Opposition Brief — Wright v. Crawford Long Hospital of Emory University
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93-1076") |
No. Le a
IN THE
Supreme Court of the United States
OCTOBER TE RM, 1993
ee 6
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., WILLIAM A. DAVIS, M.D.,
DAVID GREENE, M.D. and CHRISTOPHER WALLS, M.D.,
Respondents.
- > —E
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF THE
STATE OF GEORGIA
BRIEF OF RESPONDENTS WILLIAM A. DAVIS, M.D.
AND DAVID GREENE, M.D. IN OPPOSITION
Bradley C. Reeves
Counsel of Record
Gary R. McCain
ALLEN & PETERS
1360 Peachtree Street, N.E
Two Midtown Plaza
Suite 1700
Atlanta, Georgia 30309
(404) 874-1700
Attorneys for Respondents William A
Davis, M.D. and David Greene, M.D
QUESTIONS PRESENTED FOR REVIEW
(1) Whether this Court has jurisdiction pursuant to
28 U.S.C. § 1257 (a) to grant a writ of certiorari,
when no court of the State of Georgia in the pro-
ceedings below passed upon or addressed in any
manner the constitutionality of the Georgia statute
at issue, O.C.G.A. § 9-11-9.1, under the United
States Constitution.
(2) Notwithstanding the lack of jurisdiction,
whether any issue deserving of this Court’s consid-
eration is presented regarding the constitutionality
of O.C.G.A. § 9-11-9.1.
TABLE OF CONTENTS
QUESTIONS PRESENTED FOR |, Mane Ars GEE hee i
TA GP COIN TG osisccsscevivcenisieiae ees , ii
TABLE OF AUTHORITIES j......ccccscssssssessssssssssssseeeeeeoeecccccc cc, iii
OPINIONS AND ORDERS Le ST Tee |
JURISDICTIONAL STATEMENT j.cccccscccssssssscooecessseeeeccccccc cc. 2
CONSTITUTIONAL PROVISIONS AND STATUTES
PEE intaniacadanie ae senpventien 2
STATEMENT OF THE RN NRE
SUMMARY OF ARGUMENT FOR DISMISSING OR
DENYING THE WRIT..00....ccssscccssssssessssessssesessesesooseeesc.ccccg 5
ARGUMENT FOR DISMISSING OR
DENYING THE WRIT........ccccssccsssecssesssssesssseecseoeeseccccc cc. g
CRTC ssccsscorsuneipsonacaniinnatn, Ea 22
APPENDIX
A. Order of the Superior Court of Fulton County,
Georgia, dated September 13, 1991..0......0.0000.......... Al
B. Order of the Supreme Court of Georgia,
dated POmPmNNYy TE, TIE vecccmsecetelicaes Bl
C. Order of the Supreme Court of Georgia,
Gated March 12, 1992......cccssszsssesssessssesessesssesoseees.....,. Cl
D. Opinion of the Court of Appeals of Georgia,
dated September 6, 1992.......e.ceccoccesvecsessessssossesesee..... D1
E. Order of the Court of Appeals of Georgia,
dated October 1, 1992 .......ccccccccssessssssssssesseseeeseeseece.., El
F. Denial of Petition for Certiorari of the Supreme
Court of Georgia, dated September 8, 1993............ Fl
G. Order of the Supreme Court of Georgia,
dated October 1, 19938........ccccccccsssesssssesssseceseeseescecs... Gl
il
er
— =
TABLE OF AUTHORITIES
CASES
0-1 Doctors Memorial Holding Co. v. Moore,
190 Ga. App. 286, 378 S.E.2d 708 (1989)..0.....cccccceneee 18
Adair v. Traco Division,
192 Ga. 59, 14 S.E.2d 466 (1941).......cccccccccccecsecccssseeeeeeees 12
Allrid v. Emory University,
BP GB. FD, FBS S.E.2G 521 (19BZ)..00coccecrevesessevsesseverseseees 20
Archie v. Scott,
190 Ga. App. 145, 378 S.E.2d 182 (1989) 0.0.0... 13, 14
Bailey v. Anderson,
TIE EY IID schcesshddspieahiesidtioerceneesertesnbiecsctenssoneuicie 10, 16
Bankers Life & Casualty Co. v. Crenshaw,
SIE TF Tt ITED staisindaniahshonsadenteinenenseeseniosentesesoveesenee 10, 16
Bentley v. Anderson-McGriff Hardware Co.,
BBE Git. BED, 166 S.0.297 (IFES) 2c eveccorcvsvsevovevcesevseserevere mi
Bowen v. Adams,
203 Ga. App. 123, 416 S.E.2d 102 (1992) ........ccccee 18, 20
Brown v. State,
rn or 2 nn, Cae OEE D0. ccnenssnounsbonnnsssooosootesoenes 13
Burson v. State,
183 Ga. App. 647, 359 S.E.2d 731 (1987) ......ccccccccrseeseeees 15
iii
Calhoun v. State,
211 Ga. 112, 84 S.E.2d 198 (1954) 00... ccccccccccceeeeeeees 13, 14
Cardinale v. Louisiana,
Sn a ceeneen aie 10, 11, 16
Dandridge v. Williams,
I eee 17
Dunaway v. Gore,
WOE Coa. ZED, BAD SB... ZED (ITZ) qncccccnncerescesecsovesocvenssonvoenes 14
Eilenbecker v. Plymouth Co.,
Fe Se Oe Cail eitnictecinacesenninnintiisoneeressterivtaansiacenneten 19
Georgia-Florida Ry. v. Newton,
94D Gan. 463, TO SE. 142 (IDES) ..<ccceveercvevessecrsesovenovesncsecece 13
Hamby v. Neurological Associates, P.C.,
243 Ga. 698, 256 S.E.2d 378 (1979) ........cccccceeceneeeeeeeeeeneees 20
Hill v. California,
Sy Mii SU I A ccna cechsien toiissnienaientiedeanicdiiisitaiimininsticlsaitidle 1
Housing Authority of Savannah v. Greene,
259 Ga. 435, 383 S.E.2d 867 (1989) .........ccccccceeeeeseerens 18, 20
lacaponi v. New Amsterdam Cas. Co.,
258 F.Supp. 880 (D. Pa. 1966), aff'd, 379 F.2d
311 (3rd Cir. 1967), cert. denied, 389 U.S. 10564 ............... 19
Illinois v. Gates,
en 10, 11, 16
In re Parrott,
194 Ga. App. 856, 392 S.E.2d 48 (1990) ........:ccececeeees 7,12
iv
Jones v. Union Guano Co.,
DEA US. 171 (1923). ccrererccecscescerccescsressssseccescessessoesoosevesssesses 18
Logan v. Zimmerman Brush Co.,
455 U.S. 422 (1982).....cccccccccceseeseeeeeseeeseseneeesnereerersersneesnenens 21
Maryland v. Baltimore Radio Show, Inc.,
33B U.S. 912 (1950).......ccceccecvscecessvssscoessererserercessncssessesseeeees 12
McGoldrick v. Compagnie Generale Transatlantique,
FOOD U.S. 430 (1940).......:cccccccccesseeeeeeeeeeenteeseeenenseeeeeseeseneeneny 10
Mellon v. O'Neil,
PIE US. QED CBD) .ccvrvresecccccccocsesvsnssescevesevnsesvecsoveuveevonereces 10
Monks v. New Jersey,
FOB U.S. 71 (197D)....:-ccccsrcecerssssesserserrerereesrssnessesoeseresssececeees 16
O'Connor v. Nevada,
507 F.Supp. 546 (D. Nev. 1981), aff'd, 686 F.2d
749 (9th Cir. 1982), cert. denied, 459 U.S. 1071.......08 19
Perry v. Atlanta Hospital & Medical Center, Inc.,
255 Ga. 431, 339 S.E.2d 264 (1986) ........cccccecceereeeeeeerees 20
Philyaw v. Fulton National Bank,
139 Ga. App. 28, 227 S.E.2d 811 (1976) -....0cceeereon 13, 14
Reed v. Reed,
AOS UG, 71 (IDI) vcevoereeveveeeccsercecessoveneveonseevevnrensnecseversioeans 19
Richardson v. Belcher,
46 U.S. 7B (1971) ncccvecsecvcesvcsesevrseersesecccervseveerenssvecenessees 17-18
State Farm Mutual Automobile Insurance Co. v. Duel,
SIS US. 1546 (1946S). ..cccccrsvevevseereevscseserscvvverssessrsncvosenevesserenes 10
Vv
Stembridge v. Georgia,
FES US. SEE (IGGZ) nccccccccecevsvcvscseccecoreceees eancesentemnscnnesne 14, 16
Street v. New York,
Se ns I i ee 13, 15, 16
Webb v. Webb,
ee eres GE GIMIED cccecccnséiaciececestustbcsuemmmasannl 11, 13, 15, 16
West v. Frick Co.,
183 Ga. 182, 187 S.E. 868 (1936) ........ cc ccccccccccceeeeceee tae 13
Willingham v. Lee,
227 Ga. 425, 181 S.E.2d 49 (1971) .....ccccccceseseseseseeeeereeeeeens 14
Wright v. Crawford Long Hospital of Emory University,
205 Ga. App. 653, 423 S.E.2d 12 (1992) .....cccccccccceceeeeeeee 2
vi
CONSTITUTIONAL PROVISIONS AND STATUTES
2B U.S.C. § 1257 (8) .cccesrecceercersscsversersseesvevsevenvevesvssssoseveoorees passim
US. Comat. Gtnetadl. V ncccccescececcevecocesesssecenscsevenessvescssoveosoooves passim
EES Comet, GeRGIRGE, VE cecccsccecccccsvscsvectsseveccereesscteenes 16, 17, 19, 22
U.S. Const. amend. XIV ...cccccseecererssovvcersessevesvssesrssesssosvsnes passim
ene. F 25 5 | 7,8, 14
Ga. Const. art. 1, § 1, 9 U0 ....cccccccsoroscrrerseeseeverssereseossesnseveees 7,8, 14
Ga. Const. art. IIL, § V, ¥ TID .....0..-cccrrccsseecsoreseersersesoveseees 6, 8, 14
Ga. Const. art. VI, § VI, J TIQ1) .......cccccccccesseeereeeneesersesserenneneneees 15
O.C.G.A. § 92-61 ncecsececcescerserersecesseresserecerevenenessvesseneseesssososessoseees 4
O.C.G.A. § 9-11-91 .ccveccsecveccsccsossersersessseessesersssossesenersosonees passim
O.C.G.A. § 9-11-15. ccceececesereccsrsersecsossossscsnvensersesnreoseveosenevenoseess 4,6
vii
No.
In The
Supreme Court of the United States
Oc TOBER TE RM, 1993
FRANKLIN M. WRIGHIT, Administrator of the
Estate of CHIRISTINE WRIGHT, Deceased,
Petitioner,
CRAWFORD LONG HOSPTTAL OF EMORY UNIVERSITY,
JOHIN K. SCHELLACK, M.D., CHIRISTOPHER DOOLEY, M.D.,
M. EDWYN HARRISON, III, M.D., WILLIAM A. DAVIS, M.D.,
DAVID GREENE, M.D. and CHRISTOPHER WALLS, M.D.,
Respondents
ON PETITION FOR A WRIT OF CERTIORARI
rO THE SUPREME COURT OF THE
STATE OF GEORGIA
BRIEF OF RESPONDENTS WILLIAM A. DAVIS, M.D
AND DAVID GREENE, M.D. IN OPPOSITION
OPINIONS AND ORDERS BELOW
There has been a total of seven opinions and/or orders
issued by the Georgia courts below, to wit: (1) Order of the
Superior Court of Fulton County, Georgia, granting
Respondents’ motions to dismiss, dated September 13, 1991;
(2) Order of the Supreme Court of Georgia transferring the
appeal to the Court of Appeals of Georgia for lack of jurisdic-
tion, dated February 12, 1992; (3) Order of the Supreme Court
l
of Georgia denying Petitioner’s motion for reconsideration,
dated March 12, 1992; (4) Opinion of the Court of Appeals of
Georgia, dated September 8, 1992, reported at 205 Ga. App.
653, 423 S.E.2d 12 (1992); (5) Order of the Court of Appeals of
Georgia denying Petitioner’s motion for reconsideration,
dated October 1, 1992; (6) Denial of petition for certiorari of
the Supreme Court of Georgia, dated September 8, 1993; and
(7) Order of the Supreme Court of Georgia denying
Petitioner’s motion for reconsideration, dated October 1,
1993. The full text of each of these opinions and orders is
reproducei in Respondents’ Appendix. In none of these
opinions or orders did the Georgia courts address in any
manner the constitutional challenges to O.C.G.A. § 9-11-9.1
that Petitioner seeks to raise before this Court.
JURISDICTIONAL STATEMENT
As discussed more fully below, this Court is without
jurisdiction to grant a writ of certiorari, because no Georgia
court in the proceedings below ever passed upon or
addressed in any manner the constitutionality of O.C.G.A.
§ 9-11-9.1 under the United States Constitution. Accordingly,
the jurisdictional requirements of 28 U.S.C. § 1257(a) are
absent in this case, and the Petition is subject to dismissal.
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
The texts of the constitutional provisions that Petitioner
contends are involved are set forth in Petitioner’s Appendix
at F1-F4. Respondents take the position that none of these
constitutional provisions is involved, as the constitutional
attacks to O.C.G.A. § 9-11-9.1 raised in the Petition were
never addressed by any Georgia court in the proceedings
2
below, and therefore, are not subject to this Court’s review.
The only statutes that are involved are 28 U.S.C. § 1257 and
O.C.G.A. § 9-11-9.1 of the Georgia Civil Practice Act, which
are set forth verbatim below.
28 U.S.C. § 1257. State courts; certiorari.
a) 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 its being repugnant to the Constitution,
treaties, or laws of the United States, or where any title,
right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or
statutes of, or any commission held or authority exer-
cised under, the United States.
(b) For the purposes of this section, the term “highest
court of a State” includes the District of Columbia Court
of Appeals.
O.C.G.A. § 9-11-9.1. Affidavit to accompany charge of
professional malpractice.
(a) In any action for damages alleging professional ma!-
practice, 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 factu-
al basis for each such claim.
(b) The contemporaneous filing requirement of subsec-
tion (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 hear-
ing 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 subsection (b) of this Code section, the defen-
dant 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 sec-
tion, 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 com-
plaint 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 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 limita-
tion, unless a court determines that the plaintiff had the req-
uisite affidavit available prior to filing the complaint and the
failure to file the affidavit was the result of a mistake.
eel
STATEMENT OF THE CASE
This Petition arises out of a medical malpractice action
filed on June 27, 1991 in the Superior Court of Fulton County,
Atlanta, Georgia, alleging that Respondents negligently
placed a guide wire used to aid in the insertion of a central
line catheter in Christine Wright’s body on July 4, 1989 and
that such wire was improperly left in her body, resulting in
complications and injury. Petitioner attached the transcript
of a deposition of Pamela Benitez, M.D. to the Complaint in
support of the allegations. This deposition was taken in an
action which pended in the Circuit Court for the County of
Wayne, Michigan, and did not involve any of the
Respondents. Further, the deposition-did not mention any of
the Respondents by name and did not specifically set forth
any negligent acts or omissions alleged to have been com-
mitted by any of the Respondents, as required by O.C.G.A. §
9-11-9.1. Moreover, Dr. Benitez specifically stated in her
deposition that she had not read or even seen any of the med-
ical records of the care rendered by any of the Respondents.
Therefore, this testimony could provide no factual basis for
any allegations of negligence regarding the care and treat
ment rendered by Respondents.
Petitioner's Complaint failed to state, in accordance
with the provisions of O.C.G.A. § 9-11-9.1(b), that the action
was filed within ten (10) days of the expiration of the statute
of limitation and, as a result, the affidavit of an expert could
not be prepared. This statement would have entitled
Petitioner to an additional forty-five (45) days after the filing
of the Complaint within which to supplement the Complaint
with the appropriate affidavit.
On Juiy 1, 1991, Petitioner purported to file an amend-
ment to the Complaint setting forth this language from the
5
statute in an effort to trigger the protections of O.C.G.A.
§ 9-11-9.1(b). By a purported second amendment to the
Complaint filed on August 7, 1991, Petitioner sought to
incorporate the affidavit of Jose L. Evangelista, M.D. to the
initial Complaint filed on June 27, 1991.
In August and September, 1991, Respondents filed sepa-
rate motions to dismiss Petitioner's Complaint on the ground
that Petitioner had failed to comply with the provisions of
O.C.G.A. § 9-11-9.1. On September 2, 1991, Petitioner
responded to these motions by claiming, that the deposition
transcript of Dr. Benitez was sufficient to meet the require-
ments of O.C.G.A. § 9-11-9.1 and alleging that the statute did
not require a contemporaneous statement with the filing of
the Complaint that Petitioner was unable to prepare an affi-
davit due to time constraints created by the statute of limita-
tion. Instead, Petitioner argued that this language could be
added by amendment under O.C.G.A. § 9-11-15.
On September 11, 1991, Petitioner filed a supplemental
response to one of the Respondents’ motions to dismiss and
alleged, for the first time, that O.C.G.A. § 9-11-9.1 violated
Article II, Section V, Paragraph III of the Constitution of the
State of Georgia which prohibits a statute from referring to
more than one subject matter or containing matter different
from what is expressed in the title thereof. No other constitu-
tional challenge was asserted by Petitioner in the trial court.
On September 13, 1991, the Superior Court of Fulton
County, Georgia, issued an order granting Respondents’
motions to dismiss. (Appendix at Al). The trial court’s order
did not mention or address the constitutional attack raised
by Petitioner in the supplemental response.
Petitioner then proceeded to file a notice of appeal to the
Supreme Court of Georgia on October 2, 1991. On February
12, 1992, the Georgia Supreme Court issued an order con-
taining only one sentence which read: “There being, no basis
for jurisdiction in this Couri, it is ordered that this appeal be
hereby transferred to the Court of Appeals.” (Appendix at
B1). Petitioner then filed a motion for reconsideration with
the Georgia Supreme Court regarding its order transferring
the appeal. In a one-sentence order dated March 12, 1992, the
Georgia Supreme Court denied Petitioner’s motion for
reconsideration. (Appendix at C1).
Following the Georgia Supreme Court's denial of recon-
sideration, the appeal was docketed in the Court of Appeals
of Georgia. Even though not raised in the trial court,
Petitioner attempted to expand the constitutional attacks to
O.C.G.A. § 9-11-9.1 in the Court of Appeals by arguing, for
the first time, that the statute also violated the Fifth and
Fourteenth Amendments to the United States Constitution
and Article I, Section I, Paragraphs I and Il of the
Constitution of the State of Georgia. On September 8, 1992,
the Georgia Court of Appeals rendered its opinion affirming
the trial court’s order dismissing the Complaint for failure to
comply with O.C.G.A. § 9-11-9.1. With regard to Petitioner's
constitutional challenges, the Court of Appeals held the fol-
lowing: “Since the trial court did not rule on appellant's
[Petitioner’s] contentions that OCGA § 9-11-9.1 is unconsti-
tutional, her enumerations on that issue present nothing for
appellate review. In re Parrott, 194 Ga. App. 856 (392 SE2d 48)
(1990).” (Appendix at D1).
On September 28, 1992, Petitioner filed a motion for
reconsideration with the Georgia Court of Appeals. The Court
of Appeals denied Petitioner’s motion in a one-sentence order
issued on October 1, 1992. (Appendix at E1).
N
Thereafter, Petitioner filed a petition for certiorari with
the Georgia Supreme Court on October 20, 1992. Included in
the petition were challenges to the constitutionality of
O.C.G.A. § 9-11-9.1 under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I,
Section I, Paragraphs I and II and Article II, Section V,
Paragraph III of the Constitution of the State of Georgia.
Declining to review the case, the Georgia Supreme Court
denied the petition for certiorari in a one-sentence order dated
September 8, 1993. (Appendix at F1). Petitioner then filed a
motion for reconsideration with the Supreme Court on
September 17, 1993, raising, for the first time, an attack to the
preamble to the Georgia Constitution. On October 1, 1993, the
Supreme Court issued another one-sentence order denying
Petitioner’s motion for reconsideration. (Appendix at G1).
Contrary to Petitioner’s contentions, no Georgia court
below ever expressly or implicitly addressed the constitu-
tionality of O.C.G.A. § 9-11-9.1, either under the United
States Constitution or the State of Georgia Constitution. The
opinions and orders previously discussed and set forth ver-
batim in the Appendix hereto evidence the absence of such
state judicial review.
SUMMARY OF ARGUMENT FOR DISMISSING
OR DENYING THE WRIT
No Georgia court in the proceedings below ever passed
upon or addressed the constitutional challenges which
Petitioner seeks to raise before this Court. Therefore, this
Court is without jurisdiction under 28 U.S.C. § 1257(a) to
grant a writ of certiorari, and the Petition should be dismissed
accordingly. Even assuming, arguendo, that jurisdiction in this
Court is established, the Petition should be denied because no
issue deserving of this Court’s consideration is presented
regarding the constitutionality of O.C.G.A. § 9-11-9.1.
ARGUMENT FOR DISMISSING OR DENYING
THE WRIT
I. THIS COURT IS WITHOUT JURISDICTION PUR-
SUANT TO 28 U.S.C. § 1257(a) TO GRANT A WRIT OF CER-
TIORARI BECAUSE NO GEORGIA COURT IN THE
PROCEEDINGS BELOW EVER PASSED UPON OR
ADDRESSED THE CONSTITUTIONAL CHALLENGES
RAISED IN THE PETITION FOR CERTIORARI.
This Court's certiorari jurisdiction over decisions from
state courts derives from 28 U.S.C. § 1257(a), which provides:
Final judgments or decrees rendered by the high-
est 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 its being
repugnant to the Constitution, treaties, or laws of
the United States, or where any title, right, privi-
lege, or immunity 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.
In applying 28 U.S.C. § 1257(a), this Court has repeated-
ly held that unless a federal question has been both raised
and decided in the state courts below, the jurisdiction of this
Court fails. E.g., Illinois v. Gates, 462 U.S. 213, 218-219 (1983),
and cases cited therein; Cardinale v. Louisiana, 394 U.S. 437
(1969); Bailey v. Anderson, 326 U.S. 203, 206-207 (1945); State
Farm Mutual Automobile Insurance Co. v. Duel, 324 U.S. 154, 160-
161 (1945); Mellon v. O’ Neil, 275 U.S. 212, 214 (1927). See Bankers
Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 76-77 (1988).
The rationale for this rule, sometimes called the “not
pressed or passed upon below” rule, has been addressed by
this Court on numerous occasions. In McGoldrick v.
Compagnie Generale Transatlantique, 309 U.S. 430, 434-435
(1940), the Court observed:
In cases coming here from state courts in which a
state statute is assailed as unconstitutional, there
are reasons of peculiar force which should lead us
to refrain from deciding questions not presented or
decided in the highest court of the state whose
judicial action we are called upon to review. Apart
from the reluctance with which every court should
proceed to set aside legislation as unconstitutional
on grounds not properly presented, due regard for
the appropriate relationship of this Court to state
courts requires us to decline to consider and decide
questions affecting the validity of state statutes not
urged or considered there. It is for these reasons
that this Court, where the constitutionality of a
statute has been upheld in the state court, consis-
tently refuses to consider any grounds of attack not
raised or decided in that court.
See Gates, 462 U.S. at 218-219. Further, this Court has
noted that “[q]juestions not raised below are those on which
the record is very likely to be inadequate since it certainly
10
—— |
was not compiled with those questions in mind.” Gates, 462
US. at 221; Cardinale, 394 U.S. at 439. Moreover, this Court
has stated that “in a federal system it is important that state
courts be given the first opportunity to consider the applica-
bility of state statutes in light of constitutional challenge,
since the statutes may be construed in a way which saves
their constitutionality. Or the issue may be blocked by an
adequate state ground.” Cardinale, 394 U.S. at 439. See Gates,
462 U.S. at 221-222; Webb v. Webb, 451 U.S. 493, 499-501 (1981);
Hill v. California, 401 U.S. 797, 805-806 (1971).
In the present case, no Georgia court in the proceedings
below ever expressly or implicitly passed upon the constitu-
tionality of O.C.G.A. § 9-11-9.1, either under the United
States Constitution or the Georgia Constitution. In the very
first order issued in this case, the September 13, 1991 order of
the Superior Court of Fulton County, Georgia, the trial court
did not mention, let alone decide, any constitutional issue.
(Appendix at Al). In the February 12, 1992 order of the
Georgia Supreme Court, the highest court of the State of
Georgia expressly held that it had no basis for jurisdiction
and transferred the appeal to the Georgia Court of Appeals.
(Appendix at B1). By transferring the appeal to the Court of
Appeals for lack of jurisdiction, the Georgia Supreme Court
in no way addressed the constitutionality of O.C.G.A. § 9-11-
9.1. Likewise, the Georgia Supreme Court’s March 12, 1992
order denying Petitioner’s motion for reconsideration did
not serve as a judicial decision on the constitutionality of the
state statute. (Appendix at C1).
As demonstrated by the Georgia Court of Appeals’
September 8, 1992 opinion, the court never passed upon any
constitutional challenge to O.C.G.A. § 9-11-9.1. With regard
to Petitioner’s federal and state constitutional challenges, the
Georgia Court of Appeals succinctly held: “Since the trial
11
court did not rule on appellant's [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).” (Appendix at
D1). Thus, the constitutionality of the state statute was nei-
ther expressly nor implicitly addressed in this opinion.
Similarly, no judicial review was given by the Georgia Court
of Appeals in its October 1, 1992 order denying Petitioner's
motion for reconsideration. (Appendix at E1).
When the case reached the Georgia Supreme Court for
the second time via a petition for certiorari, the state’s highest
court again did not pass upon any constitutional challenges to
O.C.G.A. § 9-11-9.1. By denying certiorari pursuant to its
order dated September 8, 1993, the Georgia Supreme Court
declined to review any issues whatsoever. (Appendix at F1).
It is well settled that a denial of a writ of certiorari carries with
it no implication whatever regarding the court’s views of the
merits of the case. E.g., Maryland v. Baltimore Radio Show, Inc.,
338 U.S. 912, 919 (1950). See Adair v. Traco Division, 192 Ga. 59,
64, 14 S.E.2d 466 (1941). Thus, the denial of certiorari by the
Georgia Supreme Court carries with it no implication what-
ever regarding its views of the constitutionality of O.C.G.A. §
9-11-9.1. The same holds true with respect to the Supreme
Court's denial of Petitioner’s motion for reconsideration on
October 1, 1993. (Appendix at G1).
As with the constitutionality of O.C.G.A. § 9-11-9.1, no
Georgia court below ever addressed any constitutional chal-
lenge to the preamble to the State of Georgia Constitution.
This issue was not even raised until after the Georgia
Supreme Court had already denied certiorari, when
Petitioner filed a motion for reconsideration with the Georgia
Supreme Court on September 17, 1993.
12
Because no Georgia court below ever passed upon er
addressed in any manner the constitutional issues raised in
the Petition, this Court is without jurisdiction to grant a writ
of certiorari. Therefore, the Petition is subject to dismissal.
With regard to the lack of judicial review of the consti-
tutional issues below, this Court has frequently stated that
when “the highest state court has failed to pass upon a fed-
eral question, it will be assumed that the omission was due
to want of proper presention in the state courts, unless the
aggrieved party in this Court can affirmatively show the con-
trary.” Webb, 451 US. at 495-496, and cases cited therein;
Street v. New York, 394 U.S. 576, 582 (1969). In the present
case, neither the Georgia Supreme Court nor Court of
Appeals ruled on any federal question concerning the consti-
tutionality of O.C.G.A. § 9-11-9.1 or the preamble to the
Georgia Constitution. As shown below, this was so because
no such issue was ever properly presented for review.
Petitioner has failed to show otherwise.
Petitioner's purported constitutional attacks on
O.C.G.A. § 9-11-9.1 were not subject to appellate review in
Georgia because they were never addressed by the trial
court. It is well established that the Georgia appellate courts
“will never pass upon the constitutionality of an act of the
General Assembly unless it clearly appears in the record that
the point was directly and properly made in the court below
and distinctly passed on by the trial judge. Brown v. State, 114
Ga. 60(2) (39 S.E. 873); Georgia-Florida Ry. v. Newton, 140 Ga.
463(3) (79 S.E. 142); Bentley v. Anderson-McGriff Hardware Co.,
181 Ga. 813(1) (184 S.E. 297); West v. Frick Co., 183 Ga. 182 (187
S.E. 868).” Calhoun v. State, 211 Ga. 112, 113, 84 S.E.2d 198,
199-200 (1954) (emphasis added); Archie v. Scott, 190 Ga. App.
145, 146, 378 S.E.2d 182, 184 (1989); Philyaw v. Fuiton National
Bank, 139 Ga. App. 28, 29, 227 S.E.2d 811, 812 (1976). This
13
Ei
result is the same whether the constitutional issue was inten-
tionally or unintentionally omitted by th. rial court. See
Willingham v. Lee, 227 Ga. 425, 181 S.E.2d 49 (1971) (quoting
Dunaway v. Gore, 164 Ga. 219, 230, 138 S.E. 213 (1927)).
Merely raising a constitutional issue, which is not distinctly
passed upon in the trial court, is insufficient to constitute a
basis for an enumeration of error on appeal. Calhoun, 211 Ga.
at 113, 84 S.E.2d at 200.
Petitioner first raised a constitutional challenge to
O.C.G.A. § 9-11-9.1 at the trial level in a supplemental
response to one of Respondents’ motions to dismiss.
Petitioner's sole ground of attack was that O.C.G.A. § 9-11-9.1
was allegedly unconstitutional because it violated the multi-
ple subject prohibition of the Georgia Constitution. Ga.
Const. art. Ill, § V, ¥ III. In its order granting Respondents’
motions to dismiss, the trial court did not mention, much less
address, this constitutional issue. (Appendix at A}).
Consequently, this constitutional challenge was not subject to
review by the Georgia Supreme Court or Court of Appeals.
See Calhoun, 211 Ga. at 113, 84 S.E.2d at 199-200, and cases
cited therein; Archie, 190 Ga. App. at 146, 378 S.E.2d at 184;
Philyaw, 139 Ga. App. at 29, 227 S.E.2d at 812. Further,
Petitioner’s federal challenges to O.C.G.A. § 9-11-9.1 based
on the Fifth and Fourteenth Amendments to the United
States Constitution and additional state constitutional chal-
lenges based on Article I, Section I, Paragraphs | and II of the
Georgia Constitution were clearly not subject to appellate
review by the Georgia Supreme Court or Court of Appeals,
because these constitutional attacks were never even raised
by Petitioner in the trial court. Id. See Stembridge v. Georgia,
343 U.S. 541, 547 (1952) (this Court recognized the principle
under Georgia law that constitutional questions must first be
raised in the trial court in order to be reviewed on appeal).
Similarly, the challenge to the preamble to the Georgia
Constitution was not subject to appellate review in Georgia,
14 *
as it was never raised in the trial court or even the Georgia
Court of Appeals, and moreover, was not raised in the
Georgia Supreme Court until after that court had already
denied certiorari. Id.
Although Petitioner attempted to raise certain federal
(i.e., Fifth and Fourteenth Amendments) and state constitu-
tional challenges to O.C.G.A. § 9-11-9.1 in the Georgia Court
of Appeals, that court was without jurisdiction to decide any
such constitutional issues. The Constitution of the State of
Georgia vests exclusive appellate jurisdiction in the Georgia
Supreme Court over “[a]II cases involving the construction of
... the Constitution of the State of Georgia . . . and all cases
in which the constitutionality of a law, ordinance, or consti-
tutional provision has been drawn in question... .” Ga.
Const. art. VI, § VI, ¥ II). This constitutional provision was
applied in Burson v. State, 183 Ga. App. 647-648, 359 S.E.2d
731-732 (1987), where the Georgia Court of Appeals held that
it had no authority to determine the constitutionality of a
State statute. The Burson holding is particularly relevant
because in that case, as in this case, the Georgia Supreme
Court had transferred the appeal to the Court of Appeals,
and further, the Georgia Supreme Court had not yet ruled on
the constitutionality of the statute in question, as was true
with respect to O.C.G.A. § 9-11-9.1.
Only the Georgia Supreme Court had jurisdiction to con-
sider Petitioner’s constitutional challenges. Ga. Const. art. VI,
§ VI, ¥ 1101). That court, however, declined to exercise such
jurisdiction by first transferring the case to the Court of
Appeals and later denying certiorari. As shown above, the fail-
ure of the Georgia Supreme Court to pass upon the constitu-
tionality of O.C.G.A. § 9-11-9.1 and the preamble to the Georgia
Constitution was due to the want of proper presentation below.
See Webb, 451 U.S. at 495-496; Street, 394 U.S. at 582.
Further, with respect to the failure of the Georgia
Supreme Court to pass upon these constitutional issues, this
Court has held: “Where the highest court of the state delivers
no opinion and it appears that the judgment might have rest-
ed upon a nonfederal ground, this Court will not take juris-
diction to review the judgment.” Stembridge, 343 U.S. at 547,
and cases cited therein (emphasis in original). In the instant
case, the Georgia Supreme Court delivered no opinion what-
soever and the judgment unquestionably rested on a nonfed-
eral ground, as no federal constitutional issue was ever
addressed by any Georgia court below. Thus, jurisdiction in
this Court does not exist. See Id.
At each step in the Georgia appellate process, Petitioner
attempted to add a new theory not previously raised in the
hope that the case would be reviewed. Petitioner has taken
the same approach in this Court with the challenge to
O.C.G.A. § 9-11-9.1 based upon the Seventh Amendment to
the United States Constitution. This issue was never raised
at any level in the proceedings below, much less passed
upon. Rather, Petitioner asserted this purported constitu-
tional issue for the first time in its December 27, 1993 Petition
for a Writ of Certiorari filed with this Court. Because
Petitioner never raised this federal claim at any point in the
State court proceedings, this issue is not subject to this
Court's certiorari jurisdiction. See, e.g., Monks v. New Jersey,
398 U.S. 71-72 (1970) (petitioner could not raise, for first time
on writ of certiorari to United States Supreme Court, consti-
tutional issue upon which state courts had no opportunity to
pass); Stembridge, 343 U.S. at 546[1]. See also Bankers Life, 486
U.S. at 76-78; Gates, 462 U.S. at 218-224; Webb, 451 U.S. at 494-
502; Street, 394 U.S. at 581-582; Cardinale, 394 U.S. at 438-439;
Bailey, 326 U.S. at 206-207.
For all the foregoing reasons, this Court is without juris-
diction under 28 U.S.C. § 1257(a) to grant a writ of certiorari.
The Petition should be dismissed accordingly.
16
II. NOTWITHSTANDING THE LACK OF JURISDICTION,
THE PETITION FOR CERTIORARI PRESENTS NO ISSUE
DESERVING OF THIS COURT’S CONSIDERATION REGARD-
ING THE CONSTITUTIONALITY OF O.C.G.A. § 9-11-9.1.
Even assuming, arguendo, that jurisdiction in this Court
is proper under 28 U.S.C. § 1257, the Court should deny the
Petition for a Writ of Certiorari, as O.C.G.A. § 9-11-9.1 is so
clearly within constitutional bounds that no federal question
deserving of this Court’s consideration exists.
The Petition appears to raise three challenges to
O.C.G.A. § 9-11-9.1 under the United States Constitution. It
alleges that the statute violates: (1) Petitioner's right to due
process, as guaranteed by the Fifth Amendment to the
United States Constitution; (2) Petitioner’s right to trial by
jury, as set out in the Seventh Amendment; and (3)
Petitioner’s right to equal protection, as guaranteed by the
Fourteenth Amendment. Notwithstanding the fact that these
issues were never passed upon by a Georgia court below,
these challenges do not raise any meritorious issue for this
Court’s consideration.
Petitioner’s claim that O.C.G.A. § 9-11-9.1 violates due
process is without merit. Initially, it must be noted that no
suspect class or fundamental right is involved in this case, so
the statute is not subject to strict scrutiny as Petitioner
appears to contend. See Dandridge v. Williams, 397 U.S. 471
(1970). Rather, the proper test for measuring the constitu-
tionality of O.C.G.A. § 9-11-9.1 is the “rational relationship”
test: if the goals sought by legislation are legitimate, and the
classification adopted is rationally related to the achievement
of those goals, then the legislation complies with the due
process clause of the Fifth Amendment. See, ¢.g., Richardson
17
v. Belcher, 404 U.S, 78 (1971). The purpose of O.C.G.A. § 9-11-
9.1 is to reduce the number of frivolous professionai mal-
practice suits being filed. E.g., Housing Authority of Savannah
v. Greene, 259 Ga. 435, 439, 383 S.E.2d 867, 870 (1989) (quoting
0-1 Doctors Memorial Holding Co. v. Moore, 190 Ga. App. 286,
288, 378 S.E.2d 708, 710 (1989)); Bowen v. Adams, 203 Ga. App.
123, 124, 416 S.E.2d 102, 103 (1992). This is a legitimate goal
of the Georgia Legislature, as it promotes efficiency and judi-
cial economy and minimizes the wasteful expenditure of the
State courts’ time, effort and economic resources. The affi-
davit requirement of the statute compels potential profes-
sional malpractice plaintiffs and their attorneys to conduct a
minimal factual investigation prior to filing suit, helping to
ensure that each case filed has, at the very least, arguable
merit. In this way, the statute furthers the legitimate legisla-
tive goal, and therefore, is “rationally related” to it.
In this regard, this case is similar to Jones v. Union Guano
Co., 264 U.S. 171 (1923), a suit against a fertilizer company in
which this Court examined a state law that required a chem-
ical analysis of fertilizer to be performed before a suit could
be filed alleging damages to crops resulting from use of the
fertilizer. In holding that the statute in question complied
with the due process and equal protection requirements of
the United States Constitution, this Court stated, “The 14th
Amendment does not prevent a state from prescribing a rea-
sonable and appropriate condition precedent to the bringing
of a suit of a specified kind or class so long as the basis of dis-
tinction is real and the condition imposed has reasonable
relation to a legitimate object.” 264 U.S. at 181. the Court in
Jones found that in the particular lawsuits at issue, it was fac-
tually difficult to pinpoint the specific cause of a poor result.
Id. Therefore, the chemical analysis prerequisite provided “a
more definite method of ascertaining the essential facts, and
a better basis upon which judicial determinations . . . [could]
be made.” Id. .
18
Sena archer 4 SRE eek iar ook
The same applies to the affidavit requirement of
O.C.G.A. § 9-11-9.1. In professional malpractice actions,
expert testimony is necessary to establish the parameters of
the standard of care and to show a deviation from that stan-
dard. The affidavit requirement of O.C.G.A. § 9-11-9.1 is rea-
sonably related to achieving the State’s legitimate goal of
reducing the number of frivolous lawsuits. The Georgia
statute therefore poses no due process violation.
Petitioner’s allegations that O.C.G.A. § 9-11-9.1 violates
the right to a trial by jury under the Seventh Amendment to
the United States Constitution are without merit. This
Amendment applies to suits in federal court and is not
extended to suits in state courts. Eilenbecker v. Plymouth Co.,
134 U.S. 31 (1890); O’Connor v. Nevada, 507 F.Supp. 546 (D.
Nev. 1981), aff'd, 686 F.2d 749 (9th Cir. 1982), cert. denied, 459
U.S. 1071; lacaponi v. New Amsterdam Cas. Co., 258 F.Supp. 880
(D. Pa. 1966), aff'd, 379 F.2d 311 (3rd Cir. 1967), cert. denied, 389
U.S. 1054. Thus, Petitioner’s references to the Seventh
Amendment to the United States Constitution are misplaced.
Furthermore, O.C.G.A. § 9-11-9.1 complies with the
equal protection provisions of the Fourteenth Amendment to
the United States Constitution. In Reed v. Reed, 404 U.S. 71,
75-76 (1971), this Court enunciated the standard of review for
equal protection analysis as follows:
[T]his Court has consistently recognized that the
Fourteenth Amendment does not deny to States the
power to treat different classes of persons in differ-
ent ways. [cits. omitted] The Equal Protection
Clause of that amendment does, however, deny to
States the power to legislate that different treat-
ment be accorded to persons placed by a statute
19
into different classes on the basis of criteria wholly
unrelated to the objective of that statute. A classi-
fication “must be reasonable, not arbitrary, and
must rest upon some ground of difference having a
fair and substantial relation to the object of the leg-
islation, so that all persons similarly circumstanced
shall be treated alike.” [cit. omitted]
As previously discussed, O.C.G.A. § 9-11-9.1 passes this
“rational relationship” test. Its purpose is to reduce the num-
ber of frivolous professional malpractice suits being filed.
E.g., Greene, 259 Ga. at 439, 383 S.E.2d at 870; Bowen, 203 Ga-
App. at 124, 416 S.E.2d at 103. The requirement that a pro-
fessional malpractice plaintiff file an expert affidavit with the
complaint setting forth at least one negligent act or omission
is reasonable and bears a fair and substantial relationship to
the object of this statute. It accomplishes this objective by
requiring the plaintiff to show at the outset of the litigation
that a frivolous suit is not being filed.
The Georgia Supreme Court has repeatedly upheld a sep-
arate classification of medical malpractice actions as a rational
exercise of legislative power presenting no equal protection or
due process violation. Hamby v. Neurological Associates, P.C.,
243 Ga. 698, 256 S.E.2d 378 (1979) (separate classification of
two-year statute of limitation for medical malpractice loss of
consortium claims, as opposed to four-year statute of limita-
tion applying to all other loss of consortium claims upheld);
Perry v. Atlanta Hospital & Medical Center, Inc., 255 Ga. 431, 339
S.E.2d 264 (1986) (same classification as in Hamby, supra,
upheld); Allrid v. Emory University, 249 Ga. 35, 38-39, 285 S.E.2d
521, 524-525 (1982) (separate classification between medical
malpractice statute of limitation for foreign object cases and all
other medical malpractice cases upheld). Likewise, the sepa-
rate classification of medical malpractice actions under
20
Gn ene CRO DIE A, Se EY Ne, fr RR
Pevnereaps War atte Pe)
view Ane ad
peti Set
enti Rela
O.C.G.A. § 9-11-9.1 presents no equal protection or due
process violation.
Petitioner’s predicament in this case did not arise from
a denial of due process, but rather, from a failure to properly
exercise rights under Georgia law. Instead of filing the
required affidavit contemporaneously with the Complaint,
Petitioner filed a deposition taken in another case, which did
not mention any of the Respondents by name, set out the
parameters of the standard of care, or allege any particulars
of how any of the Respondents deviated therefrom.
Moreover, the deponent admitted that she had not reviewed
any medical records pertaining to the care provided by the
Respondents. As this Court recognized in Logan v.
Zimmerman Brush Co., 455 U.S. 422, 437 (1982), “[t]he State
may erect reasonable procedural requirements for triggering
the right to an adjudication .... And the State certainly
accords due process when it terminates a claim for failure to
comply with a reasonable procedural or evidentiary rule.”
Petitioner would have had an opportunity to present the
merits of the case to a jury had Petitioner properly followed
the reasonable procedure established by the Georgia
Legislature. O.C.G.A. § 9-11-9.1 does not violate any of the
Constitutional provisions that Petitioner attempts to invoke.
Petitioner mentions several theories upon which
Petitioner fails to expand. The first “question presented” in
the Petition appears to raise some sort of federalism issue
regarding the preamble to the Georgia Constitution.
Petitioner, however, fails to show how this preamble had any
impact on this case. Petitioner also claims that this case
involves diversity of citizenship. This is a non-issue. It is dif-
ficult to ascertain the purpose for invoking this artifact, as the
Petitioner, being the plaintiff below, voluntarily invoked the
jurisdiction of the Georgia State court by filing the Complaint
21
therein, instead of in federal court where diversity may have
some application. In addition, Petitioner’s assertion that the
Georgia Constitution gives greater weight to Georgia citizens
than those of other states is without legal or factual support.
There is no showing of any preferential or differential treat-
ment provided to Georgia citizens but denied to Petitioner.
Because O.C.G.A. § 9-11-9.1 does not violate the United
States Constitution in any respect, there is no federal issue to
trigger this Court’s review on certiorari.
CONCLUSION
There has been no judicial review of the constitutionali-
ty of O.C.G.A. § 9-11-9.1 by any Georgia court below, much
less the highest state court as required by 28 U.S.C. § 1257(a).
The Georgia Supreme Court declined to review the entire
case on appeal, including any of Petitioner’s constitutional
challenges. The Georgia Court of Appeals was without juris-
diction to review any such constitutional issues. Petitioner’s
constitutional challenges were not subject to appellate
review by either the Georgia Supreme Court or Court of
Appeals as they were never passed upon or addressed in any
manner by the trial court. More specifically, Petitioner’s fed-
eral constitutional attacks based on the Fifth, Seventh and
Fourteenth Amendments to the United States Constitution
were not subject to review by either Georgia appellate court
because they were not even raised by Petitioner in the trial
court. Consequently, this Court is without jurisdiction to
grant a writ of certiorari, and the Petition should be dis-
missed accordingly. Notwithstanding the lack of jurisdic-
tion, O.C.G.A. § 9-11-9.1 clearly complies with the United
States Constitution, so no federal question deserving of this
Court’s consideration is presented: Therefore, certiorari
should be denied in any event.
22
mee be TEL
DATED: January 27, 1994
Atlanta, Georgia
Respectfully submitted,
Bradley C. Reeves
Counsel of Record
Gary R. McCain
ALLEN & PETERS
Two Midtown Plaza
Suite 1700
1360 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 874-1700
Attorneys for Respondents William A.
Davis, M.D. and David Greene, M.D.
23
APPENDIX
ctl ete o>
INDEX TO APPENDIX
Order of the Superior Court of Fulton County, Georgia,
dated September 13, 1991 .........s:ssssecessssssesrensseseennenensenes Al
Order of the Supreme Court of Georgia,
dated February 12, 1992 ........cccscseseseseseseesssesserenensnenenes Bl
Order of the Supreme Court of Georgia,
Gated Wharchs 12, 19GB ncncevccesovsscreevsvssesenseesscevssecsescnsevonsevens Cl
Opinion of the Court of Appeals of Georgia,
dated September 8, 1992..........s:ssssesesssesssseneseenensenentenenens D1
Order of the Court of Appeals of Georgia,
dated October 1, 1992 ..cccccceccessesescvsesssrsesensvcsceccesesscresonens El
Denial of Petition for Certiorari of the Supreme
Court of Georgia, dated September 8, 1993..........-+++++. Fl
Order of the Supreme Court of Georgia,
Gaded Crctolnes 1, 19GB ..ccccceccsescesvcecsvsecseseesoncessoteosssnsscnsees Gl
APPENDIX Al
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
Al
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 dismiss this 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
Complaint 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
A2
_ Fe A i I Ah Bite NR IM ve
Bite: Aah aL ea Mh A ON aN Le me
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.” 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 men-
tions the particular Defendants involved in this case, let
alone the acts of negligence they are alleged to have per-
formed. 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 with-
drawal of a CVP line violates the standard of care gen-
erally accepted in the community. Dr. Benitez never
states that she has reviewed the work performed by the
A3
particular Defendants in this matter and that their acts
or failure to act fell below the standard of care general-
ly accepted in the community. Allowing this particular
deposition to fulfill the requirements 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 prevent 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
Complaint for failure to comply with O.C.G.A. §
9-11-9.1.
This 13th day of SEPTEMBER, 1991.
/s/ Joel J. Fryer
JUDGE, FULTON SUPERIOR COURT, A,J.C.
A4
ce.
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
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
A5
APPENDIX B1
Case No. S$92A0520
| 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, PJ., 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 last above written.
/s/ Lynn M. Stinchcomb, Deputy Clerk.
Bl
| |
APPENDIX Cl
SUPREME COURT OF GEORGIA
ATLANTA MARCH 12, 1992
The Honorable Supreme Court met pursuant to
adjournment. The following order was passed:
Case No. $92A0520
CHRISTINE WRIGHT V. CRAWFORD LONG HOSPITAL
OF EMORY UNIVERSITY ET AL.
Upon consideration of the Motion for Recon-
sideration 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.
/s/ Joline B. Williams, Clerk.
Cl
APPENDIX D1
FIRST DIVISION
SOGNIER, C.J.
McMURRAY, PJ., COOPER, J.
NOTICE: MOTIONS FOR RECONSIDERATION
MUST BE RECEIVED IN OUR CLERK'S OFFICE
WITHIN TEN DAYS OF THE DATE OF DECI-
SION to be deemed timely filed. (Court of
Appeals Rules 4 and 48, March 1, 1985)
SEPT 8, 1992
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 bought [sic] a medical malprac-
tice 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
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
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 reviewed
the records of 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
appellant. The trial court dismissed the complaint on the
basis that Dr. Benitez's deposition testimony did not satis-
fy the requirements of OCGA § 9-11-9.1(a) and that appel-
lant 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).
D2
1. Contrary to appellant's contentions, the depo-
sition 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 origi-
nally filed was subject to dismissal for noncompliance
with OCGA § 9-11-9.1.
2. Alternatively, appellant contends she properly
amended her complaint under either OCGA § 9-11-9.1
(b) or (c). The statute permits amendment of a com-
plaint to add the required affidavit only in limited cir-
cumstances: (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
D3
she was unable to obtain an affidavit because of time
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
D4
under paragraph (b) — i.e., 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 (a). Thus,
this case, like Cheeley, “involves the misinterpretation of
OCGA § 9-11-9.1 (a).... Because of the misinterpreta-
tion, the requisite affidavit [filed with the complaint]
failed to comply with OCGA § 9-11-9.1 (a).”
(Punctuation and citation omitted.) 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.
D5
APPENDIX E1
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 reconsider-
ation filed in this case, it is ordered that it be hereby
denied.
COURT OF APPEALS OF
THE STATE OF GEORGIA
Clerk’s Office, Atlanta OCT 1 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.
/s/ Victoria McLaughlin, Clerk.
El
APPENDIX F1
SUPREME COURT OF THE STATE OF GEORGIA
CLERK’S OFFICE
ATLANTA
DATE: SEPTEMBER 08, 1993
Hunter S. Allen, Jr.
ALLEN & PETERS
Two Midtown Plaza, Suite 1700
1360 Peachtree Street, N.E.
Atlanta Ga 30309
Case No. $93C0114
CHRISTINE WRIGHT V. CRAWFORD LONG HOSPI-
TAL 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
Fl
APPENDIX G1
SUPREME COURT OF GEORGIA
ATLANTA OCTOBER 01, 1993
The Honorable Supreme Court met pursuant to
adjournment. The following order was passed:
Case No. $93C0114
CHRISTINE WRIGHT V. CRAWFORD LONG HOSPITAL
OF EMORY UNIVERSITY ET AL.
Upon consideration of the Motion for Recon-
sideration 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.
/s/ Sherie M. Welch, Clerk.
Gl
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