Opposition Brief — Wright v. Crawford Long Hospital of Emory University

PETITION NO. 93-1076

IN THE SUPREME COURT ' :,

OF THE UNITED STATES

tel

OCTOBER TERM, 1993

CHRISTINE WRIGHT,

Petitioner,

v. - PETITION

NO. 93-1076

CRAWFORD LONG HOSPITAL OF

EMORY UNIVERSITY, JOHN K.

SCHELLACK, M.D., CHRISTOPHER

DOOLEY, M.D., M. EDWYN

HARRISON, II, M.D., WILLIAM

A. DAVIS, M.D., DAVID GREEN,

M.D. and CHRISTOPHER

WALLS, M.D.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE

STATE OF GEORGIA

BRIEF OF RESPONDENTS JOHN K. SCHELLACK, M.D.

AND M. EDWYN HARRISON, III, M.D. IN

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

John A. Gilleland

Georgia Bar No. 294820

LOVE AND WILLINGHAM

Suite 5050

One Atlantic Center

1201 West Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 607-0100

Counsel of Record for Respondents

John K. Schellack, M.D. and

M. Edwyn Harrison, III, M.D.

QUESTIONS PRESENTED FOR REVIEW

The Respondents disagree with the Petitioner’s state-

ment of the questions for review, as there is no substantive

federal question to be reviewed by this Court. The Petitioner

never properly presented a constitutional issue to the

Georgia trial or appellate courts, and therefore those courts

never ruled on any such question. As such, there is no feder-

al question for this Court to review.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..........:::cccssessseeeeerenees i

TABLE OF CONTENTS ...0:-ccccscssssososssorsorsecesoressssessorseneessrsorsessoes ii

TABLE OF AUTHORITIES ..........scssscsscscsssrssercsssersseneseressssssess iii

STATEMENT OF JURISDICTION .........::cccscceseerseseeenerereseenenees 1

STATEMENT OF THE CASE ........scssssscsercescesesesssseneennessneenensens 2

SUMMARY OF THE ARGUMENT ........:cccsssssseserseenennneerseesenens 5

ARGUMENT AND CITATION OF AUTHORITY ......:.0e0e00005 6

A. This Court Should Deny the Petition For Certiorari

Because the Petitioner Never Presented and the State |

Courts Never Ruled On Any Federal or State

Constitutional Issue and There Is No Federal Question

For This Court to Review ccccoccscsssvsscesssossresesssovevevcsceesocesoes 6

B. This Court Should Deny the Petition for Certiorari

Because It Does Not Comply With This Court's Rules......9

CONCLUSION occcccsesccsessesovcsersscsscsnsscoronesscsnssonssossessornceeqneessvene 10

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES PAGE

Bailey v. Anderson, 326 U.S. 203, 66 S. Ct. 66, 90 L.Ed. 3

ES SE EE a a a a ee 7

Ellis v. Dixon, 349 U.S. 458, 75 S. Ct. 850, 99 L.Ed. 1231

RSIS SSE a 1

Southern Power Co. v. North Carolina Pub. Serv. Co.,

263 U.S. 508, 44 S. Ct. 164, 68 L.Ed. 413 (1924) ............... 4

Street v. New York, 394 U.S. 576, 89 S. Ct. 1354,

I Ee 5,7

STATUTES

i a scar renenescemsomeennesaneneinonnel 6,7

races ptnpneishenentanenunsonsnabiasanentd 1,2

RULES AND OTHER AUTHORITIES

United States Supreme Court Rule 10............:cccccceseeeeeeeeeees 1,7

United States Supreme Court Rule 14.............:ccccceeeeeee 5,9, 10

a. |

I. STATEMENT OF JURISDICTION

This Court should not accept jurisdiction of this appeal

as it does not involve an important question of federal law

which has not been, but should be, settled by this Court, nor

does it involve a federal question decided by the Georgia

courts in a way that conflicts with the applicable decisions of

this Court. See Sup. Ct. R. 10.1(c). This Court lacks jurisdic-

tion to review the judgment below because the Petitioner

failed to timely or properly raise the questions sought to be

reviewed in the Georgia courts and the Georgia courts there-

fore did not rule on the issues. See Ellis v. Dixon, 349 U.S. 458,

75 S. Ct. 850, 99 L.Ed. 1231 (1955).

Il. STATEMENT OF THE CASE

The Petitioner filed this medical malpractice action in

the Superior Court of Fulton County, Georgia on June 27,

1991, against John K. Schellack, M.D. (“Dr. Schellack”), M.

Edwyn Harrison, III, M.D. (“Dr. Harrison”), numerous other

doctors, and Crawford Long Hospital of Emory University in

Atlanta, Georgia. In her complaint, the Petitioner alleged that

the Respondents left a wire used during the insertion of a

central line catheter in her body.

Under Georgia law, a plaintiff who files an action alleg-

ing medical malpractice must file with the complaint an affi-

davit of an expert competent to testify setting forth at least

one negligent act against each defendant and the factual

basis for each such claim of negligence. O.C.G.A. § 9-11-9.1(a)

(1993). An exception to this procedural requirement arises

when the plaintiff alleges that the statute of limitations will

expire within ten days of the filing of the complaint and that,

because of such time constraints, an affidavit could not be

obtained. In such cases, the statute grants the plaintiff an

additional 45 days from the filing of the complaint in which

to file the affidavit. O.C.G.A. § 9-11-9.1(b).’

Here, the Petitioner did not attach to her original com-

plaint filed on June 27, 1991, an affidavit of an expert specif-

ically alleging that either Dr. Schellack or Dr. Harrison

negligently treated the Petitioner or the factual basis for any

such claim of negligence. Rather, the Petitioner attached the

deposition testimony of another physician taken in an unre-

lated case pending in Michigan. The Petitioner did not allege

in the complaint that she could not obtain an expert affidavit

because of time constraints due to the running of the statute

of limitations, apparently because she thought the deposition

testimony was sufficient.

In an amendment to the complaint filed on July 1, 1991,

the Petitioner alleged for the first time that the statute of lim-

itations would expire within ten days of the filing the com-

plaint and she therefore could not obtain the requisite

expert’s affidavit. On August 7, 1991, the Petitioner filed a

second amendment to the complaint, attaching the affidavit

of yet another physician.

In their answers to the complaint, both Dr. Schellack

and Dr. Harrison specifically raised the defense of the

Petitioner’s failure to comply with the requirements of

O.C.G.A. § 9-11-9.1. On August 1, 1991, Dr. Schellack filed a

' The entire text of O.C.G.A. § 9-11-9.1 (1993) is set out in the

Appendix at page J-1.

motion to dismiss the complaint for failure to comply with

the statute. Dr. Harrison filed a similar motion on September

18, 1991.7

The Petitioner filed a response to Dr. Schellack’s motion

to dismiss on September 3, 1991. The response stated no fed-

eral or state constitutional challenge to O.C.G.A. § 9-11-9.1,

the Georgia Constitution, or any other Georgia statute or

rule. (See Appendix H.) The Honorable Joel J. Fryer of the

Superior Court of Fulton County, Georgia heard oral argu-

ments on September 4, 1991. The Petitioner failed to appear

and, thus, raised no constitutional issue at the hearing.

On September 11, 1991, seven days after the hearing on

the motion to dismiss, the Petitioner for the first time raised

a constitutional challenge to O.C.G.A. § 9-11-9.1 by way of a

supplemental brief. (See Appendix I.) The trial court issued

the written order reflecting its decision on September 13,

1991, dismissing the Petitioner’s case in its entirety for failure

to comply with O.C.G.A. § 9-11-9.1. The trial court did not

rule on the Petitioner’s untimely constitutional challenge.

(See Appendix G.)

Notwithstanding her failure-to raise any constitutional

challenges in the trial court, the Petitioner appealed t0 the

Georgia Supreme Court. The Georgia Supreme Court deter-

mined that it had no jurisdiction to hear the appeal as evidenced

? The motion to dismiss was initially filed only on behalf of

Dr. Schellack. The undersigned was subsequently retained to

represent Dr. Harrison and filed a similar motion on his

behalf. The trial court’s order dismissing the complaint

applied to all of the defendants.

by its February 12, 1992, order transferring the case to the

Georgia Court of Appeals. (See Appendix E.) On February 25,

1992, the Petitioner filed a motion for reconsideration in the

Georgia Supreme Court, again alleging that O.C.G.A. § 9-11-

9.1 was unconstitutional. On March 12, 1992, the Supreme

Court issued an order denying the motion for reconsideration.

(See Appendix F.)

The Petitioner filed her brief in the Georgia Court of

Appeals on March 4, 1992, alleging that the trial court inap-

propriately interpreted O.C.G.A. § 9-11-9.1 and improperly

dismissed her complaint. She again made various constitu-

tional attacks on O.C.G.A. § 9-11-9.1. In its decision dated

September 8, 1992, the Georgia Court of Appeals affirmed

the ruling of the trial court, holding that the trial court cor-

rectly applied O.C.G.A. § 9-11-9.1 and properly dismissed the

Petitioner’s complaint for failure to comply with that statute.

(See Appendix C.) The Court of Appeals further stated:

Since the trial court did not rule on [Petitioner’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).

(See Appendix C at p. C-5.)

The Georgia Court of Appeals denied the Petitioner’s

motion for reconsideration of its decision on October 1, 1992.

(See Appendix D.) The Petitioner subsequently filed a peti-

tion for certiorari to the Georgia Supreme Court, again rais-

ing constitutional challenges to O.C.G.A. § 9-11-9.1. The

Georgia Supreme Court denied the petition for certiorari on

September 8, 1993, and denied the subsequent motion for

reconsideration on October 1, 1993. (See Appendices A and B.)

The Petitioner now seeks a writ of certiorari from this

Court, contending that the Georgia courts erred in some

fashion by not ruling on the constitutional issues when, in

fact, those issues were never properly raised in nor ruled

upon by the Georgia trial or appellate courts. Her petition for

certiorari should therefore be denied.

Ill. SUMMARY OF THE ARGUMENT

This Court should deny the petition for certiorari because

there is no substantive federal question to be reviewed. The

issues sought to be reviewed by the Petitioner were never pre-

_ sented to the Georgia courts, and the Georgia courts therefore

never decided any of the issues set forth in the petition. This

Court has no power to consider questions not preserved for

appeal. Street v. New York, 394 U.S. 576, 581-82, 89 S. Ct. 1354,

22 L.Ed.2d 572 (1969).

This Court should further deny the petition because the

Petitioner has failed to comply with Supreme Court Rule 14.5

requiring a petitioner to provide a clear and accurate presen-

tation of the material necessary for this Court’s review of the

issues. The petition is neither clear nor accurate. Rather, it is

incoherent. The petition should accordingly be denied on

this ground as well.

aii

IV. ARGUMENT AND CITATION OF AUTHORITY

A. This Court Should Deny the Petition For Certiorari

Because the Petitioner Never Presented and the State

Courts Never Ruled Gn Any Federal or State

Constitutional Issue and There Is No Federal

Question For This Court to Review.

28 U.S.C.A. § 1257 (1993) provides the basis for this

Court’s jurisdiction when a petition for a writ of certiorari

seeks review of the decision of a state court. That statute pro-

vides in pertinent part:

Final judgments or decrees rendered by the

highest court of a State in which a decision could

be had, may be reviewed by the Supreme Court by

writ of certiorari where the validity of a treaty or

statute of the United States is drawn in question or

where the validity of a statute of any State is drawn

in question on the ground of it being repugnant to

the Constitution, treaties, or laws of the United

States, or where any title, right, privilege, or immu-

nity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the

United States.

28 U.S.C.A. § 1257(a).

Rule 10 of the Supreme Court Rules expands on this

jurisdictional requirement and lists considerations governing

this Court’s review on a writ of certiorari. That rule provides

that a petition for a writ of certiorari shall be granted only

when there are “special and important reasons therefor.”

Sup. Ct. R. 10.1. Rule 10 sets out the reasons that will be con-

sidered in reviewing a petition, including:

(b) When a state court of last resort has decided a fed-

eral question in a way that conflicts with the deci-

sion of another state court of last resort or of a

United States court of appeals.

(c) When a state court or a United States court of

appeals has decided an important question of fed-

eral law which has not been, but should be, settled

by this Court, or has decided a federal question in

a way that conflicts with applicable decisions of

this Court.

Sup. Ct. R. 10.1(b), ¢c).

This petition satisfies none of these requirements. Here,

the “federal question” sought to be reviewed by the

Petitioner is the validity of the Georgia Constitution and the

Georgia expert affidavit statute, O.C.G.A. § 9-11-9.1. In order

for this Court to exercise its jurisdiction under 28 U.S.C.A. §

1257, however, the Court must first determine whether the

federal question was even presented to the Georgia courts in

such a manner that it was necessarily decided by them. “If

the question was not so presented, then [this Court has] no

power to consider it.” Street v. New York, 394 U.S. 576, 582, 89

S. Ct. 1354, 22 L.Ed.2d 572 (1969). See also Bailey v. Anderson,

326 U.S. 203, 206-207, 66 S. Ct. 66, 90 L.Ed.2d 3 (1945); 28

U.S.C.A. § 1257(a).

In this case, the Georgia trial] and appellate courts did

not decide any federal question because none was properly

presented for review. As the Court can determine from the

materials set out in the Appendix, the Petitioner did not raise

a constitutional challenge to O.C.G.A. § 9-11-9.1 until after the

hearing on the motion to dismiss. Although much of the peti-

tion for certiorari is incomprehensible, the Petitioner herself

admits that she raised a constitutional challenge to the

Georgia statute for the first time in the supplemental brief

filed in the trial court seven days after oral argument and just

two days before the trial court issued its written order. (See

Petition for Certiorari, p. 8.) The Petitioner never made a con-

stitutional challenge, either state or federal, at any other time

during the proceedings. The trial court accordingly did not

rule upon the issue. (See Appendix G.)

The Georgia Supreme Court confirmed that the consti-

tutional issue was not properly preserved as evidenced by its

transfer of the Petitioner’s appeal to the Georgia Court of

Appeals for lack of jurisdiction. (See Appendix E.) Likewise,

the Georgia Court of Appeals ruled that the constitutional

challenges raised by the Petitioner presented nothing for

appellate review because the trial court did not rule on those

contentions. (See Appendix C at p. C-5.) The Georgia

Supreme Court again confirmed that this appeal presented

no constitutional issues for review by denying the petition

for certiorari as well as the subsequent motion for reconsid-

eration. (See Appendices A and B.)

In sum, the Petitioner cannot now be heard to argue

that this Court should grant her a writ of certiorari when she

failed to properly preserve, present, or argue those ques-

tions in the Georgia courts. Her petition should accordingly

be denied.

B. This Court Should Deny the Petition for Certiorari

Because It Does Not Comply With This Court's Rules.

Supreme Court Rule 14.5 provides:

The failure of a petitioner to present with

accuracy, brevity, and clearness whatever is essen-

tial to a ready and adequate understanding of the

points requiring consideration will be a sufficient

reason for denying the petition.

See also Southern Power Co. v. North Carolina Pub. Serv. Co., 263

U.S. 508, 509, 44 S. Ct. 164, 68 L.Ed. 413 (1924) (dismissing

writ of certiorari as improvidently granted and pointing out

the need for clear, definite and complete disclosure of the

controversy when applying for certiorari).

There is nothing accurate, brief, or clear about the peti-

tion for certiorari filed in this case. Indeed, it is incompre-

hensible. It is impossible to determine from the Petitioner’s

brief exactly what is in controversy and, for this reason alone,

the petition should be denied.

This is not the first time the Petitioner has failed to fol-

low procedural rules. The underlying appeal was based on

the Petitioner’s failure to comply with a Georgia statute,

O.C.G.A. § 9-11-9.1. The Petitioner also failed to comply with

the procedural rules of the Georgia Court of Appeals regard-

ing the time for filing motions for reconsideration. She

repeatedly ignored the rules of the Georgia courts regarding

serving Opposing counsel with copies of her briefs, motions,

and other pleadings.

As evidenced by her own petition, she has now failed

to comply with the procedural rules of this Court. Her state-

ment of the case is anything but concise, despite the mandate

oi Supreme Court Rule 14.1(g). She ignored the requirement

of Rule 14.1(h) that she specify how the federal questions

sought to be reviewed were raised in the state court. Finally,

as discussed above, her petition is anything but clear and

concise, as required by Rules 14.1(j) and 14.5. Her petition

should be denied because of her failure to comply with the

procedural rules of this Court and her apparent inability to

present the issues sought to be reviewed in any coherent or

clear manner.

V. CONCLUSION

Fox all of the above reasons, the Respondents John K.

Schellack, M.D. and M. Edwyn Harrison, III, M.D. respectfully

request that this Court deny the petition for writ of certiorari.

State Bar No. 294820

Counsel of Record for

Respondents

John K. Schellack, M.D. and

M. Edwyn Harrison, III, M.D.

LOVE AND WILLINGHAM

Suite 5050

One Atlantic Center

1201 West Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 607-0100

10

PETITION NO. 93-1076

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1993

CHRISTINE WRIGHT,

Petitioner,

v : PETITION

NO. 93-1076

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.,

Respondents.

CERTIFICATE OF SERVICE

This is to certify that I have this day served counsel for

all interested parties to this action with the Brief of

Respondents John K. Schellack, M.D. and M. Edwyn

Harrison, III, M.D. in Opposition to Petition for Writ of

Certiorari by depositing three copies of same in the United

States Mail in properly addressed envelopes with adequate

postage affixed thereon to:

Arthur C. Nilsen, Esq.

JONAP & ASSOCIATES

1944 Clairmont Road

Decatur, Georgia 30033

J.M. Hudgins, IV, Esq.

Johnathan Krawcheck, Esq.

LONG, WEINBERG, ANSLEY

& WHEELER

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

Bradley C. Reeves, Esq.

’ ALLEN & PETERS

Two Midtown Plaza

1360 Peachtree Street, N.E.

Suite 1700

Atlanta, Georgia 30309

This_ +7 A day of January, 1994.

John A. Gillelan

State Bar No. 294820

Counsel of Record for

Respondents

John K. Schellack, M.D. and

M. Edwyn Harrison, III, M.D.

LOVE AND WILLINGHAM

Suite 5050

One Atlantic Center

1201 W. Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 607-0100

APPENDIX

eet

. +o , . a -_ —

+.

APPENDIX A

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’S OFFICE

ATLANTA

DATE: SEPTEMBER 08, 1993

Traci Green

LOVE AND WILLINGHAM

Suite 5050, One Atlantic Center

1201 W. Peachtree Street

Atlanta, GA 30309

Case No. $93C0114

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, PJ., and

Carley, J., who dissent.

Sincerely,

Sherie M. Welch, Clerk

A-1

APPENDIX B

SUPREME COURT OF GEORGIA

ATLANTA OCTOBER 01, 1993

The Honorable Supreme Court met pursuant to

adjournment. The following order was passed:

Case No. S93CO114

CHRISTINE WRIGHT V. CRAWFORD LONG HOSPITAL

OF EMORY UNIVERSITY ET AL.

Upon consideration of the Motion for Reconsidera-

tion filed in this case, it is ordered that it be hereby denied.

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.

B-1

APPENDIX C

FIRST DIVISION

SOGNIER, C.J.

MCMURRAY, PJ., COOPER, J.

DATED: SEPTEMBER 08, 1992

NOTICE: MOTIONS FOR RECONSIDERATION

MUST BE RECEIVED IN OUR CLERK’S OFFICE

WITHIN TEN DAYS OF THE DATE OF DECISION

to be deemed timely filed. (Court of Appeals Rules

4 and 48, March 1, 1985)

In the Court of Appeals of Georgia

A92A0964. WRIGHT v. CRAWFORD LONG HOSPITAL

OF EMORY UNIVERSITY et al. S-63

SOGNIER, Chief Judge.

Christine Wright brought a medical malpractice

claim against Crawford Long Hospital and six physi-

cians. Her complaint, as amended, was dismissed for

noncompliance with OCGA § 9-11-9.1, and she appeals.

In her complaint appellant alleged that defen-

dants were liable for damages she incurred when an

introducer wire was left in her body during catheteriza-

tion 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

C-1

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 catheterization 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

expire within ten days of filing and that because of this

time constraint she was unable to obtain the required affi-

davit 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 amend-

ment to the complaint, filed 41 days after the complaint

was filed, appellant attached the affidavit of Dr. Jose

Evangelista, who averred that he had reviewed the

records of appellees’ treatment of appellant and had

determined that appellees were negligent in failing to

remove a catheter ¢ uide wire and in failing to so inform

appellant. The trail court dismissed the complaint on the

basis that Dr. Benitez's deposition testimony did not sat-

isfy 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).

C-2

1. Contrary to appeilant’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 iden-

tify 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 noncornpliance with

OCGA § 9-11-9.1

2. Alternatively, appellant contends she proper-

ly amended her complaint under either OCGA § 9-11-

9.1 (b) or (c). 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 con-

straints (OCGA § 9-11-9.1 (b)); or (2) if the court deter-

mines that the plaintiff had the requisite affidavit

available before the complaint 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 fil-

ing. 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

C-3

oe

constraints, but instead alleged that the requisite affi-

davit — 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 sec-

ond 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 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 fail-

ure to comply with the contemporaneous filing require-

ment cannot be cured by amendment under OCGA §

9-11-15 unless the affidavit was available prior to the fil-

ing 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 mal-

practice 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 plain-

tiff clearly had intended from the outset to proceed

under paragraph (b) — i.e., to file the complaint just

C-4

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 (a). 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 com-

ply with OCGA § 9-11.9.1a.” (Punctuation and citation

omitted.) Cheeley, supra at 49% (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,

]., concur.

APPENDIX D

COURT OF APPEALS

OF THE STATE OF GEORGIA

ATLANTA, OCTOBER 01, 1992

The Honorable Court of Appeals met pursuant to

adjournment.

The Following order was passed:

Case No. A92A0964

CHRISTINE WRIGHT V. CRAWFORD LONG HOSPITAL

OF EMORY UNIVERSITY ET AL.

Upon consideration of the motion for reconsidera-

tion filed in this case, it is ordered that it be hereby denied.

COURT OF APPEALS OF

THE STATE OF GEORGIA

CLERK’S OFFICE, ATLANTA

DATED: OCTOBER 01, 1992

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

Clerk,

Victoria McLaughlin

D-1

APPENDIX E

CASE NO. S92A0520

SUPREME COURT OF GEORGIA

ATLANTA FEBRUARY 12, 1992

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.

Lynn M. Stinchcomb, Deputy Clerk

E-1

APPENDIX F

SUPREME COURT OF GEORGIA

ATLANTA MARCH 12, 1992

The Honorable Supreme Court met pursuant to

adjournment. The following order was passed:

Case No. S92A0520

CHRISTINE WRIGHT V. CRAWFORD LONG HOSPITAL

OF EMORY UNIVERSITY ET AL.

Upon consideration of the Motion for Reconsidera-

tion filed in this case, it is ordered that it be hereby denied.

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.

Joline B. Williams, Clerk

APPENDIX G

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CHRISTINE WRIGHT,

Plaintiff, : CIVIL ACTION

FILE NO. D-90848

VS.

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, Defendants’

Motion to Dismiss is hereby GRANTED.

Plaintiff filed this medical malpractice action

against Crawford Long Hospital as well as six doctors

alleging that the Defendants failed to remove an intro-

ducer wire used during the insertion of a central line

catheter in Plaintiff’s body on July 4, 1989. The Plaintiff

G-1

filed with her Complaint a deposition of Pamela

Benitez, M.D., however, the Complaint did not include

the expert affidavit required by O.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 pre-

pared and that Plaintiff would need the extra 45 days

permitted by O.C.G.A. § 9-11-9.1(b).

On July 1, 1991, in an attempt to comply with the

O.C.G.A. § 9-11-9.1 requirement, the Plaintiff filed an

amended Complaint stating that due to time constraints

an expert affidavit could not be prepared and filed con-

temporaneously 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 disnis* *his Complaint

for failure to fulfill the contemporaneous filing require-

ments. Under O.C.G.A. § 9-11-9.1(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 Com-

plaint was sufficient to satisfy the requirements of O.C.G.A.

§ 9-11-9.1. With both these contentions we disagree.

Section b of O.C.G.A. 9-11-9.1 states, “The con-

temporaneous filing requirement of subsection (a) of

this Code section shall not apply to any case in which

G-2

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.” The language of the statute

reads very clearly. The requirement that the Plaintiff

allege that time constraints have prevented the contem-

poraneous 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 sat-

isfy the affidavit requirements of O.C.G.A. § 9-11-9.1

must also fail. O.C.G.A. § 9-11-9.1(a) 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 affi-

davit 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 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

G-3

standard of care generally accepted in the community.

Allowing this particular deposition to fulfill the require-

ments of O.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 pre-

vent frivolous or unsustainable malpractice actions.

(cits.) Cheeley v. Henderson, 197 Ga. App. 543 (1990)

reversed on other grounds, Ga.

(1991).

We therefore GRANT the Defendant's Motion for

Summary Judgment and DISMISS the Plaintiff’s Com-

plaint for failure to comply with O.C.G.A. § 9-11-9.1.

This 13th day of SEPTEMBER, 1991.

JOEL J. FRYER

JUDGE, FULTON SUPERIOR COURT, A,J.C.

cc: John A. Gilleland, Esq.

Kimberly Logue Woodland, Esq.

LOVE AND WILLINGHAM

Suite 500

The Candler Building

127 Peachtree Street, N.E.

Atlanta, Georgia 30303

William A. Dinges, Esq.

SILER & JONAP

P.O. Box 49006

Atlanta, Georgia 30359

G-4

I aaiieeeeseiiieeaetaianiaeniiiieinmmnes)

Hunter S. Allen, Esq.

ALLEN & PETERS

Two Midtown Plaza

Suite 1700

1360 Peachtree Street, N.E.

Atlanta, Georgia 30309

J.M. Hudgins

LONG, WEINBERG, ANSLEY & WHEELER

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

G-5

APPENDIX H

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CHRISTINE WRIGHT,

Plaintiff, : CIVIL ACTION

Vs. : FILE NO.: D-90848

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 GREENE, M.D.

AND CHRISTOPHER WALLS,

M.D.

PLAINTIFF’S RESPONSE TO DEFENDANT

SCHELLACK’S MOTION TO DISMISS

COMES NOW CHRISTINE WRIGHT, Plaintiff

in the above captioned matter and herewith responds to

Defendant's Motion to Dismiss as follows:

STATEMENT OF FACT:

This is a medical malpractice action which was

filed on June 27, 1991. In the Complaint as originally

H-1

filed Plaintiff did not allege her inability to attach an

expert's affidavit in accordance with OCGA 9-11-9.1(b).

By amendment dated June 28, 1991, and filed in

office on July 1, 1991, Plaintiff set out her allegations in

accordance with OCGA 9-11-9.1(b).

Within 45 days of the date of filing of the original

Complaint, Plaintiff supplemented her Complaint in

accordance with OCGA 9-11-9.1(b), by filing the affi-

davit of Jose L. Evangelista, M.D.

Defendant Schellack was served with Summons

and Complaint on July 1, 1991. He filed his answer on

August 2, 1991. Plaintiff was served with Schellack’s

Motion to Dismiss on August 5, 1991.

ARGUMENT AND CITATION OF AUTHORITY:

The gravamen of Defendant’s Motion to Dismiss

is found at page 4 of his brief. There Defendant states

“...the failure to either file an expert's affidavit contem-

poraneously with the original Complaint or to allege in

the original Complaint the need for additional time is a

defect [sic] which can not be cured by amendment.”

(emphasis added).

Defendant's assertion does not accurately set out

the requirements contained in OCGA 9-11-9.1(b). The

statute states: “... The contemporaneous filing require-

ments of subsection (a) of this Code section shall not

apply to any case in which the period of limitation will

H-2

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.” The

statute then goes on to set out the time requirement for

supplementation of the pleadings with the affidavit.

Plaintiff suggests, with all due respect, that the

Defendant has engrafted onto the statute a requirement

that simply is not there. The statute talks in terms of a

“contemporaneous filing requirement” with reference to

the expert's affidavit itself. The statute does not by its

terms require a “contemporaneous allegation” of unavail-

ability. The statute merely requires that the Plaintiff allege

the operative circumstances described in subsection (b)

regarding the unavailability of the affidavit.

Here, Plaintiff has made no effort to amend an

expert's affidavit. Nor has she amended to add an affi-

davit. Rather, Plaintiff amended her Complaint to set

out those exigent statutory circumstances which

would permit her to later supplement her Complaint

as originally filed. Under these circumstances, Plaintiff

respectfully suggests that OCGA 9-11-15 is applicable

and that her amendment would relate back to the date

of the original Complaint. Defendant’s Motion should,

therefore, be denied.

The Defendant further contends that the deposition

attached to the complaint as Exhibit A was not sufficient to

satisfy the requirements of OCGA 9-11-9.1. This position is

also unsound.

Defendant does not contend that a deposition

cannot be used in place of an affidavit. Nor can he. See,

e.g., Hospital Authority of Fulton County v. McDaniel, 192

Ga. App. 398, 385 SE2d 8 (1989). As the Court stated in

McDaniel: “The purpose of the Code requirement is to

ensure a substantial basis for actions against profes-

sionals.” 385 SE2d at 9. Plaintiff suggests that the

Benitez deposition does show a “substantial basis” for

this suit.

The deposition shows the following: Dr. Benitez is

a board certified surgeon licensed to practice medicine

in Michigan (pp. 6-7); She first saw the plaintiff on

November 13, 1987 at Wayne State University,

University Surgeons (p. 10); On November 13, 1987, a

chest x-ray was performed which did not show the pres-

ence of a foreign object in Plaintiff's right subclavicular

fossa (pp. 25-6); X-rays of Plaintiff’s chest were taken on

January 26, 1988, which did not show the presence of a

foreign object in Plaintiff’s right subclavicular fossa (pp.

34-5); X-rays taken on April 29, 1988 did not show the

foreign body but would have had it existed at that time

(p. 37); On December 13, 1989, She performed surgery

on the Plaintiff to remove a 50 cm metal wire from

Plaintiff's right subclavicular fossa (pp. 11-2); In her

opinion the wire got into Plaintiff's body after

November 13, 1987 (p. 27); Plaintiff was treated during

that time at Wayne State University and at a hospital in

Georgia (p. 27, p. 29, p. 40); As far as she knew, no inva-

sive procedures were performed at Wayne State

University (p. 27); It would violate the standard of care

to leave a threader wire in a patient (p. 39);

H-4

“The purpose of OCGA 9-11-9.1 is to reduce the

number of frivolous malpractice suits being filed, not to

require a plaintiff to prove a prima facie case entitling

him to recover... .” 0-1 Doctors Memorial Holding Co. v.

Moore, 190 Ga. App. 286, 378 SE2d 708, 710 (1989). Given

this benchmark, Plaintiff respectfully suggests that the

deposition of Dr. Benitez complies with, at least, the

spirit of OCGA 9-11-9.1.

For the foregoing reasons, Plaintiff suggests that

Defendant's motion has no merit and should be denied.

This the 2nd day of September, 1991.

SILER & JONAP

Attorneys for Plaintiff

BY: William A. Dinges

Georgia Bar No.: 222575

P.O. Box 49006

Atlanta, Georgia 30359-1006

(404) 321-1000

H-5

‘assist

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CHRISTINE WRIGHT,

Plaintiff, : CIVIL ACTION

vs. : FILE NO.: D-90848

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 GREENE, M.D.

AND CHRISTOPHER WALLS,

M.D.

CERTIFICATE OF SERVICE

The undersigned hereby certifies that I have this

date served true and correct copies of the foregoing

upon:

Sidney F. Wheeler, Esq.

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

LONG, WEINBERG, ANSLEY & WHEELER

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

H-6

John A. Gilleland, Esq.

Kimberly Logue Woodland, Esq.

LOVE AND WILLINGHAM

Suite 500

The Candler Building

127 Peachtree Street, N.E.

Atlanta, Georgia 30303

Hunter S. Allen, Jr. Esq.

Bradley C. Reeves, Esq.

ALLEN & PETERS

Two Midtown Plaza

Suite 1700

1360 Peachtree Street, N.E.

Atlanta, Georgia 30309

by affixing sufficient first class postage to same and

depositing same in the United States mail.

This the 2nd day of September, 1991.

SILER & JONAP

Attorneys for Plaintiff

William A. Dinges

Georgia State Bar No.: 222575

Post Office Box 49006

Atlanta, Georgia 30359

(404) 321-1000

H-7

APPENDIX I

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

CHRISTINE WRIGHT,

Plaintiff, : CIVIL ACTION

VS. : FILE NO.: D-90848

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 GREENE, M.D.

AND CHRISTOPHER WALLS,

M.D.

Defendants.

PLAINTIFF’S SUPPLEMENTAL RESPONSE

TO DEFENDANT SCHELLACK’S MOTION

TO DISMISS

COMES NOW CHRISTINE WRIGHT, Plaintiff in

the above-captioned matter, and herewith supplements

her Response to Defendant Schellack’s Motion to

Dismiss as follows:

I-1

This matter was set for oral argument on

September 4, 1991, but because of calendar conflicts, the

undersigned was committed to appear before Judge

Robins in DeKalb State Court on another motion as set

out in his conflict letter. It was agreed to submit the

motion to the Court on briefs.

ARGUMENT AND CITATION OF AUTHORITY:

In addition to the reasons set out in her original

response, Plaintiff suggests that Defendant’s motion

should be denied because the basis of the motion,

OCGA 9-11-9.1., is unconstitutional.

The Constitution of the State of Georgia, Art. II,

Sec. V, Par. III, states: “No bill shall pass which refers to

more than one subject matter or contains matter differ-

ent from what is expressed in the title thereof.”

The purpose of this constitutional provision is to

protect against surprise legislation. Mead Corp. v. Collins,

258 Ga. 239, 367 SE2d 790 (1988). OCGA 9-11-9.1 totally

fails in this regard. The statute by its terms refers only to

the affidavit filing requirement. The statute does not

warn of the dire substantive consequences which result

from the failure to follow the requirements exactly.

Further, Plaintiff suggests that the language of the

statute is so vague 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

amenable and, thus, the effects of the statute become

1-2

capricious and arbitrary. A plaintiff who guesses wrong

would be irrevocably out of court. Certainly this vio-

lates all notions of fair play and substantial justice.

For the foregoing additional reasons Plaintiff

respectfully suggests that Defendant’s motion should

be dismissed.

This the 11th day of September, 1991.

SILER & JONAP

Attorneys for Plaintiff

BY: William A. Dinges

Georgia Bar No.: 222575

P.O. Box 49006

Atlanta, Georgia 30359-1006

(404) 321-1000

CERTIFICATE OF SERVICE

The undersigned hereby certifies that I have this

date served true and correct copies of the foregoing

upon:

I-3

Sidney F. Wheeler, Esq.

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

John A. Gilleland, Esq.

Suite 500

The Candler Building

127 Peachtree Street, N.E.

Atlanta, Georgia 30303

Hunter S. Allen, Jr., Esq.

Two Midtown Plaza

Suite 1700

1360 Peachtree Street, N.E.

Atlanta, Georgia 30309

by affixing sufficient first class postage to same and

depositing same in the United States mail.

This the 11th day of September, 1991.

SILER & JONAP

Attorneys for Plaintiff

BY: William A. Dinges

Georgia State Bar No.: 222575

1-4

APPENDIX J

O.C.G.A. § 9-11-9.1. Affidavit to accompany

charge of professional malpractice.

(a) In any action for damages alleging profes-

sional 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 plain-

tiff 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 com-

plaint, 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.

J-1

(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

the failure to file such an affidavit in its initial respon-

sive 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.

(Code 1981, § 9-11-9.1, enacted by Ga. L. 1987, § 3; Ga. L.

1989, p. 419, § 3.)

J-2

OPPOSITION

BRIEF

———— EE i

No. 93-1076

In The

Supreme Court of the United States

October Term, 1993

FRANKLIN M. WRIGHT,

Administrator of the Estate of

CHRISTINE WRIGHT, Deceased,

Petitioner,

J

CRAWFORD LONG HosPITAL OF EMORY UNIVERSITY, JOHN K.

SCHELLACK, M.D., CHRISTOPHER DOOLey, M.D., M. EDwYN

HARRISON, III, M.D., Davip A. Davis, M.D., DAviD GREENE,

M.D. and CHRISTOPHER WALLS, M.D.,

Respondents

On Petition For Writ Of Certiorari

To The Supreme Court Of The State Of Georgia

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI OF RESPONDENTS CRAWFORD LONG

HOSPITAL OF EMORY UNIVERSITY, CHRISTOPHER

DOOLEY, M.D. AND CHRISTOPHER WALLS, M.D.

John M. Hudgins IV, P.C.

LONG WEINBERG, ANSLEY &

WHEELER

999 Peachtree Street

Suite 2700

Atlanta, Georgia 30309

(404) 876-2700

Attorneys for Respondents

Crawford Long Hospital of Emory

University, Christopher Dooley,

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

i

I. QUESTIONS PRESENTED

1. Whether Petitioner failed to timely and properly raise

constitutional questions in the Georgia state court system?

2. Whether O.C.G.A. § 9-11-9.1 is constitutional?

VIII.

Il. TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............-.. i

TABLE OF CONTENTS ......csccccccceces ii

TABLE OF AUTHORITIES .........0:ese0:: ili

STATEMENT OF JURISDICTION ......... V

STATEMENT OF THE CASE..............

SUMMARY OF ARGUMENT............-. 2

REASONS FOR DENYING THE

ao VEE , eerie rer es eer gc eg 2

Petitioner failed to properly raise any federal

issues in the Georgia courts ...........5+e eee

O.C.G.A. § 9-11-9.1 is constitutional ..........

CONCLUIIONN nc jv ccuwnkueeveeeeeeeae 8

iil

Ill. TABLE OF AUTHORITIES

1. Cases

Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521 (1982) ..

Bentley v. Anderson-McGriff Hardware Co., 181 Ga. 813,

Se Ne COMED ccd cccectecseecdveusseseccesoues

Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989) ............

Brown vy. State, 114 Ga. 60, 39 S.E. 873 (1901) ...........

Calhoun v. State, 211 Ga. 112, 84 S.E.2d 198 (1954) ......

Campbell v. J.D. Jewell, Inc., 220 Ga. 400, 139 S.E.2d 161

CL Secs ead bebe sie Fe Vb vewbatdceecasesogs

Carindale v. Louisiana, 394 U.S. 437 (1969) .............

Creamer v. State, 229 Ga. 511, 192 S.E.2d 350 (1972) .....

Eberhart vy. Morris Brown College, 181 Ga. App. 516, 352

ee aon 66 op aed 606.600.0.006008

Ellett v. City of College Park, 233 Ga. 858, 213 S.E.2d 700

TN es Soave ncuebeuncess¥s

Fleming v. Zant, 259 Ga. 687, 386 S.E.2d 339 (1989)......

Gadd v. Wilson & Co., Eng'rs & Architects, 262 Ga. 234, 416

os ses tue rreesaesebeeveseees

Green v. State, 260 Ga. 625, 398 S.E.2d 360 (1990), cert.

denied, Green v. Georgia, ___. U.S. —-— (1991) ........

Griggs v. State, 130 Ga. 16, 60 S.E. 103 (1908) ...........

Gronne v. Abrams, 793 F.2d 74 (2d Cir. 1986)............

Hamby v. Neurological Assocs., P.C., 243 Ga. 698, 256

ei a reas déeeees eer etees

Herndon v. State, 179 Ga. 597, 176 S.E. 620 (1934) .......

Hoffman v. United States, 767 F.2d 1431 (9th Cir. 1985) ...

Hudson Distribs., Inc. v. Eli Lilly & Co., 377 U.S. 386

is nade han wee oo 6 6000 0 hs C6eR' V0000 8

Jones v. Union Guano Co., 264 U.S. 171 (1924) ..........

Kenney v. Piedmont Hosp., 136 Ga. App. 660, 222 S.E.2d

ie cis tae eH eNeueerevsbeceentess

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

ww wn Ww

Ww N

AN CO

iV

LoGiudice v. State, 251 Ga. 711, 309 S.E.2d 355 (1983),

cert. denied, LoGiudice v. Georgia, 466 U.S. 950 (1984) ..

Monks v. New Jersey, 398 U.S. 71 (1970) ................

Oregon v. Hass, 420 U.S. 714 (1975) ....................

Phillips v. National Ben Franklin Ins. Co., 229 Ga. 258, 190

|. ERIE Ere ne ae onenaee

Reed v Reed, 404 U.S. 71 (1971) ................000-0-.

Shea v. Phillips, 213 Ga. 269, 98 S.E.2d 552 (1957) .......

State v. Miller, 260 Ga. 669, 398 S.E.2d 547 te

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

Webb v. Webb, 451 U.S. 493 (1981) ........0...........

Willingham v. Lee, 227 Ga. 425, 181 S.E.2d 49 (1971).....

Woods v. Holy Cross Hosp., 591 F.2d 1164

NY SG ull gd. Gal ove cnsd duile deeds cheen cons

Il. Other Authorities

I dics cs fevestct lio, ee

OE ead al cane vorcdokunue bat cceedee cee

wo WB WwW I HDA WN WD

passim

¥

IV. STATEMENT OF JURISDICTION

Respondents show that Petitioner has failed to properly

invoke this Court’s jurisdiction. Petitioner has not timely and

properly raised a state or federal constitutional question in the

Superior Court of Fulton County, State of Georgia, the Georgia

Court of Appeals or the Georgia Supreme Court. See App.

pp. Al-A7, B1-B2, C9 of Petition For Writ Of Certiorari (herein-

after “Petition”). Additionally, Petitioner has not cited any statu-

tory provision conferring jurisdiction on this Court in his Petition

as required by Rule 14.1(e)(iv) of the Rules of the Supreme

Court.

bitch |

Vv. STATEMENT OF THE CASE

On June 27, 1991, Christine Wright filed this medical

malpractice action in the Superior Court of Fulton County,

Georgia. On August 1, 1991, Respondent John K. Schellack,

M.D. filed his Motion to Dismiss the Complaint for Petitioner’s

failure to comply with O.C.G.A. § 9-11-9.1. On September 13,

1993, an Order granting the Motion to Dismiss was entered in the

Superior Court of Fulton County, Georgia. App. pp. Al-A7 of

Petition.

On October 2, 1991, Petitioner filed a Notice of Appeal to

the Georgia Supreme Court. The Georgia Supreme Court found

there was no basis for original jurisdiction in the Georgia Su-

preme Court because no constitutional issues were properly raised

in the appeal. As a result, on February 2, 1992, the case was

transferred to the Georgia Court of Appeals. App. p. B1-B2 of

Petition. On February 21, 1992, Petitioner filed a Motion for

Reconsideration with the Georgia Supreme Court of its order

transferring the case to the Georgia Court of Appeals. On

March 12, 1992, the Georgia Supreme Court denied that Motion

for Reconsideration.

In the Georgia Court of Appeals, Petitioner argued, for the

first time, that O.C.G.A. § 9-11-9.1 violates the equal protection

and due process clauses of the Georgia and United States Consti-

tutions. On September 8, 1992, the Georgia Court of Appeals

affirmed the trial court’s order dismissing Petitioner's Complaint

for the failure to comply with the provisions of O.C.G.A. § 9-11-

9.1. App. pp. C1-C9 of Petition. In its opinion, the Georgia Court

of Appeals noted that Petitioner’s contentions that O.C.G.A. § 9-

t1-9.1 is unconstitutional were not properly raised in the appeal.

App. p. C9 of Petition. On September 24, 1992, Petitioner filed an

untimely Motion for Reconsideration of the Georgia Court of

Appeals’ decision. That untimely Motion for Reconsideration was

denied on October 1, 1992.

On October 20, 1992, Petitioner filed a Petition for Certio-

rari in the Georgia Supreme Court. On September 8, 1993, that

2

Petition for Certiorari was denied. App. p. D1 of Petition. On

September 17, 1993, Petitioner filed a Motion for Reconsidera-

tion of the denial of the Petition for Certiorari. That Motion for

Reconsideration was denied on October 1, 1993. App. pp. E1-E2

of Petition. Thereafter, on December 29, 1993, Petitioner filed

this Petition for Writ of Certiorari.

VI. SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari should be denied because

Petitioner has failed to timely and properly raise any issue with

regard to the constitutionality of O.C.G.A. § 9-11-9.1. Petitioner's

arguments that O.C.G.A. § 9-11-9.1 is unconstitutional were not

ruled upon by the Superior Court of Fulton County, Georgia or

either of the Georgia appellate courts. Since the Georgia Su-

preme Court has not been afforded the opportunity to decide a

federal or state constitutional issue, this Court is without jurisdic-

tion to consider these issues.

This Petition for Certiorari should also be denied because

O.C.G.A. § 9-11-9.1 is constitutional. O.C.G.A. § 9-11-9.1 was

enacted for the legitimate purpose of reducing frivolous profes-

sional malpractice actions in Georgia. Moreover, the require-

ments of O.C.G.A. §9-11-9.1 are rationally related to this

legitimate purpose.

VII. REASONS FOR DENYING THE PETITION

A. Petitioner failed to properly raise any federal issues in the

Georgia courts.

The Georgia Supreme Court has consistently held that it will

not consider the constitutionality of an act of the Georgia General

Assembly unless it clearly appears that the constitutional issue

was directly and properly raised in the trial court and distinctly

passed on by the trial judge. Ellett v. City of College Park, 233

Ga. 858, 213 S.E.2d 700 (1975); Phillips v. National Ben Frank-

lin Ins. Co., 229 Ga. 258, 190 S.E.2d 916 (1972); Campbell v.

3

JD. Jewell, Inc., 220 Ga. 400, 139 S.E.2d 161 (1964); Calhoun v.

State, 211 Ga. 112, 84 S.E.2d 198 (1954); Bentley v. Anderson-

McGriff Hardware Co., 181 Ga. 813, 184 S.E. 297 (1935);

Herndon v. State, 179 Ga. 597, 176 S.E. 620 (1934); Griggs v.

State, 130 Ga. 16, 60 S.E. 103 (1908); and Brown v. State, 114

Ga. 60, 39 S.E. 873 (1901). Merely raising a constitutional issue,

which is not distinctly passed upon in the trial court is insufficient

to constitute a basis for appeal in the Georgia appellate courts.

Calhoun, supra; Herndon, supra. Therefore, a constitutional issue

which is either intentionally or unintentionally omitted by the trial

court does not give rise to an appealable issue in Georgia.

Willingham v. Lee, 227 Ga. 425, 181 S.E.2d 49 (1971).

It is clear from the trial court’s order dismissing the Peti-

tioner’s Complaint for failing to comply with O.C.G.A. § 9-11-9.1

that the trial court did not rule on any constitutional issues. See

App. pp. Al-A7 of Petition. Based upon the trial court’s failure to

rule on any constitutional issue, the Georgia Supreme Court

found that it did not have jurisdiction over the appeal and

transferred the case to the Georgia Court of Appeals. App. pp.

B1-B2 of Petition. The Georgia Court of Appeals specifically

refused to consider Petitioner’s constitutional arguments,

“fs ]ince the trial court did not rule on [Petitioner's] contentions

that O.C.G.A. § 9-11-9.1 is unconstitutional ....” App. p. C9 of

Petition. Thus, it is clear from the actions, orders and opinions of

the Georgia courts that Petitioner did not properly raise any

constitutional issues.

This Court has steadfastly refused to consider constitutional

issues that are not properly raised in the state court. Webb v.

Webb, 451 U.S. 493 (1981); Monks v. New Jersey, 398 U.S. 71

(1970); Street v. New York, 394 U.S. 576 (1969); Carindale v.

Louisiana, 394 U.S. 437 (1969); and Hudson Distribs., Inc. v. Eli

Lilly & Co., 377 U.S. 386 (1964). In Webb, supra, the petitioner

sought an answer to the question of whether the United States

Constitution demanded that Georgia give full faith and credit to a

Florida custody decree. The petitioner in Webb, however, failed to

raise the federal full faith and credit issue in the trial court and

4

the Georgia Supreme Court did not mention the federal question

in its opinion. This Court noted that in such instances “it will be

assumed that the omission was due to want of proper presentation

in the state courts,” unless it can be affirmatively demonstrated to

the contrary. Jd. at 495. Since the Georgia Supreme Court did not

mention, let alone decide, the federal constitutional issue as

required in order to invoke this Court’s jurisdiction pursuant to 28

U.S.C. § 1257, and the petitioner could not affirmatively demon-

strate that the federal full faith and credit issue was in fact raised

in the Georgia courts, this Court concluded it was without

jurisdiction and dismissed the writ of certiorari. Jd. at 501-2.

Similar to the situation in Webb, supra, this Petitioner failed

to properly raise any constitutional issues while this case was

pending in Georgia. Rather than not mentioning Petitioner’s

constitutional arguments, the Georgia Court of Appeals specifi-

cally noted Petitioner’s failure to properly raise any constitutional

issues. App. p. C9 of Petition. Since the Georgia appellate courts

did not have the opportunity to review any constitutional issues in

this case, this Court is without jurisdiction to consider the instant

Petition for Writ of Certiorari. Accordingly, this Petition for Writ

of Certiorari should be denied.

B. O.C.G.A. § 9-11-9.1 is constitutional.

O.C.G.A. § 9-11-9.1 requires a professional malpractice

claimant to file the affidavit of an expert competent to testify

along with a complaint for damages. The affidavit must specifi-

cally set forth at least one negligent act or omission claimed to

exist and the factual basis for each such claim. O.C.G.A. § 9-11-

9.1(a). The purpose of this requirement is to reduce the number

of frivolous professional malpractice suits in Georgia. Gadd v.

Wilson & Co., Eng’rs & Architects, 262 Ga. 234, 416 S.E.2d 285

(1992).

The requirement that professional malpractice claimants file

an expert affidavit with their complaint does not violate Peti-

tioner’s equal protection rights as guaranteed by the Fourteenth

Amendment to the United States Constitution. Although there

5

are three levels of scrutiny in the equal protection analysis, the

rational basis test applies to situations where a statute is chal-

lenged that differentiates between litigants. See Boyd v. Bulala,

877 F.2d 1191, 1197 (4th Cir. 1989); Woods v. Holy Cross Hosp.,

591 F.2d 1164, 1173 (Sth Cir. 1979). In Hoffman v. United

States, 767 F.2d 1431, 1436 (9th Cir. 1985), it was argued that a

California statute lirniting recovery for noneconomic damages in

medical malpractice suits to $250,000.00 violated the equal pro-

tection clause of the federal constitution. Since the statute in-

volved neither a suspect classification nor a fundamental right, the

Ninth Circuit Court of Appeals concluded that the rational basis

test was the appropriate level of scrutiny to apply in their equal

protection analysis of the statute. See also Allrid v. Emory Univ.,

249 Ga. 35, 285 S.E.2d 521 (1982) (rational basis test applied to

shorter statute of limitations for medical malpractice cases involv-

ing foreign objects and all other medical malpractice cases in

Georgia); Hamby v. Neurological Assocs., P.C., 243 Ga. 698, 256

S.E.2d 378 (1979) (rational basis test applied to shorter statute of

limitations on loss of consortium claims in medical malpractice

context and all other loss of consortium claims in Georgia).

The rational basis test requires that state statutes “must be

reasonable, not arbitrary, and must rest upon some ground of

difference having a fair and substantial relation to the object of

the legislation, so that all persons similarly circumstanced shall be

treated alike.” Reed v Reed, 404 U.S. 71 (1971). In Hoffman,

supra, the California statute placing a ceiling on noneconomic

damages in medical malpractice cases survived this rational basis

analysis. The court held that the statute was reasonably related to

the legitimate purposes of reducing malpractice insurance premi-

ums and improving the quality of health care provided to the

people of California. Jd. at 1437. O.C.G.A. § 9-11-9.1 survives the

rational basis test in a similar fashion. The requirement that an

affidavit of an expert be filed with the complaint reasonably

furthers the legitimate goal of reducing groundless malpractice

lawsuits in Georgia by requiring that professional malpractice

claimants have an expert examine their case before suit is filed.

Accordingly, O.C.G.A. §9-11-9.1 does not violate the equal

6

protection clause contained in the Fourteenth Amendment to the

United States Constitution.

O.C.G.A. § 9-11-9.1 also does not violate Petitioner’s due

process rights guaranteed by the Fifth and Fourteenth Amend-

ments to the United States Constitution. This Court has held that

a state has broad power to enact procedural requirements with

which a claimant must comply in order to take advantage of the

adjudicatory process. See Logan v. Zimmerman Brush Co., 455

U.S. 422 (1982). Moreover, a state is not prevented from pre-

scribing a reasonable and appropriate condition precedent to the

proceeding of a lawsuit of a specified kind. Jones v. Union Guano

Co., 264 U.S. 171 (1924). In Gronne v. Abrams, 793 F.2d 74, 77

(2d Cir. 1986), a New York statute requiring submission of

medical malpractice claims to a malpractice panel for a hearing

on liability before proceeding to trial was challenged on due

process grounds. The court concluded that the statute, by al-

lowing the parties the opportunity to mediate a settlement, if

warranted, was a reasonable legislative response to increasing

malpractice rates and the eroding quality of health care provided

to the residents of New York. Thus, the statute did not violate

medical malpractice claimants’ due process rights. Id. at 77-78.

O.C.G.A. § 9-11-9.1 is also a reasonable condition precedent

to filing a medical malpractice lawsuit in Georgia. As demon-

strated above, O.C.G.A. § 9-11-9.1, by requiring potential medi-

cal malpractice claimants to have an expert review their case prior

to filing a lawsuit, is reasonably related to the legitimate object of

decreasing the number of frivolous malpractice suits filed in

Georgia. The reasonableness of this requirement is further

demonstrated by the fact that Georgia law requires expert testi-

mony for a professional malpractice claim to survive a motion for

directed verdict at trial. See Shea v. Phillips, 213 Ga. 269, 98

S.E.2d 552 (1957); Eberhart v. Morris Brown College, 181 Ga.

App. 516, 352 S.E.2d 832 (1987); and Kenney v. Piedmont

Hosp., 136 Ga. App. 660, 222 S.E.2d 162 (1975). Thus,

O.C.G.A. § 9-11-9.1 is a reasonable condition precedent to filing

a medical malpractice lawsuit in Georgia. Accordingly, O.C.G.A.

se en

7

§ 9-11-9.1 does not violate the due process clauses of the Fifth j

and Fourteenth Amendments to the United States Constitution.

Finally, Petitioner argues that the Georgia Constitution, and

the manner in which it has been interpreted by the Georgia

Supreme Court, is unconstitutional because it provides greater

protections than, and is not subsidiary to, the United States

Constitution. Petition, pp. 27-28. It is well settled, however, that

states may interpret their constitutions to provide greater rights

than the federal constitution. See Oregon v. Hass, 420 U.S. 714,

719 (1975); State v. Miller, 260 Ga. 669, 398 S.E.2d 547 (1990);

Green v. State, 260 Ga. 625, 398 S.E.2d 360 (1990), cert. denied,

Green v. Georgia, ___ U.S. ___ (1991); Fleming v. Zant, 259

Ga. 687, 386 S.E.2d 339 (1989); LoGiudice v. State, 251 Ga. 711,

309 S.E.2d 355 n.6 (1983), cert. denied, LoGiudice v. Georgia,

466 U.S. 950 (1984); Creamer v. State, 229 Ga. 511, 192 S.E.2d

350 (1972). Thus, Petitioner’s argument that “this case is ripe for

judicial review” because the Georgia Supreme Court is providing

greater protections to the citizens of Georgia than the federal

constitution is illusory and without merit.

8

VIII. CONCLUSION

Petitioner failed properly raise any federal or state constitu-

tional issues in the Georgia courts, and thus, this Petition for Writ

of Certiorari should be denied. Additionally, O.C.G.A. § 9-11-9.1

does not violate the equal protection and due process clauses of

the United States Constitution. For this additional reason, this

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

LONG, WEINBERG, ANSLEY &

WHEELER

» Dre IM Hadi W

ae) John M. Hudging TY

999 Peachtree Street

Suite 2700

Atlanta, Georgia 30309

(404) 876-2700

Attorneys for Respondents

Crawford Long Hospital of Emory

University, Christopher Dooley, M.D.

and Christopher Walls, M.D.