Petition for Writ of Certiorari — Thompson v. Long

eT — U.S.

(1) 97 921 DEC - 3197

No. 97- OFFICE OF THE CLERK

In the Supreme Court of the United States

October Term, 1997

Edna T. Thompson, Petitioner

v.

Crawford W. Long, M.D., Respondent

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Georgia

PETITION FOR A WRIT OF CERTIORARI

A. Jack Hinton Stanley P. Meyerson*

Hinton & Powell McGee & Oxford

2800 Tower Place 2800 Tower Place

3340 Peachtree St., NE 3340 Peachtree St., NE

Atlanta, Georgia 30326 Atlanta, Georgia 30326

(404) 365-7077 (404) 231-1935

Counsel for Petitioner

*Counsel of Record

4000

:

i

QUESTION PRESENTED

As Whether Georgia’s five year statute

of repose for medical malpractice claims

violates the Equal Protection Clause of

the Fourteenth Amendment in that it

arbitrarily distinguishes medical

Malpractice claimants from all other

personal injury claimants.

(i)

ii

PARTIES TO THE PROCEEDING

The named petitioner, Edna Thompson,

was the plaintiff below. The named

respondent, Crawford W. Long, M.D., was

the defendant below.

iii

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT

REASONS FOR GRANTING THE PETITION

CONCLUSION

Page

14

iv

TABLE OF AUTHORITIES

Cases Pages

, 285 SE2d 521

be ee ee ee ee eee ee ee eee

Bickford v. Nolen, 240 SE2d 23 (1977) . 10

378 A2d 1138, 1139-40 (1977) ... 8

—

Carson v. Maurer, 424 A2d 825 (1980) . 5,

6, 7, 8, 9, 10

Clark v. Singer, 298 SE2d 484 (1983) . 10,

ye

I Nar ——

ser Ter 437 SE2d 308 (1993). .... .5,

o, os

mean: . <i ween 404 SE2d 104

[25en) . « > oe

= » ase

Bee ee SAeetl «6 « ee 8 Oke et OUR

Reed v. Reed, 404 U.S. 71, 76 (1971) . 12

Vv —

Auth,., 423 SE2d 235 (1992) ... .10

Statutes

“0S © 2 4207 te) 3 8 4 Oe eo OS 1

O.C.G.A. $ 9-3-7at@) «© 2 © © es wo we © 2

RSA ch. 507-C (Supp. 1979) ....-+ +

6, 7, 8

PETITION FOR WRIT OF CERTIORARI

Petitioner Edna Thompson respectfully

petitions for a writ of certiorari to

review the judgment of the Supreme Court

of the State of Georgia in this case.

OPINIONS BELOW

The court of appeals’ opinion in this

case (App., infra, 3a-8a) is unreported.

The court of appeals’ order denying

petitioner’s motion for reconsideration

(App., infra, 2a) is unreported. The

Georgia Supreme Court’s decision denying

petitioner certiorari in this case (App.,

infra, 1a) is unreported.

JURISDICTION

The Court of Appeals of the State of

Georgia denied petitioner’s motion for

reconsideration on March 26, 1997. On

September 5, 1997, the Supreme Court of

the State of Georgia denied petitioner

certiorari. (App., infra, la). The

jurisdiction of this Court is invoked

under 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the U.S.

Constitution provides in relevant part:

"No State shall ... deny any person within

its jurisdiction the equal protection of

the laws."

STATEMENT

In this case, the petitioner’s action

based in medical malpractice was abrogated

pursuant to Georgia’s Statute of Repose,

2

O.C.G.A. §9-3-71(b). Section 9-3-71(b)

states in full: "Notwithstanding

subsection (a) of this Code section, in no

event may an action for medical

malpractice be brought more than five

years after the date on which the

negligent or wrongful act or omission

occurred."

The petition presents one question:

(1) Whether Georgia’s five year statute

of repose for medical malpractice claims

violates the Equal Protection Clause of

the Fourteenth Amendment in that it

arbitrarily distinguishes medical

malpractice claimants from all other

personal injury claimants.

The facts set forth below are taken

from uncontroverted evidence found within

the record on appeal.

1. The death of Brandon Thompson. On

February 16, 1988, petitioner Edna T.

Thompson was first examined by respondent

Crawford W. Long, M.D. for the purposes of

obtaining prenatal care. Pursuant to the

examination, respondent determined that

petitioner was pregnant and scheduled the

delivery of her baby for September 1, 1988

at Crawford Long Hospital in Atlanta,

Georgia. (R: 17). On May 5, 1988, a

sonogram was taken of petitioner which

showed a viable fetus. It was determined

that a repeat C-section was unavoidable,

and the petitioner was informed that her

expected delivery date was now July 20,

1968. (Rs: 17).

During the month of July, 1988,

petitioner complained to respondent that

—-

~ —_

3

she experienced a fainting spell,

weakness, severe nausea, swelling of the

hands and feet and retention of fluid.

(R: 18 - 19). Respondent was clearly

aware of the complications petitioner was

experiencing with the pregnancy, yet

failed on July 11, 1988 to exercise the

degree and standard of care required by

skilled physicians generally under similar

conditions and like circumstances, thereby

allowing petitioner’s condition to worsen.

(R: 18, 19, 20).

On July 25, 1988, a second sonogram

procedure was performed at the Crawford

Long Hospital emergency room in Atlanta,

Georgia, and petitioner was scheduled for

an emergency C-section. (R: 17). During

the course of the July 25, 1988 C-section,

petitioner’s unborn child, Brandon

Thompson, died. Petitioner contended that

the death of Brandon Thompson was due to

the negligent handling of her prenatal

care. (R: 18).

2. Proceedings below. On July 25, 1990,

petitioner Edna T. Thompson filed a tort

action based in medical malpractice

against respondent Crawford W. Long, M.D.

(R: 40). Specifically, the lawsuit

involved the prenatal care of petitioner

and her deceased child. As outlined

above, the care culminated in a surgical

procedure on July 25, 1988 wherein the

petitioner’s child was delivered stillborn

by caesarian section. Petitioner alleged

that respondent failed to exercise a

reasonable degree of medical care,

diligence and skill ordinarily employed by

obstetricians and gynecologists under

similar conditions and like surrounding

circumstances. (R: 44 -49).

4

On November 5, 1993, petitioner

voluntarily dismissed the action pursuant

to Official Code of Georgia, Annotated §

9-11-41. tat: Saaes

On May 2, 1994, petitioner refiled

her complaint, again alleging medical

malpractice against respondent Crawford W.

Long, M.D. (R: 16 - 22). And, on June

7, 1994, respondent filed a Motion to

Dismiss, arguing that petitioner’s refiled

complaint was barred by Georgia’s statute

of repose for medical malpractice actions.

(R: 38 - 42). Petitioner filed her

response in opposition to respondent’s

Motion to Dismiss on July 6, 1994. (R:

57 - 59; 64 - 66).

On September 13, 1995, the Honorable

Walter Lovett, sitting pro hac vice for

Judge Thelma Cummings-Moore in the State

Court of Fulton County, Georgia, granted

respondent’s Motion to Dismiss. (App.,

infra, 9a).

Petitioner appealed the trial court’s

ruling, arguing among other things that

the five year statute of repose was

unconstitutional in that it violated the

Equal Protection Clause of the Fourteenth

Amendment . On February 25, 1997, the

Georgia Court of Appeals entered an order

affirming the trial court’s decision

granting respondent’s motion to dismiss.

(App., infra, 3a-8a). Petitioner’s motion

for reconsideration to the Georgia Court

of Appeals was denied on March 26, 1997.

(App., infra, 2a).

On September 5, 1997, the Supreme

Court of the State of Georgia denied

petitioner’s petitioner for certiorari.

(App., infra, la).

——— —~™

Atieetiead le Moti,

5

REASONS FOR GRANTING THE PETITION

1. The constitutionality of

statutes governing issues of medical

malpractice is determined by tests of

varying degrees within different

jurisdictions. |

Specifically, the State of Georgia

has held that because medical malpractice

claimants are not members of a suspect

class chey are not entitled to strict

scrutiny. Indeed, the Georgia courts have

held that the rational basis test is the

‘appropriate test in determining whether

statutes governing medical malpractice

issues are constitutional. Craven v.

j j , ar

SE2d 308 (1993).

In contrast, the State of New

Hampshire has determined that the rights

of medical malpractice claimants are

sufficiently important as to require that

the restrictions imposed on those rights

be subjected to a more rigorous judicial

scrutiny than allowed under the rational

basis test. Carson v. Maurer, 424 A2d 825

(1980). In furtherance of said

resolution, the New Hampshire Courts have

created an intermediate standard for

determining the constitutionality of

statutes that restrict the rights of

medical malpractice claimants. To-wit,

whether the challenged classifications are

reasonable and have a fair and substantial

relation to the object of the legislation.

Id., at 831.

In Carson, the plaintiffs challenged

the constitutionality of RSA ch. 507-C

(Supp. 1979), governing actions for

medical injury. This statute was part of

6

an effort by the New Hampshire legislature

to address the problems of the medical

injury reparations system. Among other

things, the statute created a two-year

statute of limitations applicable to most

medical malpractice actions and limited

the amount of damages recoverable for non-

economic loss to $250,000.00. In its

statement of findings and purpose, the New

Hampshire legislature found, "... that

substantial increases in the incidence and

size of claims for medical injury pose a

major threat to effective delivery of

medical care in the state and that the

risks and consequences of medical injury

must be stabilized in order to encourage

continued provision of medical care to the

public at reasonable cost, the continued

existence of medical care institutions and

the continued readiness of individuals to

enter the medical care field." JId., at

829, 830. The intent of RSA ch. 507-C was

to stabilize the law governing medical

Malpractice actions and to improve the

availability of adequate liability

insurance for health care providers at

reasonable cost. Id., at 830.

The plaintiffs in Carson asserted

that the statute in question created an

improper classification of medical

malpractice claimants distinct from

victims of any other type of negligence.

In examining the particular statute, the

Supreme Court of New Hampshire agreed with

the plaintiffs, and found that the statute

confers certain benefits on tortfeasors

who are health care providers that are not

afforded to other tortfeasors, and that it

distinguishes between those tort claimants

whose injuries were caused by medical

7

malpractice and all other tort claimants.

Id., at 830.

Further, by applying the fair and

substantial relation test, the Supreme

Court of New Hampshire held that the two

year statute of limitations imposed by RSA

ch. 507-C was unconstitutional.

Specifically, the New Hampshire Supreme

Court noted in its decision that prior to

the enactment of RSA ch. 507-C, there was

a six year statute of limitations

governing most personal actions, including

malpractice actions. And, that upon the

enactment of RSA ch. 507-C, medical

malpractice claimants were required to

bring an action within two years of the

alleged negligence. There was one

exception to this rule: If the action

were based upon the discovery of a foreign

object in the body, the discovery of which

was not and could not reasonably have been

made within that two year period, that

particular claimant would have two years

from the date of the discovery of the

foreign object in the body, or two years

from the date of the discovery of facts

which would reasonably lead to the

discovery of the object, to file an

action. Id., at 833.

The New Hampshire Supreme Court held

that RSA ch. 507-C was invalid insofar as

it makes the discovery rule unavailable to

all medical malpractice plaintiffs except

those whose actions are based upon the

discovery of a foreign object in the

injured person’s body. The discovery rule

provides that a cause of action will not

arise until the plaintiff discovers the

injury, or, in the exercise of reasonable

diligence, should have discovered the

8

injury and its cause. JId., at 833. The

Court pointed out that the rule is

premised on "the manifest unfairness of

foreclosing an injured person’s cause of

action before he has had even a reasonable

opportunity to discover its existence."

Id., at 833, quoting Brown v. Mary

» 276 Bae 1836,

1139-40 (1977).

In addition to arguing that the two

year statute of limitations imposed by RSA

ch. 507-C was unconstitutional, the

plaintiffs in Carson asserted that the

$250,000.00 damages cap provided by RSA

ch. 507-C was unconstitutional in that it

denied the plaintiffs equal protection of

the law by creating an arbitrary damage

limitation and thereby precluding only the

most seriously injured victims of medical

negligence from receiving full

compensation for their injuries. Id., at

836.

The legislative purpose behind this

section of the statute at issue was to

Stabilize insurance risks and reduce

malpractice insurance rates. In applying

the fair and substantial relation test,

the New Hampshire Supreme Court held that

this portion of the statute was

unconstitutional. In making this

determination, the Court found that the

cap on damages distinguished between

malpractice victims and victims of other

torts, as well as distinguishing between

malpractice victims with non-economic

losses that exceed $250,000.00 and those

with less severe non-economic losses. The

Court determined that the necessary

relationship between the legislative goal

of rate reduction and the means chosen to

9

attain that goal was insufficient to

uphold the statute. Specifically, the

Court found that damage awards constitute

only a small part of total insurance

premium costs and that few individuals

suffer non-economic damages in excess of

$250,000.00. Id., at 836. As such, the

portion of the statute being challenged

failed the fair and substantial relation

test.

The petitioner respectfully asserts

that the analysis set forth in the Carson

decision is both sound and reasonable.

The petitioner further respectfully

asserts that based upon the difference of

opinions among the different jurisdiction,

this Honorable Court must make a

determination as to the appropriate level

of judicial scrutiny to be applied when

examining restrictions imposed upon the

rights of medical malpractice victims.

And, this petitioner respectfully asserts

that the appropriate level of judicial

scrutiny should be that of the fair and

reasonable relation test as espoused by

the New Hampshire Supreme Court.

2. Under the fair and reasonable

relation test, Georgia’s five year statute

of repose delineated in the Official Code

of Georgia Annotated § 9-3-71(b) is

unconstitutional. Specifically, the

Statute of repose violates the Equal

Protection Clause of the Fourteenth

Amendment .

It is important to note that the

Georgia Supreme Court has recognized its

power to grant broader rights to its

citizens under the Georgia Constitution

than are granted to its citizens by the

10

U.S. Constitution. Craven v. Lowndes

ity, 437 SE2d 308

(1993). And, in examining equal

protection challenges, the Georgia Courts

have chosen in the past to apply an

intermediate level of scrutiny to

situations other than those dealing solely

with distinctions based upon gender and

illegitimacy. =

‘ 353 SE2d 515 (1987).

Additionally, even in cases where the

Georgia Courts have allegedly applied the

rational basis test, the analyses have

been dependent upon the use of language

normally restricted to intermediate

judicial scrutiny. See, e.g., Smith v.

Cobb County-Kennestone Hosp. Auth., 423

SE2d 235 (1992); Mansfield v. Pannell,

404 SE2d 104 (1991); i , 298

SE2d 484 (1983); Allrid v. Emory Univ.

285 SE2d 521 (1982); Bickford v. Nolen,

240 SE2d 23 (1977).

Having established that it would be

possible to do so, it is petitioner’s

contention, that Georgia’s five year

statute of repose should be subjected to

an intermediate level of scrutiny, just as

the New Hampshire medical malpractice

Statute discussed earlier was.

By applying the fair and substantial

relation test that was set forth by the

New Hampshire Supreme Court in the Carson

decision, petitioner respectfully asserts

that the five year statute of repose for

medical malpractice claims in the State of

Georgia is unconstitutional.

In examining the statute of repose,

the Georgia Supreme Court has determined

that the purpose of the legislation was to

eliminate stale claims and to keep health

—

11

care affordable and accessible to the

public. It has been noted that because of

the nature of the practice of medicine,

uncertainty over the causes of illness and

injury make it difficult for insurers to

assess premiums based on known risks.

And, further, the passage of time makes it

more difficult to determine the cause of

injury, particularly in diseases where

medical science cannot pinpoint the exact

cause. Clark, 298 SE2d 484 (1983),

Craven, 437 SE2d 308 (1993).

In order for the statute to be

constitutional under the fair and

reasonable relation test, it must be

determined that the Georgia legislature’s

classification of medical malpractice

plaintiffs is reasonable, not arbitrary,

and bears a fair and substantial relation

to the objectives outlined above. The

petitioner respectfully states that it

does not.

Petitioner asserts that many injuries

may take more than five years after an act

of medical malpractice to manifest. And,

in their decisions reviewing the five year

statute of repose, the Georgia Courts have

not found any evidence that five years is

the point at which elimination of many

meritorious claims will significantly

improve the problem of long-term

liability. Hence, the election of the

five year period is arbitrary, and it

bears no fair and substantial relation to

the purpose of the legislation. As such,

the five year statute of repose is

unconstitutional.

: Petitioner respectfully asserts that

the classifications set forth in Georgia’s

12

five year statute of repose do not bear a

rational relationship to the legislative

purpose of the statute, and that the five

year statute of repose is’ therefore

unconstitutional.

Under the rational relationship test,

the classification "must be reasonable,

not arbitrary, and must rest upon some

ground of difference having a fair and

substantial relation to the object of the

legislation, so that all persons similarly

circumstanced shall be treated alike."

Reed vy. Reed, 404 U.S. 71, 76 (1971).

Petitioner respectfully asserts that the

five year statute of repos for medical

malpractice claims arbitrarily

distinguishes her from all other personal

injury claimants and that she therefore is

not being treated like all other personal

injury claimants.

It is petitioner’s contention that

the identified interests behind Georgia’s

five year statute of repose bear no

rational basis to a legitimate end of

government. Petitioner recognizes the

importance of limiting the time frame in

which an individual may bring an action.

Certainly there is value in "wiping the

Slate clean" at a certain point in time.

And, the petitioner agrees that without

time limitations on actions, it would be

difficult for insurance companies. to

accurately assess premiums. However, it

is petitioner’s contention that these

goals are met by the applicable statute of

limitations, the clear purpose of which

being, to eliminate stale claims.

Additionally, the passage of time

makes it more difficult to determine the

cause of injury in all personal injury

13

claims, not just medical malpractice

claims. As time passes, the recollection

of plaintiffs and defendants alike fade,

and both are required to rely more and

more on documentation and other evidence

and less on personal recollection in

pursuing their claims and defenses.

Petitioner respectfully asserts that it is

nonsensical to assume that the passage of

time affects medical malpractice cases

more severely than other claims based in

personal injury. Therefore, it is

impossible to argue that the passage of

time in a medical malpractice case is

sufficient to subject such a claim to a

statute of ultimate repose. There is no

rational basis for subjecting a medical

malpractice claim to such a statute when

no other personal injury claims, all of

which must weather the passage of time,

are subject to such a statute.

The only valid basis for a statute of

repose is in placing a time limit in which

claims may be brought. Because the

effective statute of limitations for

personal injury claims already places a

time limit on when medical malpractice

actions may be brought, there is no

rational reason for subjecting medical

Malpractice claims to aé_e statute of

ultimate repose when no other personal

injury claims are subjected to one. In

effect, Georgia statute of repose

arbitrarily subjects medical malpractice

claimants to treatment different from that

received by all other personal injury

claimants in the state of Georgia. There

is no rational reason for the

classification and the different

treatment, and Georgia’s statute of repose

14

therefore violates the Equal Protection

Clause of the Fourteent:. Amendment.

CONCLUSION

The petition for certiorari should be

granted.

Respectfully submitted.

A. Jack Hinton Stanley Meyerson*

Hinton & Powell McGee & Oxford

2800 Tower Place 2800 Tower Place

3340 Peachtree 3340 Peachtree

Road, N.E. Road, N.E.

Atlanta, Georgia Atlanta, Georgia

30326 30326

(404) 365-7077 (404) 231-1935

Counsel for Petitioner

*Counsel of Record

December 1997

.

u

:

APPENDIX

IN THE SUPREME COURT OF GEORGIA

CLERK’S OFFICE

ATLANTA

EDNA T. THOMPSON,

Petitioner,

T: CASE NO.

$97C1205

CRAWFORD W. LONG, M.D.,

Respondent,

ee eee ee ee ee

ORDER

The Supreme Court today denied the

petition for certiorari in this case.

All the Justices concur.

Clerk

Date: September 05, 1997

la

IN THE COURT OF APPEALS

STATE OF GEORGIA

EDNA T. THOMPSON,

Appellant,

)

)

)

)

Vv. ) CASE NO.

) A96A1997

CRAWFORD W. LONG, M.D., )

)

)

)

Appellee,

ORDER

Upon consideration of the motion for

reconsideration filed in this case, it is

ordered that it be hereby denied.

WILLIAM L,. MARTIN, III

Clerk

Date: March 26, 1997

2a

IN THE COURT OF APPEALS

STATE OF GEORGIA

EDNA T. THOMPSON,

Appellant,

CASE NO.

A96A1997

Vv.

CRAWFORD W. LONG, M.D.,

Appellee,

ee eee eee ee”

ORDER

On May 2, 1994, Edna Thompson sued

Crawford W. Long, M.D. for "professional

malpractice." In the complaint, Thompson

alleged that "[o]n July 25, 1988, during

the course of surgery, [her] unborn child

died due to the negligent handling of her

prenatal care." Long answered the

complaint and filed a motion to dismiss,

arguing that the action was barred by the

five year statute of repose for medical

malpractice actions. The trial court

granted Long’s motion to dismiss, and

Thompson appeals. Thompson asserts that

the trial court erred in dismissing her

complaint because (1) the statute of

repose for medical malpractice actions is

unconstitutional, (2) her complaint

alleged negligence as well as medical

malpractice, and (3) her claims based on

Long’s intentional acts were not subject

to the five year statute of repose. For

reasons which follow, we affirm.

The record shows that Thompson

3a

originally filed a pro se complaint for

medical malpractice against Long July 25,

1990. (Although the trial court dismissed

Thompson’s original complaint due to her

alleged failure to comply with 0.C.G.A. §

9-11-9.1, we reversed that decision in

Thompson _v, Long, 201 Ga. App. 480 (411

SE2Gd 322) (1991)). After obtaining

counsel, Thompson voluntarily dismissed

that Complaint on November 4, 1993 and

refilled it on May 2, 1994. Neither

Thompson’s refiled complaint, nor an

amendment filed on August 2, 1994, allege

that Long committed any negligent acts

after the July 25, 1988 surgery.

The two year statute of

limitations and five year statute of

repose for medical malpractice actions are

codified at OCGA § 9-3-71(a) and (b).

Those subsections provide that "(a)

[e]xcept 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

rising 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

Malpractice be brought more than five

‘years after the date on which the

negligent or wrongful act or omission

occurred."

Thompson argues that "(t]he five year

Statute of repose is unconstitutional in

that it arbitrarily distinguishes medical

malpractice claimants from all other

personal injury claimants and subjects

medical malpractice claimants to

abrogation of their claims." Our Supreme

Court has already responded to the same

4a

argument in ruling that OCGA § 9-3-71(b)

is constitutional. Craven v. Lowndes

County Hosp. Auth., 263 Ga. 657 (1) (437

SE2d 308) (1993). Accordingly, for the

reasons discussed in Craven, Thompson’s

first enumeration of error is without

merit. Id.

ae Before reaching the merits of

Thompson’s other assertions, we note the

following. Although Thompson voluntarily

dismissed and refiled her complaint within

six months as provided for by OCGA §§ 9-

11-41(a) and 9-2-61(a), such refiling did

not put the refiled complaint "upon the

same footing" as the original complaint.

See Wright v. Robinson, 262 Ga. 844 (1)

(426 SE2d 870) (1993). Because Thompson

refiled her complaint more than five years

after the date on which any alleged

negligent or wrongful acts occurred, as

discussed below, the claims presented are

subject to dismissal under the statute of

repose. See id. As stated by the Supreme

Court in Wright, "the legislature never

intended for the dismissal and renewal

statutes to overcome the _ statute of

repose." Id. at 846.

; Thompson asserts that in

addition to her medical malpractice

claims, her complaint includes claims of

simple negligence resulting in personal

injuries that are not barred by the

statute of repose. Specifically, Thompson

asserts that her claims for emotional pain

and suffering and emotional distress sound

in simple negligence. We disagree.

OCGA § 9-3-70(1) defines an "action

for medical malpractice" as "any claim for

damages resulting from the death of or

injury to any person arising out of: (1)

5a

Health, medical, dental, or surgical

service, diagnosis, prescription,

treatment, or care rendered by a person

authorized by law to perform such service

.."' A professional negligence action is

a ‘professional Malpractice action that

calls into question the conduct of a

professional in his area of expertise.

See Moore v. Louis Smith Mem. Hosp... Inc.,

216 Ga. App. 299, 299-300 (454 SE2d 190)

(1995).

In this case, Thompson alleged that

Long determined she was pregnant after

examining her and performing’ other

diagnostic work. Thompson further claims

that she informed Long of several symptoms

she was experiencing and that, following

two Sonograms, he performed an emergency

c-section during which her "unborn child

died due to the negligent handling of her

prenatal care." Finally, Thompson alleged

in her complaint that "[t]his action is

one for professional malpractice in which

[Long] failed to exercise the required

degree and standard of care and caused

injury to [her] from a want of such care

and skill."

Although Thompson alleged she

Sustained various injuries resulting from

Long’s conduct, including those for

emotional pain and distress, her complaint

and the amendment to her complaint clearly

allege that all such injuries resulted

from Long’s professional malpractice.

Though it is true that any injury

Sustained under a doctor’s care may be the

result of simple negligence, (see id.),

the record shows that Thompson did not

assert any such claims in this case.

Accordingly, we conclude that Thompson’s

6a

claims for emotional pain and distress

sound in professional malpractice and are

subject to the five year statute of

repose.

4. In her last enumeration of

error, Thompson asserts that her claim for

punitive damages based on Long’s alleged

intentional acts was not subject to the

five year statute of repose.

Specifically, Thompson refers to the

amendment to her complaint in which she

alleged that _Long’s conduct "

establishes a

conscious and wanton disregard for the

life of the Plaintiff, individually and of

the rights of the child[. ]..." (Emphasis

supplied) Because we find that such a

claim was based on Long’s’ alleged

professional malpractice, we conclude that

the claim is barred by the five year

statute of repose (OCGA § 9-3-71(b)).

A claim for "professional

malpractice" can be based on intentional

acts. "Webster’s Third International

Dictionary defines ‘malpractice’ as ‘a

dereliction from professional duty whether

intentional, criminal, or merely negligent

by one rendering professional services

that results in injury, loss, or damage to

the recipient of those. services...’"

(Citation and punctuation omitted. ) Hodge

v. Hennings Mill, Ltd., 215 Ga. App. 507,

508 (451 SE2d_ 66) (1994) (emphasis

supplied). Similarly, OCGA § 9-3-71 (a),

which defines "medical malpractice," does

not limit such claims to claims of

professional negligence, but includes "any

Claim for damages" arising out of the

defined provision of medical services.

Moreover, the plain language of OCGA § 9-

7a

3-71(b) shows that the statute of repose

is not limited to professional negligence

cases. Rather, OCGA § 9-3-71 (b)

abrogates all claims "for medical

malpractice ... brought more than five

years after the date on which the

negligent or wrongful act or omission

occurred."

The mere fact that Thompson alleged

that Long’s conduct was intentional does

not mean that her claims were not medical

malpractice claims barred under OCGA § 9-

3-71(b). To the contrary, the conduct

upon which Thompson relies to establish

her intentional tort claims, was

"described in the original Complaint" as

the "handling of her prenatal care." Such

a claim is clearly including in the

definition of "medical malpractice" under

OCGA § 9-3-70(1). Accordingly, we

conclude that Thompson’ s claims of

intentional conduct were medical

malpractice claims barred by the five year

statute of repose. OCGA § 9-371(b). This

conclusion is consistent with the intent

of OCGA § 9-3-71(b) to establish a period

of "ultimate repose and abrogation," "when

past transgressions are no longer

actionable." OCGA § 9-3-71(c); Craven,

Supra at 660. The statute stands as an

"absolute" and "unyielding barrier to

[Thompson’s] right of action." Wright,

supra at 845. The fact that Thompson was

seeking punitive damages for these acts

does nothing to change the result.

Judgement affirmed, Johnson, J...

concurs, Presiding Judge McMurray concurs

Date: February 25, 1997

8a

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

EDNA T. THOMPSON,

Plaintiff,

Vv. CIVIL ACTION

FILE NO.

CRAWFORD W. LONG, M.D., E-25037

Defendant.

ORDER

This matter has come before this

Honorable Court on Defendant’s Motion to

Dismiss. After considering the record,

the briefs, the arguments of counsel and

all other evidence properly before the

Court, it appears that Defendant’s Motion

to Dismiss is supported by the law and the

facts.

Wherefore, the Court GRANTS

Defendant’s Motion to Dismiss.

IT IS ORDERED, this 13 day of

September, 1995.

—__WALTER LOVETT _

JUDGE

Sitting Pro Hac Vice for

Judge Thelma Cummings-Moore

State Court of Fulton

County

Date: September 13, 1995

9a