Opinion
42885.
DECIDED FEBRUARY 13, 1986.
Medical malpractice; constitutional question. Fulton Superior Court. Before Judge Fryer.
Daniel C. B. Levy, for appellant.
Doster, Allen King, Hunter S. Allen, Jr., Dennis A. Elisco, Long, Weinberg, Ansley Wheeler, Michael T. Bennett, for appellees.
Manley F. Brown, Alton D. Kitchings, James D. Hudson, Greg Sowell, Gary Christy, amicus curiae.
Appellant's wife filed suit for medical malpractice on February 11, 1982, alleging negligent conduct by the appellees during her hospitalization in February 1981. On January 29, 1985, appellant filed this action for loss of consortium. Appellant concedes that if he is bound by the statute of limitations for loss of consortium in medical malpractice actions, OCGA §§ 9-3-34 and 9-3-71, his suit is untimely as it was not filed within two years of the negligent act. Appellant maintains, however, that OCGA § 9-3-34 violates equal protection of the laws in that plaintiffs bringing loss of consortium actions which arise out of medical malpractice have only two years in which to file their claims, OCGA §§ 9-3-34 and 9-3-71, while plaintiffs whose loss of consortium actions do not arise out of medical malpractice have four years in which to bring their claims. OCGA § 9-3-33.
We have previously addressed this issue in Hamby v. Neurological Assoc., P. C., 243 Ga. 698 ( 256 S.E.2d 378) (1979). Appellant asks that we reconsider Hamby in light of our more recent decisions in Allrid v. Emory University, 249 Ga. 35 ( 285 S.E.2d 521) (1982); Clark v. Singer, 250 Ga. 470 ( 298 S.E.2d 484) (1983); and Shessel v. Stroup, 253 Ga. 56 ( 316 S.E.2d 155) (1984). Assuming without deciding that the level of scrutiny used in Allrid, Clark, and Shessel, supra, is applicable to this case, we find that OCGA § 9-3-34 does not violate equal protection when applied to loss of consortium actions arising out of medical malpractice. We hold this separate classification is "'reasonable, not arbitrary, and ... rest[s] upon [a] ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.'" Allrid, supra at 38.
The trial court did not err in granting appellees' motion for summary judgment.
Judgment affirmed. All the Justices concur, except Smith, J., who dissents.