Petition for Writ of Certiorari — Wright v. Crawford Long Hospital of Emory University

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93-107 tsi

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NO. | ore:

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

FRANKLIN M. WRIGHT, Administrator Of The

Estate Of CHRISTINE WRIGHT, Deceased,

Petitioner,

Vv. 7

CRAWFORD LONG HOSPITAL OF EMORY

UNIVERSITY, JOHN K. SCHELLACK, M.D.,

CHRISTOPHER DOOLEY, M.D., M. EDWYN

HARRISON, III, M.D., DAVID A. DAVIS,

M.D., DAVID GREENE, M.D. and CHRISTOPHER

WALLS, M.D.,

Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of

Georgia Decision

Arthur C. Nilsen

Counsel For Petitioner

Jonap & Associates, P.C.

1944 Clairmont Road

Decatur, Georgia 30033

(404) 320 - 6000

ands Nader aati 2 $n kG RRO sh ot ie Minera 28

TION ENTED FOR REVIEW

Ba Whether the Constitution of the

State of Georgia of 1983 is

unconstitutional as it sets out in the

Preamble, to perpetuate the principles of

free government and to promote the

interests and happiness of the citizens

of the State of Georgia without mention

of its being subsidiary to the

Constitution of the United States and

specifically to the Fourteenth Amendment

thereof, and further lacking in any

statements as to the powers of the state

being set out and given thereto by the

Constitution of the United States.

2. Does the actions and enforcement of

the Constitution of the State of Georgia

of 1983, by the Court of Appeals of the

State of Georgia, and the refusal to

accept certiorari by the Supreme Court of

Georgia, and thus upholding the decision

of the Court of Appeals of the State of

Georgia in the instant case involving the

diversity of citizens, ie. the Petitioner

a resident of Michigan, and in view of

the Preamble to the Constitution of the

State of Georgia of 1983, then show

greater flagrant emphasis by said court

to the reading of Article 1, S§ 1, Pl, of

the Constitution of the State of Georgia

of 1983, as to protection to persons and

property of Georgia being the paramount

duty of the government of Georgia, to

which the court is sworn, thus depriving

the Petitioner the right of the equal

protection of the Fourteenth Amendment of

the Constitution of the United States?

3. Whether the Georgia Court of Appeals

in upholding the Trial Court’s decision

iii

and the subsequent denial of certiorari

by the Georgia Supreme Court exceeded

their discretion as to the requirements

and permissive discretion of the Official

Code of Georgia Annotated Section: 9-11-

38, depriving the Petitioner of the

protection of the Fifth, Seventh and

Fourteenth Amendments to the Constitution

of the United States as to: due process,

the right to a trial by jury, and equal

protection as to diversity of

citizenship, where the record reflected

that the Petitioner was a resident of the

State of Michigan, and the

Respondents/Defendants at trial were

residents of the State of Georgia.

4. Whether the Official Code of Georgia

Annotated Section: 9-11-9.1 creates a

defense in bar which is arbitrary and

capricious, violating both substantive

and due process of law, thus being

unconstituional, violating the Fifth and

Fourteenth Amendments to the Constitution

of the United States.

5. Whether the Official Code of Georgia

Annotated Section: 9-11-9.1 creates a

special class which is overly broad and

which discriminates and as_ such is

arbitrary and capricious as _ to its

construction and subsequent application,

thus being unconstitutional, violating

the equal protection clauses of the Fifth

and Fourteenth Amendments to the

Constitution of the United States.

6. Whether the Official Code of Georgia

Annotated Section: 9-11-9.1 by taking

away professional medical malpractice

Claimants’ property right to a remedy

through the courts from the special class

- medical professionals, who are the

proximate cause of the injury or

negligent act, are not the claimants

specifically deprived of substantive due

process as in fact guaranteed by the

Constitution of the United States?

LIST OF ALL PARTIES

Petitioner:

Franklin M. Wright, Administrator Of

Estate of Christine Wright, Deceased

Represented By:

Arthur C. Nilsen

Jonap & Associates, P.C.

1944 Clairmont Road

Decatur, Georgia 30033

Respondents:

Crawford Long Hospital of

University

Represented By:

Sidney F. Wheeler, Esq.

J.M. Hudgins, IV, P.C.

Long, Weinberg, Ansley &

Wheeler

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

The

Emory

vii

John D. Schellack, M.D.

Represented By:

John A. Guilleland, Esq.

Kimberly Loque Woodland, Esq.

Love and Willingham

Suite 5050

One Atlantic Center

1201 W. Peachtree Street

Atlanta, Georgia 30309

Christopher Dooley, M.D.

Represented By:

Sidney F. Wheeler, Esq.

J.M. Hudgins, IV, P.C.

Long, Weinberg, Ansley, &

Wheeler

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

M. Edwyn Harrison, M.D.

Represented By:

John A. Gilleland, Esq.

Kimberly Loque Woodland, Esq.

Love and Willingham

Suite 5050

One Atlantic Center

1201 W. Peachtree street

Atlanta, Georgia 30309

viii

_ William A. Davis, M.D.

Represented By; :

Hunter S. Allen, Jr., Esq.

Bradley C. Reeves, Esq.

Allen & Peters

Two Midtown Plaza :

Suite 1700 :

1360 Peachtree Street, N.E. '

Atlanta, Georgia 30309 :

a a ae

David Greene, M.D.

Represented By:

TENE SIA Tee Pa van

Hunter S. Allen, Jr., Esq.

Bradley C. Reeves, Esq.

Allen & Peters -

Two Midtown Plaza

Suite 1700

1360 Peachtree Street, N.E.

Atlanta, Georgia 30309

TA EV etree,

Christopher Walls, M.D.

Represented By:

Sidney F. Wheeler, Esq.

J.M. Hudgins, iv, P.C.

Long, Weinberg, Ansley, &

Wheeler

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

REESE Re +

As 28 U.S.C. s 2403(b) may be applicable:

The State of Georgia

_Represented By:

Michael J. Bowers

Attorney General

- State of Georgia

132 State Judicial Building

42 Capital Square, S.W.

Atlanta, Georgia 30334

TABLE OF CONTENTS

PAGE

Questions Presented for Review (i)

List of All Parties (vi)

. Official Report of Case (xi)

Table of Authorities (xii)

Statement of Jurisdiction 1

Statement of the Case 3

- Argument for Allowance of Writ. 24

Conclusion 28

Appendix Al

Judgement of Trial Court

Gate 9713791. cccccccsesvcees Al

Supreme Court of Georgia decision

Gated 2/12/92. ccccccccscvecs Bl

Court of Appeals decision

Gated 9/6/92. .cccccccccccves C1

Supreme Court of Georgia decision

dated 9/8/93......+++05- »++-D1

Supreme Court of Georgia decision

dated 10/01/93.......eeeeeee El

Text of Authorities Cited....... Fl

ee ee

ON ENERO

OFFICIAL REPORT OF CASE

Superior Court of Fulton County, State of

Georgia, Civil Action File No. D-90848,

Christine Wright vs. Crawford Long

Hospital of Emory University, John K.

Schellack, M.D., Christopher Dooley,

M.D., M. Edwyn Harrision, III, M.D.,

William A. Davis, M.D., David Greene,

M.D., and Christopher Walls, M.D..

The Supreme Court cf the State of

Georgia, Case No. S92A0520, Christine

Wright v. Crawford Long Hospital of Emory

University Et Al......... Appendix Page Bl

The Court of Appeals of the State of

Georgia, Case No.: A92A0964, 205 Ga.App.

653, 423 S.E.2d 12....... Appendix Page Cl

The Supreme Court of the State of

Georgia, Case No.: S93C0114, Christine

Wright v. Crawford Long Hospital of Emory

University Et Al......... Appendix Page Dl

The Supreme Court of the State of

Georgia, Case No.: $93C0114, christine

Wright v. Crawford Long Hospital of Emory

University Et.Al......... Appendix Page El

xii

TABLE OF AUTHORITIES

Amendment 5 to the Constitution of the

United States............ Appendix Page Fl

Amendment 7 to the Constitution of the

United States..........0.6. Appendix Page Fl

Amendment 14, Section 1, to the

Constitution of the United States

Appendix Page F2

The Preamble to the Constitution of the

State of Georgia of 1983.Appendix Page F3

Article 1, S§ 1, P 1 of the Constitution

of the State of Georgia of 1983

Appendix Page F3

Article 1, S 1, P 2 of the Constitution

of the State of Georgia of 1983

Appendix Page F3

Article 1, §&§ 1, P 11 (a) of the

Constitution of the State of Georgia 1983

Appendix Page F4

Official Code of Georgia Annotated,

Section 9-2-61........... Appendix Page F4

Official Code of Georgia Annotated,

Section 9-11-9.1......... Appendix Page F5

Official Code of Georgia Annotated,

Section 9-11-15.......... Appendix Page F8

Official Code of Georgia Annotated,

Section 9-11-38......... Appendix Page F12

OTE EEL RI SE CI

WTP Sen

xiii

The pertinent text of the above

listed constitutional provisions,

statutes and regulations involved in this

case, are set out verbatim in the

appendix.

TABLE OF AUTHORITIES - continued

Case Page

Binford v. Reid, 83 Ga. App. 280, 63

ccc ccc cccccces 17

Brake v. Mintz, 193 Ga. App. 622,

DUE CC CERES Gee escceccoecccccces 20

Cheeley v. Henderson, 261 Ga. 498

Cony Gee meee Oboe (5) (1991). ccccccces 14

Colonial Pipeline v. Brown, 258 Ga.

BO p BO WOE BSF (EFCOdccccccccccccces 23

Denton v. Conway Express, Inc.

No. S90A1101 March 15, (1991), 402

Ue I CRUE E Dees sesccscceccccccccs 23,27

Glaser v. Meck, 258 Ga. 468, 369

SE2d 912 (1988).. ~~ ww ew ewe eeeweeP@eceeeeeeeeé 8 le 13

In Re Parrott, 194 Ga. App. 856, 392

SEZG GEO (LFF). ccccccccccccccces 11,15,17

Mayor of Savannah v. State ex rel

GEGGGs S$ GB. 20 (19GB) cccccccccccccccees 8

xiv

TABLE OF AUTHORITIES - continued

Case Page

Mead Corp. v. Collins, 258 Ga. 239,

367 SE2d 790 (1988). ccccccccccccccscces 8

Patterson v. Douglas Women’s

Center, P.C., 258 Ga. 803, 374 SE2d

737 (1989) wo ccccccccccccccsccccccccccccs 13

Pyler v. Doe, 457 US 202, 102 S.Ct.

2382, 72 L.Ed.2d 786 (1982)........64.. 21

Alternative Principle and Economic

Due Process 80 Harv. L. Rev. 1463

[SOOT hak cveusacdbasecdsdirdandeeisereda 20

Georgia Laws, Section 3, pp. 887,

BEM B90. nec ccccccscccccccseceseccececes 13

STATEMENT OF JURISDICTION

The jurisdiction of this Court,

comes forward from the final decision of

the State of Georgia’s court of last

resort, the State of Georgia Supreme

Court, which, on reconsideration, on

October lst, 1993, denied the

Petitioner’s Motion For Reconsideration

and thereafter informed the Court of

Appeals of the State of Georgia, which

then transmitted to the trial court the

Court of Appeals’ remittitur.

Further, wherein said court of last

resort, the Supreme Court, of the State

of Georgia, by its actions has decided an

important question of federal law which

has not been decided by this Court, and

may in fact conflict with applicable

decisions of this Court, as to the

constitutionality of its state

constitution anda state statute is in

conflict with the Constitution of the

United States and/or application,

interpretation, and/or implementation of

its state constitution and or statute,

contrary to established federal law, and

the Constitution of the United States,

and wherein the further conflicts as to

construction and/or application,

interpretation, and/or implementation of

a state statute, thus jurisdictional

ground for this Honorable Court is

established.

Te PT re

STATEMENT OF THE CASE

This petition for Writ of Certiorari

arises out of the performance of an act

or acts of medical malpractice committed

upon the Petitioner, on or about July

3rd, 1989, by the Respondents.

The Petitioner filed her

Professional Malpractice Complaint on

June 27th, 1991, in the Superior Court of

Fulton County of the State of Georgia, in

accordance with the appropriate State of

Georgia Statutes, and more specifically

the Official Code of Georgia Annotated

Section: 9-11-9.1, to the best of her

knowledge and understanding thereof. In

accordance with 0.C.G.A. 9-11-9.1, the

Petitioner submitted with her complaint,

the sworn affidavit albeit the deposition

of her personal medical doctor, Dr.

Pamela Benitez of the State of Michigan,

the state of residence of the Petitioner

at the time. The complaint was filed

within 10 days of the statute of

limitations running. Via the U.S. Mails,

on June 28th, 1991 the Petitioner filed

an amendment to her complaint, alleging

that in accordance with 0O.C.G.A. 9-1l-

9.1(b) that her complaint had been filed

within 10 days of the statute of

limitations running and that she was

unable to supply an affidavit of a

medical doctor as to the allegations of

her complaint, and was in accordance with

the statute, invoking the 45 day period

within which to file the additional

medical doctor’s affidavit. The court

received and filed the amendment, July

lst, 1991, still prior to the actual date

of the statute of limitations running.

Respondents were served with the Summons,

—_-

ees

Complaint and subsequent amendment and

answered in due course. On August 7th,

1991, within the allowed 45 day extension

period, the Petitioner filed her second

amendment to her complaint, stating that

in accordance with 0.C.G.A. 9-11-15 and

O.C.G.A. 9-11-9.1, amended her complaint,

by adding thereto, the sworn affidavit of

Jose L. Evangelista, M.D.. Dr.

Evangelista was a medical doctor,

licensed by the State of Georgia, who had

reviewed the available medical records of

the Petitioner. Dr. Evangelista, did not

have an opportunity to review the

admission x-rays of the Petitioner, to

the Respondent Hospital, due to its

failure to make same available.

Respondent Schellack, was served

with Summons and Complaint on July lst,

1991. He filed his answer on August 2nd,

1991, and had the Petitioner served with

his Motion to Dismiss for failure to

comply fully with 0.C.G.A. 9-11-9.1, on

August 5th, 1991.

On August 2nd, 1991, Attorney J.M.

Hudgens IV, P.C., representing three of

the Respondents, issued a letter to the

Petitioner’s attorney, threatening an

action for abusive litigation against the

Petitioner and her attorney. The basis

for his threat was the enclosure of the

missing Respondent Hospital’s admission

x-ray which clearly showed the existence

of the fifty centimeter catheter lead

wire inside of the Petitioner’s body.

This was further noteworthy in that it

was an actual admission to one of the

counts of the initial complaint, that the

Respondents had knowledge of the wire

within the Petitioner’s body and failed

o “=e =

to warn and failed to remove the wire,

thus discharging the Petitioner with the

fifty centimeter catheter lead still in

her body but, without her knowledge of

same.

Having filed her appropriate

amendment consisting of the sworn

affidavit of Dr. Evangelista, within the

allowable 45 day period from the original

date of her filing her professional

medical malpractice complaint and in

accordance with the provisions of

O.C.G.A. 9-11-9.1, the Petitioner filed

her response to the Respondent’s motion

to dismiss, on September 2nd, 1991,

stating same.

On September llth, 1991, the

Petitioner filed a supplemental response

to the Respondent’s motion to dismiss.

In her supplemental response, she alleged

that O.C.G.A. 9-11-9.1 was

unconstitutional. Her allegations were

initially based on the Constitution of

the State of Georgia, Art. III, Sec. V.

Par. III, which states: "No bill shall

pass which refers to more than one

subject matter or contains matter

different from what is expressed in the

title thereof." M of van Vv:

State ex rel Greed, 4 Ga. 26 (1948),

The purpose of this constitutional

provision is to protect against surprise

legislation. Mead Corp. v. Collins, 258

Ga. 239, 367 SE2d 790 (1988). 0.C.G.A.

9-11-9.1 totally fails in this regard.

The Petitioner further alleged that the

statute did not warn of the dire

substantive consequences which would

result from the failure to follow

administrative requirements exactly. The

Petitioner further stated that: "the

“a

’

language of the statute is so vegue that

persons of ordinary intelligence are

forced to guess at its meaning. Such

guesswork is at that persons’ peril. Any

defects in the affidavit are not

amendable and, thus, the effects of the

statute become capricious and arbitrary.

A plaintiff who guesses wrong would be

irrevocably out of court. Certainly this

violates all notions of fair play and

substantial justice."

On September 13th, 1991, the Trial

Court issued an Order, stating that:

"upon full consideration of the record,

Defendants’ Motion to Dismiss is hereby

GRANTED. " The Court further stated in

its last paragraph: "We therefore GRANT

the Defendant’s Motion for Summary

Judgment and DISMISS the Plaintiff's

Complaint for failure to comply with

O.C.G.A. 9-11-9.1.

On October 2nd, 1991, the Petitioner

filed her Notice of Appeal with the Trial

Court to the Supreme Court of Georgia

rather that the Court of Appeals, due to

jurisdiction over the case being that of

the Supreme Court pursuant to the

Constitution of the State of Georgia, as

to the constitutional questions raised as

to 0.C.G.A. 9-11-9.1 and the

implementation of same by the Trial

Court.

On February 12th, 1992, the Supreme

Court of Georgia transferred the case to

the Court of Appeals, stating that they

did not have jurisdiction.

On February 21st, 1992 the

Petitioner filed her motion for

reconsideration with the Supreme Court of

Georgia. She also filed her enumerations

of error with the Court of Appeals of the

State of Georgia.

On approximately March lst, 1992,

the Petitioner filed her brief with the

Court of Appeals.

On March 12th, 1992, the Supreme

Court denied the Petitioner’s motion for

reconsideration.

On September 8th, 1992, the Court of

Appeals found that the trial court

properly granted the Respondents’ motion

to dismiss. They further’ took the

position that the trial court did not

rule on the Petitioner’s contentions that

O.C.G.A. 9-11-9.1 was unconstitutional

thus Claiming nothing for appellate

review based on In Re Parrott, 194 Ga.

App. 856, 392 SE2d 480 (1990).

The Court of Appeals found that’ the

deposition of Dr. Benitez did not set

forth specifically at least one negligent

act or omission claimed, in accordance

with their view of 0O.C.G.A. 9-11-9.1.

They thus stated that the complaint

originally filed was subject to be

dismissed for noncompliance with O.C.G.A.

9-11-9.1.

The Court of Appeals found that

paragraph (b) of O.C.G.A. 9-11-9.1 did

not apply because the Petitioner did not

allege the inability to submit the

affidavit of Dr. Evangelista, with the

originally filed complaint. The Court of

Appeals did not address the uniqueness of

the filing of the complaint within 10

days of the statute of limitations

running, as specifically set out in the

statute.

The Court of Appeals failed to

permit any amendments to the complaint,

although it is clearly the law to freely

permit amendments to be filed in the

State of Georgia, under 0.C.G.A. 9-11-15.

While the amendment itself may denoted

the inability to file an affidavit of an

expert, it was done so under 0O.C.G.A. 9-

11-15 as an action of notice pleading of

the additional sworn affidavit, adding as

a 24th paragraph to the complaint and not

to strike the submission of the expert

affidavit submitted albeit a sworn

deposition. The additional affidavit

filed on August 7th, 1991 was done so

under 0O.C.G.A. 9-11-15. Glaser v. Meck,

258 Ga. 468, 369 SE2d 912 (1988), and

Patterson v. Douglas Women’s Center,

P.C., 258 Ga. 803, 374 SE2d 737 (1989).

The Court of Appeals based their opinion

on a case cited by the court of a

decision of the Supreme Court of Georgia,

which was decided the same day as_ the

Petitioner filed her original complaint

within the 10 days prior to the statute

of limitations running. Cheeley __v.

Henderson, 261 Ga. 498 (3) (405 SE2d 865)

(3) (1891). The Court of Appeals by

holding to this position, permitted the

application by the Trial Court to become

in fact an adjudication not on the merits

but, rather on the procedural hurdles.

The ruling falls contrary to the title or

the body of section 3, Georgia Laws 1987,

pp. 887, 889-890, for there is no

direction that a failure to comply with

0O.C.G.A. 9-11-9.1 sould result in an

adjudication on the merits.

On September 24th, 1992, the

Petitioner filed her motion for

reconsideration with the Court of

Appeals. She stated that, the Cheeley

case had been misconstrued as to the

critical 10 day period. It was pointed

out that the Court of Appeals was onerous

on her to evaluate her expert affidavit

albeit deposition, dismiss and re-file

the case all within the 10 day period.

As to the failure of the Court of Appeals

to evaluate the constitutional question,

the Petitioner addressed the mere case

law position of In re Parrott, 194 Ga.

App. 856 392 SE2d 480 (1990) which was a

Criminal matter which was not on point

for the record which the Trial Court had

before it at the time it issued its

Order. In fact, said case is easily

distinguishable as_ follows: The case

cited was a criminal matter as to the

attempt of an incarcerated individual to

change his name and the potential for

confusion upon the general public. In

a E

that case, the Appellant had not raised a

constitutional issue at the trial level.

In the instant case, the Petitioner

raised the various constitutional

questions, in her supplemental answer to

the Respondents motion to dismiss. The

Supplemental answer was filed with the

Trial Court on September 1lith, 1991, the

Trial Court Granted the motion to

dismiss, September 13th, 1991.

It was re-stated that the Trial Court had

stated that it had ruled on the entire

record of the court and based its entire

order granting a motion to dismiss on the

statute and its construction, thus

implicitedly ruling on the

constitutionality of the statute, whose

question as to constitutionality had been

raised by the Petitioner.

It is also noted that the Appellate

Court of In re Parrott, stated that the

case turned on caselaw, Binford v. Reid,

83 Ga. App. 280, 63 SE2d 345 (1951),

wherein the action of a Superior Court to

grant or refuse a proper application to

change the name of a person was. based

solely on sound legal discretion. The

constitutionality of the statute had not

been raised, and the Trial Court had not

cited the statute as its reason for

disallowing the name change but, rather

the discretion of the court.

It was further noted that the

court’s use of the terminology of

granting a summary judgment for the

Respondents, the court had in fact

ignored the res ipsa loquitur position as

to the existence of a genuine issue of a

material fact which needed to go to the

trier of fact, the jury, to determine as

to the negligent act or omission taking

place, violating the Petitioner’s

protection of the Fifth, Seventh and

Fourteenth Amendments to the Constitution

of the United States.

On October ist, 1992, the Court of

Appeals denied the Petioner’s motion for

reconsideration.

On October 6th, 1992, the Petitioner

filed her notice of intent to apply for

certiorari to the Supreme Court of

Georgia.

On October 20th, 1992, the

Petitioner filed her petition for

certiorari to the Supreme Court of

Georgia. She restated her position as to

the constitutionality of the 0.C.G.A. 9-

11-9.1. She further asked the court to

review the unique period of time as_ set

out by the legislature as to public

policy for the period 10 days prior to

the running of the statute of

limitations. The March 13th, 1989

General Assembly Bill 329 adding

paragraphs (e) and (f) are further

distinguished by the opening statement of

(e), “Except as allowed under subsection

(b) of this Code Section...” (emphasis

supplied) Paragraph (e) immediately

negates itself wherein paragraph (b) is

applicable and specifically the ten day

period. The purpose of notice pleading

and this statute is to make the parties

aware of the negligence and omission

involved. The apparent legislative

purpose was administrative frugality,

avoiding costly time and effort of the

courts, to be expended by litigants in a

professional malpractice action. The

presentation of a prima facie case by

affidavit has been set solely as an

administrative technique to have the

parties ready on both sides from

commencement of the action. In Brake _ v.

Mintz, 193 Ga. App. 622, 666 (1989), the

Court of Appeals dealt with the

considerable uncertainty about when a

Defendant should file an answer or even

whether an answer is necessary until the

Plaintiff supplements her pleading with

the requisite expert’s affidavit. To

constur a further inability to amend a

complaint or correct an incomplete or

defective affidavit requirement, is a

deprivation of due process. assuming

arguendo the legislative ends are

legitimate, it has to be shown that the

very ends sought are not achieveable

through less drastic methods. Struve,

Alternative Principle and Economic Due

Process, 80 Harv. L. Rev. 1463 (1967).

The State and Defenders of such a statute

must prove that there does in fact exist

a compelling state interest to restrict

Claimants’ fundamental rights. Pyler v.

Doe, 457 U.S. 202, 102 S.Ct. 2382, 72

L.Ed.2d 786 (1982).

On September 8th, 1993, the Supreme

Court of Georgia denied the Petitioner’s

petition for certiorari.

On September 17th, 1993, the

certificate of counsel as to authenticity

of the petition for certiorari based on

the belief that the statute, the decision

and actions of the courts overlooked the

appropriate state and federal

constitutional provisions and/or

erroneously construed or misapplied them

to the instant case. In addition, on the

17th of September, the Petitioner filed

her motion for reconsideration with the

Supreme Court of the State of Georgia.

In her motion, she stated that the

actions of the courts to either

erroneously construe or misapply O.C.G.A.

9-11-9.1 deals with the question of

whether the Constitution of the State of

Georgia of 1983 is unconstitutional as it

sets out in the Preamble, to perpetuate

the principles of free government and to

promote the interests and happiness of

the citizens of the Siate of Georgia

without mention of its being subsidiary

to the Constitution of the United States

and specifically the Fourteenth Amendment

thereof, and further lacking in any

statements as to the powers of the state

being set out and given by the

Constitution of the United States.

The Petitioner further stated the

issue of diversity as to the parties and

the actions of the courts to deprive her

of the right of equal protection of the

Constitution of the United States. It

was noted that the Supreme Court of

Georgia in Denton v. Conway Express,

Inc., No. S90A1101 (March 15, 1991) 402

SE2d 269 (1991), citing Colonial Pipeline

v. Brown, 258 Ga. 115, 365 SE2d 827

(1988), stated that: "Georgia citizens

have greater rights and even more

benefits than the Federal Constitution."

The Petitioner addressed the courts

having abridged her right to a trial by

jury, the trier of fact in her case.

The constitutionality of O.C.G.A. 9-

11-9.1 was raised as to its legislative

intent and the overbreadth of the

statute. Further the issue as to

administrative purpose of the statute

which in fact was a defense in bar

without remedy, such over breadth and

creation of a special class stealing the

property rights of the Petitioner and

thwarting her equal protection and right

to due process under the Constitution of

the United States. The Petitioner

attempted to have the Supreme Court deal

with the issue of whether there was in

fact, a compelling rationale for the

violation of fundamental rights.

On October list, 1993, the Supreme

Court of the State of Georgia, denied the

Petitioner’s motion for reconsideration.

ARGUMENT FOR ALLOWANCE OF WRIT

This is a case involving the

diversity of citizenship of the parties.

While this case originated in a _ state

court, the rights of all citizens of the

United States are guaranteed by the

United States Constitution yet those of

the Petitioner were abridged.

The Petitioner’s right to a trial by

jury, was arbitrarily torn from her by

the trial judge, contrary to

constitutional and statutory mandates.

The judicial review of the trial

court’s actions was tainted by the

reading of the Constitution of the State

of Georgia 1983, giving greater weight to

the citizens of the state over those

citizens of other states, coupled with

the judicial record of and statements

therein by the court of last resort for

the State of Georgia, the Georgia Supreme

Court, thus depriving the Petitioner of

her United States Constitutional rights

as aocitizen, to equal protection, due

process of law and protection of her

property rights, sought to be addressed

by the court action as a plaintiff

against the Respondents for a

professional medical malpractice action

committed against the Petitioner,

endangering her life and future patients

should this matter not be brought forward

and addressed by the courts, in which the

Petitioner was injured and lost personal

property.

The uniqueness of this case, the

geographics of the Petitioner’s state of

residence, Michigan, her personal doctor

being of Michigan and the Petitioner’s

inability to prejudge within 10 days and

the conservative approach to amend he

complaint to add an aditional affidavit,

has cost her to lose her right to trial.

By her actions, she complied with the

intent of the legislation and

legislature.

O.C.G.A. 9-11-9.1 has created a

special class of medical professional

individuals who have ability thru

administrative hoops, to create a bar of

court, violate the substantive rights of

the Petitioner and similar situated

individuals as guaranteed by the

Constitution of the United States.

The State of Georgia, court of last

resort has stated, "that the Georgia

Constitution offers Georgia citizens

greater rights and even more benefits

than the Federal Constitution." Denton

v. Conway Express, Inc., No. S90A1i01

(March 15, 1991) 402 S.E.2d 269 (1991).

The actions of the Georgia Supreme Court,

in its ruling on this case shows it to be

once again following the authority and/or

its own interpretation of its state

constitution versus the dictates of the

United States Constitution as to state

rights an® the rights of all citizens of

the United States, and thus establishing

lesser rights for noncitizens of the

State of Georgia in its court. The

Georgia Constitution wanes in its power

and authority to the Fourteenth Amendment

to the United States Constitution and as

such this case is ripe for judicial

review by this Honorable Court to the

questions of conflict of authority and

subsequent decisions.

CONCLUSION

For the reasons stated, the writ

should be granted and the judgement of

the Court of Appeals of the State of

Georgia should be reversed and the case

remended to the trial court for a jury

trial.

The Petitioner, Franklin M. Wright,

as Administrator of the Estate of

Christine Wright, who past away

September, 1992, respectfully prays that

this Honorable Court Grant his petition

for certiorari.

Date this A/7 day of December,

1993.

Respectfully submitted,

Jon & 9, at

Arthur SKS

Counsel for Petitioner

Franklin M. Wright,

Administrator of the Estate

of Christine Wright, Deceased

APPENDIX

Judgment of Trial Dated 1

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CHRISTINE WRIGHT

Plaintiff,

Civil Action

File No. # 134012

Vv.

)

CRAWFORD LONG )

HOSPITAL OF EMORY )

UNIVERSITY, JOHN K. )

SCHELLACK, M.D., )

CHRISTOPHER DOOLEY, )

M.D., M. EDWYN )

HARRISON, III, M.D.,)

WILLIAM A. DAVIS, )

M.D., DAVID GREEN, )

M.D., and )

CHRISTOPHER WALLS, )

M.D., )

)

Defendants...

ORDER

Upon full consideration of the

record, Defendant’s Motion to Dismiss is

hereby GRANTED.

Plaintiff filed this medical

malpractice action against Crawford Long

ee ee ee Fe

Hospital as well as six doctors alleging

that the Defendants failed to remove an

introducer wire used during the insertion

of a central line catheter in Plaintiff’s

body on July 4th, 1989. The Plaintiff

filed with her Complaint a deposition of

Pamela Benitez, M.D., however, the

Complaint did not include the expert

affidavit required by 0O.C.G.A. 9-11-

9.1(a). Neither did the Plaintiff's

complaint allege that due to time

constraints an expert affidavit could not

be prepared and that Plaintiff would need

the extra 45 days permitted by 0O.C.G.A.

9-11-9.1(b).

On July 1, 1991, in an attempt to

comply with the 0O.C.G.A. 9-11-9.1

requirement, the Plaintiff filed an

amended Complaint stating that due to

time constraints an expert witness

affidavit could not be prepared and filed

contemporaneously with the Complaint. On

August 7, 1991 a second amended Complaint

was filed with the required expert

affidavit attached.

We have no choice but to dismiss

this Complaint for failure to fulfill the

contemporaneous filing requirements.

O.C.G.A. 9-11-9.1l(e) Plaintiff’s first

and second amendments to the original

Complaint cannot cure this defect.

Plaintiff responds to this Motion to

Dismiss by contending that first, the

statute does not by its terms require a

contemporaneous allegation of

unavailability and second, the deposition

attached to the original Complaint was

sufficient to satisfy the requirements of

O.C.G.A. 9-11-9.1. With both these

contentions, we disagree.

es Reed es

Section b of 0O.C.G.A. 9-11-9.1

states, "The contemporaneous filing

requirement of subsection (a) of this

Code section shall not apply to any case

in which the period of limitation will

expire within ten days of the date of

filing and, because of such time

constraints, the plaintiff has alledged

that an affidavit of an expert could not

be prepared. " The language of the

statute reads very clearly. The

requirement that the Plaintiff allege

that time constraints have prevented the

contemporaneous filing of an affidavit

with the Complaint is mandatory, not

permissive.

The plaintiff’s contention that the

deposition attached to the original

Complaint was sufficient to satisfy the

affidavit requirements of 0.C.G.A. 9-11-

9.1 must also fail. 0O.C.G.A. 9-11-9.1(4a)

states, "In any action for damages

alleging professional malpractice, the

plaintiff shall be required to file with

the complaint an affidavit of an expert

competent to testify, which affidavit

shall set forth specifically at least one

negligent act or omission claimed to

exist and the factual basis for each such

claim."

The deposition attached to

Plaintiff’s original Complaint does not

set forth the factual basis for the claim

of malpractice. In fact, the deposition

never mentions the particular Defendants

involved in this case, let alone the acts

of negligence they are alleged to have

performed. The deposition of Dr. Benitez

merely states that an introducer wire was

left in the Plaintiff's body and that

Ope Ninh

failure to remove this wire in a patient

upon withdrawal of a CVP line violates

the standard of care generally accepted

in the community. Dr. Benitez never

states that she has reviewed the work

performed by the particular Defendants in

this matter and that their acts or

failure to act fell below the standard of

care generally accepted in the community.

Allowing this particular deposition to

fulfill the requirements of 0O.C.G.A.

9-11-9.1 would undermine the public

policy of the statute which is "to

require the plaintiff to ‘set forth the

particulars of the claim’" in order to

prevent frivolous or unsustaninable

malpractice actions. (cits.) Cheeley v.

Henderson, 197 Ga. App. 543 (1990)

reversed on other grounds, Ga.

(1991).

We therfore GRANT the Defendant ’s

Motion for Summary Judgment and DISMISS

the Plaintif’s Complaint for failure to

comply with 0.C.G.A. 9-11-9.1.

This 13th day of September, 1991.

natu ffix

Joel J. Fryer

Judge, Fulton Superior Court

Supreme Court of Georgia Decision

Dated 2/12/92

In The Supreme Court of Georgia

S$92A0520 Christine Wright v. Crawford

Long Hospital of Emory University Et Al.

The Honorable Supreme Court met

pursuant to adjournment. The following

order was passed:

CHRISTINE WRIGHT V. CRAWFORD LONG

HOSPITAL OF EMORY UNIVERSITY ET AL.

From the SUPERIOR COURT of FULTON COUNTY.

There being no basis for

jurisdiction in this Court, it is ordered

that this appeal be hereby transferred to

the Court of Appeals. Clarke, C.J.,

Weltner, P.J., Bell, Hunt, Benham,

Fletcher, JJ., concur.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true

extract from the minutes of the Supreme

Court of Georgia.

Witness my signature and the seal of

said court affixed the day and year list

above written.

(s/Lynn M. Stinchcomb, Deputy)

Clerk.

ourt o 8 Dat 2

In the court of Appeals of Georgia

A92A0964. WRIGHT V. CRAWFORD LONG

eee OF EMORY UNIVERSITY et. al. S-

SOGNIER, Chief Judge.

Christine Wright brought a medical

malpractice claim against Crawford Long

Hospital and six physicians. Her

complaint, as amended, was dismissed for

noncompliance with OCGA 9-11-9.1, and she

appeals.

In her complaint appellant alleged

that defendants were liable for damages

she incurred when an introducer wire was

left in her body during catherization

procedures performed in July 1989.

Appellant attached to her complaint the

deposition of Dr. Pamela Benitez, the

surgeon who discovered and removed the

wire in December 1989. In this

deposition, which was given in a Michigan

lawsuit, Dr. Benitez testified that

leaving a broken catheter threader wire

in a patient’s body violated the

applicable standard of care. However,

Dr. Benitez also stated that the wire she

removed was not the kind of wire used to

thread a catherization line and that she

did not recognize the type of wire and

was unable to identify a medical

procedure in.which such a wire would be

used. In addition, Dr. Benitez testified

that she had not reviewed appellant’s

medical records pertaining» to the

procedures performed by appellees and did

not know the names of appellant’s Georgia

physicians.

Four days after filing her

complaint, appellant amended it to allege

that the statute of limitation would

wai‘ nt

TRAIAN eg eed ae NS OR eI AT INES RP eins EAE

sea die whined cet es

Tata UL CRR ee SS

expire within ten days of filing and that

because of this time constraint she was

unable to obtain the required affidavit

before filing the complaint. Appellees

raised the issue of noncompliance with

OCGA 9-11-9.1 in their answers and

motions to dismiss. In her second

amendment to the complaint, filed 41 days

after the complaint was filed, appellant

attached the affidavit of Dr. Jose

Evangelista, who averred that he had

determined that appellees’ treatment of

appellant and had determined that

appellees were negligent in failing to

remove a catheter guide wire and in

failing to so inform the appellant. The

trial court dismissed the complaint on

the basis that Dr. Benitez’s deposition

testimony did not satisfy the

requirements of OCGA 9-11-9.1 (a) and

that appellant could not amend the action

to add Dr. Evangelista’s affidavit

because the original complaint did not

include the language required by OCGA 9-

11-9.1 (b).

1. Contrary to appellant’s

contentions, the deposition did not meet

the requirement of "set(ting) forth

specifically at least one negligent act

or omission claimed to exist and the

factual basis for each such claim, "OCGA

9-11-9.1 (a), as Dr. Benitez did not

identify any negligent act committed by

appellees and was’ unable even to

speculate as to the source of the wire.

See Piedmont Hospital, Inc. v. Milton,

189 Ga. App. 563, 564 (377 SE2d 198)

(1988). Thus, the complaint as

originally filed was subject to dismissal

for noncompliance with OCGA 9-11-9.1.

2. Alternatively, appellant

contends she properly amended her

complaint under OCGA 9-11-9.1 (b) or (Cc).

The statute permits amendment of a

complaint to add the required affidavit

only in limited circumstances: (1) if the

statute of limitation will expire within

ten days and the plaintiff alleges that

an expert affidavit could not be prepared

because of time constraints (OCGA 9-11-

9.1 (b)); or (2) if the court determines

that the plaintiff was filed and the

failure to file "was the result of a

mistake" (id. at (e)). Paragraph (e)

does not apply because Dr. Evangelista’s

affidavit was dated after suit was filed,

and appellant does not contend the

affidavit was available prior to filing.

See Cheeley v. Henderson, 261 Ga. 498 (3)

(405 SE2d 865) (3) (1991); compare

Hospital Authority of Fulton County v.

McDaniel, 192 Ga. App. 398 (385 SE2d 8)

(1989). Paragraph (b) likewise is

inapplicable because appellant did not

allege in her original complaint that she

was unable to obtain an affidavit because

of time constraints, but instead alleged

that the requisite affidavit -- the

deposition of Dr. Benitez -- was attached

to and filed with the complaint, but the

deposition was insufficient.

Appellant maintains that under the

liberal amendment provisions of OCGA

9-11-15, she was entitled to amend her

complaint to add the allegations required

by OCGA 9-11-9.1 (b) and then to file a

second amendment to add the affidavit as

contemplated by paragraph (b). We

disagree, for in Cheeley, supra, the

Supreme Court held that the

contemporaneous filing requirement is

mandatory and that the contemporaneous

ee ee en

CALE ba ccna in Bibra

Siiltcn PL lee ate sida ab; MAES

Pe eS Oa ee la?

filing requirement is mandatory and that

the filing of an insufficient affidavit

cannot be cured by amendment unless’ the

requirements of. paragraph (e) are met.

As the court noted, paragraph (e)

expressly states that the failure to

comply with the contemporaneous filing

requirement cannot be cured by amendment

under OCGA 9-11-15 unless the affidavit

was available prior to the filing of the

complaint but was not filed due to a

mistake. Cheeley, supra at 499. The

legislature clearly has limited the

manner in which OCGA 9-11-15 is applied

in malpractice cases and has authorized

amendment only in certain limited

circumstances not present here.

Although this court reached a

contrary result in Thompson v. Long, 201

Ga. App. 480 (411 SE2d 322) (1991), that

case involved a pro se plaintiff and

applied the less’ stringent pleading

standard used in pro se cases but not

applicable here. Moreover, the Thompson

plaintiff clearly had intended from the

outset to proceed under paragraph (b) --

ie., to file the complaint just before

the statute of limitation expired and

then to obtain and file the affidavit

thereafter -- but neglected to add the

"magic language" in her pleading, id. at

482, whereas here appellant originally

filed a deposition she alleged met the

requirements of paragraph (4a). Thus,

this case, like Cheeley, “involves the

misinterpretation of OCGA 9-11-9.1

(a). “ : ‘ Because of the

misinterpretation, the requisite

affidavit (filed with the complaint)

failed to comply with OCGA 9-11-9.1 (a)."

(Punctuation and citation omitted. )

Ot ee a eek

Feel a

;

Cheeley, supra at 498 (3). Accordingly,

the trial court properly granted

appellees’ motions to dismiss.

3. Since the trial court did not

rule on appellant’s contentions that OCGA

9-11-9.1 is unconstitutional, her

enumerations on that issue present

nothing for appellate review. In re

Parrott, 194 Ga. App. 856 (392 SE2d 48)

(1990).

Judgment affirmed. McMurray, P.J.,

and Cooper, J., concur.

Supreme Court of Georgia Decision

Dated 9/8/93

Case No. S93C0114

CHRISTINE WRIGHT V. CRAWFORD LONG

HOSPITAL OF EMORY UNIVERSITY ET. AL.

COURT OF APPEALS CASE NO. A92A0964

The Supreme Court today denied the

petition for certiorari in this case.

All the Justices concur, except

Hunt, P.J., and Carley J., who dissent.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk's Office, Atlanta

I certify that the above is a true

extract from the minutes of the Supreme

Court of Georgia.

Witness my signature and the seal of

said court affixed the day and year last

above written.

Sherie M. Welch, Clerk.

Supreme Court of Georgia Decision

Dated 10/1/93

The Honorable Supreme Court met

pursuant to adjournment.

The following order was passed:

Case No. S93C0114

CHRISTINE WRIGHT V. CRAWFORD LONG

HOSPITAL OF EMORY UNIVERSITY ET. AL.

Upon consideration of the Motion for

Reconsideration filed in this case, it is

ordered that it be hereby denied.

Hunt, P.J., and Carley, J., dissent.

SUPREME COURT OF THE STATE OF GEORGIA

Clerk’s Office, Atlanta

I certify that the above is a true

extract from the minutes of the Supreme

Court of Georgia.

Witness my signature and the seal of

said court affixed the day and year last

above written.

Sherie M. Welch, Clerk

Amendment 5 to the Constitution of the

United States, "No person shall be held

to answer for a capital, or otherwise

infamous crime, unless on a_ presentment

or indictment of a Grand Jury, except in

cases arising in the land or naval

forces, or in the Militia, when in actual

service in time of War or public danger;

nor shall any person be subject for the

same offense to be twice put in jeopardy

of life or limb; nor. shall he be

compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without

due process of law; nor shall private

property be taken for public use, without

just compensation."

Amendment 7 to the Constitution of the

United States, "In suits at common law,

where the value in controversy shall

exceed twenty dollars, the right of trial

by jury shall be preserved, and no fact

tried by a jury, shall be otherwise re-

examined in any Court of the United

States, than according to the rules of

the common law."

Amendment 14, Section l, to the

Constitution of the United States, “All

persons born or naturalized in the United

States and subject to the jurisdiction

thereof, are citizens of the United

States and of the State wherein they

reside. No state shall make or enforce

any law which shall abridge the

privileges or immunities of citizens of

the United States; nor shall any state

deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its

jurisdiction the equal protection of the

iia

laws."

The Preamble of the Constitution of the

State of Georgia of 1983, "To perpetuate

the principles of free government, insure

justice to all, preserve peace, promote

the interest and happiness of the citizen

and of the family, and transmit to

posterity the enjoyment of liberty, we

the people of Georgia, relying upon

protection and guidance of Almighty God,

do ordain and establish this

Constitution."

Article 1, S$ 1, P 1 of the Constitution

of the State of Georgia of 1983, "No

person shall be deprived of life,

liberty, or property except by due

process of law."

Article 1, S$ 1, P 2 of the Constitution

of the State of Georgia of 1983,

"Protection to person and property is the

paramount duty of government and shall be

impartial and complete. No person shall

be denied the equal protection of the

laws."

Article @ bei Pe ie the

Constitution of the State of Georgia of

1983, "(a) The right to trial by jury

shall remain inviolate, except that the

court shall render judgment without

verdict of a jury in all civil cases

where no issuable defense is filed and

where a jury is not demanded in writing

by either party. In criminal cases, the

defendant shall have a public and speedy

trial by an impartial jury; and the jury

shall be the judges of the law and the

facts.

Official Code of Georgia Annotated,

Section 9-2-61, "Renewal of case after

dismissal.

(a) If a plaintiff discontinues or

dismisses his case and recommences the

same within six months, the renewed case

shall stand upon the same footing, as to

limitation, with the original case.

However, this privilege of dismissal and

renewal shall be exercised only once

under this Code section.

(b) this Code section shall not apply to

contracts for the sale of goods covered

by Article 2 of Title 11."

Official Code of Georgia Annotated,

Section 9-11-9.1, “Affidavit to accompany

charge of professional malpractice.

(a) In any action for damages alleging

professional malpractice, the plaintiff

shall be required to file with the

complaint an affidavit of an expert

competent to testify, which affidavit

shall set forth specifically at least one

negligent act or omission claimed to

exist and the factual basis for each such

claim.

(b) The contemporaneous filing

requirement of subsection (a) of this

Code section shall not apply to any case

in which the period of limitation will

expire within ten days of the date of

filing and, because of such time

constraints, the plaintiff has alleged

that an affidavit of an expert could not

be prepared. In such cases, the

plaintiff shall have 45 days after the

filing of the complaint to supplement the

pleadings with the affidavit. The trial

court may, on motion, after hearing and

for good cause extend such time as it

shall determine justice requires. |

filing of a complaint, as allowed under

subsection (b) of this Code section, the

defendant shall not be required to file

an answer to the complaint and affidavit

until 30 days after the filing of the

affidavit.

(d) This Code section shall not be

construed to extend any applicable period

of limitation.

(e) Except as allowed under subsection

(b) of this Code section, if a plaintiff

fails to file an affidavit as required by

this code section contemporaneously with

a complaint alleging professional

malpractice and the defendant raises the

failure to file such an affidavit in its

initial responsive pleading, such

complaint is subject to dismissal for

failure to state a claim and cannot be

cured by amendment pursuant to Code

Section 9-11-15 unless a court determines

that the plaintiff had the requisite

affidavit available prior to filing the

complaint and the failure to file the

affidavit was the result of a mistake.

(f) If a plaintiff fails to file an

affidavit as required by this Code

section and the defendant raises failure

to file such an affidavit in its initial

responsive pleading, such complaint shall

not be subject to the renewal provisions

of Code section 9-2-61 after the

expiration of the applicable period of

limitation, unless a court determines

that the plaintiff had the requisite

affidavit available prior to filing the

complaint and the failure to file the

affidavit was the result of a mistake."

Official Code of Georgia Annotated,

Section 9-11-15, "Amended and

supplemental pleadings.

(a) Amendments. A party may amend his

pleading as a matter of course and

without leave of court at any time before

the entry of a pretrial order.

Thereafter the party may amend his

pleading only by leave of court or by

written consent of the adverse party.

Leave shall be freely given when justice

so requires. A party may plead or rove

in response to an amended pleading and,

when required by an order of the court,

shall plead within 15 days after service

of the amended pleading, unless the court

otherwise orders.

(b) Amendments to conform to the

evidence. When issues not raised by the

pleadings are tried by express or implied

consent of the parties, they shall be

treated in all respects as if they had

been raised in the pleadings. such

amendment of the pleadings as may be

necessary to cause them to conform to the

F10

evidence and to raise these issues may be

made upon motion of any party at any

time, even after judgment; but failure so

to amend does not affect the result of

the trial of these issues. If evidence

is objected to at the trial on the ground

that it is not within the issues made by

the pleadings, the court may allow the

pleadings to be amended and shall do so

freely when the presentation of the

merits of the action will be subserved

thereby and the objecting party fails to

satisfy the court that the admission of

the evidence would prejudice him in

maintaining his action or defense upon

the merits. The court may grant a

continuance to enable the objecting party

to meet the evidence.

Whenever the claim or defense asserted in

the amended pleading arises out of the

Fl1l

conduct, transaction, or occurrence set

forth or attempted to be set forth in the

original pleading, the amendment relates

back to the date of the original

pleading. An amendment changing the

party against whom a claim is asserted

relates back to the date of the original

pleadings if the foregoing provisions are

satisfied, and if within the period

provided by law for commencing the action

against him the party to be brought in by

amendment (1) has received such notice of

the institution of the action that he

will not be prejudiced in maintaining his

defense on the merits, and (2) knew or

should have known that, but for a mistake

concerning the identity of the proper

party, the action would have been brouyht

against him.

(d) Supplemental pleadings. Upon motion

of a party the court may, upon reasonable

F12

notice and upon such terms as are just,

permit him to serve 4a supplemental

pleading setting forth transactions or

occurrences or events which happened

since the date of the pleading sought to

be supplemented. Permission may be

granted even though the original pleading

is defective in its statement of a claim

for relief or defense. If the court

deems it advisable that the adverse party

plead to the supplemental pleading, it

shall so order, specifying the time

therefor."

Official Code of Georgia Annotated,

Section 9-11-38, "The right of trial by

jury as declared by the Constitution of

the state or as given by a statute of the

state shall be preserved to the parties

inviolate."

, |

NO.

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

FRANKLIN M. WRIGHT, Administrator Of The

Estate of CHRISTINE WRIGHT, Deceased,

Petitioner,

CRAWFORD LONG HOSPITAL OF EMORY

UNIVERSITY, JOHN K. SCHELLACK, M.D.,

CHRISTOPHER DOOLEY, M.D., M. EDWYN

HARRISON, III, M.D., DAVID A. DAVIS,

M.D., DAVID GREENE, M.D., and CHRISTOPHER

WALLS, M.D.,

Respondents.

CERTIFICATE OF SERVICE

This is to certify that I have this

day served upon the clerk of the Supreme

Court of the United States, forty copies,

and counsel for the Respondents in the

foregoing matter, a copy of the PETITION

FOR WRIT OF CERTIORARI, by depositing

same in the United States Mail in a

properly addressed envelope, adequate

postage thereon to:

Clerk, Supreme Court of the United States

1 First Street, N.E.

Washington, D.C. 20543

(202) 479 - 3000

Sidney F. Wheeler, Esq.

J.M. Hudgins, IV, P.C.

LONG, WEINBERG, ANSLEY & WHEELER

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

(404) 876 - 2700

John A. Gilleland, Esq.

Kimberly Logue Woodland, Esq.

LOVE AND WILLINGHAM

Suite 5050

One Atlantic Center

1201 W. Peachtree Street

Atlanta, Georgia 30309

(404) 607 - 0100

Hunter S. Allen, Jr., Esq.

Bradley C. Reeves, Esq.

ALLEN AND PETERS

Two Midtown Plaza

Suite 1700

1360 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 874 - 1700

Michael J. Bowers, Esq.

Attorney General - State of Georgia

132 State Judicial Building

42 Capital Square, S.W.

Atlanta, Georgia 30334

(404) 656 - 4585

Dated this 7 day of December, 1993

WA): Associates, >.¢C.

By: (_ ae ZX

“Arthur C. Nilsen —

Georgia State Bar # 538860

COUNSEL FOR PETITIONER

Franklin M. Wright,

Administrator Of The

Estate of Christine

Wright, Deceased

1944 Clairmont Road

Decatur, Georgia 30033

(404) 320 - 6000

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.