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Final Copy 287 Ga. 597 S10A0258. DEEN et al. v. STEVENS et al. NAHMIAS, Justice. The primary question presented in this appeal is whether the Georgia statute that suspends the operation of the tolling statutes for mental incompetence in medical malpractice actions irrationally discriminates against the mentally incompetent in violation of the Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and Article I, Section I, Paragraph II of the Georgia Constitution of 1983. The trial court rejected this constitutional claim and dismissed the appellants' dental malpractice action based on the two-year malpractice statute of limitation. We affirm largely for the reasons stated by the Eleventh Circuit in the related case of Deen v. Egleston, 597 F3d 1223 (11th Cir. 2010), which is consistent with this Court's earlier decision in Kumar v. Hall, 262 Ga. 639, 644 (423 SE2d 653) (1992). We also review the trial court's grant of summary judgment to the defendants on causes of action styled as simple negligence rather than dental malpractice, which were added to the complaint after the filing of the motion to

dismiss based on the malpractice statute of limitation. The defendants produced evidence in support of their summary judgment motion showing that there was no genuine issue of material fact as to these causes of action so that they were entitled to judgment as a matter of law. In response, plaintiff pointed to disputed factual issues in the record, but none of those issues, upon analysis, are material to the purported simple negligence claims. Accordingly, we also affirm the grant of summary judgment to the defendants on those claims. 1. On July 18, 2005, a dentist, Shannon Egleston, D.D.S. of Gentle

Dental, examined Kenneth Deen and diagnosed multiple dental problems including a cavity, a failing bridge, and a periapical abscess around his upper left incisor where an earlier root canal had stopped working effectively. Dr. Egleston developed a treatment plan for Mr. Deen and referred him for an appointment the next day with the defendant endodontist, Randolph M. Stevens, D.D.S., to determine whether a re-treatment (that is, removing the old root canal and doing a new one) could be performed to save the upper left incisor and provide a base for repairing the failing bridge. After examining Mr. Deen, Dr. Stevens concluded that re-treatment was appropriate, but not until the swelling from the infection had been reduced. He 2

prescribed Mr. Deen an antibiotic to be taken four times a day for the next two weeks, explained the medication schedule and the importance of taking the antibiotic to reduce the infection, and instructed him to schedule an appointment for the re-treatment a week or two later after the antibiotic had taken effect and the swelling had gone down. Mr. Deen did not schedule the re-treatment, however, because he could not afford to pay the $900 it would cost him under his insurance plan. Two weeks later, on August 4, 2005, Mr. Deen returned to Gentle Dental to undergo the second component of Dr. Egleston's treatment plan for him

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