SWALLOWS et al.
ADAMS-PICKETT et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Swallows, a minor, by and through his parents and next
friends Kristina Swallows and Kenneth Swallows (collectively
the Swallows), filed a medical malpractice lawsuit against
Donna Adams-Pickett, M. D., Doctors Hospital of Augusta, and
Augusta Women's Health and Wellness Center. The Swallows
thereafter amended their complaint to include Kristina and
Kenneth Swallows's individual claims for damages. The
defendants moved for partial summary judgment, which the
trial court granted, stating that all claims for damages that
Kristina and Kenneth Swallows incurred on behalf of Blake
Swallows were barred by the applicable statute of limitation.
The Swallows appeal the trial court's order granting
partial summary judgment to the defendants.
Blake Swallows was born on October 25, 2011, and the Swallows
allege in their complaint that Blake suffered a left brachial
plexus injury during delivery, which caused "a permanent
injury to his left arm." Blake Swallows was delivered by
Dr. Adams-Pickett at the Doctors Hospital of Augusta. On
February 10, 2015, when Blake Swallows was three years and
three months old, the Swallows filed a complaint contending
that the defendants collectively acted negligently, and
seeking damages for the "Plaintiff, " including:
permanent injury; past and future surgeries; past and future
medical treatment; past and future medical expenses; pain and
suffering; emotional distress; loss of enjoyment of life;
"[l]oss of income to care for Blake Swallows
fulltime"; therapy seven days per week; and Blake
Swallows's future loss of income.
defendants moved for partial summary judgment on July 12,
2016, on the claims for Blake Swallows's medical,
maintenance, protection and education expenses before he
reached the age of 18 and all claims of Kristina and Kenneth
Swallows. Thereafter, on September 19, 2016, the Swallows
amended their complaint to include claims for damages
suffered by Kristina and Kenneth Swallows.
only enumerated error is whether the trial court erred by
holding that the claims of Kristina and Kenneth Swallows are
barred by the statute of limitation. "Whether a cause of
action is barred by the statute of limitation generally is a
mixed question of law and fact, but the question is one of
law for the court when the facts are not disputed. The
plaintiff bears the burden of establishing that a statute of
limitation has been tolled." Harri son v.
McAfee, 338 Ga.App. 393, 395 (2) (788 S.E.2d 872) (2016)
(citations omitted). We review a grant of summary judgment de
novo. See Huggins v. Powell, 315 Ga.App. 599, 600
(726 S.E.2d 730) (2012).
§ 9-3-71 (a) provides that absent an exception, "an
action for medical malpractice shall be brought within two
years after the date on which an injury or death arising from
a negligent or wrongful act or omission occurred." OCGA
§ 9-3-73 (b) carves out an exception for minors younger
than the age of five years, stating that "[a] minor who
has not attained the age of five years shall have two years
from the date of such minor's fifth birthday within which
to bring a medical malpractice action if the cause of action
arose before such minor attained the age of five years."
widely accepted that "the right to recover damages for a
child's medical expenses vests solely in the child's
parents, while the right to recover damages for pain and
suffering vests in the child, not the parent."
Grange Mut. Cas. Co. v. Kay, 264 Ga.App. 139, 143
(3) (589 S.E.2d 711) (2003) (footnote omitted); see also OCGA
§ 19-7-2; Wilson v. Obstetrics & Gynecology of
Atlanta, P. C., 304 Ga.App. 300, 308 (3) (696 S.E.2d
339) (2010) ("[u]nder OCGA § 19-7-2, parents are
responsible for medical expenses incurred in the treatment of
their minor children. Because parents have this
responsibility, the right to recover damages for medical
expenses incurred in such treatment is vested exclusively in
a minor child's parents.")
crux of the issue in this appeal is whether the exception to
the general medical malpractice statute of limitation
provided in OCGA § 9-3-73 (b) for minors also provides
an extension for the claims of the minor's parents. A
literal reading of the statute reveals that the relevant
exception in OCGA § 9-3-73 (b) only applies to "[a]
minor", and no exception is listed for the parents'
claims for their minor child. The Swallows seek to have this
Court interpret OCGA § 9-3-73 (b) to allow the
minor's parents to similarly bring their claim, along
with their minor child's claim, within two years of the
child's fifth birthday. Specifically the Swallows state
that, despite its plain language, OCGA § 9-3-73 (b) must
be read as "[t]he parents of a minor . . ."
statute draws its meaning, of course, from its text."
Patton v. Vanterpool, 302 Ga. 253, 254 (806 S.E.2d
493) (2017) (citation omitted). In interpreting Georgia code
we must presume that the General Assembly meant what it said
and said what it meant. To that end, we must afford the
statutory text its plain and ordinary meaning, we must view
the statutory text in the context in which it appears, and we
must read the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English
If 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.
Nguyen v. Southwestern Emergency Physi cians, P.C.,
298 Ga. 75, 78-79 (2) (a) (779 S.E.2d 334) (2015) (citation
and punctuation omitted). "It is well settled that where
the language of a statute is plain and unambiguous, judicial
construction is not only unnecessary but forbidden."
Harri son, supra at 397 (2) (b) (citation omitted).
text of OCGA § 9-3-73 (b) is clear and unambiguous. The
five-year statute of limitation extension applies to the
minor's claims, such as for the child's pain and
suffering. There is no extension in the cited statute for the
parents' claims. Therefore, any of Kristina and Kenneth
Swallows's claims for damages for their minor child's
medical expenses, and the parents' ancillary claims such
as their own loss of income, are subject to the two-year
statute of limitation applicable to medical malpractice
actions generally. See Grange Mut. Cas. Co., supra
at 143 (3). As the statute is clear and unambiguous, our
search for statutory meaning ends.See Patton, supra
at 254. We find that reading the parents' claims into the
five-year statute of limitation extension would be contrary
to the plain language of OCGA § 9-3-73 (b). Therefore,
as the parents' claims were not filed within the ...