CourtListener 10680301

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NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
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official text of the opinion.

In the Supreme Court of Georgia

Decided: July 2, 2024

S24G0008. GOLDEN v. FLOYD HEALTHCARE MANAGEMENT,
INC. d/b/a FLOYD MEDICAL CENTER.

MCMILLIAN, Justice.

On October 21, 2021, Jami Lynn Golden filed a renewal action

against Floyd Healthcare Management, Inc. d/b/a Floyd Medical

Center (“Floyd Medical”) in Floyd County Superior Court, asserting

claims of medical malpractice and hospital negligence, among other

claims. Floyd Medical moved to dismiss, arguing in part that OCGA

§ 9-3-71 (b), a five-year medical malpractice statute of repose,

expired in July 2021 and thus time-barred Golden’s suit. The trial

court denied that motion, concluding that the claims were not time-

barred by OCGA § 9-3-71 (b) because the repose statute was tolled

by former Chief Justice Harold D. Melton’s “Order Declaring

Statewide Judicial Emergency” dated March 14, 2020 (“March 14

Order”). The Court of Appeals reversed, holding that OCGA § 9-3-71
(b) was not tolled by the March 14 Order but, instead, that OCGA §

9-3-71 (b) expired before Golden filed her renewal complaint. See

Golden v. Floyd Healthcare Mgmt., Inc., 368 Ga. App. 409, 417-25

(3) (890 SE2d 288) (2023). For the reasons below, we conclude that

Golden’s claims were not time-barred because the March 14 Order

tolled OCGA § 9-3-71 (b), and that under these circumstances there

is no impediment in the federal or Georgia Constitutions for the

statute of repose to be tolled, so we reverse.

1. An appellate court “review[s] de novo a trial court’s ruling on

a motion to dismiss, accepting as true all well-pled material

allegations in the complaint and resolving any doubts in favor of the

plaintiff.” Maynard v. Snapchat, Inc., 313 Ga. 533, 535 (2) (870 SE2d

739) (2022) (citation and punctuation omitted). Viewed in this light,

the record shows that:

2
Golden alleged that she satisfied two general internal
criteria of “systemic inflammatory response syndrome”
(or, SIRS) to be monitored for sepsis — an elevated heart
rate and bands in excess of 10 percent.
A nurse practitioner [Charles William Stein] initially
suggested that Golden was suffering from an ovarian cyst
or endometriosis and administered saline fluid and
medications to control her pain. At approximately 2:00
a.m. on July 2, “a computer generated Sepsis Alert
concerning . . . Golden activated based on an algorithm
that interpreted her vital signs and lab results as being at
risk for sepsis[.]” Golden alleged that [Sharon] Gaylor, the
charge nurse on duty at the time of the sepsis alert, failed
to forward the alert to the attending physician on duty [Dr.
Garrett H. Barnes] and the primary nurse assigned to
Golden, in violation of Floyd Medical’s written sepsis alert
policy. Golden was prescribed additional pain medication
and discharged approximately one hour after the sepsis
alert, with instructions to follow up in two to three days.
Golden’s symptoms persisted and her condition
worsened throughout the day, including the onset of
additional symptoms of a sore throat, headache, dizziness,
and shortness of breath. At approximately 4:00 p.m. on
July 2, an ambulance transported Golden, by then in
septic shock, to Redmond Regional Emergency Care
Center for treatment. Medical staff initiated Redmond
Regional’s sepsis protocol, administered extensive
treatment of Golden, and admitted Golden to the Redmond
Regional Medical Center Intensive Care Unit. Golden
remained in Redmond Regional’s ICU for 11 days before
transferring to University of Alabama-Birmingham
Medical Center for further treatment. As a result of the
septic shock, Golden suffered necrosis that required the
amputation of parts of her fingers and toes.

3
Golden, 368 Ga. App. at 410-12 (footnote omitted).

In June 2018, Golden filed suit in federal court against Floyd

Medical, the attending physician (Dr. Barnes), the nurse

practitioner (Stein), and a physician’s assistant (Danny Day

Rogers), among others. Her complaint asserted several claims,

including claims for medical malpractice and hospital negligence.

During the pendency of her case, the COVID-19 pandemic

began. In response to the pandemic, former Chief Justice Melton

issued the March 14 Order, citing as the basis of his authority,

OCGA § 38-3-62. As pertinent here, the March 14 Order provided:

Pursuant to OCGA § 38-3-62, during the period of this
Order, the undersigned hereby suspends, tolls, extends,
and otherwise grants relief from any deadlines or other
time schedules or filing requirements imposed by
otherwise applicable statutes, rules, regulations, or court
orders, whether in civil or criminal cases or
administrative matters, including, but not limited to any:
(1) statute of limitation . . . and (11) such other legal
proceedings as determined to be necessary by the
authorized judicial official. 1

1 Order Declaring Statewide Judicial Emergency (Mar. 14, 2020),
https://www.gasupreme.us/wp-content/uploads/2020/03/CJ-Melton-amended-
Statewide-Jud-Emergency-order.pdf. The March 14 Order did not explicitly set
out that statutes of repose were tolled pursuant to the order. See id.
4
This Court subsequently issued several documents clarifying the

effect of the March 14 Order. On March 27, 2020, this Court issued

a document called “Guidance on Tolling Filing Deadlines Under the

Chief Justice’s Order Declaring Statewide Judicial Emergency”

(“March 27 Guidance”) applicable to “all proceedings and filing

deadlines,” clarifying that the March 14 Order tolled all “non-

constitutional filing deadlines” if the “filing deadline date was after

March 14, 2020[.]”2 On April 6, 2020, this Court issued another

guiding document clarifying that “[i]f the period of limitation for a

particular cause of action commenced prior to March 14, 2020 . . .

the running of the period of limitation was suspended on March 14”

and would “resume when the tolling provision of the March 14

declaration . . . expired or [was] otherwise terminated.”3 Finally, on

July 10, 2020, then-Chief Justice Melton issued an order that

2 Guidance on Tolling Filing Deadlines Under the Chief Justice’s Order

Declaring Statewide Judicial Emergency (Mar. 27, 2020),
https://www.gasupreme.us/wp-content/uploads/2020/05/Guidance-for-tolling-
filing-deadlines-final-3.30.20-002.pdf.
3 Guidance on Tolling Statutes of Limitation Under the Chief Justice’s

Order Declaring Statewide Judicial Emergency (Apr. 6, 2020),
https://www.gasupreme.us/wp-content/uploads/2020/04/Guidance-for-Tolling-
Statutes-of-Limitation-04_06_20.pdf.
5
reinstated, starting from July 14, 2020, all deadlines suspended,

tolled, or extended by the March 14 Order, subject to exceptions not

relevant here.4

In June 2021, the federal district court granted a motion by the

defendants to strike Golden’s expert Rule 26 disclosures, and she

then filed a motion to voluntarily dismiss her complaint without

prejudice, which the district court granted.

On October 21, 2021, Golden filed a renewal action in Floyd

County Superior Court against Floyd Medical, asserting claims of

medical malpractice and hospital negligence in Count I of her

renewal complaint. 5 Floyd Medical moved to dismiss, arguing in part

that OCGA § 9-3-71 (b), the five-year medical malpractice statute of

4 Fourth Order Extending Declaration of Statewide Judicial Emergency

(Jul. 10, 2020), https://www.gasupreme.us/wp-content/uploads/2020/07/4th-
SJEO-FINAL.pdf. We refer to the March 14 Order, the guiding documents
issued on March 27 and April 6, and the July 10 reinstatement order, as,
collectively, “the COVID emergency orders.”
5 Count II of Golden’s renewal complaint asserted a claim of “ordinary

negligence.” The trial court dismissed Count II on the grounds that the
ordinary negligence claim did not relate back to the filing of the initial
complaint and was barred by the applicable two-year statute of limitations,
and the Court of Appeals affirmed the dismissal. See Golden, 368 Ga. App. at
415-16 (1) (b). We did not grant Golden’s petition for certiorari on this issue.
6
repose, expired on July 1-2, 2021, five years from Golden’s allegedly

negligent treatment, and so her October 21, 2021 renewal complaint

was time-barred. The trial court denied Floyd Medical’s motion to

dismiss with respect to Golden’s Count I medical malpractice and

hospital negligence claims, determining that Chief Justice Melton’s

March 14 Order tolled OCGA § 9-3-71 (b) for 122 days such that the

repose period for those claims expired on October 31, 2021.

The Court of Appeals reversed, holding that Golden’s claims

were barred by the five-year medical malpractice statute of repose

in OCGA § 9-3-71 (b). See Golden, 368 Ga. App. at 417-25 (3). The

Court of Appeals reasoned that the March 14 Order did not toll

OCGA § 9-3-71 (b), because Georgia courts, even in cases decided

after the enactment of the Judicial Emergency Act in 2004, have

held that statutes of repose are “absolute” and “cannot be tolled,” see

e.g., Simmons v. Sonyika, 279 Ga. 378, 379-80 (614 SE2d 27) (2005)

(citation and punctuation omitted), and because the March 14 Order

and subsequent guiding documents did not specifically state that the

March 14 Order tolled statutes of repose. See Golden, 368 Ga. App.

7
at 422-25 (3).

This Court, in turn, granted review to consider three questions:

(1) Does OCGA § 38-3-62 (a) empower “[a]n authorized
judicial official” to “suspend, toll, extend, or
otherwise grant relief from” the application of a
statute of repose?

(2) Did Chief Justice Melton’s “Order Declaring
Statewide Judicial Emergency” dated March 14,
2020, and subsequent orders suspend, toll, extend,
or otherwise grant relief from the application of a
statute of repose?

(3) Assuming that the answers to questions (1) and (2)
are “yes,” can OCGA § 38-3-62 (a) and Chief Justice
Melton’s COVID emergency orders be applied to toll
the statute of repose in OCGA § 9-3-71 (b) consistent
with the federal and Georgia Constitutions? See
Southern States Chemical, Inc. v. Tampa Tank &
Welding, Inc., 316 Ga. 701 (888 SE2d 553) (2023).

3. Turning now to the first question, we answer it in the

affirmative: OCGA § 38-3-62 (a) empowers an “authorized judicial

official”—here, Chief Justice Melton6—to “suspend, toll, extend, or

otherwise grant relief from” the application of a statute of repose.

6 OCGA § 38-3-60 (1) (A) explicitly defines the term “[a]uthorized judicial

official,” as used in OCGA § 38-3-62 (a), as including “[t]he Chief Justice of the
Georgia Supreme Court[.]”
8
OCGA § 38-3-62—which the Georgia General Assembly

enacted in 2004 as part of the “Judicial Emergency Act of 2004”

(OCGA §§ 38-3-60 et seq.), see Ga. L. 2004, pp. 420-21, §§ 1-3—

provides in subsection (a) that:

An authorized judicial official in an order declaring
a judicial emergency, or in an order modifying or
extending a judicial emergency order, is authorized to
suspend, toll, extend, or otherwise grant relief from
deadlines or other time schedules or filing requirements
imposed by otherwise applicable statutes, rules,
regulations, or court orders, whether in civil or criminal
cases or administrative matters, including, but not
limited to . . . (1) A statute of limitation . . . and (11) Such
other legal proceedings as determined to be necessary by
the authorized judicial official.

OCGA § 38-3-62 (a).7

The question before us—whether OCGA § 38-3-62 (a)

empowers an authorized judicial official to toll, suspend, extend, or

otherwise grant relief from a statute of repose—turns on whether a

repose statute falls within the meaning of “deadlines or other time

schedules or filing requirements imposed by otherwise applicable

7 OCGA § 38-3-62 (a) does not explicitly set out that statutes of repose

may be tolled by a judicial emergency order.
9
statutes . . . including, but not limited to” the list of items that OCGA

§§ 38-3-62 (a) (1)-(11) enumerates. See OCGA § 38-3-62 (a).

When we consider the meaning of a statute, we “presume that

the General Assembly meant what it said and said what it meant.”

Bell v. Hargrove, 313 Ga. 30, 32 (2) (867 SE2d 101) (2021) (citation

and punctuation omitted). Thus, “we must afford the statutory text

its plain and ordinary meaning, . . . view the statutory text in the

context in which it appears, and . . . read the statutory text in its

most natural and reasonable way, as an ordinary speaker of the

English language would. . . . [I]f the statutory text is clear and

unambiguous, we attribute to the statute its plain meaning, and our

search for statutory meaning is at an end.” Mayor v. Harris, 302 Ga.

853, 854-55 (809 SE2d 806) (2018) (citation and punctuation

omitted).

Here, it is clear and unambiguous that statutes of repose fall

within the meaning of “deadlines” under OCGA § 38-3-62 (a). To

start, a statute of repose is within the plain and ordinary meaning

of a “deadline” imposed by a statute. A “deadline” ordinarily refers

10
to a “time limit” such as one for the “completion of an assignment,”

see The American Heritage Dictionary of the English Language 466

(4th ed. 2000), and a statute of repose provides just that—a time

limit by which a litigant can file a non-barred suit, see Black’s Law

Dictionary 1423 (7th ed. 1999) (defining a “statute of repose” as “a

statute that bars a suit a fixed number of years after the defendant

acts in some way . . . even if this period ends before the plaintiff has

suffered any injury” (emphasis added)). Also, our case law has

repeatedly referred to a statute of repose as a “deadline.” See e.g.,

Rosenberg v. Falling Water, Inc., 289 Ga. 57, 60 (709 SE2d 227)

(2011) (“[T]he defendant would not be allowed to cause the plaintiff

to miss the deadline imposed by the statute of repose and then use

that same statute to defeat the plaintiff’s otherwise viable action.”

(emphasis added)); Robinson v. Boyd, 288 Ga. 53, 57 (2) (701 SE2d

165) (2010) (“Where the General Assembly wishes to put a firm

deadline on filing lawsuits, it knows how to enact a statute of repose

instead of a statute of limitation.” (emphasis added)).

Floyd Medical argues that OCGA § 38-3-62 (a) does not

11
authorize the tolling of statutes of repose because OCGA § 38-3-62

(a) does not specifically mention such statutes. But Floyd Medical

offers no case, and we know of none, holding that a law must

mention a statute of repose to toll it or to authorize its tolling. As

explained above, OCGA § 38-3-62 (a) provides that “deadlines” can

be tolled, and a statute of repose is plainly a “deadline.” And, while

OCGA § 38-3-62 (a) does not specifically mention a repose statute as

a deadline that can be tolled, OCGA § 38-3-62 (a) makes clear that

the list of “deadlines” it authorizes to be tolled is non-exhaustive, by

introducing that list with the language “including, but not limited

to” (emphasis added). See Raffensperger v. Jackson, 316 Ga. 383, 386

(1) n.6 (888 SE2d 483) (2023) (“By specifying that the named services

‘shall include, but not be limited to,’ the list is not exhaustive.”);

Rockdale County. v. U.S. Enterprises, Inc., 312 Ga. 752, 765 (3) (865

SE2d 135) (2021) (pointing to the phrase “including but not limited

to” in a statute as “a means of introducing non-exhaustive examples”

(punctuation omitted)). Thus, Floyd Medical’s argument fails.

At times, Floyd Medical also appears to argue that a statute of

12
repose cannot be tolled under any circumstances, relying on

Simmons, 279 Ga. at 380, where we stated that “by definition, a

statute of ultimate repose cannot be ‘tolled’” (quoting Osburn v.

Goldman, 269 Ga. App. 303, 303 (1) (a) (603 SE2d 695) (2004)). See

also Simmons, 279 Ga. at 380 (“statutes of repose may not be ‘tolled’

for any reason” (citation and punctuation omitted)). But as Floyd

Medical concedes, the legislature has tolled such statutes in the

past. See e.g., OCGA § 9-3-73 (c) (2) (A) (tolling the repose period set

forth in OCGA § 9-3-71 (b) for children under the age of five until

their tenth birthday).

In any event, Simmons does not assist Floyd Medical’s

argument. In Simmons, the issue was whether OCGA § 9-3-92,

which provides that the “time between the death of a person and the

commencement of representation upon his estate . . . shall not be

counted against his estate in calculating any limitation applicable

to the bringing of an action,” tolled a later-enacted statute of repose,

OCGA § 9-3-71 (b). In concluding that it did not, Simmons reasoned

that, as a matter of statutory construction, OCGA § 9-3-92 referred

13
to statutes of limitation and could not have contemplated a statute

of repose that was enacted over 100 years later. See Simmons, 279

Ga. at 379 (“Because we presume that the legislature enacts all

statutes with knowledge of the existing laws, the provisions of the

more recently adopted medical malpractice statute of repose carry

greater weight than those of the preexisting unrepresented estate

statute.”). For additional support, Simmons then stated, quoting

only part of a sentence from a Court of Appeals case, that “[b]y

definition, a statute of ultimate repose cannot be ‘tolled[.]’” Id. at 380

(quoting Osburn, 269 Ga. App. at 303 (1) (a), but omitting a caveat

that Osburn contained: “‘[B]y definition, a statute of ultimate repose

cannot be “tolled” to permit actions to be brought for injuries which

did not occur until after the statutory period had expired.’” (emphasis

added)).

Here, by contrast, OCGA § 38-3-62 (a) was enacted after the

five-year medical malpractice statute of repose and in contemplation

that filing deadlines may need to be tolled or suspended because of

a judicial emergency. Applying Simmons’s reasoning, we determine

14
that by referring to filing “deadlines,” the later-enacted tolling

provision (OCGA § 38-3-62 (a)) contemplates and authorizes the

tolling of statutes of repose.

Moreover, we decline to read Simmons as holding that the

legislature can never toll or authorize the tolling of a statute of

repose given that the unrepresented estate statute in Simmons did

not contemplate the tolling of a later-enacted repose statute, that

Simmons omitted a caveat from Osburn when quoting it, and that

the legislature has provided for circumstances when a repose statute

may be tolled. See Simmons, 279 Ga. at 379-80; OCGA § 9-3-73 (c)

(2) (A). And to the extent that Simmons—or any other case from a

Georgia court8—can be read to establish an absolute rule that a

statute of repose can never be tolled under any circumstances, we

disapprove of such a holding.

For these reasons, we answer our first question on certiorari in

8 See e.g., Rosenberg v. Falling Water, Inc., 302 Ga. App. 78, 80 (1) (a)

(690 SE2d 183) (2009) (“statutes of repose may not be ‘tolled’ for any reason”
(citation and punctuation omitted)); Balotin v. Simpson, 286 Ga. App. 772, 773
(650 SE2d 253) (2007) (“the statute of repose, unlike a statute of limitation,
may not be tolled for any reason”).
15
the affirmative: OCGA § 38-3-62 (a) empowers “[a]n authorized

judicial official” to “suspend, toll, extend, or otherwise grant relief

from” the application of a statute of repose.

4. Turning to the second certiorari question, we also answer it

in the affirmative. The COVID emergency orders suspended, tolled,

extended, and otherwise granted relief from the application of a

statute of repose. Mirroring the language of OCGA § 38-3-62 (a), the

March 14 Order stated that “the undersigned hereby suspends, tolls,

extends, and otherwise grants relief from any deadlines . . . imposed

by otherwise applicable statutes . . . including, but not limited to

any: (1) statute of limitation . . . and (11) such other legal

proceedings as determined to be necessary by the authorized judicial

official.” (emphasis added). The March 27 Guidance explicitly

clarified that the March 14 Order applied to “all proceedings and

filing deadlines.” As explained above, a statute of repose is plainly a

“deadline” by which a litigant can file a non-barred suit. And, just

like above, the list of “deadlines” contemplated by the March 14

Order is non-exhaustive, given that the order uses the language

16
“including, but not limited to[.]” Thus, a statute of repose falls within

the meaning of “deadlines” or “filing deadlines” tolled, suspended,

extended, or otherwise granted relief from by the March 14 Order.

5. Turning to the last question, we consider whether OCGA §

38-3-62 (a) and the COVID emergency orders can be applied to toll

OCGA § 9-3-71 (b), consistent with the federal and Georgia

Constitutions, in light of Tampa Tank, 316 Ga. 701.

In Tampa Tank, a manufacturer sued a contractor for breach

of an express warranty after discovering problems with a tank that

had been installed on its premises. See id. at 701, 703. At the time

that the lawsuit was filed, which was ten years after installation of

the tank, the applicable eight-year statute of repose under OCGA §

9-3-51 (a) had run. See id. at 713, 715-16 (2). Subsequently, the

General Assembly amended that statute of repose so as to exclude

the repose period from applying to actions for breach of express

contractual warranties. See id. at 705; Ga. L. 2020, p. 37, § 1; OCGA

§ 9-3-51 (c). When the manufacturer tried to rely on the amendment

to bring its breach-of-express-warranty claim, we held that the pre-

17
amendment eight-year repose period still applied to bar the claim,

reasoning that the contractor had, under the Due Process Clause of

the federal and Georgia Constitutions, 9 a “vested right to be free

from liability for [the manufacturer’s] contract claims as set out in

the pre-2020 version of [statute of repose].” See id. at 706 (1), 712 (1)

(b).

Floyd Medical argues that applying OCGA § 38-3-62 (a) and

the March 14 Order to toll OCGA § 9-3-71 (b) would violate its due

process rights by depriving Floyd Medical of its vested, substantive

rights in the five-year repose statute because Floyd Medical should

have been able to rely on the repose statute as of the date of Golden’s

allegedly negligent treatment in July 2016. In contrast, Golden

argues that any vested rights that Floyd Medical had, vested only

when the repose period on her medical malpractice claims (without

tolling) would have expired—that is, in July 2021. Thus, Golden

9 The Fourteenth Amendment to the United States Constitution provides

that no State may “deprive any person of life, liberty, or property, without due
process of law.” Paragraph I of Article I, Section I of the Georgia Constitution
of 1983 provides: “No person shall be deprived of life, liberty, or property except
by due process of law.”
18
contends the March 14 Order tolled OCGA § 9-3-71 (b) before Floyd

Medical’s rights under the repose statute vested, and so did not

deprive Floyd Medical of vested rights.

We agree with Golden that Floyd Medical’s rights would have

vested only when OCGA § 9-3-71 (b) would have expired on Golden’s

medical malpractice claims and did not vest when Golden’s allegedly

negligent treatment occurred. In Tampa Tank, we explained that a

critical part of what makes a defendant’s rights under a statute of

repose, vested rights, is that a statute of repose “extinguishes a

plaintiff’s right to bring a cause of action.” See 316 Ga. at 711 (1) (b)

(emphasis added). Indeed, only when a repose statute extinguishes

a plaintiff’s rights to bring a claim, does a defendant, in turn, have

the “right to be free from liability” for such a claim. See id. at 712 (1)

(b) (“Based on the nature of a statute of repose, we conclude that a

statute of repose creates a substantive right in being free from

liability for a claim after a fixed period of time and join the majority

of jurisdictions that have reached that conclusion.” (emphasis

added)); Phagan v. State, 287 Ga. 856, 860 (700 SE2d 589) (2010)

19
(“‘The statute of repose destroys the previously existing rights so

that, on the expiration of the statutory period, the cause of action no

longer exists.’” (emphasis added; quoting Wright, 262 Ga. at 845 (1)).

Because the March 14 Order tolled OCGA § 9-3-71 (b) before the

latter would have barred Golden’s claims in July 2021, the March 14

Order did not deprive Floyd Medical of vested rights in violation of

due process. Thus, we conclude that Chief Justice Melton’s COVID

emergency orders can be applied to toll OCGA § 9-3-71 (b) consistent

with the federal and Georgia Constitutions. See Tampa Tank, 316

Ga. at 712 (1) (b).

Judgment reversed. All the Justices concur, except Peterson,
P.J., and Pinson, J., disqualified.

319 Ga. 496
FINAL COPY

S24G0008. GOLDEN v. FLOYD HEALTHCARE MANAGEMENT,
INC.