Georgia court sides with doctor in med-mal case

John O'Brien Nov. 28, 2007, 3:23pm

Georgia's justices

ATLANTA - Georgia's Supreme Court rejected a challenge to a state malpractice law Wednesday that argued it treated medical malpractice cases differently than other professional malpractice claims.

Plaintiff Kay Nichols claimed the law bars only medical malpractice claims that occur more than five years after the negligent act, not other types of malpractice claims, violating the equal protection clauses of the U.S. and state constitutions.

Justice Harris Hines authored the unanimous opinion rejecting that argument.

"While Nichols urges that the abrogation of medical malpractice causes of action by the operation of the statute of repose can produce harsh results, OCGA § 9-3-71 (b) is nonetheless within the General Assembly's legislative power to enact," he wrote.

In 1998, Ronald David Nichols had a spot on his left cheek removed under the treatment of Dr. Alexander Stephen Gross. No biopsy was performed on it.

Three years later, the spot returned. Another physician diagnosed Nichols with malignant melanoma, which ultimately caused his death on May 7, 2003.

On May 4, 2005, Kay Nichols filed a medical malpractice suit against Gross. However, the negligent act was found to have occurred in 1998, and the five-year statute of repose had expired. The suit was dismissed.

Nichols' argument is one that had not been decided previously by the Court, which held that the statute passed the "rational basis" test.

"Craven (v. Lowndes County Hosp. Auth.) dealt with the argument that an arbitrary classification was created based on the five-year period of repose," Hines wrote.

"That opinion rejected the contention that 'the legislature may not impose a time-triggered abrogation of a cause of action to some groups of claimants but not for others,' found that the passage of time provided a rational basis for enacting the five-year period, and concluded that (w)e cannot say that the legislature acted irrationally when it amended the statute in question, (creating the five-year statute of repose)."

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