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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1745%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1118

## Text

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) ..

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1745%3A3. Public record. Not legal advice.