# Petition for Writ of Certiorari — Thompson v. Long

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1837%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1147

## Text

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: . 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1837%3A1. Public record. Not legal advice.