ga. L. 1976, p. 1363, § 1; Ga. L. 1987, p. 887, § 2; Ga. L. 2015, p. 385, § 4-15/HB 252.)

The 2015 amendment, effective July 1, 2015, substituted "intellectual disability" for "mental retardation" in the first sentence of subsection (b) and in paragraph (c)(1).

Editor's notes.

- Ga. L. 2015, p. 385, § 1-1/HB 252, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'J. Calvin Hill, Jr., Act.'"

Law reviews.

- For annual survey of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010).

JUDICIAL DECISIONS

Constitutionality.

- The 1987 amendment to O.C.G.A. § 9-3-73 should be construed as constitutional, rational, and consistent with the intent of the legislature. It was clearly the legislative intent that medical malpractice claimants whose claims were affected by the amendment be given a grace period within which to bring suit. Mansfield v. Pannell, 261 Ga. 243, 404 S.E.2d 104 (1991); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

Subsections (b) and (g) of O.C.G.A. § 9-3-73 should be construed as meaning that no action will be barred before two years from the effective date. The result of that construction is that no action will be barred before July 1, 1989. Thus construed, the statute is constitutional. Mansfield v. Pannell, 261 Ga. 243, 404 S.E.2d 104 (1991); Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

The 1987 amendment of O.C.G.A. § 9-3-73, which altered the tolling provisions otherwise applicable to tort claims by injured minors in cases in which tort claims arose from health care professionals' malpractice, did not violate a brain-damaged childs' right to equal protection or right of access to the courts. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 423 S.E.2d 235 (1992); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

Application of subsection (b) of O.C.G.A. § 9-3-73 to patient who was incompetent due to traumatic brain injury did not violate equal protection or due process. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Provision of O.C.G.A. § 9-3-73(b) making tolling unavailable for legally incompetent persons in medical malpractice cases does not violate the equal protection clause, U.S. Const., amend. 14. The legislature had a rational basis for distinguishing between the legally incompetent and parties who are permitted tolling: foreign object plaintiffs, unrepresented estates, and contribution plaintiffs. Deen v. Egleston, 597 F.3d 1223 (11th Cir. 2010).

Construction with § 9-3-71. - In a medical malpractice action, because the trial court erroneously applied the five-year statute of repose contained in O.C.G.A. § 9-3-71(b), and not O.C.G.A. § 9-3-73, in finding that the parents' amended negligence complaint against certain doctors and nurses was time-barred, the trial court erred in entering summary judgment against the parents; further, the trial court also erred in finding that the doctors and nurses were rendering care to only the mother, and not the mother and the newborn child. Johnson v. Thompson, 286 Ga. App. 810, 650 S.E.2d 322 (2007), cert. denied, No. S07C1840, 2008 Ga. LEXIS 90 (Ga. 2008).

Retroactivity of amendment.

- The 1987 amendment of O.C.G.A. § 9-3-73 could be applied retroactively to cause of action which arose prior to amendment's effective date. Smith v. Cobb County-Kennestone Hosp. Auth., 262 Ga. 566, 423 S.E.2d 235 (1992); Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

Legislative purpose.

- When a patient and the patient's spouse filed a medical malpractice complaint, which the spouse amended after the patient's death to add a wrongful death claim, the wrongful death claim was not barred by the statute of repose as the wrongful death claim did not initiate legal proceedings, but was filed as an amendment to a pending suit that timely asserted other claims arising out of the same alleged malpractice; this result was consistent with the legislative purpose of the statute of repose set forth in O.C.G.A. § 9-3-73(f), as the original medical malpractice allegations had been brought less than two years after the alleged negligence, and the wrongful death claim was based on the same alleged acts and omissions as the earlier claims. Wesley Chapel Foot & Ankle Ctr., LLC v. Johnson, 286 Ga. App. 881, 650 S.E.2d 387 (2007), cert. denied, No. S07C1879, 2007 Ga. LEXIS 820 (Ga. 2007).

Minors.

- Even though O.C.G.A. § 9-3-73 permits tolling the statute of limitations for disabilities in medical malpractice actions, under O.C.G.A. § 9-3-90 a minor child must wait until reaching the age of 18 before tolling the two-year limitations period under O.C.G.A. § 9-3-71 barring a medical malpractice action because under O.C.G.A. § 19-7-2 such actions are vested exclusively in the parents until the minor reaches 18. Rose v. Hamilton Medical Ctr., Inc., 184 Ga. App. 182, 361 S.E.2d 1, cert. denied, 184 Ga. App. 182, 361 S.E.2d 1 (1987).

Right to recover the medical expenses of a minor is vested with the parents. Traylor v. Moyer, 199 Ga. App. 112, 404 S.E.2d 320 (1991).

Provisions of subsection (b) of O.C.G.A. § 9-3-73 pertaining to minors applies not only to suits brought on behalf of a minor, but also to suits brought personally by an injured minor upon reaching majority. Barnes v. Sabatino, 205 Ga. App. 774, 423 S.E.2d 686 (1992).

In a medical malpractice action against a hospital and physician for injury to an infant patient, the cause of action accrued, for limitations purposes, when the parents and patient discovered that the alleged negligence of the hospital and physicians caused the injuries, rather than when the alleged negligence was first discovered. Crowe v. Humana, 263 Ga. 833, 439 S.E.2d 654 (1994).

Parents.

- In a medical malpractice lawsuit, the defendants' motion for a partial summary judgment on all claims for damages that the parents incurred on behalf of their minor child was granted as those claims were barred by the two-year statute of limitation because the five-year statute of limitation extension applied only to the claims of the minor child and did not apply to the parents' claims; thus, any of the parents' claims for damages for their minor child's medical expenses, and the parents' ancillary claims such as their own loss of income, were subject to the two-year statute of limitation applicable to medical malpractice actions generally, and were barred. Swallows v. Adams-Pickett, 344 Ga. App. 647, 811 S.E.2d 445 (2018).

Wrongful death claim for intentional termination of patient's life support tolled due to infancy of patient's child.

- Two year statute of limitations for wrongful death applied to a suit alleging tortious termination of life support of a parent and that limitations period was tolled based on the infancy of the parent's child, who was born to the parent prior to the defendant terminating the parent's life support. DeKalb Med. Ctr., Inc. v. Hawkins, 288 Ga. App. 840, 655 S.E.2d 823 (2007), cert. denied, No. S08C0710, 2008 Ga. LEXIS 477 (Ga. 2008).

Applicability of subsection (b).

- Statute of limitations embodied in subsection (b) of O.C.G.A. § 9-3-73 was intended to compel legally incompetent person to file suit within two years of its effective date. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Tolling provisions of O.C.G.A. § 9-3-90 during periods of legal incapacity does not apply in actions for medical malpractice. Dowling v. Lopez, 211 Ga. App. 578, 440 S.E.2d 205 (1993).

In a medical malpractice action by parents and child against an obstetrician and a medical association, there was a material question of fact as to whether the failure of the defendants to inform the parents of the etiology of the child's condition, or the alleged intentional misrepresentation as to the cause of the child's problems, were sufficient to toll the statute of limitations as a matter of law. Bynum v. Gregory, 215 Ga. App. 431, 450 S.E.2d 840 (1994).

Traumatic brain injury.

- Term "legally incompetent because of mental retardation or mental illness" has the same meaning in subsection (b) of O.C.G.A. § 9-3-73 as in O.C.G.A. § 9-3-90 and applied to an action brought on behalf of a patient who was incompetent due to traumatic brain injury. Kumar v. Hall, 262 Ga. 639, 423 S.E.2d 653 (1992).

Term "legally incompetent because of mental retardation or mental illness" includes those suffering from brain injury; thus, the tolling provisions of O.C.G.A. § 9-3-90 do not apply even when such mental incapacity exists. Robinson v. Williamson, 245 Ga. App. 17, 537 S.E.2d 159 (2000).

Mental retardation or mental illness.

- Even though the plaintiff may have been mentally ill, the plaintiff was not legally incompetent within the meaning of subsection (b) of O.C.G.A. § 9-3-73 when the plaintiff's testimony did not show that the plaintiff was incapable of carrying out the plaintiff's day-to-day life activities and making decisions. Charter Peachford Behavioral Health Sys. v. Kohout, 233 Ga. App. 452, 504 S.E.2d 514 (1998).

Applicability of subsection (g).

- It was the intent of the legislature to enact subsection (g) of O.C.G.A. § 9-3-73 exactly as the subsection is drafted. Subsection (g) does not contain any express exceptions for actions which would not have been barred before July 1, 1987, but which would subsequently become barred within two years of the effective date of § 9-3-73, as amended in 1987. Mansfield v. Pannell, 194 Ga. App. 549, 390 S.E.2d 913 (1990).

When the complaint was filed after the effective date of the 1987 amendment of O.C.G.A. § 9-3-73, no issue of retroactivity was involved. Mansfield v. Pannell, 194 Ga. App. 549, 390 S.E.2d 913 (1990).

Applicability to optometrist.

- Statute setting limitation and repose for medical malpractice actions applied to alleged professional negligence by an optometrist. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993).

Applicability to statute of repose.

- Pursuant to a question certified by the federal appellate court, the Supreme Court of Georgia finds that since the tolling of the ultimate statute of repose for medical malpractice cases is not required by O.C.G.A. § 9-3-71(d) or O.C.G.A. § 9-3-73(a) and it would contravene the mandatory language of O.C.G.A. § 9-3-71(b), the unrepresented estate statute, O.C.G.A. § 9-3-92, does not toll the statute of repose during the time that the estate of a claimant is unrepresented; thus, the district court properly dismissed the state court medical malpractice claims brought by the administrator of the estate of the claimant because the claims were time-barred and could not be extended by O.C.G.A. § 9-3-92. Simmons v. United States, 421 F.3d 1199 (11th Cir. 2005).

In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Moreover, construction of the medical malpractice statute of repose was consistent with the stated purposes of preventing stale medical malpractice claims in recognition of the fact that time eroded evidence, memories, and the availability of witnesses. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662 (2007), aff'd, 284 Ga. 376, 667 S.E.2d 366 (2008).

Computation of time of repose.

- Time for ultimate repose is not computed from the time the cause of action arises, even in cases in which the injury is subsequent to the time of medical treatment, but rather it occurs in relation to the wrongful act or omission; thus, in an action against an optometrist involving misdiagnosis of a disease which led to glaucoma and enucleation of the plaintiff child's eye, the time for ultimate repose was calculated not from the time that glaucoma developed, but from the time misdiagnosis occurred, and the action was barred. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993).

Fraud.

- In a malpractice action against an optometrist, the statute of repose was not tolled when there was no evidence of fraudulent concealment by the defendant and it could not be presumed that the defendant withheld information fraudulently rather than negligently or without fault; and, even if there was evidence of fraudulent concealment, the running of the period was not tolled since the plaintiff knew of the correct diagnosis and had time to file suit within such period. Zechmann v. Thigpen, 210 Ga. App. 726, 437 S.E.2d 475 (1993).

In a medical malpractice action by parents and child against an obstetrician and a medical association, alleged conduct of the defendants in failing to inform the parents of the etiology of the child's condition, or the intentional misrepresentation as to the cause of the child's problems, went far beyond simple nondisclosure and would authorize a jury to conclude that they engaged in intentional, deliberate misrepresentation, or fraud, as opposed to a question of fact as to whether the plaintiff's action was barred by the statute of ultimate repose. Bynum v. Gregory, 215 Ga. App. 431, 450 S.E.2d 840 (1994).

Equitable estoppel.

- Fraud under O.C.G.A. § 9-3-96 does not toll the statute of repose; however, if the evidence of defendant's fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant is estopped from raising the defense of the statute of ultimate repose. Esener v. Kinsey, 240 Ga. App. 21, 522 S.E.2d 522 (1999).

Cited in Parker v. Vaughan, 124 Ga. App. 300, 183 S.E.2d 605 (1971); Mattair v. St. Joseph's Hosp., 141 Ga. App. 597, 234 S.E.2d 537 (1977); Childers v. Tauber, 160 Ga. App. 713, 288 S.E.2d 5 (1981); Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 298 S.E.2d 600 (1982); Siler v. Block, 263 Ga. 257, 429 S.E.2d 523 (1993); Bieling v. Battle, 209 Ga. App. 874, 434 S.E.2d 719 (1993); Pilzer v. Va. Ins. Reciprocal, 260 Ga. App. 736, 580 S.E.2d 599 (2003); In re Carter, 288 Ga. App. 276, 653 S.E.2d 860 (2007).

RESEARCH REFERENCES

ALR.

- Medical malpractice statutes of limitation minority provisions, 62 A.L.R.4th 758, 71 A.L.R.5th 307.

When is person, other than one claiming posttraumatic stress syndrome or memory repression, within coverage of statutory provision tolling running of limitations period on basis of mental disability, 23 A.L.R.6th 697.

Cases Citing O.C.G.A. § 9-3-73

Total Results: 16  |  Sort by: Relevance  |  Newest First

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Craven v. Lowndes Cnty. Hosp. Auth., 437 S.E.2d 308 (Ga. 1993).

Cited 59 times | Published | Supreme Court of Georgia | Dec 2, 1993 | 263 Ga. 657

...(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....
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Hous. Auth. of Savannah v. Greene, 383 S.E.2d 867 (Ga. 1989).

Cited 56 times | Published | Supreme Court of Georgia | Sep 28, 1989 | 259 Ga. 435

...Subsection (f) sets down similar rules in regard to the plaintiff's being able to dismiss the complaint and renew it within six months under OCGA § 9-2-61, where the plaintiff fails to file the required affidavit with the complaint. [2] Section 2 of the Act amends OCGA § 9-3-73, relating to certain disabilities and exceptions applicable to the period of limitation for medical-malpractice actions....
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Lutz v. Foran, 427 S.E.2d 248 (Ga. 1993).

Cited 46 times | Published | Supreme Court of Georgia | Mar 8, 1993 | 262 Ga. 819

...injured persons to support their allegations of professional malpractice with an affidavit by an expert, and granting immunity from civil liability to health care providers who render services without pay. Ga. L. 1987 at 888-891 (codified at OCGA §§ 9-3-73; 9-11-9.1; and 51-1-29.1)....
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Simmons v. Sonyika, 614 S.E.2d 27 (Ga. 2005).

Cited 37 times | Published | Supreme Court of Georgia | May 23, 2005 | 279 Ga. 378, 2005 Fulton County D. Rep. 1554

...0 years ago, long before the adoption of legislation creating any statutes of repose. Ga. L. 1855-1856, pp. 233, 235, 237, §§ 21, 40; Wright v. Robinson, 262 Ga. 844, 846(1), 426 S.E.2d 870 (1993). "The subsequent enactment of OCGA §§ 9-3-71 and 9-3-73 clearly distinguishes between the statutes of limitation and the statutes of repose." Siler v....
...271, 274-276(2), 531 S.E.2d 722 (2000) (holding that the provisions of OCGA § 9-3-72, relating to foreign object cases, when construed in light of the judicially created continuing tort doctrine upon which it was based, and in pari materia with OCGA § 9-3-73 (d), (e), plainly preclude application of the statute of repose)....
...[Cits.]" [Cit.] Esener v. Kinsey, supra at 24, 522 S.E.2d 522. Nothing in the relevant statutory provisions indicates that OCGA § 9-3-92 or any other section of Article 5, OCGA §§ 9-3-90 et seq., can toll the medical malpractice statute of repose. OCGA § 9-3-73(a) provides that the disabilities and exceptions of Article 5, including the unrepresented estate statute, are applicable to actions for medical malpractice, but does not give any indication that those disabilities and exceptions apply to the statute of repose....
...Kinsey, supra at 23, 522 S.E.2d 522. The unrepresented estate statute does not toll the medical malpractice statute of repose by virtue of OCGA § 9-3-71(d). That statute specifies that nothing in OCGA § 9-3-71(a) or (b) "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(d). Because of the disjunctive nature of this language, the fact that OCGA § 9-3-92 applies to the statute of limitations by way of OCGA § 9-3-73(a) does not mean that it applies to the statute of repose as well. The legislature's intention in enacting OCGA § 9-3-71(d) is illustrated by its creation of separate medical malpractice statutes of limitation in OCGA § 9-3-73(b) and statutes of repose in OCGA § 9-3-73(c) with respect to minors and legally incompetent persons. OCGA § 9-3-73(d). Subsection (b) of OCGA § 9-3-73 modifies the limitations period and, therefore, clearly does not apply to the statute of repose. Subsection (c) modifies the period of repose and, thus, obviously does not apply to the statute of limitations. Accordingly, OCGA § 9-3-71(d) does not require that any part of OCGA § 9-3-73, including subsection (a), be simultaneously applied to both statutes of limitation and of repose. Since tolling of the medical malpractice statute of repose is not required by either OCGA § 9-3-71(d) or OCGA § 9-3-73(a), and would contravene the mandatory language of OCGA § 9-3-71(b), as well as the accepted judicial and legislative distinction between statutes of limitation and of repose, we hold that the unrepresented estate statute does not toll the statute of ultimate repose in medical malpractice actions....
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Mansfield v. Pannell, 404 S.E.2d 104 (Ga. 1991).

Cited 27 times | Published | Supreme Court of Georgia | May 10, 1991 | 261 Ga. 243

...r injuries to their minor child during delivery on August 20, 1980. The action was brought more than eight years after the birth of the child. The physician denied all negligence and raised the affirmative defense of statute of limitation under OCGA § 9-3-73....
...His motion for summary judgment was denied by the trial court. The physician appealed to the Court of Appeals which reversed and remanded for a consideration of constitutional issues timely raised. Mansfield v. Pannell, 194 Ga. App. 549 (390 S.E.2d 913) (1990). On remand, the trial court found that OCGA § 9-3-73, as amended, violates the equal protection clause of the Georgia Constitution *105 and the Fourteenth Amendment to the U. S. Constitution. We affirm, but for a different reason. OCGA § 9-3-73 was amended effective July 1, 1987 to make statutes of limitation affecting malpractice actions applicable to minors who have reached the age of five and incompetents....
...n additional two years to file suit. The trial court found that children born between July 1, 1980 and before July 1, 1982, are denied the two-year cushion and are denied equal protection. The child here is in this group. Appellant insists that OCGA § 9-3-73 is not unconstitutional as violating equal protection....
...ult achieved is more consistent with the legislative intent than the result that would attend complete invalidation of one or the other." 246 Ga. at 273. Using these principles of construction, we will endeavor to construe the 1987 amendment to OCGA § 9-3-73 as constitutional, rational, and consistent with the intent of the legislature....
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Smith v. Cobb Cnty.-Kennestone Hosp. Auth., 423 S.E.2d 235 (Ga. 1992).

Cited 26 times | Published | Supreme Court of Georgia | Dec 1, 1992 | 262 Ga. 566, 92 Fulton County D. Rep. 3076

...Smith III, Barnes, Browning, Tanksley & Casurella, Benny C. Priest, for appellee. BELL, Presiding Justice. Appellants-plaintiffs, as next friends of their daughter, Krista A. Smith, contend that the statute of limitation for medical malpractice actions by minors, OCGA § 9-3-73 (b), is unconstitutional as applied to her. We find no merit in their arguments, and affirm the judgment in favor of defendants-appellees. A brief description of the facts of this case and the history of § 9-3-73 (b) is necessary in order to lay the foundation for our discussion of appellants' constitutional arguments. Krista Smith was born on July 1, 1981, and allegedly suffered brain damage during her birth. Under the versions of OCGA §§ 9-3-71, 9-3-73, and 9-3-90 in effect at the date of her birth, Krista Smith suffered from a disability due to her minority, and, had those statutes remained unchanged, she would have enjoyed the benefit of having the statute of limitation, § 9-3-71, tolled until her eighteenth birthday....
...otherwise provided in this article [OCGA Title 9, Ch. 3, Art. 4], an action for medical malpractice [had to] be brought within two years after the date on which the negligent or wrongful act or omission occurred." However, in conjunction with then §§ 9-3-73; [1] 9-3-71 mandated that the statute of limitation would be tolled if the injured party suffered from a disability prescribed in OCGA Title 9, Ch....
...ligent or wrongful act or omission occurred [emphasis supplied], but this change did not affect Krista Smith, as the alleged malpractice of which she complains and the alleged injuries arising therefrom occurred on the same date. A 1987 amendment to § 9-3-73 and a subsequent construction of that statute by this Court did affect Krista Smith, as under that construction she had until July 1, 1989, for a suit to be brought on her behalf. On July 1, 1987, an amendment to § 9-3-73 became effective which significantly restricted the period of disability that would toll the operation of § 9-3-71. Pursuant to that amendment, § 9-3-73 now provides that: (a) Except as provided in this Code section, the disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for alleged malpractice....
...Even so, appellants did not file suit against appellees-defendants until June 26, 1991. [2] Appellees moved for summary judgment on the ground that the suit was barred by the statute of limitation, and appellants opposed the motions on the ground that § 9-3-73 (b) is unconstitutional. The trial court found the statute constitutional, and entered summary judgment for appellees. The present appeal followed. 1. Appellants contend that § 9-3-73 (b), [3] as applied to Krista Smith, [4] denies her equal protection under the Fourteenth Amendment of the United States Constitution and the 1983 Georgia Constitution, Art....
...that case, in fact this Court's holding was limited to a different equal protection issue. In Mansfield the exact question was whether "children born between July 1, 1980 and before July 1, 1982, are denied the two-year cushion [the grace periods of § 9-3-73 (b) and (g)] and are denied equal protection," Mansfield, supra, 261 Ga....
...[Cit.] When classifications are challenged under the equal protection guarantees they will be upheld if there is any set of facts upon which they could be sustained. [Cit.] [ Dept. of Transp. v. Ga. Mining Assn., 252 Ga. 128, 129-130 (1) (311 SE2d 443) (1984).] As part of its amendment of § 9-3-73, the General Assembly provided us with specific objectives that it hoped to accomplish by amending the statute, and also with its own finding that there is a rational basis between the statute and its stated objectives: (f) The findings of...
...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).] It is not disputed that the objectives recited in subsection (f) are legitimate goals, but there is a dispute whether a substantial relationship exists between the classification made by § 9-3-73 (b) and the objectives of the legislation....
...the classification in question can be sustained. We have no difficulty concluding that the separate classification of minors for purposes of medical malpractice actions could accomplish the stated legislative objectives. Before the 1987 amendment of § 9-3-73, minors such as Krista Smith (whose cause of action accrued at birth) could wait up to 18 years before the medical malpractice statute of limitation began to run. It appears from subsection (f) of § 9-3-73 that the General Assembly may have perceived the onset of a *571 crisis in this state's health care industry, and that a method of meeting the crisis was to reduce minors' period of disability from eighteen to five years, thereby limiting the period within which minors could bring medical malpractice claims....
...lower insurance and medical costs by decreasing the period in which health care providers and their insurers would be exposed to suit. Moreover, appellants have not carried their burden to demonstrate that the separate classification of minors under § 9-3-73 (b) is irrational or arbitrary as applied to Krista Smith....
...(holding that then § 9-3-71, as applied to wrongful death actions, arbitrarily distinguished between wrongful death claimants by barring some actions before they accrued). We conclude that there is a rational relationship between the stated objectives of § 9-3-73 and the classification of minors it establishes. We therefore hold that § 9-3-73 (b) does not violate Krista Smith's equal protection rights by virtue of having reduced the period within which she was required to file her medical malpractice action. 2. Appellants contend that § 9-3-73 (b) denies Krista Smith the rights, privileges, and immunities guaranteed by the 1983 Ga....
...(as was eventually done by her parents) bring an action on her behalf. OCGA § 9-11-17 (c) ("if an infant ... does not have a duly appointed representative, he may bring an action by his next friend ..."). Second, under this Court's construction of § 9-3-73 in Mansfield, supra, 261 Ga., appellants had eight years to file an action as next friends of Krista Smith....
...to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." [Cit.] [ Allrid, supra, 249 Ga. at 39 (1d).] 3. Appellants assert that the retroactive application of § 9-3-73 (b) unconstitutionally defeats a vested substantive right....
...Here, the question is whether a statute of limitation may bar an action for a right which has already accrued. [10] This question is controlled by Allrid, *573 supra, 249 Ga. at 37 (1b), and Browning is inapposite. 4. For the foregoing reasons, we find that appellants' arguments state no meritorious reason for holding that § 9-3-73 (b) is unconstitutional as applied to Krista Smith. We therefore affirm the judgment of the trial court. Judgment affirmed. All the Justices concur; Hunstein, J., not participating. NOTES [1] Section 9-3-73 then stated that "[t]he disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice." [2] It does not appear that any explanation for the failure to meet the July 1, 1989, deadline has been offered. [3] Appellants' brief also questions, in various arguments, the constitutionality of the medical malpractice statute of repose, OCGA § 9-3-73 (c)....
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Kumar v. Hall, 423 S.E.2d 653 (Ga. 1992).

Cited 25 times | Published | Supreme Court of Georgia | Dec 3, 1992 | 262 Ga. 639, 92 Fulton County D. Rep. 3080

...oretta Hall, who had filed suit as guardian and next friend of Carl William Hall. Appellants contend that the suit is barred by the statute of limitation for "persons who are legally incompetent because of mental retardation or mental illness," OCGA § 9-3-73 (b)....
...Appellants, who either are physicians who cared for and treated Carl Hall at Douglas General Hospital or their respective professional corporations, moved for summary judgment, contending in part that the suit was barred by a statute of limitation, § 9-3-73 (b)....
...The trial court denied summary judgment, but granted a certificate of immediate review. The Court of Appeals granted appellants' interlocutory application, and subsequently transferred the appeal to this Court. 1. The first question for our consideration is whether the statute of limitation embodied in § 9-3-73 (b) was intended to compel appellee to file suit within two years of its effective date, i.e., by July 1, 1989....
...herwise provided in this article [OCGA Title 9, Ch. 3, Art. 4], an action for medical malpractice [had to] be brought within two years after the date on which the negligent or wrongful act or omission occurred." [1] However, in conjunction with then § 9-3-73, [2] § 9-3-71 mandated that the statute of limitation would be tolled if the injured party suffered from a disability prescribed in OCGA Title 9, Chapter 3, Article 5....
...n or mental illness, [3] 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. [Emphasis supplied.] On July 1, 1987, an amendment to § 9-3-73 became effective which significantly restricted the period of disability that would toll the operation of § 9-3-71. Pursuant to that amendment, § 9-3-73 now provides that: (a) Except as provided in this Code section, the disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice....
...ill be barred before July 1, 1989." Accordingly, if it is assumed that Carl Hall suffered from a legal disability by virtue of being "legally incompetent because of mental retardation or mental illness," then before the enactment of the amendment to § 9-3-73 he would have enjoyed (pursuant to §§ 9-3-71, then 9-3-73, and 9-3-90) the benefit of having the statute of limitation, § 9-3-71, tolled until such time as he became competent. However, after the effective date of the amendment to § 9-3-73, that statute, as judicially construed in Mansfield, supra, 261 Ga., would have required suit to be filed on his behalf by July 1, 1989. As we have already described, appellee did not file suit until March 22, 1991. (b) Appellee asserts that §§ 9-3-73 (b) and 9-3-90 are not applicable to her action because Carl Hall is not legally incompetent as a result of either mental retardation or mental illness....
...d not change the preexisting meaning of the predecessor of § 9-3-90. Tuten, supra, 262 Ga.; Whaley, supra, 260 Ga. For these reasons, we hold that it was the legislative intent for Carl Hall to enjoy the benefit of § 9-3-90 before the enactment of § 9-3-73 (b). Moreover, we hold that, in light of apparent legislative intent to closely link §§ 9-3-90 and 9-3-73 (b), the most harmonious interpretation of § 9-3-73 (b) is that the term "legally incompetent *644 because of mental retardation or mental illness" has the same meaning as that identical term in § 9-3-90. Accordingly, we hold that § 9-3-73 (b) was intended to apply to Carl Hall, and to require suit to be filed on his behalf by July 1, 1989. 2. Appellee contends that § 9-3-73 (b) is unconstitutional because it violates equal protection and due process guarantees under the 1983 Georgia Constitution and the United States Constitution....
...ble to properly evaluate Carl Hall's malpractice claim and file it before the period of limitations ran. [5] Under these circumstances, we hold that Carl Hall has suffered no deprivation of equal protection or due process. 3. Appellee complains that § 9-3-73 (b) violates the Americans With Disabilities Act (hereinafter "the ADA"), 42 USC § 12131 et seq....
...a traumatic brain injury, such as the appellee in this case, just as it would have been for any legally incompetent person. (Majority, p. 643). The majority relies on § 1-1-2 to hold that the language used in the present version of §§ 9-3-90 and 9-3-73 (b) is just as inclusive....
...In § 9-3-90, the legislature specifically adopted three distinct categories of persons for whom tolling provisions will apply: minors, those persons legally incompetent due to mental retardation, and those persons legally incompetent due to mental illness. Likewise, the exception to the tolling provision found in § 9-3-73 (b) refers specifically to only those same distinct categories of individuals....
...Those persons who are legally incompetent for reasons other than mental illness or mental retardation still retain the common law tolling benefit. However, there was no common-law exception to tolling for malpractice actions. Therefore, the exception in § 9-3-73 (b) should be imposed pursuant to its plain meaning: only upon the mentally retarded and mentally ill. Had the legislature intended to encompass within the exception contained in § 9-3-73 (b) persons who are incompetent for reasons other than mental retardation or mental illness, it would have done so specifically, as it has in other areas....
...The appellee's brain injury was sustained only after his brain was deprived of oxygen due to a malfunctioning chest tube, allegedly due to the appellants' malpractice. Far from being absurd or impossible, the result of the application of the plain language of the exception in § 9-3-73 (b) in this case is to prohibit a defendant who may have precipitated a plaintiff's incapacity from benefiting from a tolling exception purportedly created by that incapacity....
...egligent act or omission occurred" (emphasis supplied), but this change did not affect Carl Hall, as the alleged malpractice of which he complains and the alleged injuries arising appear to have occurred during the same period, March-April 1986. [2] Section 9-3-73 then stated that "[t]he disabilities and exceptions prescribed in Article 5 of this chapter in limiting actions on contracts shall be allowed and held applicable to actions, whether in tort or contract, for medical malpractice." [3] Be...
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Jones v. Bates, 403 S.E.2d 804 (Ga. 1991).

Cited 25 times | Published | Supreme Court of Georgia | May 10, 1991 | 261 Ga. 240

...He refiled his action on January 16, 1990, within six months from his dismissal. A medical affidavit was attached to the renewed complaint. Thereafter, the trial court dismissed the entire complaint, upon Bates' motion, because it was time-barred by OCGA § 9-3-73, relating to minors' claims of medical malpractice. On appeal, Jones challenges the constitutionality of OCGA § 9-3-73, if it in fact bars him, and argues that Count 1, sounding in simple negligence and battery, states a claim which would be unaffected by either the statute of limitations or the requirement of an affidavit. Thus, two issues are presented: (1) whether the malpractice claim was properly dismissed for any reason, and (2) if so, whether Count 1 states a claim which should have not been dismissed. 1.(a) Under the provisions of OCGA § 9-3-73, the trial court correctly concluded that Jones' claim was time-barred after August 29, 1987. [2] But the provisions of OCGA § 9-3-73 do not apply to Jones....
...He was not, obviously, under five on the effective date of the statute and since that date was less than two years from the injury, the act did not bar his claim before the effective date. [3] If we were to assume, as did the trial court and the parties below, that OCGA § 9-3-73 applied to Jones, and if we were then to deal with its constitutionality, the result would be the same. See Mansfield v. Pannell, 261 Ga. 243, 404 S.E.2d 104, 1991, construing OCGA § 9-3-73 constitutional by engrafting a grace period of two years beyond its effective date....
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Deen v. Stevens, 698 S.E.2d 321 (Ga. 2010).

Cited 24 times | Published | Supreme Court of Georgia | Jul 23, 2010 | 287 Ga. 597

...Hall, 262 Ga. at *324 643-644, 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 ....
...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))....
...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)....
...Supreme Court has decided that the disabled, as a group, do not constitute a `suspect class' or a `quasi-suspect classification.'" (quoting City of Cleburne, 473 U.S. at 442, 105 S.Ct. 3249)). The dissent cites no evidence whatsoever that the General Assembly's enactment of OCGA § 9-3-73(b) in 1976 was motivated by then-existing animus toward the mentally incompetent as a class, and the dissent's view of how the law has historically treated the mentally disabled appears contradictory....
...In undertaking that analysis, the Eleventh Circuit recognized that "`[e]nsuring access to affordable healthcare is a legitimate legislative objective.'" Deen v. Egleston, 597 F.3d at 1231 (quoting 601 F.Supp.2d at 1343-1344). The dissent suggests that this objective is different from the ones listed in OCGA § 9-3-73(f)....
...e tolling provision for mental incompetence in general medical malpractice claims. Ms. Deen points in particular to the tolling provisions for unrepresented estates, see OCGA § 9-3-92, [1] and foreign objects left in the body, see OCGA §§ 9-3-72, 9-3-73(e)....
...Deen contends that Kumar is not controlling because of factual differences between that case and this one. Some distinctions exist, but they do not change the outcome of the equal protection analysis. In Kumar, we held that the tolling provisions of OCGA §§ 9-3-73(b) and 9-3-90 applied to mental incompetence....
...persons lack the ability to handle their legal affairs and that it offends all notions of decency and fairness for the law to require them to take legal action when they are so obviously incapable of doing so on their own. With the enactment of OCGA § 9-3-73(b), however, the Legislature chose to strip these most vulnerable citizens of the tolling protection historically granted to them....
...petent human being and transmutes him or her into someone so mentally incapacitated that they are left legally incapable of handling their own affairs is hard for anyone who has not experienced such a nightmarish situation to truly imagine. Yet OCGA § 9-3-73(b) eliminates any emotional recovery period for the family and friends of such a person....
...lpractice was not filed within two years of their alleged negligent acts or omissions, although it was filed prior to the probate court's appointment of Ms. Deen as her husband's conservator. In response to appellees' motion to dismiss based on OCGA § 9-3-73(b), the Deens challenged the constitutionality of this statute on the basis that it treats mentally incompetent medical malpractice plaintiffs different from mentally incompetent plaintiffs who seek to bring any other type of civil lawsuit....
...811, 813, 653 S.E.2d 747 (2007) (for equal protection purposes, classification created by the government need only bear a reasonable relationship to a legitimate goal). The majority relies upon the "rational, legitimate objectives" stated by the General Assembly in OCGA § 9-3-73(f)....
...Although the majority lists these objectives, it makes no effort to explain how they or the objective identified by the Eleventh Circuit, namely, ensuring access to affordable healthcare, Maj. Op. at 650, are rationally related to the irrational classification created by OCGA § 9-3-73(b)....
...of 1983, regardless of whether or not there has been "vigorous public debate" over "`a particularly thorny legislative problem.'" Maj. Op. p. 656. Public debate, regardless how "vigorous," can never serve to shield legislation from constitutional review. The classification adopted in OCGA § 9-3-73(b), by denying mentally incompetent plaintiffs in medical malpractice actions the same tolling of the statute of limitation accorded all other mentally incompetent plaintiffs in every other type of civil claim, has no rational relationship to the goals set forth in OCGA § 9-3-73(f)....
...r was appointed before they would have to deal with the legal turmoil arising from the defendants' acts of malpractice. See OCGA § 9-3-92 (five-year tolling for unrepresented estate). How can we consider "rational" the disparate treatment that OCGA § 9-3-73(b) accords our most vulnerable citizens in medical malpractice actions? This statutory classification is so arbitrary and unreasonable that it makes the standard of review the majority claims to apply into nothing more than a "rubber stamp"...
...ense of our mentally disabled citizens and our injured children. As jurists we cannot shirk our constitutional duties and sanction the denial of "equal protection of the laws" to our most vulnerable citizens. It follows that I would strike down OCGA § 9-3-73(b) as violative of the equal protection clause and reverse the trial court's grant of appellees' motion to dismiss....
...hall be brought within one year after the negligent or wrongful act or omission is discovered. For the purposes of this Code section, the term "foreign object" shall not include a chemical compound, fixation device, or prosthetic aid or device. OCGA § 9-3-73(e) states that "[t]he limitations of subsections (b) and (c) of this Code section shall not apply where a foreign object has been left in a patient's body....
...Such cases shall be governed by Code Section 9-3-72." [3] It is unquestioned in this case that Kenneth Deen is not legally incompetent "because of mental retardation or mental illness" under the plain meaning of those words. Rather than recognizing that the unambiguous language of OCGA § 9-3-73(b) does not encompass the separate category of persons such as Deen who are rendered legally incompetent because of traumatic brain injury, this Court in Kumar v....
...484, 198 S.E.2d 144 (1973) (this Court mistakenly interpreted a constitutional provision by relying on an unofficial, inaccurate account of convention discussions compiled by a newspaper reporter). Accordingly, I adhere to the doctrine of stare decisis and accept the flawed interpretation of OCGA § 9-3-73(b) in Kumar as the law of this State....
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Rossi v. Oxley, 495 S.E.2d 39 (Ga. 1998).

Cited 22 times | Published | Supreme Court of Georgia | Feb 3, 1998 | 269 Ga. 82

...negligent acts of security personnel working as independent contractors). [6] The resort to the fiction of joint venture is necessary only because Oxley failed to file her complaint within the seven-year statute of limitations applicable pursuant to O.C.G.A. § 9-3-73(b)....
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Crowe v. Humana, Inc., 439 S.E.2d 654 (Ga. 1994).

Cited 17 times | Published | Supreme Court of Georgia | Feb 7, 1994 | 263 Ga. 833, 94 Fulton County D. Rep. 400

...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....
...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)....
...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....
...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 application *835 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....
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Nichols v. Gross, 653 S.E.2d 747 (Ga. 2007).

Cited 11 times | Published | Supreme Court of Georgia | Nov 28, 2007 | 282 Ga. 811

...(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....
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Golden v. Floyd Healthcare Mgmt., Inc, 904 S.E.2d 359 (Ga. 2024).

Cited 4 times | Published | Supreme Court of Georgia | Jul 2, 2024 | 319 Ga. 496

...303, 303 (1) (a) (603 SE2d 695) (2004)). See also Simmons, 279 Ga. at 380 (“statutes of repose may not be ‘tolled’ for any reason” (citation and punctuation omitted)). But as Floyd Medical concedes, the legislature has tolled such statutes in the past. See, e.g., OCGA § 9-3-73 (c) (2) (A) (tolling the repose period set forth in OCGA § 9-3-71 (b) for children under the age of five until their tenth birthday). In any event, Simmons does not assist Floyd Medical’s argument....
...not contemplate the tolling of a later-enacted repose statute, that Simmons omitted a caveat from Osburn when quoting it, and that the legislature has provided for circumstances when a repose statute may be tolled. See Simmons, 279 Ga. at 379-80; OCGA § 9-3-73 (c) (2) (A)....
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Andreana Williams, Conservator v. Regency Hosp. Co., LLC, 318 Ga. 145 (Ga. 2024).

Cited 2 times | Published | Supreme Court of Georgia | Jan 17, 2024

...entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.”). The respondents specifically noted that in Deen v. Stevens, 287 Ga. 597 (698 SE2d 321) (2010), this Court rejected a challenge to the constitutionality of OCGA § 9-3-73 (b), in which the appellant argued that the statute irrationally discriminated 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. In Deen, we held that the non-tolling provision of OCGA § 9-3-73 (b) is rationally related to the General Assembly’s objectives set out in OCGA § 9-3- 73 (f) “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.” In response, the appellant argued that OCGA § 9-3-73 (b) is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because the statute’s distinction between mentally incompetent medical malpractice plaintiffs and mentally incompet...
...asserts that “[t]here is no evidence that medical malpractice lawsuits are the substantial cause of increased healthcare costs.” The appellant argues that “empirical studies” show that the stated government objective for the non-tolling provision of OCGA § 9-3-73 (b) “is no longer reasonably furthered by discriminating against mentally incompetent medical malpractice [p]laintiffs” and “has been rendered constitutionally invalid as it is arbitrary, and thus no longer serves a rational purpo...
...between September 23, 2020 and October 22, 2020, and alleged that Hewett was permanently mentally incapacitated as of September 4, 2020. Defendants filed separate motions to dismiss based, in part, on the expiration of the two-year statute of limitation. See OCGA §§ 9-3-71 (a); 9-3-73 (b).1 In response, Williams argued: In the present action, there is no dispute that OCGA § 9-3-73 (b) treats mentally incompetent Plaintiffs in 1 OCGA § 9-3-71 (a) provides: “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 § 9-3-73 (b) provides in relevant part: “Notwithstanding Article 5 of this chapter, all persons who are legally incompetent because of intellectual disability or mental illness ....
...legitimate government objective “to ensure to its citizens affordable access to quality healthcare.” Id. at 602 (2) (b). The trial court granted the Defendants’ motions to dismiss and dismissed the case with prejudice, explaining that: “Plaintiff argues that OCGA § 9-3-73 (b) violates Ms....
...Hewett’s equal protection rights under the 14th Amendment to the United States Constitution. The Supreme Court of Georgia has already decided this issue against the Plaintiff. [Deen, 287 Ga. at 602].”2 This appeal followed in which Williams challenges the constitutionality of OCGA § 9-3-73 (b) on 2 The trial court did not conduct any further analysis of the equal protection claim. the same grounds as she did in the trial court. This Court has exclusive jurisdiction over “all cases in which the constitutional...
...See Wilkes & McHugh, P.A. v. LTC Consulting, L.P., 306 Ga. 252, 257 (1) (c) & n.6 (830 SE2d 119) (2019) (trial court implicitly rejected plaintiff’s First Amendment challenge to statute by denying the defendant’s motion). Here, Williams argues that OCGA § 9-3-73 (b) arbitrarily treats similarly situated incompetent medical malpractice plaintiffs differently from incompetent plaintiffs in other kinds of lawsuits by not allowing the benefit of tolling to the medical malpractice plaintiffs in violation of the Equal Protection Clause of the United States Constitution. Although Deen considered a similar issue, the plaintiff there argued that applying OCGA § 9-3-73 (b) “to her complaint violates equal protection by arbitrarily discriminating against mentally incompetent adults” as a class....
...jurisdiction over this appeal and would retain the appeal for consideration on the merits. I am authorized to state that Justices Bethel, Colvin, and Pinson join in this dissent. Ordered January 17, 2024. OCGA § 9-3-73 (b); constitutional question....
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Siler v. Block, 429 S.E.2d 523 (Ga. 1993).

Cited 2 times | Published | Supreme Court of Georgia | May 3, 1993 | 263 Ga. 257

...Tanner, Mark E. Robinson, for appellees. Stephens & Shuler, Charles W. Stephens, Franklin, Taulbee, Rushing & Bunce, Elizabeth F. Bunce, William S. Stone, amici curiae. BENHAM, Justice. We granted certiorari to the Court of Appeals to determine whether OCGA § 9-3-73 (c), the medical malpractice statute of repose, bars the re-filing of this action pursuant to OCGA § 9-2-61 within six months following a voluntary dismissal....

Williams v. Regency Hosp. Co., LLC (Ga. 2025).

Published | Supreme Court of Georgia | Aug 26, 2025 | 263 Ga. 257

...In response, Williams argued that the statute of limitation was tolled because Hewett “meets the definition of incompetency under OCGA § 9-30-90 (a)” and that OCGA § 9-3- 73(b),1 which provides that the statute of limitation for medical 1 OCGA § 9-3-73(b) provides, in relevant part, that notwithstanding malpractice claims shall not be tolled for plaintiffs who are “legally incompetent,” violates Hewett’s rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution....
...contrary to Hewett’s position in Deen v. Stevens, 287 Ga. 597 (2010). The Court of Appeals affirmed. See Williams v. Regency Hosp. Co., LLC, 373 Ga. App. 83, 85–86 (2024). We granted certiorari to consider whether Deen controls this case, and if not, whether OCGA § 9-3-73(b) violates Hewett’s rights under the Equal Protection Clause by arbitrarily treating mentally incompetent medical- malpractice plaintiffs differently than mentally incompetent plaintiffs in other kinds of lawsuits....
...ossia, petitioner’s claim here was the same as the plaintiff’s claim in Deen v. Stevens, 287 Ga. 597 (2010), such that it rejected the petitioner’s challenge on the ground that it was bound by Deen? 2. Does OCGA § 9-3-73(b) arbitrarily treat similarly situated mentally incompetent medical malpractice plaintiffs differently from incompetent plaintiffs in other kinds of lawsuits by not allowing the benefit of tolling to the medical mal...
...4 claims, arguing that the claims were barred by the two-year statute of limitation for medical malpractice claims under OCGA § 9-3- 71(a); that OCGA § 9-3-90 was inapplicable; and that the “non- tolling” provision of OCGA § 9-3-73(b) applied, citing this Court’s holding in Deen. In response to the motions, Williams argued that OCGA § 9-3- 73(b) violated Hewett’s equal protection rights under the United States Constitution because the statute “treats mentally incompetent Plaintiffs in medical malpractice actions differently, and unequally, from mentally incompetent Plaintiffs in non-medical malpractice actions.” While acknowledging that in Deen, this Court held that OCGA § 9-3-73(b) did not violate the Equal Protection Clause, Williams attempted to characterize her challenge to the statute differently and argued that the rationale underlying Deen “has been rendered constitutionally invalid as it is arbitrary, a...
...tionally, Williams contended that the expert affidavit requirement for professional malpractice actions, OCGA § 9-11-9.1, 3 and the five- year statute of repose for medical malpractice actions, OCGA § 9-3- 71(b), serve the same purpose as OCGA § 9-3-73(b) (according to Williams, the reduction of medical malpractice claims and the corresponding benefit of ensuring affordable access to quality healthcare), thereby rendering the latter statute unnecessary and without a rational basis....
...mpetent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” 6 mentally incompetent plaintiffs, “OCGA § 9-3-73(b)’s limitation on tolling of such cases could not logically reduce healthcare costs so as to warrant disparate treatment.” In its order granting the motions to dismiss, the trial court determined that Williams’s constitutio...
...In Deen, this Court held that mental incompetence is not a suspect classification for equal protection purposes and therefore, applied rational-basis review to the Deen plaintiff’s constitutional challenge 8 to OCGA § 9-3-73(b). Deen, 287 Ga. at 602–04. Williams concedes that rational basis review is the correct standard here. To evaluate whether OCGA § 9-3-73(b) violates the equal- protection rights of mentally incompetent plaintiffs with medical malpractice claims, as compared to mentally incompetent plaintiffs with other types of civil claims, we apply the same standard that was applied in...
...received treatment. 287 Ga. at 598–99. The plaintiff argued that the two-year statute of limitation for her medical malpractice claim should be tolled under OCGA §§ 9-3-90(a) and 9-3-91 5 and that applying the anti-tolling provision of OCGA § 9-3-73(b) violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section I, Paragraph II of the Georgia Constitution of 1983 by arbitrarily discriminating against mentally incompetent adults as a class....
...In addition, Williams argues that the expert affidavit requirement for professional malpractice actions, OCGA § 9-11-9.1, and the five-year statute of repose for medical malpractice actions, OCGA § 9-3-71(b), serve the same purpose as OCGA § 9-3-73(b) by reducing the number of medical malpractice claims and ensuring affordable access to quality healthcare and that these statutes therefore render OCGA § 9-3-73(b) unnecessary and without a rational basis....
...utional analysis were likewise considered and rejected in Deen. The Deen majority squarely rejected the assertion that the statute of repose fulfilled the General Assembly’s goal of preventing stale medical-malpractice claims and rendered OCGA § 9-3-73(b) without a rational basis, stating: “[T]he dissent would find that allowing the mentally incompetent only two years to file a medical malpractice action is utterly ‘arbitrary and unreasonable,’ ......
...Williams’s argument concerning the effect of OCGA § 9-11- 9.1 was not addressed by Deen. Therefore, we address it now to resolve her Equal Protection challenge. Williams contends that the expert affidavit requirement found in OCGA § 9-11-9.1 undercuts the stated objective of OCGA § 9-3-73(b)’s non-tolling provision, presumably because both statutes are designed to reduce the number of medical malpractice actions that are filed in Georgia, thereby furthering the legislative goal of ensuring affordable access to quality healthcare. Williams’s argument appears to be that because OCGA § 9-11-9.1 restricts the filing of professional negligence actions by generally requiring that they be accompanied by an expert affidavit, OCGA § 9-3-73(b)’s additional restriction on the filing of medical malpractice actions (specifically, its non-tolling provision) is without a rational basis....
...mean that one or more of the approaches is not rationally related to a legitimate government objective. See Deen, 287 Ga. at 605 (applying rational basis review and noting that the General 6 Additionally, Williams argues that her challenge to OCGA § 9-3-73(b) differs from that made in Deen due to a change in societal views of the mentally incompetent since Deen was decided, suggesting that we should treat the mentally incompetent as a suspect class for purposes of our equal protection analysis....
...16 Thus, like the plaintiff in Deen, Williams has failed to meet the high burden required to demonstrate that the statute is unconstitutional. We therefore conclude that Deen largely controls Williams’s constitutional challenge to OCGA § 9-3-73(b); that the expert affidavit requirement found in OCGA § 9-11-9.1 does not change the analysis or aid Williams’s position; and that Williams has not met her burden of showing that OCGA § 9-3-73(b) is not rationally related to a legitimate legislative objective....