Opposition Brief — Williams v. Young

(2) | ms F | | | a

FILED

'

No. 03-1298 | MARI 4 2004

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MARGARET WILLIAMS,

Petitioner,

v.

DEVELL R. YOUNG, M.D., P.C. and

DEVELL R. YOUNG, M.D.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI

TO THE CouRT OF APPEALS OF GEORGIA

BRIEF IN OPPOSITION

THOMAS S. CHAMBLESS

Counsel of Record

Dawn G. BENSON

CHARLES K. WAINRIGHT, II

WATSON, SPENCE, LOWE

AND CHAMBLEsSS, LLP

P.O. Box 2008

Albany, Georgia 31702

(229) 436-1545

Attorneys for Respondents

187482 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

@ BEST AVAILABLE COPY

QUESTION PRESENTED

Whether Official Code of Georgia Annotated § 9-3-71(a),

dealing with medical malpractice statutes of limitation, is

unconstitutional as a denial of equal protection and due

process guaranteed to petitioner Margaret Williams pursuant

to the Fifth and Fourteenth Amendments to the Constitution

of the United States and Art. I, Sec. I, J 1& 2 of the

Constitution of the State of Georgia?

il

STATEMENT PURSUANT TO RULE 29.6

Respondent, Devell R. Young, M.D., P.C., is a

professional corporation, and has no parent corporation and

no publicly held company owns 10% or more of its stock.

ll

TABLE OF CONTENTS

Page

Cuestion Presented 00.0.0... 1

Statement Pursuant to Rule 29.6 ....0.000000 1]

i a ean ET lll

Table of Cited Authorities......0000 Vv

mistementoftheCase ........ l

Clarification of the OE os os cn yess... 3

Reasons for Denying the Petition..........0 4

I. Petitioner has failed to carry her burden of

establishing that her equal protection and due

Process claims were raised below. .....___ 4

Il. Petitioner has failed to carry her burden of

establishing that the application of O.C.G.A.

§ 9-3-71(a) denies her €qual protection and

due process ofthe law. ..........00 8

A. Petitioner has failed to carry her burden

of establishing O.C.G.A. § 9-3-71 treats

similarly situated people differently. . . 8

B. Assuming Petitioner Is correct in her

argument that O.C.G.A. § 9-3-71 treats

similarly situated individuals differently,

the statute passes rational basis scrutiny.

ei ieee Ear ai 10

iv

Contents

C. O.C.G.A. § 9-3-71 is a rational provision

which complies with all due process

oo rer ee rere erry ye

III. Petitioner has failed to plead any proper

jurisdictional basis for this Court to hear state

tg Sn one eee Ce cee aeres

ER i oe aw ge ae due a eg te erro

Page

12

14

15

VY

TABLE OF CITED AUTHORITIES

Page

CASES

Adams v. Robertson, 520 U.S. 83 SEP koe xn 4,5, 6

American Pipe and Const. Co. y, Utah, 414 U.S. 538

aidan SELPERT TET EE tn ya tas 2 I 1]

Brown v. New York, 476 U.S. 467 (1966) ... 6.0. 1]

Bryant v. Crider, 209 Ga. App. 623, 434 S.E.2d 161

a DEEP E ee PROM bea Rn ios oe Fs >

Chase Securities Corp. y, Donaldson, 325 U.S. 304

ROWE 0586S ekg yeaa elie eee 13

Cleburne v. Cleburne Living Center, Inc., 473 U.S.

| SR nee AN aa 8, 10, 11

Daughtry v. Cohen, 187 Ga. App. 253, 370 S.E.2d

sli nie MELT OT ee eee): 9

Department of Agriculture vy. Moreno, 413 U.S. 528

GOOD spas hs waa y i uke 11

Directors of Rotary Int’l v, Rotary Club of Duarte,

WEL UB. S37 (TSB) ooo. ik ve ov ccesncn. 5

Ga. Dept. Of Medical Assistance y. Columbia

Convalescent Center, 265 Ga. 638, 458 S.E.2d 635

i nr Pier erereee Voy i 2) 0 12

vi

~

Cited Authorities

Page

Heath v. Alabama, 474 U.S. 82 (1985) .......... 5

Illinois v. Gates, 462 U.S. 213 (1983) ........... 5

Jones v. Lamon, 206 Ga. App. 842, 426 S.E.2d 657

SN i 9 4,600. 00a EREKE GOR RENE ORT RS 9

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)

(NEOR oh 448 oe RN e de OKRREA ERRORS ER 13

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

CEE bo ks ko dnee hee ns hee hens yee eeeE EN 5

Order of Railroad Telegraphers v. Railway Exp.

Agency, 321 U.S. 342 (1943) 2... ccc ce seen 1]

Prune Yard Shopping Center v. Robins, 447 U.S. 74

(i) ETT TT TTC TET rere 5

Pyler v. Doe, 457 U.S. 202 (1982) .............. 10-11

Romer v. Evans, 517 U.S. 620 (1996) ........... 11

Staples v. Bhatti, 220 Ga. App. 404, 469 S.E 2d 490

COUT 6 94. Fee oe 46.455 9%05587 444640 Reads 9

Stone v. Radiology Services, 206 Ga. App. 851, 426

Rome tt ee rere. ee 9

Street v. New York, 394 U.S. 576 (1969) ......... 5

Vii

Cited Authorities

Page

Surgery Associates v. Kearby, 199 Ga. App. 716, 405

D-BAG FLICIGPL) once cca eccesecnc.s 9

Taylor v. Illinois, 484 U.S. 400 fo eee 7

Vacco v. Quill, 521 U.S. 793 (1997) ............. 11

Walker v. Melton, 227 Ga. App. 149, 489 S.E.2d 63

J Le ad SEW Pe Peer cur Par mea tre mien cee nan | 9

Webb v. Webb, 451 U.S. 493 (1981) ............. 5,6

Whitaker v. Zirkle, 188 Ga. App. 706, 374 S.E.2d

PE Sess eee 9

Yee v. Escondido, 503 U.S. 519 (1992) .......... 4

CONSTITUTIONS

Ga. Const. Art. I, § 1, i OR Be Pere Qh Peas og i, 12, 14

Gi Coe £0649 1,42 oe. i, 14

U.S. Const. Amendment XIV .................. 12

STATUTES

FO OF hicks cxabeancsdesee dee) 4,14

ge | a ees passim

l

STATEMENT OF THE CASE

Petitioner Margaret Williams (hereinafter Petitioner’)

first sought medical treatment from Devell R. Young, M.D.

(hereinafter “Respondent Young”), and, through him, by his

professional corporation, Respondent Devell R. Young M.D..,

P.C., on September 29, 1995. (R-5). During this initial visit,

Petitioner complained of swelling and tenderness in the left

foot and ankle. (R-270; R-5). Petitioner testified below that

she informed Respondent Young during a January, 1996 visit

that the intensity of the pain in her left ankle and leg increased

in December of 1995, at which time the pain became constant.

(R- 270-271; R-299).

During the time period between this J anuary, 1996 visit

and the Petitioner’s final visit to Respondent Young for

medical treatment on September 30, 1996, Petitioner made

several calls complaining of pain and problems with her left

foot. (R - 261-268). She further contends she continually

suffered problems with the foot and that she and her

co-workers were all trying throughout the period of her

treatment with Respondent Young to figure out what was

going on with her foot. (R-263; R-267; R - 275-276).

On September 30, 1996, Petitioner visited Respondent

Young and sought medical treatment for the final time,

complaining of excruciating pain and that her foot was “tilted

over to the left.” (R-264; R-275). During this Visit,

Respondent Young reviewed the Petitioner’s medications

with her and informed Petitioner that he would see her again

in January of 1997. (R-275). When Petitioner then asked

Respondent Young about her foot, she was told it was a

condition that she would have to learn to manage on a daily

basis. Jd. Later that day Petitioner returned to work at the

2

Health Department, angry, and some of her co-workers

suggested she seek treatment from another physician.

(R - 275-276). She took this advice, and on the very next

day, October 1, 1996, made an appointment to treat with

Dr. Daniel Rhoads. (/d.). On the first date of treatment with

Dr. Rhoads, he diagnosed a dislocation of her talonavicular

joint, which he would later attempt to surgically correct on

December 10, 1996.

On October 28, 1998, Petitioner filed her complaint

alleging medical malpractice against Respondent Young and

his practice group. The trial court granted Respondents’

motion for summary judgment, finding there existed no

genuine issue of material fact as to the running of the statute

of limitations in that the competent evidence demonstrated

as a matter of law the cause of action arose more than

two years prior to the filing of the lawsuit. The Court of

Appeals reversed the trial court’s entry of summary judgment,

adopting for the first time the doctrine of “continuous

treatment” in medical malpractice cases involving

misdiagnosis — a theory which had previous been expressly

rejected by all other tribunals in the state of Georgia.

The Supreme Court of Georgia issued a Writ of Certiorari

to the Court of Appeals to review that decision in order to

determine whether or not the Court of Appeals correctly

adopted the doctrine of “continuous treatment” in medical

malpractice cases involving misdiagnosis, and ultimately

reversed the Court of Appeals of Georgia’s decision.

The matter was then remanded to that court for there to be

a determination of “when the statute of limitations began

to run on [Petitioner]’s misdiagnosis claim and whether she

filed her action within two years of that date.”

3

The Georgia Court of Appeals then affirmed the trial

court’s order awarding summary judgment to Respondents.

Petitioner sought a writ of certiorari from the Supreme Court

of Georgia, which was granted. The Supreme Court of

Georgia was then concerned with the following issue:

In a medical malpractice action based upon the

physician’s alleged misdiagnosis of the patient’s

condition, what is ‘the date on which an injury

-.. occurred’ for purposes of commencement of

the two-year statute of limitations established by

O.C.GA. § 9-3-71(a)?

Thereafter the Supreme Court of Georgia decided the writ of

certiorari was improvidently granted, and the writ was

vacated. Petitioner next filed a motion for reconsideration

of that decision, which was denied.

CLARIFICATION OF THE RECORD

To the extent the Petition for Writ of Certiorari implies

otherwise, the record makes clear that Petitioner did not incur

a new injury after the time of the alleged misdiagnosis, nor

is there any evidence of a worsened condition or a condition

more difficult to treat. Petitioner suffered all of the symptoms

of the dislocation from at least September of 1996 through

the time it was diagnosed by Dr. Rhoads and treatment was

rendered. There is no evidence that any new injury occurred

during or because of the delay. In this matter all that happened

subsequent to the alleged misdiagnosis was that Petitioner

continued to exhibit exactly the same symptoms for a longer

time until she began treating with a new doctor. There

is no allegation in the record that Respondent Young

caused Petitioner’s dislocation of her talonavicular joint.

4

If Petitioner’s allegations of misdiagnosis are true, all

Respondent Young caused was Petitioner not obtaining relief

from the pain, and that started the minute he incorrectly

diagnosed her condition because his treatment did not address

the real medical problem afflicting Petitioner, and thus the

pain from that problem continued.

REASONS FOR DENYING THE PETITION

The issues raised in the Petition for Writ of Certiorari

were never raised or ruled on at any time during the

proceedings below. This matter has been briefed before a

Georgia trial court, twice before the Court of Appeals of

Georgia, and twice before the Supreme Court of Georgia,

yet Petitioner has never once raised any claim under the

Constitution of the United States or the Constitution of the

State of Georgia. Additionally, the Petitioner has failed to

include any jurisdictional ground for this Court to consider

state law claims, including those claims grounded in the

Constitution of the State of Georgia. Further, the application

of O.C.G.A. § 9-3-71 to the matter at hand did not deny

Petitioner equal pretection or due process of the law.

I. Petitioner has failed to carry her burden of

establishing that her equal protection and dne process

claims were raised below.

With “very rare exceptions” Yee v. Escondido, 503 U.S.

519 (1992), the Supreme Court of the United States has

adhered to the rule in reviewing state court judgments under

28 U.S.C. § 1257 that it will not consider a petitioner’s federal

claim unless it was either addressed by, or properly presented

to, the state court that rendered the decision it has been asked

to review. Adams v. Robertson, 520 U.S. 83, 86 (1997);

Preteen any ai

5

see also Heath v. Alabama, 474 U.S. 82, 87 (1985); Illinois

v. Gates, 462 U.S. 213, 217-19 (1983). The petitioners have

the burden of showing that the issue was properly presented

the courts below. When the highest state court is silent on a

federal question, this Court assumes that the issue was not

properly presented. Adams v. Robertson, 520 U.S. at 86-87;

see also Directors of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537, 550 (1987).

This Court has described in different ways how a

petitioner may satisfy this requirement. See Street v. New

York, 394 U.S. 576, 583-85 (1969). Most importantly, this

Court has described a petitioner’s burden as involving the

need to demonstrate that it presented the particular claim at

issue here with “fair precision and in due time,” New York

ex rel. Bryant v. Zimmerman, 278 U.S. 63, 67 (1928);

PruneYard Shopping Center y. Robins, 447 U.S. 74, 85

(1980). “It would be unseemly in our dual system of

government to disturb the finality of state judgments on a

federal ground that the state court did not have occasion to

consider.” Webb v. Webb, 451 U.S. 493, 500 (1981) (citations

and internal quotation marks omitted). Thus the rule affords

state courts “an opportunity to consider the constitutionality

of the actions of state officials, and, equally important,

proposed changes” that could obviate any challenges to

State action in federal court. Gates, 462 U.S. at 221-22.

This traditional standard also reflects “practical

considerations” relating this Court’s capacity to decide issues.

Bankers Life & Casualty Co., 486 U.S. 71, 79 (1988).

“Requiring parties to raise issues below not only avoids

unnecessary adjudication in this Court by allowing state

courts to resolve issues on state law grounds, but also assists

us in our deliberations by promoting the creation of an

6

adequate factual and legal record.” Adams v. Robertson, 520

U.S. at 90-91 (citing Webb, supra, at 500).

In the instant matter, the Petitioner cannot carry her

burden of showing that her federal equal protection and due

process claims were raised below. In an effort to comply with

Rule 14 of the Supreme Court of the United States, Petitioner

can only direct this Court to the following statement

contained in an amicus curiae brief, which was made for the

first time during the Georgia Court of Appeals’ second review

of this matter:

While the record in this case does not indicate a

constitutional challenge to these separate

classifications was made, it is clear that this

distinction between misdiagnosis cases is not

rationally related to any valid legislative purpose

because the General Assembly intended that in all

medical malpractice cases the statute of limitation

commence at the time of injury rather than the

negligent act.

Pet. at 6, 52a. Remarkably, this statement affirmatively

demonstrates Petitioner’s failure to raise any constitutional

claims before either the trial court, the Court of Appeals of

Georgia during its first review of this matter, or the Supreme

Court of Georgia. Moreover, the issue then before the Court

of Appeals of Georgia was “when [did] the statute of limitations

began to run on Ms. Williams’ misdiagnosis claim and

whether she filed her action within two years of that date.”

Pet. at 26a. There was no constitutional issue then before

the Court of Appeals of Georgia, nor has there ever been a

constitutional issue raised at any time until now, and a general

comment made by the Court of Appeals of Georgia in a

7

footnote indicating its unwillingness to override Georgia’s

misdiagnosis law does not indicate that it considered and ruled

on any issues raised in the amicus brief. Moreover, this Court

has held a party may not preserve a constitutional challenge by

generally invoking the Constitution in state court and awaiting

review in this Court to specify the constitutional provision it is

relying upon. Bankers Life & Casualty Co. at 77; cf. Taylor vy.

Illinois, 484 U.S. 400, 407 n.9 (1988) (“A generic reference to.

the Fourteenth Amendment is not sufficient to preserve a

Constitutional claim based on an unidentified provision of the

Bill of Rights”). Further, the quotation from the amicus curiae

brief does not indicate if it is referencing the Constitution of the

United States or the Constitution of the State of Georgia.

Accordingly, Petitioner has failed to carry her burden of showing

that her claims under the Constitution of the United States and

the Constitution of the State of Georgia were raised below, and

the Petition for Writ of Certiorari should be denied.

Further, the State of Georgia has an undeniable interest in

having the opportunity to determine in the first instance whether

the statute of limitation satisfies the requirements of due process

and equal protection, and whether its legislature should

exercise its power to amend the statute to avoid potential

constitutional challenges. Here, even if the state court’s

construction of the statute of limitations would not obviate the _

due process and equal protection challenge, it would

undoubtedly aid this Court’s understanding of those rules as a

predicate to its assessment of their constitutional adequacy.

Further, the parties would have enjoyed the opportunity to test

and refine their positions before reaching this Court. Moreover,

if this Court were to review O.C.G.A. § 9-3-71 now, it would

short-circuit a number of less intrusive, and possibly more

appropriate resolutions: the Georgia State Legislature might have

chosen to enact legislation amending the statute of limitations;

8

failing that, the Georgia courts might have chosen to resolve

the issue by relying on the State Constitution or on some

other adequate and independent non-federal ground; and

failing that, the Georgia Supreme Court would have had its

opportunity to decide the question of federal law in the first

instance, and any ultimate review of the question that this

Court might then later undertake would have gained the

benefit of a well-developed record and a reasoned opinion

on the merits.

II. Petitioner has failed to carry her burden of

establishing that the application of O.C.G.A. § 9-3-

71(a) denies her equal protection and due process of

the law. | '

A. Petitioner has failed to carry her burden of

establishing O.C.G.A. § 9-3-71 treats similarly

situated people differently.

The Equal Protection Clause of the Fourteenth

Amendment “is essentially a direction that all persons

similarly situated should be treated alike.”. Cleburne v.

Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985). The

Petitioner’s position that all potential plaintiffs in

misdiagnosis cases are similarly situated and treated

differently under O.C.G.A. § 9-3-71(a) is without merit.

O.C.G.A. § 9-3-71{a) provides that, except in certain

circumstances not applicable in the instant action, an action

for medical malpractice shall be brought within two years

after the date on which an injury or a death arising from a

negligent or wrongful act or omission occurred. In cases

where the alleged medical negligence is failure to diagnose,

or misdiagnosis of a condition, the injury ordinarily begins

ee

9

immediately upon the misdiagnosis due to the pain, suffering

or economic loss sustained by the patient from the time of the

misdiagnosis until the medical problem is properly diagnosed

and treated. Under established Georgia law the misdiagnosis or

failure to diagnose is itself the injury and not the subsequent

discovery of the proper diagnosis. Surgery Associates v, Kearby,

199 Ga. App. 716, 717, 405 S.E.2d 723 (1991); Daughtry vy.

Cohen, 187 Ga. App. 253, 370 S.E.2d 18 (1988). Further, the

fact that the patient does not know the cause of her suffering on

account of the misdiagnosis does not affect the running of the

statute of limitations if the evidence establishes that the patient’s

injury occurred and had physically manifested itself to her.

Jones v. Lamon, 206 Ga. App. 842, 846, 426 S.E.2d 657

(1992); Bryant v. Crider, 209 Ga. App. 623, 626-27 (1993);

Stone v. Radiology Services, 206 Ga. App. 851, 852-52, 426

S.E.2d 663 (1992).

But Georgia courts have carved out a limited exception in

misdiagnosis cases when an injury occurs subsequent to the

date of misdiagnosis. Walker v. Melton, 227 Ga. App. 149, 151,

489 S.E.2d 63 (1997); Whitaker v. Zirkle, 188 Ga. App. 706,

708, 374 S.E.2d 106 (1988). Said exception applies only when

a misdiagnosis results in a separate and distinct subsequent

injury. If there is a subsequent injury as a result of the

misdiagnosis, the statute of limitations begins to run on the date

the new symptoms attributable to the new injury are manifest

to the plaintiff. See Walker v. Melton, supra (statute of limitation

began to run when the new injuries of destabilization of spine

and failure of spinal ligament began to manifest themselves

following defendant’s failure to diagnosis plaintiff’s broken

back); Staples v. Bhatti, 220 Ga. App. 404, 469 S.E.2d 490

(1996) (Plaintiff sustained new inj ury when defendant’s failure

to diagnose breast cancer allowed said cancer to grow into a

mass and spread to plaintiff’s lymph nodes with the metastasis

creating a new injury).

10

Petitioner incorrectly argues Georgia’s statute of

limitations in medical malpractice actions treats similarly

situated individuals differently. As indicated above,

Georgia courts have recognized in misdiagnosis cases there

are two different classes of plaintiffs: (1) those who, upon

misdiagnosis, immediately experience pain, suffering, and

economic loss, and (2) those who do not experience any pain,

suffering, and economic loss B that is where no actual injury

is present — until a later time. Any argument that these two

separate classes of potential plaintiffs are similarly situated

is unfounded. The first classification of plaintiffs sustain an

injury at the time of misdiagnosis due to the pain, suffering

and economic loss sustained by the patient from the time of

misdiagnosis until a proper diagnosis is made. The second

classification of plaintiffs do not sustain an injury at the time

of misdiagnosis, but as a result of the misdiagnosis, develop

a subsequent injury which triggers the running of the period

of limitations. Accordingly, these two groups possess

distinguishing characteristics such that the State’s acting on

the differences between the two does not give rise to a

constitutional violation. Moreover, the two classifications

are not treated differently as both are provided two years

from the date of injury to file their medical malpractice

claims.

B. Assuming Petitioner is correct in her argument

that O.C.G.A. § 9-3-71 treats similarly situated

individuals differently, the statute passes rational

basis scrutiny.

As discussed above, the Equal Protection Clause of the

Fourteenth Amendment “is essentially a direction that all

persons similarly situated should be treated alike.” Cleburne,

supra, at 439; see also Plyler v. Doe, 457 U.S. 202, 216

11

(1982). Under the rational basis standard of review,

“legislation is presumed to be valid and will be sustained if

the classification drawn by the statute is rationally related to

a legitimate state interest.” Cleburne, supra, at 440; see also

Department of Agriculture v. Moreno, 413 U.S. 528, 534

(1973); Romer v. Evans, 517 U.S. 620, 632-33 (1996).

Accordingly, under this Court’s Equal Protection Clause

jurisprudence, Georgia’s statute of limitations in medical

malpractice actions is presumed to be valid and will be

sustained if the classification drawn is rationally related to a

legitimate state interest. Vacco v. Quill, 521 U.S. 793, 799

(1997).

This Court has a long history of upholding the validity

of statutory limitation periods pursuant to the States’

interest in eliminating stale claims. As has been consistently

explained by this Court:

Statutes of limitation . . . are designed to promote

justice by preventing surprises through the revival

of claims that have been allowed to slumber until

evidence has been lost, memories have faded, and

witnesses have disappeared. The theory is that

even if one has a just claim it is unjust not to put

the adversary on notice to defend within the period

of limitation and that the right to be free of stale

claims in time comes to prevail over the right to

prosecute them.

Brown v. New York, 476 U.S. 467, 482 n.13 (1986); American

Pipe and Const. Co. v. Utah, 414 U.S. 538 (1974); Order of

Railroad Telegraphers v. Railway Exp. Agency, 321 U.S. 342,

348-49 (1943).

12 '

Petitioner’s claim that Georgia’s courts have created an

unconstitutional distinction between misdiagnosis cases

in which the plaintiff develops subsequent injury and

misdiagnosis cases in which the injury begins immediately

upon the misdiagnosis due to the pain and suffering sustained

until a correct diagnosis is made is without merit. The Georgia

legislature has chosen the date of injury as the trigger for

starting the period of limitations for filing a claim for medical |

malpractice, and in both classifications discussed above, the

statutory period of limitations begins to run when an injury

occurs. The fact that Georgia courts have recognized there

are exceptional misdiagnosis cases where the injury does not

develop until a later time does not deny the Petitioner equal

protection of the law. A claim that has not arisen has not _

been slumbering and is not stale. Accordingly, the

classifications created by the application of the statute of

limitations are clearly related to the legitimate state interest

of preventing stale claims, and the Petition should be denied.

C. O.C.G.A. § 9-3-71 is a rational provision which

complies with all due process requirements.

“No person shall be deprived of life, liberty or property

except by due process of law.” Ga. Const. Art. I, § 1, 4 1;

see also U.S. Const. Amendment XIV. A litigant does have a

property interest in her cause of action that she may not be

deprived of without due process; however, a State may,

consistent with due process, terminate a litigant’s claim or

appeal for failure to comply with a reasonable procedural

rule, such as a statute of limitations. Ga. Dept. Of Medical

Assistance v. Columbia Convalescent Center, 265 Ga. 638,

639, 458 S.E.2d 635, 637 (1995). Further, this Court

has found the States may erect reasonable procedural

13

requirements for triggering the right to an adjudication,

including statutes of limitations. Logan v. Zimmerman Brush

Co., 455 U.S. 422, 428 (1982); cf. Chase Securities Corp. v.

Donaldson, 325 U.S 304, 314-16 (1945).

Petitioner has failed to carry her burden of establishing

O.C.G.A. § 9-3-71 denies plaintiffs in misdiagnosis cases

due process of law without a reasonable basis to do so, and

the Petition for Writ of Certiorari should be denied. In fact,

Petitioner failed to provide this Court with any authority

supporting her claim that the application of the statute of

limitations in this case denied her due process. To the

contrary, this Court has held that States may erect reasonable

procedural requirements concerning adjudication, including

Statutes of limitations. In Georgia, plaintiffs in medical

malpractice misdiagnosis cases are afforded two years from

the date of injury to file their claims. Petitioner’s argument

on this matter consists of her unsupported claim that she was

unaware that she had dislocated bones until she received a

second opinion. Pet. at 15. However, as detailed above, the

Petitioner’s symptoms, and thus injury, were Clearly present

on and before September 30, 1996, the date she last treated

with Respondents. She was afforded two years from the date

of her misdiagnosis to file her claim and failed to do so.

Accordingly, O.C.G.A. § 9-3-71(a) did not deny Petitioner

due process, and her Petition should be denied.

4

III. Petitioner has failed to plead any proper

jurisdictional basis for this Court to hear state law

claims.

Petitioner’s attempt to have this Court consider whether

or not O.C.G.A. § 9-3-71(a) violates Art. I, Sec. 1, J] 1 & 2

of the Constitution of the State of Georgia and other related

state law claims is without merit. 28 U.S.C. § 1257 is the

primary section governing review by the United States

Supreme Court of judgments rendered by the courts of the

states. The section permits review by certiorari of final

judgment of the highest court of a state that are premised on

federal law. As detailed above, the decisions by the Georgia

appellate courts at issue in this Petition for Writ of Certiorari

were based exclusively on state law claims. There is not a

single reference in the decisions of the Georgia appellate

courts to any federal law, including the federal equal

protection and due process claims which Petitioner now seeks

to raise for the first time before this Court. More importantly,

28 U.S.C. § 1257 only permits this Court to review decisions

of the highest court of a state which concern federal law.

By definition Petitioner’s claim that the application of

O.C.G.A. § 9-3-71(a) denies her certain rights under the

Constitution of the State of Georgia is a state law claim, and

28 U.S.C. § 1257 will not confer jurisdiction upon this Court

to entertain such a claim.

15

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied. The issues contained in the Petition

for a Writ of Certiorari were never raised at any time during the

proceedings below. Further, it is clear that the application of

O.C.G.A. § 9-3-71 to the matter at hand did not deny Petitioner

equal protection or due process of the law.

Respectfully submitted,

THOMAS S. CHAMBLESS

Counsel of Record

Dawn G. BENSON

CHARLES K. WAINRIGHT, II

WATSON, SPENCE, LOWE

AND CHAMBLESS, LLP

P.O. Box 2008

Albany, Georgia 31702

(229) 436-1545

Attorneys for Respondents