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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1118

## Text

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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

ii
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

iv
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

Vv
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?

vi

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 +

'
i
i
i

ix

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

xi

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

e

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
a
v

5
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,

6
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
s
’

9
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

10

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

11

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).

12

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.

13

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

14
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

15

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

16
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

17
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

18
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

19
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

20
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).

21
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

22
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

23
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

24
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

25
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

26

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

27
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

28

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

29
Christine Wright, who past away
September, 1992, respectfully prays that
this Honorable Court Grant his petition

for certiorari.

re
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

Al

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

ee

A2

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

A3
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

A4

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-

A5
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

eo

Ope Ninh

A6
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).

A7
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

Bl

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

B2

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.

Cl
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

C2
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

C3
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

C4
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

C5
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)

C6
(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?

C7
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

c8
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. )

|
%
bs
q
es
|
4
4
*
A

Ot ee a eek

Feel a

;
|

cg
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.

Dl
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.

,

El

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

E2
above written.

Sherie M. Welch, Clerk

Fl
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

F2
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

F3

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,

|

F4
"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

F6

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. |
(c) If an affidavit is filed after the

filing of a complaint, as allowed under

|

F7

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

F8
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

F9

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.

(c) Relation back of amendments.
Whenever the claim or defense asserted in

the amended pleading arises out of the

ee

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

sy
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1745%3A1. Public record. Not legal advice.