This week I had to inform a potential client that I could not take her case of the wrongful death of her mother. Not that the claim sounded invalid. The problem was that for various reasons the first contact the daughter ever made with my office was just three weeks before the statute of limitations expired. Once the statute of limitations expired, the client would be forever time-barred from filing her lawsuit. I had to explain that it ordinarily takes me a minimum of three months to assemble the records, have them reviewed by an expert and then get the expert to sign an affidavit—which must be attached to a medical malpractice lawsuit at the time of filing. I felt as frustrated as my potential client did. And, if you think that it’s really possible to get around the strict two-year statute of limitations for medical malpractice, all you have to do is read the latest decision from the Georgia Supreme Court.
The case of Deen v. Stevens stretches back to July 18, 2005 when Kenneth Deen went to his family dentist. Basically, he had an infected root canal, a fairly common problem. Deen was sent to an endodontist, Dr. Stevens, for evaluation, but after an initial consultation, never followed up. Although Deen returned to his family dentist for some additional treatment on August 4, on the 11th Deen had a lumbar myelogram, which was, of course, independent and unrelated to the dental problem. As an infectious disease specialist for decades I saw many patients have serious spread of a local infection following an invasive procedure and, unfortunately for Deen, the spinal tap part of the myelogram procedure caused subdural empyema. He lingered in the hospital comatose for four months and then died.
For reasons not stated in the Supreme Court’s five-to-two decision, Mrs. Deen only filed her lawsuit against the doctor who did the myelogram on August 13, 2007 and waited until March 10, 2008 to file against Stevens. She sued the family dentist on May 7, 2008. Obviously, none of these lawsuits were filed in a timely manner. Was there anything to be done?
For medical malpractice, Georgia not only has a statute of limitations but also has a statute of repose. Statutes of limitations were tolled under the common law inherited from England while someone was under the disability of being in prison, being a minor, or being mentally incompetent. During the time a person was under one of these disabilities, the clock on the statute of limitations stopped running, or “reposed.” Over the years, State and Federal legislatures have added or subtracted from these three traditional disabilities. The Georgia statute of repose for medical malpractice specifically excludes the mentally incompetent. Mrs. Deen challenged the constitutionality of this form of discrimination on equal protection grounds, arguing that the four months her husband spent comatose after the myelogram should be tolled. Five Justices of the Georgia Supreme Court gave her the back of their hands.
I won’t go into the logic of either the majority or minority opinions because, frankly, equal protection decisions—even the ones I agree with—tend to make me ill. These decisions are filled with arcane and malleable terms like “rational basis,” “strict scrutiny” and “suspect class.” Over time, the gallimaufry of decisions has been organized in such a way that any legal outcome can be obtained from virtually any set of facts. Essentially, the Justices just vote their feelings over the individual facts. So, it turned out that this time a majority of the Justices felt that mentally incompetents should not be extended the same courtesy that, say, a convicted criminal would have been given under the common law. My purpose in bringing this case to people’s attention is that prompt filing of a lawsuit after a medical malpractice injury cannot be overemphasized. Even if the Supreme Court had sided with Mrs. Deen, she still would have spent three years in costly litigation fighting off this challenge before even being allowed to begin the lawsuit against the doctors she believed caused her husband’s death. If she had gotten the lawsuits filed by July 18, 2007, this challenge would have never happened.
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