Verdicts

Disparate Treatment for Med-Mal Plaintiffs Not
Unconstitutional

Georgia's Supreme Court has held that the 1987 legislation that imposes stricter rules on infants and incapacitated claimants bringing medical malpractice suits, as opposed to other types of tort claims, is not unconstitutional. Deen v. Stevens, — S.E.2d —-, 2010 WL 2880158 (Ga., 7/23/10).

The case was brought by the family of Kenneth Deen, who died of a brain infection that began in his tooth. The deceased had lived for several years following the onset of his illness, first in a hospital and then in a nursing home. Before he died, conservators appointed to handle his affairs brought suit against several defendants. They did not, however, make claims against two defendants until after the two-year statute of limitations for bringing medical malpractice claims had run. Plaintiffs were unsuccessful in their bid to prevent dismissal of these actions in the courts below.

In most tort actions in Georgia, the statute of limitations is tolled while a claimant is an infant or remains incapacitated. However, OCGA ' 9-3-73 (b) takes that grace period away when the injury complained of allegedly results from medical malpractice. The plaintiffs claimed this distinction was unconstitutional because it treated similarly situated plaintiffs in different ways. The Supreme Court of Georgia disagreed, finding that the law's provisions bore a rational relationship to the government's legitimate interest in reducing the number of medical malpractice suits so that the cost of obtaining malpractice insurance remains reasonable and so that Georgia's citizens are able to obtain quality health care. In coming to this conclusion, the court relied heavily on a February decision from the U.S. Court of Appeals for the Eleventh Circuit (Deen v. Egleston, 597 F.3d 1223 (11th Cir. 2010)) that also upheld the Georgia law's constitutionality.

The court's Chief Justice, Carol W. Hunstein, joined by Justice Robert Benham, dissented, asserting that even if Georgia had a legitimate interest to protect, the method it chose was not rationally related to its promotion. Justice Hunstein wrote, “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' approval of legislation that favors the politically powerful at the expense of our mentally disabled citizens and our injured children.” Huntstein also blasted the law's inhumane treatment of the families of injured persons who, although devastated by the injuries their loved ones have suffered, must “focus on matters such as law suits and attorneys, deadlines and depositions, guardians and expert witnesses, rather than on caring for their loved one, optimizing his or her recovery, addressing their own emotional turmoil and handling all of the other demands placed on them by the tragically-changed needs of their loved one.”

The plaintiffs also have wrongful death suits pending against the two defendants, and these may still go forward despite the ruling in Deen v. Stevens.

Claim Deemed Timely Where Medical Records
Inexplicably Withheld

Because the defendant inexplicably delayed responding to the plaintiff's request for medical records, the statute of limitations in this action, brought in accordance with the Federal Tort Claims Act, was equitably tolled, and the claim must be treated as timely filed. Rapp v. U.S., Slip Copy, 2010 WL 2834899 (S.D.N.Y., 7/2/10).

The plaintiff is a child who asserts that a doctor at a federally funded health care facility failed to diagnose her cancer. She made a claim under the Federal Tort Claims Act, which imposes a two-year statute of limitations (see 28 U.S.C. ' 2401(b)). The plaintiff and the defendants agreed that her cause of action arose no later than Aug. 31, 2006, when her cancerous eye was removed. However, she did not file her claim until Nov. 10, 2009, more than two years after that date, leading the defendant to move here for dismissal. That motion was denied because the federal medical facility's own misconduct contributed to the delay in filing. Plaintiff's counsel first requested a copy of her medical records more than two months before the end of the limitations period, yet those records were not provided until seven months later, in contravention of a federal law requiring the medical facility to act on a records request no more than 30 days after receipt. See 45 C.F.R. ' 164.524(b)(2)(i). The records were turned over to plaintiff's counsel only after the lawyer repeatedly telephoned and wrote letters to the medical facility. The court determined that review of the medical records was an “important antecedent to the filing of the claim” and that, had the facility complied with the records request in a timely manner, the claim could have been brought within the limitations period. The court therefore concluded that “based on the circumstances of this case ' equitable tolling of the statute of limitations is warranted.” Plaintiff's action was therefore deemed to have been timely filed.

Disparate Treatment for Med-Mal Plaintiffs Not
Unconstitutional

Georgia's Supreme Court has held that the 1987 legislation that imposes stricter rules on infants and incapacitated claimants bringing medical malpractice suits, as opposed to other types of tort claims, is not unconstitutional. Deen v. Stevens, — S.E.2d —-, 2010 WL 2880158 (Ga., 7/23/10).

The case was brought by the family of Kenneth Deen, who died of a brain infection that began in his tooth. The deceased had lived for several years following the onset of his illness, first in a hospital and then in a nursing home. Before he died, conservators appointed to handle his affairs brought suit against several defendants. They did not, however, make claims against two defendants until after the two-year statute of limitations for bringing medical malpractice claims had run. Plaintiffs were unsuccessful in their bid to prevent dismissal of these actions in the courts below.

In most tort actions in Georgia, the statute of limitations is tolled while a claimant is an infant or remains incapacitated. However, OCGA ' 9-3-73 (b) takes that grace period away when the injury complained of allegedly results from medical malpractice. The plaintiffs claimed this distinction was unconstitutional because it treated similarly situated plaintiffs in different ways. The Supreme Court of Georgia disagreed, finding that the law's provisions bore a rational relationship to the government's legitimate interest in reducing the number of medical malpractice suits so that the cost of obtaining malpractice insurance remains reasonable and so that Georgia's citizens are able to obtain quality health care. In coming to this conclusion, the court relied heavily on a February decision from the U.S. Court of Appeals for the Eleventh Circuit ( Deen v. Egleston , 597 F.3d 1223 (11th Cir. 2010)) that also upheld the Georgia law's constitutionality.

The court's Chief Justice, Carol W. Hunstein, joined by Justice Robert Benham, dissented, asserting that even if Georgia had a legitimate interest to protect, the method it chose was not rationally related to its promotion. Justice Hunstein wrote, “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' approval of legislation that favors the politically powerful at the expense of our mentally disabled citizens and our injured children.” Huntstein also blasted the law's inhumane treatment of the families of injured persons who, although devastated by the injuries their loved ones have suffered, must “focus on matters such as law suits and attorneys, deadlines and depositions, guardians and expert witnesses, rather than on caring for their loved one, optimizing his or her recovery, addressing their own emotional turmoil and handling all of the other demands placed on them by the tragically-changed needs of their loved one.”

The plaintiffs also have wrongful death suits pending against the two defendants, and these may still go forward despite the ruling in Deen v. Stevens.

Claim Deemed Timely Where Medical Records
Inexplicably Withheld

Because the defendant inexplicably delayed responding to the plaintiff's request for medical records, the statute of limitations in this action, brought in accordance with the Federal Tort Claims Act, was equitably tolled, and the claim must be treated as timely filed. Rapp v. U.S., Slip Copy, 2010 WL 2834899 (S.D.N.Y., 7/2/10).

The plaintiff is a child who asserts that a doctor at a federally funded health care facility failed to diagnose her cancer. She made a claim under the Federal Tort Claims Act, which imposes a two-year statute of limitations (see 28 U.S.C. ' 2401(b)). The plaintiff and the defendants agreed that her cause of action arose no later than Aug. 31, 2006, when her cancerous eye was removed. However, she did not file her claim until Nov. 10, 2009, more than two years after that date, leading the defendant to move here for dismissal. That motion was denied because the federal medical facility's own misconduct contributed to the delay in filing. Plaintiff's counsel first requested a copy of her medical records more than two months before the end of the limitations period, yet those records were not provided until seven months later, in contravention of a federal law requiring the medical facility to act on a records request no more than 30 days after receipt. See 45 C.F.R. ' 164.524(b)(2)(i). The records were turned over to plaintiff's counsel only after the lawyer repeatedly telephoned and wrote letters to the medical facility. The court determined that review of the medical records was an “important antecedent to the filing of the claim” and that, had the facility complied with the records request in a timely manner, the claim could have been brought within the limitations period. The court therefore concluded that “based on the circumstances of this case ' equitable tolling of the statute of limitations is warranted.” Plaintiff's action was therefore deemed to have been timely filed.