57684 | Ga. Ct. App. | May 14, 1979
This is a suit for damages against two doctor-defendants, Martin and Easley, for wrongful death based on alleged medical malpractice. The complaint was filed on July 18, 1978. The complaint alleged that the death occurred on October 4, 1977, and that the alleged acts of negligence committed by the defendant Martin occurred more than two years prior to the death. Martin answered, pleaded the statute of limitation as a defense and moved to dismiss on the ground that the claim was barred under the provisions of Code Ch. 3-11, Limitations of Actions for Medical Malpractice. The trial court granted the motion and directed the entry of a judgment as to this defendant pursuant to CPA § 54 (b) (Code Ann. § 81A-154 (b)). Plaintiffs have appealed and enumerated this judgment as the sole error. Held:
The statute of limitation applicable to this case is contained in Code § 3-1102 and supports the judgment of the trial court. Plaintiffs on appeal have devoted their entire argument to the issue that this application of the statute of limitation under the circumstances is unconstitutional as to the plaintiffs and is in violation of the Equal Protection Clause. The record fails to show that this issue was raised and a ruling invoked in the trial court. If in fact this issue was raised in the trial court, we would be required to transfer this case to the Supreme Court. Since this issue was not raised below and no other error of law is raised and argued that would fall within our appellate jurisdiction, we are bound to affirm the judgment. See Wiggins v. City of Macon, 224 Ga. 603 (163 SE2d 747).
Judgment affirmed.