*1
639
State,
State,
Cargill v.
(350
446) (1986);
256
521
SE2d
255 Ga.
Ga.
State,
(323
891) (1986); Ingram v.
(340
Decided December denied December Reconsideration Bunn, Bright, Norby, A. Stephen B. Charlotta Richard ap pellant. Shelnutt, Douglas Pullen, Attorney, C. J. Mark Assis- District Bowers, General, Attorney, Attorney C. A. tant District Michael J. General, Benjamin Woolf, Attorney Assistant appellee. HALL
S92A1007. KUMAR et al. v. et al. CHAYA et al. v. HALL et al.
S92A1008. Justice. Presiding Bell, erred de Appellants-defendants the trial court contend against appellee-plaintiff nying judgment their motions for summary of Carl guardian filed next friend Loretta who had suit as by the stat Appellants William Hall. contend that the suit is barred incompetent because of “persons ite of limitation (b). Because we OCGA 9-3-73 mental retardation we reverse statute find the suit judgment. During March 1986 March Douglas Hospital. received care medical and treatment at Emory University Hospital. 28, 1986, he March same was moved to On th damage, date, he became comatose due to brain and has neve April regained amputation 16, 1986, consciousness. On he underwent amputations partial appe mother, his hands and feet. His appointed guardian property $May lee, of his *2 According stipulation into, to a of fact that she entered she ha int( legal inquire 17, 1988, “retained and counsel on about March prosecute appropriate, any malpractice medical claims arisin hospitalization from or associated with the and medical care of Cai Douglas Hospital William Hall at about copy General in March 1986. On o May 31, 1988 Counsel obtained on her and her son’s behalf Douglas Hospital of the chart of the General admission.” Oi — years March-April pe 22, March almost five after the - damage amputations in riod which Carl Hall suffered brain appellee brought alleging injuries behalf, suit on his that his were th malpractice. Appellants, physician result of medical who either are Douglas Hospital who cared for and treated Carl Hall at o respective professional corporations, summary judg their ment, moved for contending part in that the suit was barred a statute of limi (b). summary judgment, tation, § 9-3-73 The trial court denied bu granted Appeal a certificate of immediate review. The Court of granted appellants’ interlocutory application, subsequently trans appeal ferred the to this Court. question 1. The first for our consideration is whether the statut compel appel of limitation embodied in 9-3-73 was intended to years by July lee to file suit within date, i.e., two of its effective 1989. We find that such was the intent. (a) As of comatose, § the date that Carl Hall became 9-3-71 re
quired “[e]xcept provided [OCGA as otherwise in this article Ti malpractice 9, 3, 4], tie Ch. Art. brought wrongful [had an action for to] medical b years negligent within two after the date on which the o conjunction act or omission occurred.”1 witl § 9-3-73,2§ then 9-3-71 mandated that the statute of limitation woul< injured party disability prescribed be tolled if from suffered ii Chapter OCGA Title Article 5. One of the Code sections Arti part, provide “[e]xcept Section 9-3-71 was amended in as otherwis provided article, malpractice year this an brought action for medical shall be within two arising the date on which an after or death negligent act or omission occurred (emphasis supplied), change alleged but this did not affect Carl as the c complains alleged injuries arising appear which he during and the to have occurred the sam period, March-April 1986. exceptions prescribed Section 9-3-73 then stated that disabilities and in Articl “[t]he chapter limiting 5 of applicable actions on contracts shall be allowed and held t actions, contract, malpractice.” whether in tort or for medical (as “persons im- respecting in 1984 ile amended OCGA 581), prisoned,” p. Ga. L. because
[m]inors illness,3 such mental retardation when of the cause accrues, shall be entitled to the same time action disability is an as is bring pre- their removed to after persons. [Emphasis supplied.] for other scribed 1, 1987, 9-3-73 became effective On amendment disability toll significantly restricted the amendment, Pursuant to that 9-3-73 now operation 9-3-71. provides that: section, Except provided this Code the disabili- prescribed chapter 5 of exceptions Article ties appli- shall allowed held limiting actions on contracts contract, actions, in tort or for medical mal- cable to whether practice. chapter, per- all Notwithstanding Article 5 of this *3 legally incompetent who are because mental retar-
sons of periods subject dation or mental illness ... shall be to the malpractice provided in limitation for actions for medical . . . this article. (b)
(c) of this Code Notwithstanding subsections section, action for medical be no event by brought or on of: behalf incompetent legally A because five years mental illness more than
mental retardation or wrongful or act or negligent the date on which after occurred; . omission . .
(d) to section is intended Subsection of limitations. . . . . create a statute .. 1, July . . . would be barred before
(g) No which Georgia, predecessor 9-3- Code of statute of § Before the enactment of idiots, 3-801, “[¡Infants, persons” (a), provided enti or insane were Ann. that Ga. Code Georgia that term tled limitation The Official Code to have statutes of tolled. legally incompetent because mental retardation the current “[m]inors illness.” mental
1987, article, amended, by provisions as but which by provisions so would not be this article and chapter 1, immediately prior July Article 5 of this 1, July [Emphasis shall barred until supplied.] 1989. Pannell, Subsequently, Mansfield (1991), (g) meaninj this Court construed subsections as will July “no action be barred before 1989.” if it is Accordingly, assumed that Carl a lega Hall suffered from disability by being “legally incompetent virtue of because of menta retardation then before enactment of th< (pursuant enjoyed amendment 9-3-73 he would have §§ 9-3-90) 9-3-73, having then the benefit of the statute of limita tion, 9-3-71, tolled until such time as competent. he became How ever, 9-3-73, after the effective date of the amendment that stat Mansfield, ute, Ga., judicially construed in supra, 261 would hav< required suit be filed on his by behalf 1989. weAs hav< described, already appellee did not file suit until March Appellee applica asserts that and 9-3-90 are not ble to her action because as i is not is, result of mental either retardation or illness. she He serts, operation nevertheless excluded of the medical mal practice certainly legally statute because he is most competent due to traumatic brain consequently falls category within a appropriately “mentally incompetent.’ described as fact, contends, her she suit is entitled to the of the statute expansive of limitation under the Georgia more common law of be- cause, noted, Carl Hall is neither mentally mentallj retarded nor ill. th( While appreciate urged distinction this Court Th(
appellee, agree supports we cannot ruling. the trial court’s general concerning preex- rule of changes effect in the isting statutes were affected enactment the Officia Code of stated OCGA *4 recodification, enactment of this is as a Code intended
[t]he revision, modernization, of general and reenactment the of the Georgia currently State of which are of is force and intended, possible, where to resolve conflicts which exist repeal the law and those laws which are obsolete a re- causes, sult passage of the of time other which have been invalid, declared unconstitutional or su- or which have been perseded by the Except otherwise enactment of later laws. specifically provided Code, by particular provisions this of the enactment this Code the not Assembly is of the law in existence on the intended alter substantive ef- [Emphasis supplied.] Code. date this fective of interpreted adoption as stating This section has been that “the Code the new Michie Code was intended as a recodification and Code, old and its enactment was intended to modernization the Dept. substantive law then existence.” Newsome v. alter the (405 61) (1991). Resources, App. SE2d In Human present 1-1-2 must to the we determine what the applying § per preexisting concerning law the of statutes of limitation for disabilities, Legislature and whether the intended to sons with change in that law when it enacted the Official effect a substantive Brunswick, (418 v. City Tuten SE2d Georgia. Code of 681) (393 (1990). State, Whaley v. 260 Ga. SE2d See (418 45) (2, 262 Ga. SE2d also Danuel 351-352 area. In preexisting first what was the law We address Pue, 209) (1979), App. the Court of Lowe v. 150 Ga. “insane used in Ga. Code Appeals persons” construed the term (the fn. statutory predecessor Ann. of OCGA see 3-801 § § similar,” Lowe at term supra) “substantially to include “ persons, as ‘no distinction be- “mentally incompetent” there exists [cit.],” insane’ . . . mentally incompetent tween one and one is Appeals its hold- Subsequently, Lowe the Court of construed at Sheats, Hosp. in Lowe Auth. v. stating Tri-Cities (1980), proposi- Lowe App. “stands ‘insanity’ . is as used incapacity’ tion that . . ‘mental included within Thus, preexisting Ann. we law Code 3-801.” find that § legal disability. enjoy have been intended to the status in legislature is no 9-3-90 that specific There indication § change preexisting law when reenacted the tended to Appeals with us Georgia. agreement The Court of Code of (1) (357 Burks, 103, 104 App. point. Chapman 832) (1987), of OCGA 9-3-90 that Court construed incompetent because of mental “persons referred per “not that the Court did and stated retardation modernizing despite legal concept ceive that has statutory of the Official language.” We find that the enactment prede preexisting meaning of the change did not Tuten, Ga.; supra, supra, Whaley, cessor of 9-3-90. reasons, intent legislative these it was the
For hold of 9- before the enactment enjoy Carl Hall to the benefit 9-3-90 (b). Moreover, that, in- apparent light 3-73 we hold (b), closely most harmonious tent link and 9-3-73 “legally interpretation the term *5 644
because of mental retardation or mental illness” has the same mean- Accordingly, identical term in 9-3-90. we 9-3- that hold that Hall, apply require 73 was intended to to Carl to suit to be by on his 1989. filed behalf Appellee
2. contends that is unconstitutional because equal protection process guarantees it violates and due 1983 Constitution and the United States Constitution. appellee’s argument Much of to hypothetical directed situa- incompetent person might tions in which an to fail meet the deadline person of the statute of limitation because no took an interest in his person or because who did his act on behalf ability bring However, lacked the to suit before the deadline. de-we since, hypothetical situations, cline to address these argued by as is appellants, pertains none those situations to Carl appel- standing arguments lee thus lacks to her base constitutional on them. Tempo Management v. County, DeKalb (1) (373 See Lambeth appellee’s We no argument find merit insofar as she asserts equal protection that the statute process applied denies complains any, Carl Hall.4 She person, acting behalf “the ability have inclination a malpractice cause medical in- be filed for the However, competent person.” stipulated facts of this case show legal guardian behalf, that Carl Hall had to act on his his and that guardian retained counsel specifically investigate possibility Moreover, bringing malpractice by ap- suit. there is no suggestion pellee any that she and her respect properly counsel were unable evaluate Carl period Hall’s claim and file before circumstances, limitations ran.5 Under these we hold that Carl Hall deprivation has suffered equal protection no process. or due Appellee complains 3. violates the Americans (hereinafter ADA”), With Disabilities Act “the USC et However, seq. appellee’s argument ap- be relevant to this peal court, if she had raised it in the context a claim the trial is, if she relief sought had from the court trial based on the al- leged violation of ADA. As ADA question she raises the for the first time on appeal, presents she nothing for us to consider. appellants’ by We have noted contentions that issue controlled Mansfield Pannell, supra, County-Kennestone Hosp. Auth., Smith v. Cobb (1a) holding have held was limited to the Mansfield’s equal protection issue that we had under consideration that case. explanation appellee’s No has been offered for file failure to suit before the limitations ran. reasons, appellee’s suit was we hold that foregoing For the by court erred and that the trial the statute appellants. summary judgment denying mooted. appellants enumerations are therefore remaining
The concur, Benham, except Judgment All the Justices reversed. Hunstein, JJ., who dissent. Sears-Collins Justice, dissenting. *6 Sears-Collins, in majority prior I the law this area agree with the (the Code), Annotated adoption of the the person suffering have tolled for a the statute of limitation would been case, appellee just in injury, such the from a traumatic brain any incompetent person. (Majority, for legally it have been as would 643). language relies 1-1-2 to hold that'the used p. majority The on § (b) just in and 9-3-73 is as inclusive. present the version 9-3-90 643). I (Majority, p. disagree. That is where many In job legislature
It the the enact statutes. fact in of a stat- fought legislature the the concern what the words battles convey words chosen to Consequently, ute will be. when certain are intent, policy-making words are sanctified with the those ig- plain meaning their cannot be authority legislature, of the impossible or application its would lead to absurd nored unless Moreover, legislature also the to amend a statute the result. it is for convey meaning. the used does not intended language 9-3-90, adopted legislature specifically In three distinct cat- the § minors, tolling apply: persons provisions for whom will egories retardation, persons legally incompetent those due to mental Likewise, incompetent to mental illness. the persons legally those due specifi- exception tolling provision the found in 9-3-73 refers § There is cally only categories same of individuals. those distinct Rather, in language unclear used either statute. the nothing about excludes those persons legally in who are plain language each statute other than mental retardation or incompetent due to reasons illness. however. tolling, not persons are without the benefit
Such law, any ifor le Under a statute of limitation was tolled the common incompetency See R. gally incompetent person until the was removed. v. John History The the Common Law Dicken (1913); Pound, son, in Geor The common law still statutory enact gia, except “changed express it has been where Co., Intl. Indem. Robeson implication.” by necessary ment or (1981); legislature 1-1-10.6 The OCGA § 1-1-10 6 OCGA states follows: adoption parts repealed by following of this laws The are regarding tolling by only common law including has not mentally mentally merely ill retarded it codi has part fied Those in that fundamental rule. competent than mental reasons other illness mental retardation tolling still retain the common law benefit. there no was exception Therefore, common-law actions. imposed pursuant exception plain 9-3-73 should to its only mentally meaning: upon the retarded and ill. Had legislature encompass exception intended to within the contained (b) persons reasons other than mental illness, specifically, retardation or mental it would have done so .7 has other areas appellee no injury had brain when he entered appellants’ appellee’s into the care. The was brain sustained deprived oxygen after his to malfunctioning brain a tube, malpractice. chest allegedly appellants’ due to Far be- from application or impossible, plain absurd the result of the of the exception prohibit this case is precipitated plaintiffs incapacity defendant who benefiting have tolling exception purportedly from a created inca- pacity. reasons, I
For the above appellee, would hold that iswho *7 mentally ill, neither retarded nor is legally incompetent but due injury, to a traumatic brain should preexist- receive benefit of tolling provisions, common law properly the trial court grant summary judgment. declined
I am authorized to state that Justice Benham Justice Hun- join stein this dissent.
Decided December Reconsideration denied December Willingham, Love, & Daryll Love Willingham, Allen appel- for lants, (case S92A1007). no.
Sullivan, Hall, Smith, Green, Jr., Booth & Henry D. appel- for amended, repealed, Code and shall remain of full until effect otherwise superseded, or declared invalid or unconstitutional: reviving enforcing adopting An Act for certain therein mentioned England they (c) May (1).] the common laws of existed on 1776. . .. [Id. 7 See, example, probate appoint guardian OCGA which allows a court to incapacitated illness, retardation, “mental mental disabil ity, age, physical disability, drugs alcohol, advanced illness or chronic use detention foreign power, disappearance, (Emphasis supplied.) or other cause. ..." See also OCGA § (16.1), injury” that “traumatic brain shall not be considered “mental purposes illness” of treatment. S92A1008). (case no. lants Gregory, Hardy Griffin, Christy, Jr., & Gregory Dehler Davis, & appellees. Bentley III, for Dehler, L. James F. Mark