ATLANTA (Legal Newsline) - The Georgia Supreme Court has upheld a state law that keeps the statute of limitations running on medical malpractice claims even if the plaintiff suffers from mental retardation or a mental illness.

A 5-2 decision released Friday follows the lead of a ruling by the U.S. Court of Appeals for the 11th Circuit. The family of the late Kenneth Deen filed malpractice suits against dentist Shannon Egleston and endodontist Randolph Stevens after the two-year statute had run out.

The Egleston case was decided in federal court by the 11th Circuit, which overturned a lower court ruling against the state law. The Georgia Supreme Court decided the Stevens case, affirming the trial court's determination.

Justice David Nahmias authored the court's opinion. He was joined in the majority by presiding Justice George Carley and justices Harris Hines, Harold Melton and Hugh P. Thompson.

"Ms. (Linda) Deen argued to the federal appellate court, as she does to us, that suspending the tolling provisions for mental incompetence in medical malpractice cases is not rationally related to General Assembly's stated objectives," Nahmias wrote.

"The 11th Circuit, however, surveyed various appellate decisions rejecting this argument in similar cases and concluded that 'the critical point is that the passage of time, more so with medical malpractice than with other forms of negligence, renders a defense more difficult.'"

Kenneth Deen died in April 2009, four years after being diagnosed with a brain infection after suffering an infected tooth.

Linda Deen, Kenneth's widow, argued that the state law violated her husband's equal protection rights. Georgia law also provides that, "Minors and persons who are legally incompetent because of mental retardation or mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons."

Justice Robert Benham and Chief Justice Carol Hunstein voted against the majority. Hunstein authored a dissenting opinion.

"This statutory classification is so arbitrary and unreasonable that it makes the standard of review the majority claims to apply into nothing more than a 'rubber stamp' approval of legislation that favors the politically powerful at the expense of our mentally disabled citizens and our injured children," she wrote.

"As jurists we cannot shirk our constitutional duties and sanction the denial of 'equal protection of the laws' to our most vulnerable citizens."

From Legal Newsline: Reach John O'Brien by e-mail at jobrienwv@gmail.com.