Mental Incompetence Does Not Apply to Med Mal Statute of Limitations in Georgia October 30, 2010.

Mental incompetence in med mal cases in Georgia does not change the run time of the Statute of Limitations. This may be applicable in other states.

In a 5-2 decision, Georgia’s Supreme Court rejected a constitutional challenge to a statute that exempts med mal cases from the rule that statutes of limitation are tolled for the mentally incompetent. "This particular decision upheld an earlier ruling that a plaintiff’s med mal lawsuit was barred by the two-year limit. The major distinction here is that the case that resulted in this decision was a medical malpractice case and not a general civil action," said Christopher Mellino. Mellino is a Cleveland medical malpractice lawyer of the Mellino Law Firm LLC, in Ohio.

Ken Deen went to see a dentist in 2005, complaining of an infected tooth. He was sent to endodontist Dr. Randolph Stevens. Stevens indicated Deen needed a root canal and put him on antibiotics. Deen collapsed the next month and was diagnosed with brain infection. The infection left him mentally and physically incompetent. His wife, Linda, filed a medical malpractice lawsuit alleging professional negligence in 2008, and Deen died in 2009.

The endodontist’s lawyer asked for the case to be dismissed, as it was filed after the two-year statute of limitations for med mal actions expired, and that a section of the statute being argued by the plaintiff also applied to people who are legally incompetent. "The plaintiff’s attorney argued another section of the statute, which tolled the applicable statute of limitations due to mental disability, and further argued that applying the non-tolling statute was a violation of her constitutional right to equal protection by discriminating against the mentally incompetent," said Mellino, a skilled Cleveland medical malpractice lawyer. Unfortunately, the section of the statute the plaintiff was relying on is only applicable in general civil actions.

The court’s ratio is best summed up by one of the justices, who wrote that Georgia state law typically tolls statutes of limitation for mental incompetence – except for a 1976 statute that expressly excludes med mal actions. It was, according to the court, clear that the legislature enacted the med mal exemption to avert the possibility of the cessation of medical services, to assist in stabilizing insurance and medical care expenses, to put a stop to outdated med mal claims and to, in general, ensure public safety, health and welfare.

The U.S. Supreme Court has also weighed in on this issue by rejecting the notion that any legislation affecting mentally incompetent people differently than others should be reviewed by courts on a "stricter than rational basis." "Typically, the fewer exceptions a statute of limitations has, the further it upholds the original intentions of the legislature," Mellino said.

"For those facing situations similar to this case, it’s best to take your legal matter to a qualified medical malpractice lawyer. Find out what the Statute of Limitations is in your state and don’t wait until it’s too late or justice may never be done. If you have questions, call me at (440) 333-3800. I’d be happy to assess your case," Mellino said.