Opposition Brief — Thompson v. Long

No. 97-921

In The

Supreme Court of the United States

a

October Term, 1997

EDNA T. THOMPSON,

Petitioner,

VS.

CRAWFORD W. LONG, M.D.,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of Georgia

RESPONDENT?’S BRIEF IN OPPOSITION

MICHAEL A. PANNIER

Counsel of Record

KARL M: BRAUN

SULLIVAN HALL BOOTH & SMITH, P.C.

Attorneys for Respondent

1360 Peachtree Street, N.E.

One Midtown Plaza, Suite 800

Atlanta, Georgia 30309

(404) 870-8000

43s (800) 274-3321 * (800) 359-6859 ngetst

A DIVISION OF COUNSEL PRESS ervices, inc.

TABLE OF CONTENTS

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TABLE OF CITATIONS

Cases Cited:

Allrid v. Emory Univ., 249 Ga. 35, 285 S.E. 2d 521

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City of New Orleans v. Dukes, 427 U.S. 297, 97 S. Ct.

oa tint, du Wecbieka vGVes whe eos s «0

Clark v. Jeter, 486 U.S. 456, 108 S. Ct. 1910 (1988) .

Clark v. Singer, 250 Ga. 470, 298 S.E. 2d 484 (1983)

ii

Contents

Craven v. Lowndes County Hosp. Auth., 263 Ga. 657,

ete fF 8 Pe reer ee

Elerbee v. Otis Elevator Co., 618 S.W. 2d 870 (1981)

Elerbee v. Otis Elevator Co., 459 U.S. 802, 103 S. Ct.

D6 COU ao acs cds Aveda

Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966)

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Loving v. Virginia, 388 U.S. 1 (1967) ..............

Lyng v. Automobile Workers, 485 U.S. 360 (1988) ...

Mansfield v. Pannell, 261 Ga. 243, 404 S.E. 2d 104

CSPOED sé ncken cs nnndseenenenseeeaee

Matthews v. Lucas, 427 U.S. 429 (1976) ...........

McDonald v. Board of Election Commissioners, 394 U.S.

See, Sr es GR, BD Ge nb eda cbibcccvscdes

Mills v. Habluetzel, 456 U.S. 91 (1982) ............

Mississippi Univ. for Women v. Hogan, 458 U.S. 718

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Page

2

Contents

Ohio ex rel Eaton v. Price, 360 U.S. 246, 79 S. Ct. 978

OE ire een ns Kh she aercha cheno 5-08

Ponder v. Fulton-Dekalb Hosp. Auth., 256 Ga. 833, 353

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Pullum v. Cincinnati, Inc., 476 So. 2d 657 (1985) ...

Pullum v. Cincinnati, Inc., 475 U.S. 1114, 106 S. Ct.

IES Se ee ae ee

San Antonio Independent School Dist. v. Rodriguez, 411

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Smith v. Cobb Co.-Kennestone Hosp. Auth., 262 Ga. 566,

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Waters v. Rosenbloom, 268 Ga. 482 (1997) .........

Woodward v. Burnham City Hosp., 79 Ill. 2d 295, 402

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Woodward v. Burnham City Hospital, 449 U.S. 807, 101

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Statutes Cited:

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Page

iv

Contents

Page

United States Constitution Cited:

Fourteenth Amendment

|

Petitioner argues that the Georgia five year statute of repose

provided for medical malpractice actions under O.C.G.A.

§ 9-3-71(b) violates her rights to equal protection of the laws

guaranteed by the Fourteenth Amendment to the United States

Constitution. Petitioner contends that the Court should apply an

intermediate level of scrutiny in evaluating the constitutionality of

Georgia’s statute of repose. Alternatively, Petitioner argues that

the statute of repose violates her qual protection rights under a

“rational basis” analysis. As shown more fully below, the Georgia

Supreme Court has previously upheld the constitutionality of the

medical malpractice statute of repose on equal protection grounds

in a manner consistent with opinions of the United States Supreme

Court. Consequently, Respondent respectfully urges this Honorable

Court to deny the Petition for Writ of Certiorari.

Under Georgia law, an action for medical malpractice must be

brought within two years of the injury or death resulting from the

alleged malpractice, but in no event may an action be brought

more than five years after the alleged negligent act or omission.

O.C.G.A. § 9-3-71. This code section creates a two year statute of

limitation and a five year statute of ultimate repose.

In Craven v. Lowndes County Hosp. Auth., 263 Ga. 657,

437 S.E. 2d 308 (1993), the Georgia Supreme Court upheld the

medical malpractice five year statute of repose under an equal

protection challenge. Because the Plaintiff was not a member of a

suspect class, the Court applied the “rational basis test.” The Georgia

Supreme Court upheld the constitutionality of the five year statute

of repose, since it was rationally related to a legitimate government

purpose not prohibited by the Constitution. The court found that

the medical malpractice statute of limitation and statute of repose

serve the purpose of eliminating stale claims. Also,

[bJecause of the nature of the practice of medicine,

uncertainty over the causes of illness and injury make

EE TTT ST EET SALMAN > ee A

2

it difficult for insurers to adequately assess premiums

based on known risks. Furthermore, 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.

Id. at 659. Therefore, the Georgia Supreme Court held the statute

of repose to be reasonably related to a legitimate government

purpose. See also Waters v. Rosenbloom, 268 Ga. 482 (1997).

The level of scrutiny applied by the Georgia Supreme Court

in Craven, supra, is consistent with decisions of this Honorable

Court in other cases evaluating equal protection challenges to state

law under the Fourteenth Amendment. As a starting point, federal

courts should presume that state legislatures have acted

constitutionally in making laws. McDonald v. Board of Election

Commissioners, 394 U.S. 802, 89 S. Ct. 1404 (1969). Then, in

evaluating state laws under the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution, it is

necessary to apply different levels of scrutiny depending on the

nature of the classification. “At a minimum, a statutory classification

must be rationally related to a legitimate government purpose.”

Clark v. Jeter, 486 U.S. 456, 461, 108 S. Ct. 1910 (1988), citing

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1,

17(1973); cf. Lyng v. Automobile Workers, 485 U.S. 360, 370

(1988). Under the “rational basis” test, state statutes are presumed

to be constitutional as long as the challenged classification is

rationally related to some legitimate state interest, “[uJnless a

classification trammels fundamental personal rights or is drawn

upon inherently suspect distinctions such as race, religion or

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

97 S. Ct. 2513 (1975).

“Classifications based on race or national origin, and

classifications affecting fundamental rights, are given the most

3

exacting scrutiny.” Clark, supra at 461, citing Loving v. Virginia,

388 U.S. 1, 11 (1967); Harper v. Virginia Bd. of Elections, 383

U.S. 663, 672 (1966). Under the “strict scrutiny” standard, a statute

must be necessarily or narrowly tailored to achieve a compelling

or overwhelming government purpose. Jd.

Finally, an intermediate level of scrutiny has been applied

generally to statutory classifications based on sex or illegitimacy.

Clark, supra at 461, citing Mississippi Univ. for Women v. Hogan,

458 U.S. 718, 723-724, and n.9 (1982); Mills v. Habluetzel, 456

U.S. 91, 99 (1982); Craig v. Boren, 429 U.S. 190, 197 (1976);

Matthews v. Lucas, 427 U.S. 429, 505-506 (1976). Under the

intermediate level of scrutiny, a classification must be “substantially

related” to the achievement of “important government objectives.”

Craig, supra, at 197.

Petitioner relies heavily on Carson v. Maurer, 120 N.H. 925,

424 A. 2d 825 (1980) to argue that the intermediate level of scrutiny

should be applied in this case. Petitioner’s reliance on Carson is

misplaced, however, since Carson analyzes the constitutionality

of a New Hampshire statute under the equal protection provision

of the New Hampshire Constitution. The New Hampshire statute

was not challenged under the Equal Protection Clause of the

Fourteenth Amendment to the United States Constitution, as is the

statute of repose in the present case. The Carson court recognized

that, under Fourteenth Amendment analysis, the intermediate level

of scrutiny has been restricted to classifications based on gender

and illegitimacy. The Carson court held, “in interpreting our state

constitution, however, we are not confined to federal constitutional

standards and are free to grant individuals more rights than the

Federal Constitution requires.” (emphasis added). Id. at 932.

Therefore, Carson is inapplicable to Petitioner’s challenge of the

Georgia statute of repose under the equal protection guarantees of

the Fourteenth Amendment to the United States Constitution, since

the Carson court was applying the additional rights granted to

New Hampshire citizens under the New Hampshire Constitution.

4

Petitioner also cites several Georgia Supreme Court opinions,

in which she argues that the Georgia Supreme Court applied an

intermediate level of scrutiny in analyzing various Georgia statutes.

Again, Petitioner’s reliance on these cases is misplaced. In each of

the cases cited, the Georgia Supreme Court specifically stated that

it was applying the rational basis test. Ponder v. Fulton-Dekalb

Hosp. Auth., 256 Ga. 833, 835, 353 S.E. 2d 515, 516 (1987);

Smith v. Cobb Co.-Kennestone Hosp. Auth., 262 Ga. 566, 569,

423 S.E. 2d 235, 238 (1992); Mansfield v. Pannell, 261 Ga. 243,

244, 404 S.E. 2d 104, 105 (1991); Clark v. Singer, 250 Ga. 470,

472, 298 S.E. 2d 484 (1983); Allrid v. Emory Univ., 249 Ga. 35,

38, 285 S.E. 2d 521, 524 (1982); and Bickford v. Nolan, 240 Ga.

255, 256, 240 S.E. 2d 24, 26 (1977). Since none of the statutes

analyzed in the previously cited cases involved suspect

classifications nor fundamental rights, the Georgia Supreme Court

upheld the statutes at issue in each case under the rational basis

analysis.

Woodward v. Burnham City Hospital, 449 U.S. 807, 101 S.

Ct. 54 (1980), dismissing appeal from Anderson v. Wagner, 79 Ill.

2d 295, 402 N.E. 2d 560 (1979) is directly on point with the

present case and provides an excellent historical analysis of the

development of medical malpractice statutes of repose. In Anderson,

the Supreme Court of Illinois upheld the Illinois two year medical

malpractice statute of limitation and four year medical malpractice

statute of repose under the equal protection clauses of both state

and federal constitutions. The Anderson court provided a detailed

analysis of the legitimate governmental purposes served by the

medical malpractice statute of repose by applying the rational basis

test. Moreover, the Anderson court cited a number of opinions

from courts around the country upholding similar statutes against

charges that a statute of repose violates equal protection. Anderson,

supra, at 310. The United States Supreme Court dismissed the

appeal in Anderson for want of a substantial federal question.

Woodward, supra, at 807. A dismissal of an appeal for want of

substantial federal question is a decision on the merits of the case.

Ohio ex rel Eaton v. Price, 360 U.S. 246, 79 S. Ct. 978 (1959);

Hicks v. Miranda, 422 U.S. 332, 344, 95 S. Ct. 2281 (1975). See

also Pullum v. Cincinnati, Inc., 475 U.S. 1114, 106 S. Ct. 1626

(1986), dismissing appeal from Pullum v. Cincinnati, Inc., 476

So. 2d 657 (1985). (Florida twelve year statute of repose in products

liability cases upheld under rational basis test.); Elerbee v. Otis

Elevator Co., 459 U.S. 802, 103 S. Ct. 24 (1982), dismissing

appeal from Elerbee v. Otis Elevator Co.,618 S.W. 2d 870 (1981).

(Texas ten year statute of repose in real property cases upheld under

rational basis test).

As previously shown, the Court should not apply an

intermediate level of scrutiny in analyzing the constitutionality of

the Georgia medical malpractice statute of repose. Petitioner argues

alternatively that the statute violates her equal protection rights

guaranteed by the Fourteenth Amendment under the rational basis

test. Petitioner asserts that the goal of eliminating stale claims is

accomplished by the statute of limitation and that other types of

personal injury claims are not subject to similar statutes of repose.

Contrary to Petitioner’s position, see Woodward v. Burnham City

Hosp., 79 Ill. 2d 295, 402 N.E. 2d 560 (1979), for a detailed

discussion of the unique “long tail” problem found in medical

malpractice cases and the legitimate role statutes of repose play in

addressing the problem. Additionally, the Petitioner admits that

legitimate government purposes are served by the statute of repose,

such as “limiting the time frame in which an individual may bring

an action,” “ ‘wiping the slate clean’ at a certain point in time,” and

allowing “insurance companies to accurately access premiums.”

Page 12, Petition for Writ of Certiorari. Petitioner simply questions

the legislative method of attaining these goals.

Petitioner’s arguments against the statute of repose exceed the

permissible scope of equal protection analysis under the rational

basis test.

6

[A] state does not violate the Equal Protection Clause

merely because the classification made by its laws

are imperfect. If the classification has some

“reasonable basis,” it does not offend the Constitution

simply because the classification “is not made with

mathematical nicety or because in practice it results

in some inequity.” Lindsley v. Natural Carbonic Gas

Co., 220 U.S. 61, 78. “The problems of government

are practical ones and may justify, if they do not

require, rough accommodations-illogical, it may be,

and unscientific.” Metropolis Theatre Co. v. City of

Chicago, 228 U.S. 61, 69-70 . . . [The rational-basis

standard] is true to the principal that the Fourteenth

Amendment gives the federal courts no power to

impose upon the States their views of what constitutes

wise economic or social policy.

City of Dallas v. Stanglin, 490 U.S. 19, 26-27, 109 S. Ct.

1590 (1989).

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CONCLUSION

The Georgia medical malpractice five year statute of repose

under O.C.G.A. § 9-3-71 is rationally related to a legitimate

government purpose, and as such, it satisfies the Petitioner’s rights

guaranteed by the Equal Protection Clause of the Fourteenth

Amendment of the United States Constitution. Therefore, the

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

MICHAEL A. PANNIER

Counsel of Record

KARL M. BRAUN

SULLIVAN HALL BOOTH

& SMITH, P.C.

Attorneys for Respondent

1360 Peachtree Street, N.E.

One Midtown Plaza, Suite 800

Atlanta, Georgia 30309

(404) 870-8000