Opposition Brief — Canas v. Al-Jabi (No. 07-1102)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

6, FILED

No. 07-1102 APR 2 2 2008

OFFICE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the Anited States

CHARLES and LESA CANAS,

as Natural Guardians and Next Friends of

DEREK CANAS, and DEREK CANAS, Individually,

Petitioners,

Vv.

AYMAN AL-JABI, M.D.; SHARON J. KAMINER, M.D.;

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM

OF GEORGIA d/b/a MEDICAL COLLEGE OF GEORGIA

HOSPITALS AND CLINICS; and MCG HEALTH, INC.,

Respondents.

On Petition For A Writ Of Certiorari

To The Supreme Court Of Georgia

BOARD OF REGENTS’ RESPONSE TO

PETITION FOR A WRIT OF CERTIORARI

THURBERT E. BAKER

Attorney General

KATHLEEN M. PACIOUS

Deputy Attorney General

BRYAN F. DORSEY

Counsel of Record

Special Assistant Attorney General

2876 Johnson Ferry Road, NE,

Suite 200

Marietta, Georgia 30062

770-594-3320

Attorneys for Respondent

Board of Regents

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......:.cccccsessecssesssesssess ii

STATEMENT OF THE CASE.......ssccssesseccseesseeeses 1

STATEMENT OF JURISDICTION .....-scccsecsseesee- 1

STATEMENT OF FACTS ....cccsscssecsecssecssccseccseeeses 1

SUMMARY OF ARGUMENT. .......cscccsssseccsecsoeeeses 2

REASONS FOR DENYING THE WRIT............... 4

I. BECAUSE AGE IS NOT A SUSPECT

CLASS, THE STATUTE NEEDS ONLY A

RATIONAL BAGS We . 6

II. A CIVIL ACTION IS NOT A FUND-

AMENTAL BIGHT... 11

Ill. STATUTES OF LIMITATION, NEITHER

TOLLING CLAIMS FOR MINORS NOR

RUNNING FROM DISCOVERY, DO

NOT VIOLATE DUE PROCESS ............... 14

IV. THE STATE LEGISLATURE LIMITED

TOLLING FOR MINORS AND REFUSED

TO ADOPT A DISCOVERY RULE............... 17

V. THERE IS NO MEANINGFUL LACK

OF UNIFORMITY AMONG STATE

APPELLATE AND FEDERAL CIRCUIT

SNR NS sees snevinsesaskasuhyienndsageibaveeuncrnonbimene 19

CK aa RT vss ccisaieschininiacciaahgasbinnareteeraianceacaae 21

TABLE OF AUTHORITIES

Page

CASES:

Aicher ex rel. LaBarge v. Wisconsin Patients

Compensation Fund, 2000 WI 98, 613 N.W.2d

ENE IE cic cassie deans nanaonsmchinnyuanmecununeapas 6, 10, 20

Andersen v. Wagner, 79 Ill.2d 295, 402 N.E.2d

MIRED Sidse sit besa eh sic sanchsnasdhdcdincsicssnieaencicss 5, 10, 19

Austin v. Litvak, 682 P.2d 41 (1984)............ cee eee ee 20

Bissell v. Kommareddi, 202 Mich. App. 578,

SE EN WOE GE CL DOG) in ciscvcicverscesecisevasseasseyes 5, 10, 19

Bonin v. Vannaman, 261 Kan. 199, 929 P2d

1. | ___) ARRESRRGRERS TES eerie tat oir ence Bee Rena 5,10, 19

Boyd v. Bulala, 877 F.2d 1191 (4th Cir. 1989)....... 4,13

Brubaker v. Cavanaugh, 741 F.2d 318 (10th

SRR OL ROSIE aparece ER eR NTR 5, 8, 13

Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29

PN TT RE casinos coisdsesuinchcheg souassbusbaictqedaccecdsaas 15

Carson v. Maurer, 120 N.H. 925, 424 A.2d 825

EES TA PR RE EI TENG POPS cae OTC PR aE EN 21

Chase Securities Corp. v. Donaldson, 325 US.

304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945)....... 11, 12, 15

City of Cleburne v. Cleburne Living Center, 473

U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313

PN ier be hen ginincdeaneiich esl adisanadeos aseceeuss 7

City of New Orleans v. Dukes, 427 U.S. 297, 96

tees ener nad, Oe BASE. GEL (ROTG) oocccci cscs ceccseccccncccseses 6

TABLE OF AUTHORITIES — Continued

Page

Clark v. Gulesian, 429 F.2d 405, cert. denied,

400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441

BE OR oS BIE REN Sea Se ee pa 17

Crowe v. Humana Hospital, 263 Ga. 833, 439

Pees ee PN CB oases ccc cc cacdsadvacnccaticoukipsconsi 17, 20

Davis v. Omitowoju, 883 F.2d 1155 (8rd Cir.

PUR sists ath ckntacnes ada ucbuodsaesaadat aid cdkactineakedesaaskcas 4,13

DiAntonio v. Northampton-Accormack Mem.

Hosp., 628 F.2d 287 (4th Cir. 1980).................... 4,13

Douglass v. Stallings, 870 F.2d 1242 (7th Cir.

PN sicaslaiecsraitistarerinaltitetNadlctigentnédes topeicins passim

Dunn v. Blumstein, 405 U.S. 330 (1972).................... 11

Eisenstadt v. Baird, 405 U.S. 438 (1972)................... 11

Fitz v. Dolyak, 712 F.2d 330 (8th Cir. 1983)...... &. 13.27

G. D. Searle & Co. v. Cohn, 455 U.S. 404 (1982)....... 12

Gregory v. Ashcroft, 501 U.S. 452, 111 S.Ct.

Bae: AAD Ea Rte EI CLIOED oiocccccccscsescessecssccsccsveces 7

Gronne v. Abrams, 793 F.2d 74 (2nd Cir. 1986).....4, 13

Harlfinger v. Martin, 435 Mass. 38, 754 N.E.2d

OS sain ccna Siec a ccccctadassscasnncpeusincnies 5, 10, 19

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

A UID bend sisticapc cs seapetiak cklamcesweuietnidane civtocuinnds 5, 13

Hohn v. Slate, 48 N.C. App. 624, 269 S.E.2d

Se Rai a: TIE Recta enscnuscbiasicacsndelcadivadoiagadiniienn 5, 10

Jamarillo v. Heaton, 136 N.M. 498, 100 P.3d

BE CE Fam isis casa aivrcvccnsnssnticdcbesenistiniscionios 19

Beatie

‘

’

TABLE OF AUTHORITIES ~ Continued

Page

Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir.

RI ys iseccihessadeleek tick sckatca Leica s dais cineca aoeaatntisucbas 5, 17

Jones v. Salem Hospital, 93 Or. App. 252, 762

gt "B12. ABMS AREA ROMRINDD cls ered oateeniae oan PDE 6, 10, 19

Katz v. Children’s Hospital, 283 F.3d 1520 (9th

i OA 8 Y SERS RPV EIR Petia SO MCE LS UMP an eRe 13; 19

Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961

PIR a sl apnea jan calbas caeatansidsinakisennscecoacdeoics 20

Lali v. Lalli, 439 0.5. 259 (1976) os ecccccccscisscssseccesavcees 9

Lee v. Gaufin, 227 Utah Adv. Rep. 3, 867 P.2d

BEE ae © AIR A eons voi Nicocdicanobliendighs Gdeies anid Wianisenessptasecsecaresa 21

Logan v. Zimmerman Brush Co., 455 U.S. 422,

102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)...........0..0.... 13

Lucas v. United States, 807 F.2d 414 (5th Cir.

RN iiaisiis isi dpesrec trian dia hi cdebemiadaavauasi ate sibtaedeics Sedaakete 4

Lyons v. Lederle Laboratories, 440 N.W.2d 769

Is Moa oaks tancies pucnansinesaneshananediccnaieanseieuors 19

Maine Medical Center v. Cote, 577 A.2d 1173

CI PT il sno cacaad SedsclasSocdcccssopsscucsacatnsncnens 5, 10, 19

Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999)......... 19

Martinez v. California, 444 U.S. 277, 100 S.Ct.

SS, Ge ade De SBE CORO) oo. eosin ici icsneein esse 15

Massachusetts Bd. of Retirement v. Murgia, 427

U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520

CR ark dgs ack ssc dacs cond cw sdecesvckecncdubpnichsbanaediavlaaats 7

Mominee v. Scherbarth, 28 Ohio St.3d 270, 503

Ue FE CN ei ichiviecihnlinisl aden ss 21

TABLE OF AUTHORITIES — Continued

Page

Montagino v. Canale, 792 F.2d 554 (5th Cir.

| BORER Ge eos (nas 7 pile cho tas Gh SPEDE ae nO ere 4,13

Papert. Doe, 467 U.S: 202 CBB2) 0. cvecicccscccsccoscccszcposess 9

Police Dept. of Chicago v. Mosley, 408 U.S. 92

ea an as oe aess bs ach Sa ae ni ddock vn esiaee vaca desece 11

Reese v. Rankin Fite Mem. Hosp., 403 So.2d

BI Rs BERT fas oi cas os oncb dda aeaccncccccadadeteaceus 5, 10, 20

Rohrabaugh v. Wagoner, 274 Ind. 661, 413

BUM ME CRI ois dectas cc capcccscenccaccvacansiasane 5, 10, 20

San Antonio Independent School Dist. v.

Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36

Bei I OE iis cs vss asa 2a ceadsasastnachcenseowancnse 7, 41

Sax v. Votteler, 26 Tex. Sup. J. 316, 648 S.W.2d

WR ins ca nicki cn dbcabeenheadhinsaedbaeabccdnesieseces's 21

Schwan v. Riverside Methodist Hospital, 6 Ohio

St.3d 300, 452 N.E.2d 1337 (1983)...................00000 21

Smith v. Botsford Gen. Hosp., 419 F.3d 513 (6th

RI NE sa ica cana diosa anekakowaiesdaavestcanansdevesnes 4,13

Smith v. Cobb County-Kennestone Hosp. Auth..,

262 Ga. 566, 423 S.E.2d 235 (1992)... eee 18

Strahler v. St. Luke’s Hospital, 706 S.W.2d 7

RUNG MI oi cisco alld snincsnlanaluaentonkanabinageacecieessse 21

Trimble v. Gordon, 430 U.S. 762 (1977)...........ccccceeeeeee 9

Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59

Sa AEM CRT vik vncctinacdndaciaboncndsbibancxspapianepseciscess 7

Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164

| SEARS Pie Dat oie ee nalon SOOSSE Rens RIE MN AE ee 10

TABLE OF AUTHORITIES — Continued

Page

Wheeler v. Jackson, 137 U.S. 245, 11 S.Ct. 76,

Bh Eaters SU AD esi siinccsitacvsinunscvscouchssessbamncdsdaialacs 15

Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705

SE ics ttbincicndanaiceindcatshessccscncedanakedcarssuaekasces 6, 10, 20

Woodward v. Burriham City Hosp., 449 U.S.

ey Rk Are, OO CR) on cscs cniasscccrececcnncctendsbeneinn 5, 10

STATUTES:

eR NE oon iexins as onédannstbaaconendnacedeagiesbiaie 1

OTHER AUTHORITIES:

NN II io. saicisinsn ack ccundsinenddeiicaatecdbagehasneaaanel 16

ee II cs cncsansicascsasupiudcisuncktiannsslbcdsanieoenule 3

SE Ae IE Doo occ vencvncenocucansasegndecansaacssdbisccrmisien 3

Sc isicenk cnncsaseohaaccindtseeamsaaidaeaie wean 3

Gee Ni avcnsicasccckinccestuamssasivicunocsnasebouses 1,3

eR IN ss cntncinnconsnsedanshacdsdeanvvbbascssbaneats 1

CP Rirs eis Te IA BEE IA os ccciccccccavaccvcssncecderconseasccunscepan 3

CFG eye EI Piss cc nnncscaieccacacccssacecccsponnatietahions 3

Ra a pcos wc sasvneencashesgukydavsnecnighes 11, 18

sacs 16

O.C.G.A. § 9-3-90, former Code § 3-1102................... 16

STATEMENT OF THE CASE

On October 29, 2007, the Supreme Court of

Georgia held that the Georgia medical malpractice

statutes of limitation and repose at O.C.G.A. §§ 9-3-

73(b) and 9-3-73(c) entirely barred Petitioners’ claims

for negligent or delayed misdiagnosis of AIDS. Peti-

tioners then petitioned this Court for a writ of certio-

rari that Georgia’s statutes of limitation and repose

violate the federal constitutional guarantees of equal

protection or due process.

STATEMENT OF JURISDICTION

This Court has subject matter jurisdiction over

this case under 28 U.S.C. § 1257(a) because that

section allows the Supreme Court of the United

States to review final judgments of the highest courts

of individual states about whether a state statute

violates the federal constitution.

STATEMENT OF FACTS

Petitioner Derek Canas was born on November

10, 1984. Respondent Board of Regents of the Univer-

sity System of Georgia (“Board of Regents”) operated

the Medical College of Georgia Hospitals and Clinics

(““MCGH&C”) and employed Sharon Kaminer, M.D.

as part of its mission for medical education.’ Peti-

tioner received blood transfusions, allegedly contami-

nated by the human immunodeficiency virus (“HIV”),

at MCGH&C during January and February, 1985,

when no blood test was available for HIV. Such a test

became available at MCGH&C on or about March 22,

1985, but Respondent did not recommend or provide

such a test to Petitioner Derek Canas. Petitioner

displayed persistent growth delay, characteristic of

children with Acquired Immunodeficiency Syndrome

(“AIDS”), at age one or two in 1985 or 1986. Respon-

dent through its employees, including Dr. Kaminer,

never told Petitioners that the growth delay was

attributable to the congenital heart defect, surgery

for which had originally necessitated the blood trans-

fusions. Petitioner Derek Canas was last examined at

MCGH&C on February 15, 2001, and was first pro-

vided a diagnosis of AIDS in April, 2001. It is undis-

puted that suit was not filed by the time Petitioner

Derek Canas reached his seventh birthday (i.e.,

November 10, 1991) or his tenth birthday (i.e., No-

vember 10, 1994).

SUMMARY OF ARGUMENT

In order to assure the availability of medical

providers, stabilize medical malpractice insurance

' Co-respondent MCG Health, Inc. assumed operation of

MCGH&C effective July 1, 2000.

premiums, and limit malpractice exposure from old

claims, Georgia’s statutes of limitation and repose for

medical malpractice actions abrogate the ordinary

tolling provision for personal injury actions until

majority and impose different requirements for

minors of different age. Minors, who have reached

age five, are subject to the same requirements as

adults and must bring suit within two years of the

injury (i.e., period of limitation) and no more than five

years after the negligent act or omission (i.e., period

of repose). § 9-3-71(a), § 9-3-71(b), § 9-3-73(b), § 9-3-

73(c(2)(B). Minors, like Petitioner Derek Canas,

under age five at the time of the injury must file suit

by their seventh birthday. § 9-3-73(b). Minors under

age five at the time of the negligent act or omission

must also file by their tenth birthday. § 9-3-

73(c)(2)A).’

Petitioners claim that these schedules unlawfully

treat (1) minors with medical malpractice claims

differently from minors with other personal. injury

claims and (2) persons with latent, undiscovered

medical malpractice claims differently from persons

with patent, discovered claims. Petitioners urge this

Court to review this case because of an alleged lack of

uniformity among the decisions of the state supreme

courts and then to apply stricter scrutiny than a

* The only exception, not relevant here, arises where a

foreign object is left in the body, and in those cases a claimant,

regardless of age, or date of injury or of the act, also has one

year from the discovery of the foreign object to file suit. § 9-3-72.

rational basis in order to find a violation of the guar-

antees of equal protection under the laws and due

process of law within the Fourteenth Amendment. Yet

the vast weight of judicial authority utilizes a ra-

tional basis test and finds similar statutes constitu-

tional. Also the alleged lack of uniformity among the

states is almost entirely attributable to (a) differing

state laws defining when medical malpractice claims

arise and (b) varying understandings of equal protec-

tion and due process under state constitutions.

REASONS FOR DENYING THE WRIT

Consistent with the authority of this Court, the

overwhelming majority of federal and state courts

reviewing state statutes, applied only to medical

malpractice claims and designed to limit malpractice

exposure, have used a rational basis test and found

no violation of due process or equal protection under

the Fourteenth Amendment. Gronne v. Abrams, 793

F.2d 74, 77 (2nd Cir. 1986) (non-judicial malpractice

panel hearing required); Davis v. Omitowoju, 883

F.2d 1155, 1158 (3rd Cir. 1989) (damages cap); Boyd v.

Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989) (damages

cap); DiAntonio v. Northampton-Accormack Mem.

Hosp., 628 F.2d 287, 291 (4th Cir. 1980) (pre-suit

notice of intent to sue required); Lucas v. United

States, 807 F.2d 414, 424 (5th Cir. 1986) (damages

cap); Montagino v. Canale, 792 F.2d 554, 557 (5th Cir.

1986) (three-year statute of repose from negligent act

or omission applicable to minors and adults); Smith v.

Botsford Gen. Hosp., 419 F.3d 513, 519 (6th Cir. 2005)

(damages cap); Douglass v. Stallings, 870 F.2d 1242,

1249 (7th Cir. 1989) (two-year statute of limitation

from negligent act applicable to adults and all minors

over age five); Fitz v. Dolyak, 712 F.2d 330, 333 (8th

Cir. 1983) (six-year statute of repose from negligent

act or omission unless foreign object); Jewson v. Mayo

Clinic, 691 F.2d 405, 411 (8th Cir. 1982) (two-year

statue of limitation from last treatment); Hoffman v.

United States, 767 F.2d 1431, 1436-37 (9th Cir. 1985)

(non-economic damages cap); Brubaker v. Cavanaugh,

741 F.2d 318, 322 (10th Cir. 1984) (four-year statue of

repose from negligent act); Reese v. Rankin Fite Mem.

Hosp., 403 So.2d 158 (Ala. 1981) (tolling abolished for

minor over age four, minors under age five until

eighth birthday); Andersen v. Wagner, 79 IIl.2d 295,

402 N.E.2d 560, 567-68 (1979) (two-year statute of

limitation from injury and four-year statute of repose

from act), app. denied sub nom. Woodward v. Burn-

ham City Hosp., 449 U.S. 807, 101 S.Ct. 54 (1980);

Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d

891, 895 (1980) (no tolling for minors from age six);

Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754, 768-

69 (1996) (eight-year statute of repose applied to

minor in medical malpractice action); Maine Medical

Center v. Cote, 577 A.2d 1173, 1178 (Me. 1990) (six

year statute abolishing tolling for minors); Harlfinger

v. Martin, 435 Mass. 38, 754 N.E.2d 63, 68, 74 (2001)

(seven-year statute of repose for minors); Bissell v.

Kommareddi, 202 Mich. App. 578, 509 N.W.2d 542,

543 (1993) (no tolling for minors); Hohn v. Slate, 48

N.C. App. 624, 269 S.E.2d 307, 308 (Ct. App. 1980)

(less tolling for minors in medical malpractice than

other tort actions); Jones v. Salem Hospital, 93 Or.

App. 252, 762 P.2d 303, 309 (1988) (no tolling for

minors); Willis v. Mullett, 263 Va. 653, 561 S.E.2d

705, 711 (2002) (no tolling for minors over seven,

minors under eight have until tenth birthday); Aicher

ex rel. LaBarge v. Wisconsin Patients Compensation

Fund, 2000 WI 98, 613 N.W.2d 849, 872-73 (Wis.

2000) (no tolling but minors have until at least tenth

birthday).

States are accorded wide latitude in the

regulation of their local econesries under

their police powers, and rational distinctions

may be made with substantially less than

mathematical exactitude. Unless a classifica-

tion trammels fundamental personal rights

or is drawn upon inherently suspect distinc-

tions such as race, religion, or alienage, our

decisions presume the constitutionality of

the statutory discriminations and require

only that the classification challenged be ra-

tionally related to a legitimate state interest.

City of New Orleans v. Dukes, 427 U.S. 297, 303, 96

S.Ct. 2513, 49 L.Ed. 511 (1976).

I. BECAUSE AGE IS NOT ASUSPECT CLASS,

THE STATUTE NEEDS ONLY A RATIONAL

BASIS.

This Court has repeatedly held in the context

of mandatory retirement that classifications based

upon age are constitutionally permissible and do not

violate the guarantee of equal protection under the

Fourteenth Amendment. Gregory v. Ashcroft, 501 U.S.

452, 470, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)

(state judges over age 70); Vance v. Bradley, 440 U.S.

93, 97, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979) (foreign

service members over age 60); Massachusetts Bd. of

Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct.

2562, 49 L.Ed.2d 520 (1976) (per curiam) (uniformed

police officers over age 50). Unlike classifications

based upon race and sex, classifications based upon

age are so likely to be linked to a legitimate state

interest as not to arise from “prejudice or antipathy.”

City of Cleburne v. Cleburne Living Center, 473 U.S.

432, 442, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). By

contrast, suspect classes, based upon race and sex,

have been subject to a history of harmful discrimina-

tion. San Antonio Independent School Dist. v. Rodri-

guez, 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16

(1973).

While this Court has not previously addressed

the precise question whether minority alone creates a

suspect class, the rationale that the members of the

purported class are historically subject to harmful

discrimination compels the conclusion that minors

are not a suspect class. Minors have traditionally

been treated differently than adults but only for their

own protection. Though the elements of history and

discrimination are present, the harm is absent.

On facts very similar to this current case the

Seventh Circuit Court of Appeals found minors not to

constitute a suspect class and no violation of equal

protection of the laws or due process of law under the

Fourteenth Amendment. Douglass v. Stallings, 870

F.2d 1242, 1249 (7th Cir. 1989). In that case Indiana

had enacted a medical malpractice statute similar to

Georgia’s and for the same reasons. In response to

increasing medical malpractice premiums discourag-

ing medical doctors from practicing in Indiana, in

1975 the legislature there enacted a two-year statute

of limitations for medical malpractice actions to

abolish the tolling until majority available in other

personal injury and tort claims. An exception was

made for minors under age six, who were given until

their eighth birthday to file suit. In addition, the date

from which the period of limitation ran was changed

from date of the injury or of the discovery of the

injury to the date of the allegedly negligent act or

omission. In 1984, the petitioner, who had suffered

irreversible brain damage during his birth in 1968,

sued the obstetrician for negligence in prenatal and

postnatal care.

On those facts the Seventh Circuit in Douglas

found minors not to constitute a suspect class because

they typically benefited from discrimination and

upheld the legislation as a legitimate classification

based upon youth."

° Any argument that claimants with a latent injury consti-

tuted a suspect class would fare no better. Brubaker v. Cava-

naugh, 741 F.2d 318, 322.

It is because race and national origin are “so

seldom relevant to the achievement of any

legitimate state interest that laws grounded

in such considerations are deemed to reflect

prejudice and antipathy.... For these rea-

sons and because such discrimination is

unlikely to be soon rectified by legislative

means, these laws are subjected to strict

scrutiny and will be sustained only if they

are suitably tailored to serve a compelling

state interest.” [cits. omitted] Legislative

classification based on youth, however, is

clearly relevant to the state’s parens patriae

responsibilities toward minors.

Id. at 1246.

In so holding the Seventh Circuit in Douglas also

rejected the heightened or intermediate ievel of

scrutiny typically applied to classifications based

upon sex. 870 F.2d at 18. Petitioners’ purported

authority of this Court for the contrary conclusion

consists only of precedent concerning illegitimate

children, whose illegitimacy not minority had sub-

jected them to a history of harmful discrimination.‘

E.g., Lalli v. Lalli, 4389 U.S. 259 (1978); Trimble v.

* Petitioners also rely upon Plyler v. Doe, 457 U.S. 202

(1982), finding a Texas statute barring illegal immigrants from

free public education to deny equal protection, but this Court

split 4-4 and affirmed the decision below. Without a majority

concurring in the opinion, Plyler binds only the parties to that

case and is not stare decisis.

Gordon, 430 U.S. 762 (1977); Weber v. Aetna Cas. &

Sur. Co., 406 U.S. 164 (1972).

The highest courts of Alabama, Indiana, Illinois,

Kansas, Maine, Massachusetts, Michigan, Virginia,

and Wisconsin have employed a similar analysis to

the Seventh Circuit in Douglass and found that youth

is not a suspect or quasi-suspect class but a legiti-

mate classification where the statutory objectives

include reducing old malpractice claims. Reese uv.

Rankin Fite Mem. Hosp., supra at 161; Andersen v.

Wagner, supra at 310, app. denied sub nom. Wood-

ward v. Burnham City Hosp., supra at 807; Rohra-

baugh v. Wagoner, supra at 665; Bonin v. Vannaman,

supra at 216; Maine Medical Center v. Cote, supra at

1173; Harlfinger v. Martin, supra at 48; Bissell v.

Kommareddi, supra at 581; Willis v. Mullett, supra at

661; Aicher ex rel. LaBarge v. Wisconsin Patients

Compensation Fund, supra at 867. North Carolina

and Oregon reached similar results under a slightly

different analysis where the allegedly prohibited class

consisted of all medical malpractice claimants. Hohn

v. Slate, supra at 627; Jones v. Salem Hospital, supra

at 259.

Because youth is neither a suspect nor a quasi-

suspect class, state legislation affording different

treatment to persons on account of their minority is

not subject to either strict or heightened scrutiny

under an equal protection analysis. Rather the legis-

lative enactment must simply have a rational basis to

further a legitimate objective of the state govern-

ment. Preventing stale medical malpractice claims,

lowering medical malpractice insurance costs and

assuring an adequate supply of medical doctors are

legitimate objectives under the state’s police powers.”

Il. A CIVIL ACTION iS NOT A FUNDAMEN-

TAL RIGHT.

Fundamental rights, whose exercise the Four-

teenth Amendment preserves, are those rights which

the Constitution of the United States explicitly or

implicitly creates. San Antonio Independent School

Dist. v. Rodriguez, supra at 36. On a case by case

basis this Court has determined which rights are

created under the Constitution. E.g., Eisenstadt v.

Baird, 405 U.S. 438 (1972) (right to privacy); Dunn v.

Blumstein, 405 U.S. 330 (1972) (voting rights); Police

Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) (free-

dom of association).

By contrast a civil lawsuit does not constitute

a fundamental right. Chase Securities Corp. v.

Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 89 L.Ed.

1628 (1945) (no violation of equal protection where

° “The findings of the General Assembly under this Code

section include, without limitation, that a reasonable relation-

ship exists between the provisions, goals, and classifications of

this Code section and the rational, legitimate state objectives of

providing quality health care, assuring the availability of

physicians, preventing the curtailment of medical services,

stabilizing insurance and medical costs, preventing stale

medical malpractice claims, and providing for the public safety,

health, and welfare as a whole.” 0.C.G.A. § 9-3-73(f).

statute of limitations tolled). G. D. Searle & Co. uv.

Cohn, 455 U.S. 404, 408 (1982) (same).

Statutes of limitation find their justification

in necessity and convenience rather then in

logic. They represent expedients, rather than

principles. They are practical and pragmatic

devices to spare the courts from litigation of

stale claims, and the citizen from being put

to his defense after memories have faded,

witnesses have died or disappeared, and evi-

dence has been lost. Order of Railroad Tele-

graphers v. Railway Express Agency, 321

U.S. 342, 349. They are by definition arbi-

trary, and their operation does not discrimi-

nate between the just and the unjust claim,

or the voidable and unavoidable delay. They

have come into the law not through the judi-

cial process but through legislation. They

represent a public policy about the privilege

to litigate. Their shelter has never been re-

garded as what now is called a “fundamen-

tal” right or what used to be called a

“natural” right of the individual. He may, of

course, have the protection of the policy

while it exists, but the history of pleas of

limitation shows them to be good only by leg-

islative grace and to be subject to a relatively

large degree of legislative control.

Chase Securities Corp. v. Donaldson, supra at 314.

Because a civil action is not a fundamental right, its

abrogation by a statute of limitation or repose need

only bear a rational relationship to the legitimate

state objective. Also, even though a cause of action

may be considered a property right, a state statute

imposing reasonable procedural requirements on

enforcing that right accords a litigant due process

when the claim is dismissed for failure to comply with

the requirements as happened in Petitioners’ case.

Logan v. Zimmerman Brush Co., 455 U.S. 422, 428,

102 S.Ct. 1148, 71 L.Ed.2d 265 (1982).

All of the United States Circuit Courts of Ap-

peals,° which have addressed this issue in the context

of legislation reforming medical malpractice actions,

have so held that the right to prosecute a civil actiou

is not “fundamental” for purposes of equal protection

analysis. Gronne v. Abrams, supra at 74; Davis v.

Omitowoju, supra at 1158; Boyd v. Bulala, supra at

1196; DiAntonio v. Northampton-Accormack Mem.

Hosp., supra at 291; Montagino v. Canale, supra at

557; Smith v. Botsford Gen. Hosp., supra at 520;

Douglass v. Stallings, supra at 1249; Fitz v. Dolyak,

supra at 332; Hoffman v. United States, supra at

1436.’ See Brubaker v. Cavanaugh, supra at 321. That

the state might have chosen some means other than

abolishing tolling for young minors until age seven or

* These decisions cover all circuits except the First, Elev-

enth, and District of Columbia.

" Contra. Katz v. Children’s Hospital, 283 F.3d 1520, 1528

(9th Cir. 1994). The Ninth Circuit in this diversity case was

predicting how California’s highest appellate court would have

ruled.

“Bg

nael

age ten and disallowing unknown claims after five

years in an effort to rectify problems associated with

medical malpractice insurance should not concern

this Court under a rational basis analysis.

Ill. STATUTES OF LIMITATION, NEITHER

TOLLING CLAIMS FOR MINORS NOR

RUNNING FROM DISCOVERY, DO NOT

VIOLATE DUE PROCESS.

Contrary to Petitioners’ assertions, due process of

law under the Fourteenth Amendment does not

require tolling of the statute of limitations for minors

or incompetent persons or .until discovery of the

claim. Rather “[djue process in the modification of

procedural rules is provided by the legislature itself,

subject to a minimal requirement of rationality.”

Douglass v. Stallings, supra at 1250. In seeking

adjudication here Petitioners are really asking this

Court to balance in their favor the competing inter-

ests involved in this suit, namely their alleged inabil-

ity to bring the claim on or before November 10, 1994

(i.e., Petitioner Derek Canas’ seventh birthday)

against Respondent’s need not to face prosecution

now for an alleged wrong committed on March 22,

1985 (i.e., date HIV testing first available at MCG).

Weighing these and other interests, like the afforda-

bility of malpractice insurance and the availability of

medical doctors within a state, is better left to the

state legislature.

Where no vested right to personal or real prop-

erty is concerned, “a state legislature, consistently

with the Fourteenth Amendment, may repeal or

extend a state of limitations... .” Chase Securities

Corp. v. Donaldson, supra at 311. In Campbell uv.

Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885)

this Court upheld against a due process challenge a

state statute abolishing the period of limitation and

in effect depriving the defendant there of a viable

defense to the claim. In Wheeler v. Jackson, 137 U.S.

245, 255, 11 S.Ct. 76, 34 L.Ed. 659 (1890), a statute

shortening the time in which to bring an action to six

months was approved as not violating the due process

requirements of the Fourteenth Amendment.

[Tjhe legislature ... may shorten the time

within which suits to enforce existing causes

of action may be commenced, provided, in

each case, a reasonable time, taking all cir-

cumstances into consideration be given by

the new law for the commencement of suit

before the bar takes effect.

137 U.S. at 255. This deference by the federal courts

to the state legislatures is premised upon the over-

whelming state interest but minimal federal interest

in tort law. “(T]he state’s interest in fashioning its

own rules of tort law is paramount to any discernible

federal interest except perhaps an interest in protect-

ing the individual citizen from state action that is

wholly arbitrary or irrational.” Martinez v. California,

444 U.S. 277, 282, 100 S.Ct. 553, 62 L.Ed.2d 481

(1980) (sovereign immunity no violation of due proc-

ess).

In Petitioner’s case his cause of action arose on

March 22, 1985, when he first could have been tested

for and shown positive for HIV.* Under then existing

law, allowing tolling during minority, Petitioner then

had two years after his eighteenth birthday, or until

November 10, 2004, to bring suit. O.C.G.A. § 9-3-90,

former Code § 3-1102.° When tolling was abolished for

minors over age five in medical malpractice actions,

‘effective July 1, 1987, Petitioner who was then be-

tween two and three years old, had until his seventh

birthday, or November 10, 1991, to file this action.”

Since by his own expert’s testimony Petitioner Derek

Canas displayed obvious symptoms of AIDS by age

one or two, providing him with at least another four

years in which to bring an action was not unreason-

able. Because the legislature provided a reasonable

amount of time to prosecute the action, shortening

* If AIDS rather than HIV were considered the injury, the

statute would have begun running when Petitioner Derek Canas

reached age one or age two on November 10, 1985, or 1986, but

the analysis would be no different.

° If former Code § 3-1102 were not applied, the two-year

general statute of limitations for personal injury at O.C.G.A. § 9-

3-33 would apply, and the result would be the same.

'° The statute also provided a two-year grace period until

July 1, 1989, if the new provisions, taking effect on July 1, 1987,

barred a claim permitted under the former law. § 9-3-73(g). The

grace period is not relevant to this case because Petitioner’s

claim was not barred on July 1, 1987, by the new statute.

the statute of limitation by abolishing tolling until

the age of majority in medical malpractice actions is

not “wholly arbitrary or irrational” and does not

violate due process.

That Petitioners allegedly did not know that they

had a claim before it actually expired does not make

the statutes of limitation and repose irrational and so

deny them due process of law under the Fourteenth

Amendment. Douglass v. Stallings, supra at 1249.

Fitz v. Dolyak, supra at 333; Jewson v. Mayo Clinic,

supra at 412. Clark v. Gulesian, 429 F.2d 405, cert.

denied, 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441

(lst Cir. 1970). Even if such a result occurred under

the facts of this particular case, this result is neces-

sary to avoid old claims in many other situations.

IV. THE STATE LEGISLATURE LIMITED

TOLLING FOR MINORS AND REFUSED

TO ADOPT A DISCOVERY RULE.

In 1987 because of the remaining “long-tail”

exposure caused by tolled claims from minors, the

Georgia legislature enacted the current statute,

which abolishes tolling for minors over age five and

limits tolling for minors under age five to the seventh

birthday for the statute of limitation and the tenth

birthday for the statute of repose. It was against this

background that the Supreme Court of Georgia found

no constitutional violation under the Fourteenth

Amendment in Crowe v. Humana, 263 Ga. 833, 834,

439 S.E.2d 654, 655 (1994) (grace period approved)

and in Smith v. Cobb County-Kennestone Hosp. Auth.,

262 Ga. 566, 570, 423 S.E.2d 235, 239 (1992).

We have no difficulty concluding that the

separate classification of minors for purposes

of medical malpractice actions could accom-

plish the stated legislative objectives. Before

the 1987 amendment of § 9-3-73, minors ...

whose cause of action accrued at birth ...

could wait up to 18 years before the medical

malpractice statute of limitation began to

run. It appears from subsection (f) of § 9-3-73

that the General Assembly may have per-

ceived the onset of a crisis in this state’s

health care industry, and that a method of

meeting the crisis was to reduce minors’ pe-

riod of disability from eighteen to five years,

thereby limiting the period within which mi-

nors could bring medical malpractice claims.

The reduction of the period within which mi-

nors could bring suit certainly would tend to

achieve the stated legislative objectives, as,

e.g., it would tend to prevent stale medical

malpractice claims, and would also tend to

lower insurance and medical costs by de-

creasing the period in which health care pro-

viders and their insurers would be exposed

to suit.

262 Ga. at 570-71. Petitioners are asking this Court

to ignore the history of this legislation and to substi-

tute their judgment for the legislature’s.

V. THERE IS NO MEANINGFUL LACK OF

UNIFORMITY AMONG STATE APPELLATE

AND FEDERAL CIRCUIT COURTS.

The decisions of the highest state courts on the

federal question whether abolishing tolling for

minors until the age of majority in only medical

malpractice but not other tort actions violates equal

protection or due process of law under the Four-

teenth Amendment are uniform. All states ({i.e.,

Illinois, Kansas, Maine, Massachusetts, Michigan,

and Oregon") addressing this question have found

no violation of federal constitutional rights. Petition-

ers are correct that the appellate courts of two

states” (i.e., New Mexico and South Dakota’) have

found that the two-tier medical malpractice statutes

of repose or limitation deprive older minors of equal

protection or due process under the Fourteenth

Amendment to the United States Constitution al-

though five (i.e., Alabama, Georgia, Indiana," Virginia,

" Andersen v. Wagner, 79 Ill.2d 295, 402 N.E.2d 560, 567-68

(1979). Bonin v. Vannaman, 261 Kan. 199, 929 P.2d 754, 768-69

(1996). Maine Medical Center v. Cote, 577 A.2d 1173, 1178 (Me.

1990). Harifinger v. Martin, 435 Mass. 38, 754 N.E.2d 63, 68, 74

(2001). Bissell v. Kommareddi, 202 Mich. App. 578, 509 N.W.2d

542, 543 (1993). Jones v. Salem Hospital, 93 Or. App. 252, 762

P.2d 303, 309 (1988).

" Katz v. Children’s Hospital is excluded for reasons stated

in footnote 15.

* Jamarillo v. Heaton, 136 N.M. 498, 100 P.3d 204 (Ct. App.

2004); Lyons v. Lederle Laboratories, 440 N.W.2d 769 (S.D.

1989).

“ A seemingly contrary decision in Martin v. Richey, 711

N.E.2d 1273 (Ind. 1999) rests upon the Indiana Constitution.

and Wisconsin”) have not. Still the rulings on the

federal Constitution in the New Mexico and South

Dakota cases were unnecessary, since the appellate

courts also found the statute in question to violate its

own state constitution. Rather the lack of uniformity,

alleged by Petitioners, arises primarily out of these

appellate courts’ consideration of differing statutes

under varying constructions of the constitutions of

the individual states.”

°° Reese v. Rankin Fite Mem. Hosp., 403 So.2d 158 (Ala.

1981); Crowe v. Humana Hospital, 263 Ga. 833, 439 S.E.2d 654

(1994); Rohrabaugh v. Wagoner, 274 Ind. 661, 413 N.E.2d 891,

895 (1980); Willis v. Mullett, 263 Va. 653, 561 S.E.2d 705, 711

(2002); Aicher ex rel. LaBarge v. Wisconsin Patients Compensa-

tion Fund, 2000 WI 98, 613 N.W.2d 849, 872-73 (Wis. 2000).

* Following in alphabetic order by state are decisions from

Arizona, Colorado, Missouri, New Hampshire, Ohio, Texas, and

Utah finding a medical malpractice statute of limitation or

repose to violate equal protection, due process, of some other

provision under its own state constitution. “We . .. hold that the

statute violates ... the Arizona Constitution.... [F]Jederal

authority is cited only for the purpose of guidance and not

because it compels the result which we reach... .” Kenyon uv.

Hammer, 142 Ariz. 69, 688 P.2d 961, 963 (1984) (three-year

statute of repose applied to adult petitioner). “We . . . hold that

the medical malpractice statute violates the equal protection

provisions of our [state] constitution. .. .” Austin v. Litvak, 682

P.2d 41, 52 (1984) (three-year general statute of repose, applica-

ble to adult petitioner, allowed longer period where foreign object

left in body). “The statutory limitation period, as applied to

CONCLUSION

The decisions of state and federal appellate

courts do not genuinely reflect lack of uniformity

on the questions presented. Rather they show that

similar and sometimes almost identical statutes,

enacted for the purpose of addressing problems

minors, violates their right of access to our courts under [Mis-

souri}] Const..... ” Strahler v. St. Lure’s Hospital, 706 S.W.2d 7,

15 (Mo. 1986) (four-year statute of repose applied to minors from

age ten). “In interpreting our State Constitution, we are not

confined to federal constitutional standards and are free to grant

individuals more rights than the Federal Constitution requires.”

Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 831 (1980) (two-

year statute of limitation allowed longer period only where

foreign object left in body; minor less than 8 required to bring

action by tenth birthday.) “[Wle hold that [the statute] is uncon-

stitutional because it violates the right of medical malpractice

litigants who are minors to ‘equal protection.’ Section 2, Article I

of the Ohio Constitution.” Schwan v. Riverside Methodist

Hospital, 6 Ohio St.3d 300, 452 N.E.2d 1337, 1338 (1983) (four-

year statute of repose allowed minors under age 10 to file suit

up to fourteenth birthday). “The single issue raised ... is

whether [the statute], as applied to minors, violates the due

process or due course of law provisions of the Ohio Constitu-

tion... .” Mominee v. Scherbarth, 28 Ohio St.3d 270, 503 N.E.2d

717, 719 (1986) (same). “What remains for our determination is

whether article 5.82, section 4, is violative of ... the Texas

Constitution.” Sax v. Votteler, 26 Tex. Sup. J. 316, 648 S.W.2d

661, 664 (1983) (two-year statute of limitation applied to minors

from age six). “(W]e hold [the statue] unconstitutional under ...

the Utah Constitution.” Lee v. Gaufin, 227. Utah Adv. Rep. 3, 867

P.2d 572, 589 (1993) (two-year period of limitation from discev-

ery of the injury and four-year period of repose after the negli-

gent act applied to minors).

associated with medical malpractice insurance, have

consistently met the requirements of equal protection

and due process under the Fourteenth Amendment.

Petitioners dispute how the state legislature chose to

balance the competing interests in medical malprac-

tice actions and argue passionately, as did some

legislators in Georgia, that the insurers concocted a

crisis in order to change the law. The Petition for

Certiorari asks this Court to act as a _ super-

legislature, but the function of this Court under these

circumstances is to determine whether the legislation

meets the requirements of equal protection and due

process under the Fourteenth Amendment. This

Court has never previously considered youth a sus-

pect class or prosecution of a civil lawsuit a funda-

mental right for purposes of equal protection. This

Court has consistently allowed sovereign states to

shorten or repeal statutes of limitation without

violating due process and has never demanded any-

thing close to a seven-year grace period. Petitioners,

who were bringing their medical malpractice action

under state law, were required to file the claim within

about seven years but failed to do so and are in the

best position to bear the consequences of their failure.

Bie is Sn

Therefore, Respondent asks this Court to deny the

Writ of Certiorari.

Respectfully submitted,

THURBERT E. BAKER

Attorney General

Georgia Bar No. 033887

KATHLEEN M. Pacious

Deputy Attorney General

Georgia Bar No. 558555

BRYAN F. DORSEY

Special Assistant Attorney General

Georgia Bar No. 226150

Attorneys for Respondent

Board of Regents and State of Georgia

LAW OFFICES OF BRYAN F. DORSEY

2876 Johnson Ferry Road, NE, Suite 200

Marietta, GA 30062

770-594-3320

ve .

a rae

APPENDIX

U.S. Const. Amend. XIV, Sec. 1. Citizens of

United States

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they

reside. No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

O.C.G.A. § 9-3-71. Medical malpractice statute

of limitations and repose

(a) Except as otherwise provided in this article, an

action for medical malpractice shall be brought

within two years after the date on which an injury or

death arising from a negligent or wrongful act or

omission occurred.

(b) Notwithstanding subsection (a) of this Code

section, in no event may an action for medical mal-

practice be brought more than five years after the

date on which the negligent or wrongful act or omis-

sion occurred.

create a two-year statute of limitations. Subsection

(b) of this Code section is intended to create a five-

year statute of ultimate repose and abrogation.

(d) Nothing contained in subsection (a) or (b) of this

Code section shall be construed to repeal Code Section

9-3-73, which shall be deemed to apply either to the

applicable statutes of limitation or repose.

O.C.G.A. § 9-3-72. Special statute for foreign

objects

The limitations of Code Section 9-3-71 shall not apply

where a foreign object has been left in a patient’s

body, but in such a case an action shall be brought

within one year after the negligent or wrongful act or

omission is discovered. For the purposes of this Code

section, the term “foreign object” shall not include a

chemical compound, fixation device, or prosthetic aid

or device.

O.C.G.A. § 9-3-73. Special statute for minors

(a) Except as provided in this Code section, the

disabilities and exceptions prescribed in Article 5 of

allowed and held applicable to actions, whether in

tort or contract, for medical malpractice.

(b) Notwithstanding Article 5 of this chapter, all

persons who are legally incompetent because of

mental retardation or mental illness and all minors

who have attained the age of five years shall be

subject to the periods of limitation for actions for

medical malpractice provided in this article. A minor

who has not attained the age of five years shall have

tt High y Nseto ss fe la hana of Bn hs se Si a BE ORS ba Wee Re Sn Be See ae Se aR malt Pe ern Seay ON Dg te aplee CCR EEE Od VR ST RE Ag

Se Rete ae esas Beet ai ROe BN Tre Fee ERE Me CLOT EOS MO RAMS TAs lee ee

two years from the date of such minor’s fifth birthday

within which to bring a medical malpractice action if

the cause of action arose before such minor attained

the age of five years. ‘

Code section, in no event may an action for medical

malpractice be brought by or on behalf of:

(1) A person who is legally incompetent because

of mental retardation or mental illness more than five

years after the date on which the negligent or wrong-

ful act or omission occurred; or

(2) Aminor:

(A) After the tenth birthday of the minor if

such minor was under the age of five years on the

date on which the negligent or wrongful act or omis-

sion occurred; or |

(B) After five years from the date on which

the negligent or wrongful act or omission occurred if

such minor was age five or older on the date of such

act or omission.

(d) Subsection (b) of this Code section is intended to

create a statute of limitations and subsection (c) of

this Code section is intended to create a statute of

repose.

{e) The limitations of subsections (b) and (c) of this

Code section shall not apply where a foreign object

has been left in a patient’s body. Such cases shall be

governed by Code Section 9-3-72.

(f) The findings of the General Assembly under this

Code section include, without limitation, that a

reasonable relationship exists between the provisions,

goals, and classifications of this Code section and the

rational, legitimate state objectives of providing

quality health care, assuring the availability of

physicians, preventing the curtailment of medical

services, stabilizing insurance and medical costs,

preventing stale medical malpractice claims, and

providing for the public safety, health, and welfare as

a whole.

(g) No action which, prior to July 1, 1987, has been

barred by provisions relating to limitations of actions

shall be revived by this article, as amended. No action

which would be barred before July 1, 1987, by the

provisions of this article, as amended, but which

would not be so barred by the provisions of this

article and Article 5 of this chapter in force immedi-

ately prior to July 1, 1987, shall be barred until July

1, 1989.

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