Gliemmo v. Cousineau

694 S.E.2d 75, 287 Ga. 7, 2010 Fulton County D. Rep. 706, 2010 Ga. LEXIS 218
CourtSupreme Court of Georgia
DecidedMarch 15, 2010
DocketS09A1807
StatusPublished
Cited by25 cases

This text of 694 S.E.2d 75 (Gliemmo v. Cousineau) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gliemmo v. Cousineau, 694 S.E.2d 75, 287 Ga. 7, 2010 Fulton County D. Rep. 706, 2010 Ga. LEXIS 218 (Ga. 2010).

Opinions

CARLEY, Presiding Justice.

Carol and Robert Gliemmo (Appellants) brought a medical malpractice action against emergency room doctor Mark Cousineau, Emergency Medical Specialists of Columbus, PC., and St. Francis Hospital, Inc. (Appellees). After Appellees answered the complaint, Appellants filed a challenge to the constitutionality of OCGA § 51-1-29.5 (c), which provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

The trial court rejected the constitutional challenge, but issued a certificate of immediate review. Appellants applied for interlocutory [8]*8review, and this Court granted the application to consider the constitutionality of the statute. Appellants filed a timely notice of appeal.

1. Appellants contend that OCGA § 51-1-29.5 (c) is a special law that violates the uniformity clause of the Georgia Constitution because it sets forth a gross negligence standard of liability only for certain emergency care providers. The uniformity clause provides:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Ga. Const, of 1983, Art. Ill, Sec. VI, Par. IV (a). Thus, “[t]o violate [this] constitutional provision, the statute in question must either be a general law which lacks uniform operation throughout the state or a special law for which provision has been made by existing general law.” Lasseter v. Ga. Public Service Comm., 253 Ga. 227, 229 (2) (319 SE2d 824) (1984). This Court has found a statute to be a special law where it “deals with a limited activity in a specific industry during a limited time frame.” Lasseter v. Ga. Public Service Comm., supra (special law applied to only one power plant converting from petroleum to coal). See also Celotex Corp. v. St. Joseph Hosp., 259 Ga. 108, 110 (376 SE2d 880) (1989) (special treatment for certain asbestos claims). Conversely, “ ‘[a] law which operates uniformly upon all persons of a designated class is a general law within the meaning of the Constitution, provided that the classification thus made is not arbitrary or unreasonable.’ [Cit.]” Terrell County v. Albany/Dougherty Hosp. Auth., 256 Ga. 627, 630 (6) (352 SE2d 378) (1987). Indeed, a law operating uniformly throughout the State, but from which the General Assembly excepts certain persons or things, is still a general law. McAllister v. American Nat. Red Cross, 240 Ga. 246, 248 (2) (240 SE2d 247) (1977).

In Terrell County v. Albany/Dougherty Hosp. Auth., supra, this Court rejected a claim that the Hospital Care for Pregnant Women Act, OCGA § 31-8-40 et seq., is an unconstitutional special law. That Act “requires certain hospitals to provide emergency care to pregnant women in labor. ...” Terrell County v. Albany/Dougherty Hosp. Auth., supra at 627. Moreover, like OCGA § 51-1-29.5 (c), that Act provides that there is no civil liability thereunder unless a physician, nurse, medical assistant, hospital or its agent or employee “has been grossly negligent in the provision of such services. . . .” OCGA § [9]*931-8-44. In rejecting the claim that the Act is unconstitutional special legislation, this Court found that it “operates statewide and is applicable to all hospitals authorized to operate as provided in the statute.” Terrell County v. Albany/Dougherty Hosp. Auth., supra at 630 (6).

Unlike this case, the gross negligence standard of care was not specifically attacked in Terrell County. However, that provision was enacted as part of the legislation that was expressly found not to be a special law. Ga. L. 1984, pp. 1389, 1393, § 1; Ga. L. 1985, pp. 829, 834, 841, § 3. Likewise, OCGA § 51-1-29.5 (c) is not a special law affecting only a limited activity in a specific industry during a limited time frame. Rather, as with the Hospital Care for Pregnant Women Act, it is a general law because it operates uniformly upon all health care liability claims arising from emergency medical care as provided in the statute, and as fully discussed in Division 3 of this opinion, that “classification of the designated class is neither arbitrary nor unreasonable. [Cit.]” State v. Martin, 266 Ga. 244, 246 (4) (466 SE2d 216) (1996). See also Lasseter v. Ga. Public Service Comm., supra (“requirement of reasonable classification comes from the equal protection guarantee”).

The dissent misses the fundamental point that Terrell County expressly held that an attack on the Hospital Care for Pregnant Women Act as special legislation must fail because that Act, like the statute in this case, operates uniformly throughout the State and does not make an arbitrary or unreasonable classification. Instead, the dissent focuses on standing, a wholly unrelated issue that was not even addressed in Terrell County. Moreover, the dissent mistakenly relies on Celotex Corp. v. St. Joseph Hosp., supra, to find that OCGA § 51-1-29.5 (c) is a special law. Celotex is something of an anomaly since it has never been relied upon by another court to find a statute to be a special law, and its analysis has instead been rejected by other courts in similar cases. Independent School Dist. No. 197 v. W.R. Grace & Co., 752 FSupp. 286, 293 (I) (B) (1) (D. Minn. 1990) (noting that defendant could cite only one case, Celotex, to support argument that asbestos revival statute was unconstitutional special legislation); Wyatt v. A-Best Products Co., 924 SW2d 98, 107 (V) (Tenn. App. 1995) (noting that Celotex is the only case in conflict with conclusion that an asbestos-claims exception statute is not unconstitutional). Moreover, Celotex is distinguishable from this case. The statute in that case became effective in April 1988 and applied to revive only actions against manufacturers or suppliers of asbestos “ ‘which might otherwise be barred prior to July 1,1990, as a result of expiration of the applicable period of limitation. . . .’” Celotex Corp. v. St. Joseph Hosp., supra at 109. The statute further required any such action to “be commenced no later than July 1, [10]*101990.” Celotex Corp. v. St. Joseph Hosp., supra.

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Bluebook (online)
694 S.E.2d 75, 287 Ga. 7, 2010 Fulton County D. Rep. 706, 2010 Ga. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gliemmo-v-cousineau-ga-2010.