The tort reform legislation in Georgia continues to erode in the face of constitutional challenges. The latest chip in the armor is a ruling from Judge Anthony Alaimo, a legendary federal district judge in Brunswick. featured in The Sicilian Judge: Anthony Alaimo, an American Hero. The son of Sicilian immigrants, he was a bomber pilot who was shot down in the North Sea during WWII, was one of the POWs who inspired The Great Escape, and eventually made his way to Switzerland and Italy.  Speaking fluent Italian, he blended into the population, and at one point attended an opera where he sat next to a Gestapo officer.

With that background, you might guess that he has been a bold federal judge in south Georgia.  Now a Senior Judge well along in years, he remains as active and outspoken as ever.

Last month, Judge Alaimo entered an order holding unconstitutional the Georgia medical malpractice statute of repose, as applied to mentally handicapped plaintiffs.  The case involved alleged dental malpractice that led to a brain infection and severe mental disability. Deen v. Egleston, 2009 WL 368647 (S.D.Ga., 2009).  Here are the nuggets in the case:

•    Under Georgia law, the applicable medical malpractice statute of limitations is two years after the date on which the injury occurred. Ga.Code Ann. § 9-3-71(a).

•    Under Georgia’s general statute of limitations rules, “[m]inors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” Ga.Code Ann. § 9-3-90(a).

•    O.C.G.A. §  9-3-91 provides: “If any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.”

•    Georgia has three savings statutes prevent the statute of limitations from running against a person who is incapacitated because of their mental disability. See Lowe v. Pue, 150 Ga.App. 234, 234-35, 257 S.E.2d 209 (1979). Egleston notes that the state legislature has decreed that these general tolling provisions do not apply in cases of medical malpractice. Ga.Code Ann. §§ 9-3-71(a) & 9-3-73(b). An action arising out of the provision of dental services or diagnosis is a medical malpractice action. Ga.Code Ann. § 9-3-70.

•    O.C.G.A. §  9-3-73(b) provides, in pertinent part, that: “Notwithstanding [sections 9-3-90 & 9-3-91], all persons who are legally incompetent because of mental retardation or mental illness and all minors who have attained the age of five years shall be subject to the periods of limitation for actions for medical malpractice provided in this article [sections 9-3-70 through 9-3-74].”

 •    Georgia Code section 9-3-73(b) is unconstitutional, in that it treats mentally incompetent individuals differently when they have medical malpractice claims, as opposed to other causes of action.       

•    The legislature may not, consistent with equal protection principles, deny only this class of medical malpractice plaintiffs the projection afforded all other persons by the saving statute…. In doing so, [the statute] does not substantially further the legislative object of containing the costs of the medical injury reparations system because the number of malpractice claims brought by or on behalf of minors or mental incompetents is comparatively small…. At the same time, the statute operates to extinguish a cause of action of which the plaintiff, due to his disability, nay not have learned until after the limitations period has expired.

•    The purpose of tolling provisions for legal disability … is to protect the rights of those who are not competent to do so themselves. These provisions recognize that the enforcement of an incompetent person’s rights should not be `left to the whim or mercy of some self-constituted next friend.’ "

•    Courts should undertake a robust, searching form of rational basis review where the challenged law discriminates against the mentally incapacitated.

•    To withstand rational basis review, legislation that discriminates against the mentally incapacitated must be rationally related to a legitimate government purpose.

•    Ensuring access to affordable healthcare is a legitimate legislative objective, but that aim is not reasonably furthered by discriminating against incapacitated adults’ medical malpractice claims.

•    “A statute may be constitutionally valid when enacted but may become constitutionally invalid because of changes in the conditions to which the statute applies. A past crisis does not forever render a law valid.”

•    Experience and experimentation in the states has shown that medical malpractice lawsuits are not a major driver of skyrocketing healthcare costs. The Court doubts whether medical malpractice lawsuits were ever a real part of the healthcare problem, with respect to rising costs, in this country. The impetus behind the special legislation for medical malpractice cases appears to have been based on either misunderstanding of the problem of healthcare expenses, or an outright boondoggle. Although medical malpractice suits have been stifled, healthcare costs continue to soar. If malpractice lawsuits were a problem in limiting affordable, quality healthcare at one time, the facts no longer support the idea that lawsuits remain part of the problem. Study after study shows malpractice costs as averaging around one percent of healthcare costs, but expenses continue to rise at an alarming rate.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Currently he is Secretary of the 40,000 member State Bar of Georgia.