Opposition Brief — Canas v. Al-Jabi (No. 05-1671)

(2)

No. 05-1671

IN THE

Supreme Court of the United States

CHARLES AND LESA CANAS,

as Natural Guardians and Next Friends of

DEREK CANAS, and DEREK CANAS, Individually,

Petitioners,

v,

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

ret

BRIEF IN OPPOSITION FOR RESPONDENTS AYMAN AL-JABI, M.D.,

SHARON J. KAMINER, M.D., anD MCG Hea tn, INc.

WIiLiiaM P. FRANKLIN, JR. ADAM L. APPEL*

LESLIE PICKETT SHEEHAN Kim M. RUDER

OLIVER MANER & Gray LLP CARLOCK COPELAND

P.O. Box 10186 SEMLER & STAR, LLP

Savannah, GA 31412 2600 Marquis Two Tower

Attorneys for Respondent 285 Peachtree Center Avenue

Ayman Al-Jabi, M.D. Atlanta, GA 30303

(404) 522-8220

James S. V. WESTON Attorneys for Respondent

Hut, Towitt, NorMaNn, Sharon J. Kaminer, M.D.

BARRETT & SALLEY

P.O. Box 1564

Augusta, GA 30903-1564

Attorneys for Respondent

MCG Health, Inc. * Counsel of Record

_

\

)

i

STATEMENT PURSUANT TO RU E 29.6

Respondent, MCG Health, Inc., has no parent

corporation and no publicly held company owns 10% or

more of its stock.

TABLE OF CONTENTS

Statement Pursuant to Rule 29.6

Table of Contents

Table of Cited Authorities

Statement of the Case

1. Derek’s Heart Procedure in 1985

2. Drs. Kaminer and Al-Jabi’s Treatment of

Timing of Alleged Malpractice Committed

by Drs. Kaminer and Al-Jabi

Reasons for Denying the Petition

I. This Court Does Not Have Jurisdiction to

Review the Constitutionality of The Georgia

Medical Malpractice Statutes of Repose and

Limitations As There Is No “Final

Judgment” As Required By 28 U.S.C. § 1257

Category 1: “those cases in which there

are further proceedings-even entire

trials-yet to occur in the state courts but

where for one reason or another the

federal issue is conclusive or the

outcome of further proceedings

preordained.”

Contents

Category 2: “the federal issue, finally

decided by the highest court in the State,

will survive and require decision

regardless of the outcome of future

state-court proceedings.”

Category 3: “where the federal claim

has been finally decided, with further

proceedings on the merits in the state

courts to come, but in which later

review of the federal issue cannot be

had, whatever the ultimate outcome of

the case.”

Category 4. “those situations where the

federal issue has been finally decided

in the state courts with further

proceedings pending in which the party

seeking review here might prevail on

the merits on nonfederal grounds, thus

rendering unnecessary review of the

federal issue by this Court and where

reversal of the state court on the federal

issue would be preclusive of any further

litigation on the relevant cause of action

rather than merely controlling the

nature and character of, or determining

the admissibility of evidence in, the

state proceedings still to come.”

Il. The Georgia Statutes Do Not Violate the

Equal Protection and Due Process Clauses

of the Fourteenth Amendment. ........... 12

A. Equal Protection

Contents

B. Due Process

III. Contrary to Petitioners’ Claims on Pages 9-

10 and 19-30 of Their Petition, There Are Not

Square Conflicts Between the Georgia

Courts’ Constitutional Analyses of its

Medical Malpractice Statutes of Limitation

and Repose and Other State and Federal

Courts’ Constitutional Analyses of Those

Respective States’ Medical Malpractice

Statutes of Limitation and Repose. ........ 22

A. Cases cited by Petitioner as conflicting

with Georgia courts’ constitutional

analyses of Georgia’s statutes of

limitation and repose are

distinguishable as: (1) the relevant

statutes cited in those cases are

dissimilar to Georgia’s statutes of

limitation and repose; and (2) cases

cited by Petitioner were held to be

unconstitutional as a matter of state

constitutional law, and not as a matter

of federal constitutional law. ......... aa

Statutes of limitation and repose are

exactly those types of legislation which

may conflict from state to state because

they are examples of social and

economic legislation, for which the

Equal Protection clause of the

Fourteenth Amendment __ gives.

legislatures wide latitude to formulate.

Conclusion

TABLE OF CITED AUTHORITIES

Cases:

Allrid v. Emory University, 285 S.E.2d 521 (Ga. 1982)

Brady v. Maryland, 373 U.S. 83 (1963)

Brubaker v. Cavanaugh, 741 F.2d 318 (10th Cir. 1984)

Carondelet Canal & Navigation Co. v. State of Louisiana,

233 U.S. 362 (1914)

Carson v. Maurer, 424 A.2d 825, 831 (N.H. 1980) ... 27

Chase Securities Corp. v. Donaldson, 325 U.S. 304

(1945) 16, 21, 25, 26, 28

Christian v. Atha, 598 S.E.2d 895 (Ga. App. 2004) .. 20

City of Cleburne v. Cleburne Living Center, 473 US.

432, 87 L, Ed. 2d 313, 105 S. Ct. 3249 (1985) 14, 28

City of New Orleans v. Dukes, 427 U.S. 297 (1976) ..

14, 27, 28

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) . . . passim

Craven v. Lowndes County Hosp. Auth., 437 S.E.2d 308

(Ga. 1993) 19, 20, 26

Crowe v. Humana, Inc., 439 S.E.2d 654 (Ga 1994) ... 19, 20

vi

Cited Authorities

Page

DiAntonio v. Northampton-Accomack Memorial Hosp.,

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

Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242

(7th Cir. 1989) passim

FCC v. Beach Communications, Inc., 508 U.5. 307

(1993)

Florida v. Thomas, 532 U.S. 774 (2001) |

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

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

Heller v. Doe, 509 U.S. 312 (1993)

Hoffman v. United States, 767 F.2d 1431 (9th Cir. 1985)

Houk v. Furman, 613 F.Supp. 1022 (1985)

Jaramillo v. Heaton, 100 P.3d 204 (N.M. Ct. App. 2004)

Kane v. Shoup, 580 S.E.2d 555 (Ga. App. 2003)

Kenyon v. Hammer, 688 P.2d. 961 (Az. 1984) 24, 27

Lee v. Gaufin, 867 P.2d 572 (Utah 1993) 23, 24, 27

Cited Authorities

Page

Focal No. 438 Construction & General Laborers’ Union

et al. v. Curry, 371 U.S, 542 (1963)

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

Martinez v. California, 444 U.S. 277 (1980)

Massachusetts Board of Retirement v. Murgia, 427 U.S.

307 (1976) 15, 16, 19

Mominee v. Scherbarth, 503 N.E. 2d 717 (Ohio 1986)

23, 24, 27

Montagino v. Canale, 792 F.2d 554 (5th Cir. 1986) .. 17

Order of Railroad Telegraphers v. Railway Express

Agency, Inc., 321 U.S. 342 (1944)

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120

vice i eee ah Oye Cecigh IGE ie eos

Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983)

Schwan v. Riverside Methodist Hospital, 452 N.E.2d

1337 (Ohio 1983) 23, 24, 27

Smith v. Cobb County-Kennestone Hospital Auth., 423

S.E.2d 235 (GA 1992) ; 17, 18,19, 20,25 -

State Board of Pharmacy v. Snyder's Drug Store, 414

U.S. 156 (1973)

vill

Cited Authorities

Page

Statutes and Rules:

28 U.S.C. §1257

O.C.G.A. § 9-3-71

O0.C.G.A. § 9-3-73

O.C.G.A. § 9-3-72

'O.C.G.A. § 9-3-90

Ind. Code § 16-9.5-3-1 13

Ind. Code § 33-1-1.5-5 21

Medical Malpractice Act of New Mexico, N.M.S.A.

EI, Swe pee ty docksvcesccccecces ot

N.M.S.A. § 41-5-2 24

Rule 38(b)(1) of the Georgia Court of Appeals .... 10

1

STATEMENT OF THE CASE

This medical malpractice case arises out of one or more

blood transfusions allegedly contaminated with HIV/AIDS

that were administered to Petitioner Derek Canas (“Derek”)

when he was two months old. Derek received these blood

transfusions at the MCG Hospital in Augusta, Georgia in

January and February 1985, shortly before the FDA began

screening blood for the HIV / AIDS virus. Derek was diagnosed

with HIV sixteen years later in April 2001.

Petitioners filed suit against four defendants:

(1) Dr. Sharon J. Kaminer, Derek’s pediatric cardiologist who

treated Derek at the Medical College of Georgia (”MCG”) from

1991-2001; (2) The Board of Regents of the University System

of Georgia d/b/a Medical College of Georgia (“BOR”)! (Dr.

Kaminer’s employer at the time she treated Derek); (3) Dr.

Ayman Al-Jabi, Derek’s pediatrician from 1993-2000; and

(4) MCG Health, Inc. (“MCGHI”")’, the entity that began

operating the MCG Hospital on July 1, 2000, pursuant to a

series of contracts with the BOR.

1. Derek’s Heart Procedure in 1985

On January 18, 1985, six years before Derek’s first

appointment with Dr. Kaminer and eight years before his first

appointment with Dr. Al-Jabi, Derek underwent a heart

surgery to correct the transposition of his great arteries and

his total anomalous venous return condition. As a result of

the heart procedure and certain complications, Derek received

multiple blood or blood product transfusions in January and

February of 1985, which were allegedly tainted with HIV.

Petitioners contend that Drs. Kaminer and Al-Jabi failed to

recognize that, beginning as early as 1994, Derek had

symptoms of HIV, and that they failed to have him tested or

referred to a doctor for testing in a timely fashion.

1. This Brief is filed jointly by all Respondents with the exception of

the BOR, which elected to file its own Brief.

2. MCGHI is a 501(c)(3) non-profit corporation. Prior to July 1, 2000,

MCGHI did not manage, own, lease, or operate the MCG Hospital. And, at

no time has MCGHI ever employed any of the attending physicians,

including Dr. Kaminer.

2

2. Drs. Kaminer and Al-Jabi’s Treatment of Derek

Dr. Kaminer, at all relevant times, was a Pediatric

Cardiologist at MCG. As a pediatric cardiologist, she was

primarily responsible for Derek’s cardiovascular care. She

treated Derek from May 30, 1991, when Derek was

approximately six years old, until February 15, 2001 (with a

gap in treatment from 1996-2000).? When Derek went to MCG’s

Cardiovascular Clinic, Dr. Kaminer performed a routine

cardiac physical exam, which included monitoring the

pacemaker that was placed during his 1985 surgery. Dr. Al-

Jabi was Derek’s pediatrician who began seeing Derek in May

of 1993. He last saw Derek in March of 2000. Throughout the

time Dr. Al-Jabi followed Derek, he treated Derek for routine

childhood illnesses, such as bronchitis, rhinitis, colds,

respiratory infections or ear infections.

3. Timing of Alleged Malpractice Committed by Drs.

Kaminer and Al-Jabi

Significantly absent from Petitioners’ recitation of facts is

the evidence from their expert witnesses regarding the alleged

malpractice committed by Drs. Al-Jabi and Kaminer (“the

Doctors”). The Petitioners’ experts testified that a number of

events should have raised red'flags in the Doctors’ minds that

Derek was potentially HIV positive. Petitioners’ experts

contend that, in response to these red flags, the Doctors should

have either referred Derek to a specialist for further evaluation

or conducted further testing on their own.

Most significantly, Dr. Sleasman testified that Derek’s

treating physicians should have recognized, no later than 1994,

that Derek had signs and symptoms consistent with HIV.‘

3. Dr. Kaminer saw Derek at approximate one-year intervals between

May of 1991 and August of 1996. From August of 1996 and February of

2000, Derek’s parents did not bring him to the MCG Cardiovascular Clinic

for any exam or treatment, for reasons unknown to Dr. Kaminer. Derek

then returned to see Dr. Kaminer on February 17, 2000 and she followed

his care until his last visit on February 15, 2001.

4. Notably, Petitioners’ experts have testified that Derek suffered from

signs and symptoms of HIV/AIDS consistently from the time of his blood

transfusions in early 1985.

3

Dr. Sleasman testified that, in addition to suffering from

stunted growth, Derek had “recurrent pneumonia/

bronchitis, . .. chronic persistent diarrhea, which was called

irritable bowel syndrome, and. . . persistent gingivostomatitis.

Those were the four things that fulfilled the CDC criteria for

HIV-associated conditions.” According to Dr. Milligan, the

Doctors should have recognized that Derek had stunted

growth and should have made a referral to a medical specialist

to evaluate the stunted growth when Derek was nine and one-

half years old (or in 1994). Petitioners claim that, following

1994, the Doctors continued to fail to recognize or investigate

Derek’s HIV-related symptoms.

Petitioners filed suit on December 28, 2001, against Drs.

Kaminer and Al-Jabi, almost two years after the five-year

Georgia medical malpractice statute of repose expired (in the

fourth quarter of 1999), and five years after the two-year

Georgia medical malpractice statute of limitations expired (in

the fourth quarter of 1996).° Each Respondent subsequently

filed motions for summary judgment based upon the

expiration of the statutes of repose and limitations (O.C.G.A.

§§ 9-3-71 and 9-3-73). On September 19, 2005, the trial court

entered an order partially granting and partially denying

Respondents’ motions. That order is currently pending on

appeal before the Georgia Court of Appeals.

In a separate order dated October 14, 2005, the trial court

expressly upheld the constitutionality of O.C.G.A. §§ 9-3-71

and 9-3-73, as these statutes apply to medical malpractice

claims of minors. Petitioners directly appealed this order to

the Georgia Supreme Court, raising the same constitutional

arguments being made before this Court. On February 27, 2006,

the Georgia Supreme Court issued an order transferring the

case to the Georgia Court of Appeals, holding that it had

previously addressed and rejected the Petitioners’

constitutional chailenges to the subject statutes. Petitioners

filed a motion for reconsideration before the Georgia Supreme

Court, which was denied on April 13, 2006. Petitioners then

filed the instant Petition for a Writ of Certiorari to this Court.

5. The Complaint was later amended to add the BOR and MCGHI.

+

REASONS FOR DENYING THE PETITION

I. This Court Does Not Have Jurisdiction to Review the

Constitutionality of The Georgia Medical Malpractice

Statutes of Repose and Limitations As There Is No “Final

Judgment” As Required By 28 U.S.C. § 1257

In support of their contention that this Court has

jurisdiction to entertain the constitutional challenges raised

in their Petition, Petitioners rely entirely upon 28 U.S.C.

§ 1257(a) and Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)

(without analysis or discussion), in support of their contention

that the Georgia Supreme Court order issued on February 27,

2006 was a “final judgment”. Petitioners are in error.

The statute cited by Petitioners, 28 U.S.C. § 1257(a),

provides:

Final judgments or decrees rendered by the highest

courts of a State in which a decision could be had,

may be reviewed by the Supreme Court by writ of

certiorari where the validity of a treaty or statute

of the United States is drawn in question or where

the validity of a statute of any State is drawn in

question on the grounds of it being repugnant to

the Constitution, treaties, or laws of the United

States, or where any title, right, privilege, or

immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the

United States.

Id. In defining the concept of finality, this Court in Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) undertook a

detailed analysis of the concept and identified four categories

of judgments in which finality existed such that this Court

could exercise jurisdiction.

By way of background, in Cox Broadcasting, the appellant

reporter, who was employed by a television station owned by

the appellant broadcasting company, broadcasted the name

of a rape victim during a news report. Id. at 473-74 (the identity

of the victim was obtained from indictments, which were

5

public records). At the time of the broadcast, there was a

criminal statute in place which made it a misdemeanor to

broadcast a rape victim’s name. Id. at 472. Following the

broadcast, the rape victim’s father filed suit against the reporter

and his employer claiming a violation of the statute and a

violation of his right to privacy. Id. at 474.

The trial court rejected the appellant's claim that the

broadcast was privileged under both the First and Fourteenth

Amendments. Id. at 474. The trial court further found that the

‘criminal statute afforded the father a civil remedy and granted

him summary judgment (finding that liability was established

in the father’s favor and that the determination as to damages

would be determined at trial). Id. The reporter and Cox

Broadcasting appealed to the Georgia Supreme Court, which

“felt compelled to determine the constitutionality of the statute

and sustained it as a ‘legitimate limitation on the right of

freedom of expression contained in the First Amendment.”

“4

Id. at 475. The Georgia Supreme Court could discern “’no

public interest or general concern about the identity of the

victim of such a crime as will make the right to disclose the

identity of the victim rise to the level of First Amendment

protection.” Id. The reporter and Cox Broadcasting filed a

petition for certiorari to this Court.

Before addressing the merits of appellants’ claims as to

the constitutionality of the rape victim statute, this Court

analyzed whether it in fact had jurisdiction to entertain the

Appellants’ arguments. The Court began by noting that it only

had power to review cases in which the state’s highest court

had issued a “[f]inal judgment or decree” in accordance with

28 U.S.C. 1257. Id. at 476 (noting that this statute limits the

Court's power to review cases coming from state courts).

In assessing whether the Georgia Supreme Court's

pronouncement was a final judgment on a constitutional issue,

this Court noted that there “are now at least four categories of

such cases in which the Court has treated the decision on the

federal issue as a final judgment for purposes of 28 U.S.C.

§ 1257 and has taken jurisdiction without awaiting the

6

completion of the additional proceedings anticipated in the

lower state courts.” Id. at 477-78.

The four categories are:

[(1)] those cases in which there are further

proceedings-even entire trials-yet to occur in the

state courts but where for one reason or another

the federal issue is conclusive or the outcome of

further proceedings preordained ... [(2) cases in

which] the federal issue, finally decided by the

highest court in the State, will survive and require

decision regardless of the outcome of future state-

court proceedings . . . [(3) cases] where the federal

claim has been finally decided, with further

proceedings on the merits in the state courts to

come, but in which later review of the federal issue

cannot be had, whatever the ultimate outcome of

the case ... [and (4)] those situations where the

federal issue has been finally decided in the state

courts with further proceedings pending in which

the party seeking review here might prevail on the

merits on nonfederal grounds, thus rendering

unnecessary review of the federal issue by this

Court and where reversal of the state court on the

federal issue would be preclusive of any further

litigation on the relevant cause of action rather than

merely controlling the nature and character of, or

determining the admissibility of evidence in, the

state proceedings still to come.

Id. at 479-83.

Based on the facts before it, the Court found that a final

judgment did in fact exist for purposes of exercising

jurisdiction. Id. at 485. More specifically, the Court found that

the “Georgia Supreme Court decision is plainly final on the

federal issue and is not subject to further review in the state

courts.” Id. The Court further explained that “[a]ppellants will

be liable for damages if the elements of the state cause of action

are proved. They may prevail at trial on nonfederal grounds,

it is true, but if the Georgia court erroneously upheld the

7

statute, there should be no trial at all.” Jd. The Court further

reasoned that:

[i]f appellants prevail at trial and made

unnecessary further consideration of the

constitutional question, there would remain in

effect the unreviewed decision of the State Supreme

Court that a civil action for publishing the name of

a rape victim . .. may go forward despite the First

and Fourteenth Amendments. Delaying final

decision of the First Amendment claim ... will

‘leave unanswered an important question

of freedom of the press under the First

Amendment. . ..On the other hand, if we now hold

that the First and Fourteenth Amendment bar civil

liability . . . this litigation ends.

Id. at 486. Essentially, the Court found a final judgment under

the fourth category described above.

In the instant Petition, the current status of the litigation

posture does not support this Court's exercising jurisdiction

under the final judgment rule. Respondents address each

category in turn below.

A. Category 1: “those cases in which there are further

proceedings-even entire trials-yet to occur in the

state courts but where for one reason or another the

federal issue is conclusive or the outcome of further

proceedings preordained.”

The federal issue claimed in the Petition pertains to the

constitutionality of the medical malpractice statutes of

limitation and repose as they apply to minors. Regardless of

whether this Court were to either uphold or reverse the

proclamation of constitutionality, this case will undoubtedly

continue in one form or another, both in the appeals process

and before the trial court. More specifically, following the

Georgia Supreme Court's opinion of February 27, 2006,

upholding the constitutionality of the statutes, the Georgia

Supreme Court transferred the case to the Georgia Court of

Appeal for further disposition. Depending upon the outcome

- 8

of that appeal, the case will either be transferred back to the

trial court for further proceedings or will likely be appealed

to the Georgia Supreme Court by writ of certiorari. Hence,

regardless of this Court's position on the constitutionality of

the statutes, the case will not end before this Court.

Additionally, there are other claims pending before the trial

court that were not subject to either of the pending appeals.

For this reason, this case does not satisfy the first category of

final judgments.

B. Category 2: “the federal issue, finally decided by

the highest court in the State, will survive and

require decision regardless of the outcome of future

state-court proceedings.”

In discussing this category, Cox Broadcasting identified

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120 (1945) as an

exemplary case. In Johnson, a party filed suit to prevent the

transfer of operation of a radio station pursuant to a lease.

The basis of the lawsuit was premised upon fraud. While the

suit was pending, the Federal Communications Commission

(“FCC”) consented to the transfer of the license to operate the

radio station.

The matter was appealed to the Nebraska Supreme Court

which reversed (and entered judgment for the respondent),

holding that the lease and license be set aside and that the

original status of the parties be restored. The Nebraska

Supreme Court further ordered an accounting of the operation

of the station by the lessee and that the income less operation

expenses be returned to the lessor. Jd. at 122. On a motion for

reconsideration, the petitioners asserted that only the FCC and

the federal courts had jurisdiction. Denying the motion, the

court clarified that the former opinion only vacated the lease

of the radio station (as opposing to rendering an opinion on

(licencing). Id. at 123 (acknowledging that issues of “licensing”

or transferring of license/annulling licenses are powers

reserved for the FCC).

This Court, in addressing the jurisdictional issue, found

that “[b]ecause of the importance of the contention that the

state court's decisiorm had invaded the domain of the Federal

9

Communications Commission, we grant certiorari.” Id. In

support of granting certiorari, the Court essentially found that

the pronouncement c‘ the state supreme court essentially left

nothing further to be done in the state court besides the

accounting, such that there was finality. Id. at 125-27 (noting

that the accounting left to be done in the trial court could not

remotely raise federal questions such that the Court would

have another opportunity to hear it); see also Brady v. Maryland,

373 U.S. 83, 85, n.1 (1963)(post-conviction motion for new trial

based on evidence withheld by prosecution; found finality of

judgment in that issue of retrial is a question independent of

and unaffected by what may transpire in a trial); Carondelet

Canal & Navigation Co. v. State of Louisiana, 233 U.S. 362 (1914).

Unlike Radio Station WOW, and as discussed supra in

Section A, regardless of this Court's ruling in this case, there

remains much litigation left in the underlying suit. This

includes the matters pending before the Georgia Court of

Appeals, the petition for certiorari to the Georgia Supreme

Court following the Georgia Court of Appeals opinion (and

to this Court) and a trial on issues and claims not subject to

either of the instant appeals. Moreover, a resolution of the state

law claims pending before the Georgia Court of Appeals could

also moot the constitutional issues presented to this Court by

finding that Petitioners’ claims are not barred by either statute.

Jefferson v. City of Tarrant, Alabama, 522 U.S. 75 (1997). Simply

stated, there in no finality. See generally Florida v. Thomas, 532

US. 774 (2001) (finding no finality and noting Court could

not assume that federal question would not later be presented

to the Court). The second class of finality of judgment simply

does not fit the facts before this Court.

C. Category 3: “where the federal claim has been

finally decided, with further proceedings on the

merits in the state courts to come, but in which later

review of the federal issue cannot be had, whatever

the ultimate outcome of the case.”

In this category of cases, as discussed by Cox Broadcasting,

the parties, after having their case remanded to the state courts,

have no further ability or avenue in which to bring the

10

constitutional issue back before this court. Cox Broadcasting,

420 U.S. at 481-82. More specifically stat-«".“ [t]he federal issue

would not survive the remand.” Id. at 402 (citing State Board of

Pharmacy v. Snyder’s Drug Store, 414 U.S. 156 (1973)).

This category does not apply to the facts before this Court.

As stated earlier, the posture of this case is unique in that there

is also currently an appeal pending before the Georgia Court

of Appeals. More specifically, upon the Georgia Supreme

Court's affirming the constitutionality of the statutes of repose

and limitations, it transferred the appeal to the Georgia Court

of Appeals for resolution of the remaining issues in the case

(i.e., what part of Petitioners’ claims, if any, are barred by the

Georgia statutes of repose and limitations). Given that the case

is currently pending in the Georgia Court Appeals, further

appeal to this Court is possible and quite probable.

When the Georgia Court of Appeals rules, the losing party

(or parties) can petition the Georgia Supreme Court for

certiorari. If that petition is denied, the party is entitled to again

petition this Court for certiorari. See Rule 38(b)(1) of the

Georgia Court of Appeals, which states in pertinent part:

“Notice of intention to petition for certiorari shall be filed with

the Clerk of this Court within 20 days after denial of a writ of

certiorari by the Supreme Court of Georgia.” At that point,

this Court will then have the ability and option to address the

constitutional issues presented in the current Petition.

Alternatively, if the Georgia Supreme Court grants certiorari,

upon issuing an opinion, either party may petition this Court

for certiorari in accordance with 28 U.S.C. § 1257. See generally

Florida v. Thomas, 532 U.S. 774 (2001) (finding no final judgment

and noting that review of question could be had a later date

in the case under the third.category); Jefferson v. City of Tarrant,

Alabama, 522 U.S. 75 (1997) (finding that constitutional issues

may come before court at a later time in the litigation process

and declining to find a final judgment).

11

D. Category 4: “those situations where the federal issue

has been finally decided in the state courts with

further proceedings pending in which the party

seeking review here might prevail on the merits on

nonfederal grounds, thus rendering unnecessary

review of the federal issue by this Court and where

reversal of the state court on the federal issue would

be preclusive of any further litigation on the

relevant cause of action rather than merely

controlling the nature and character of, or

determining the admissibility of evidence in, the

state proceedings still to come.”

In discussing this category, the Cox Broadcasting Court

identified Lo -al No. 438 Construction & General Laborers’ Union

et al. v. Curry, 371 U.S. 542 (1963). Cox Broadcasting, 420 U.S. at

483-84. In Curry, the Georgia Supreme Court upheld an

injunction against a labor union’s picketing of a construction

site. The entry of the injunction was premised on an alleged

violation of Georgia’s right to work statute. Curry, 371 US. at

545. In contesting th” injunction, the labor union claimed that

the Georgia courts did not have jurisdiction to enter an

injunction because the exclusive jurisdiction of the National

Labor Relations Board preempted the entire litigation. Id.

In finding that it had jurisdiction under § 1257, the Court

identified the relevant issues as “[w]hether or not the Georgia

courts have power to issue an injunction[.]” Id. at 548. This

issue was “ wholly separate from and independent of the merits

of respondents’ cause” (i.e. “the legality of the union’s

picketing”). Id. at 548-550. The Court also found that “unless

this judgment is reviewable now, petitioners will inevitably

remain subject to the issuance of the temporary injunction ...

and must face further proceedings in the state courts which

the state courts have no power to conduct.” Id.

The Court also found an additional independent basis for

jurisdiction. The Court determined that “for all practical

purposes the litigation in the Georgia courts terminated” with

the issuance of the Georgia Supreme Court opinion. Id. at 551.

The Georgia Supreme Court “not only finally asserted its

12

power to deal with the subject matter of this suit, but it also

resolved the merits of the issues raised in the course of the

hearing upon the temporary injunction.” Id. Moreover, the

petitioners admitted that there were no further factual or legal

issues pending in the Georgia trial court. Id.

Unlike Curry, even should the statutes of repose and

limitations be found to be unconstitutional, there will still

remain an entire trial on the merits in the trial court. A reversal

of the Georgia Supreme Court will not be “preclusive of

any further litigation on the relevant cause of action.”

Cox Broadcasting, 420 U.S. at 482-83. Rather, it would only serve

to broaden the scope of evidence to support Petitioners’ claim

for medical malpractice against the Respondents (i.e., allowing

a claim for liability that occurred more than five years before

Petitioners filed suit.). See also Curry, 371 U.S. at 551 (noting

that there was no remaining litigation pending in the Georgia

courts); Cox Broadcasting, 420 US. at 485 (finding that “if the

Georgia court erroneously upheld the statute, there should be

no trial at all” and that “the litigation could be terminated by

[the Supreme Court's] decision on the merits”).

Because the facts before this Court do not satisfy any of

the four categories of “finality”, this Court cannot take

jurisdiction to entertain Petitioners’ constitutional questions.

II. The Georgia Statutes Do Not Violate the Equal Protection

and Due Process Clauses of the Fourteenth Amendment.

The federal constitutional issue in the petition is: do

Georgia’s statutes of limitations and repose applicable to a

minor’s medical malpractice claim violate the equal protection

and due process clauses of the Fourteenth Amendment? The

Petitioners contend that the statutes are unconstitutional

because, unlike the general statute of limitations for personal

injury actions, they require a minor to file a medical

malpractice case before he reaches majority. The Petitioners

specifically argue that the Fourteenth Amendment precludes

the State of Georgia from expecting or requiring a minor “to

discern when a medically negligent act has occurred.”

(Petition, p. 11.) They further claim that review is warranted

13

because other state courts have declared similar statutes

unconstitutional. (Petition, pp. 19-30).

The Respondents explain below why the Petition does not

warrant review. First, the Respondents show that the Georgia

statutes do not deny the Petitioners equal protection or due

process. Second, the Respondents distinguish those state court

cases that the Petitioners claim support review.

A. Equal Protection

The threshold issue in analyzing the Petitioners’ equal

protection challenge is what level of scrutiny applies to the

Georgia statutory classifications. The Petitioners contend that

“heightened intermediate scrutiny” should apply. (Petition,

pp. 25-30.) They cite no decisions of this Court which impose

a heightened level of scrutiny for statutes that limit a minor’s

right to pursue a medical malpractice claim. Instead, they

essentially argue that the Georgia Supreme Court erred in

upholding the constitutionality of O.C.G.A. §§ 9-3-71 and 9-3-

73 because such a ruling is inconsistent with its own prior

decisions. (Petition, pp. 12-17.)

Thus, the issue remains: what level of scrutiny applies to

statutes that supplant general tolling provisions and require

a minor to bring a medical malpractice action before he reaches

majority? The Seventh Circuit Court of Appeals addressed this

issue in Douglas v. Hugh A. Stallings, M.D., Inc., 870 F.2d 1242

(7" Cir. 1989). There, the parents of a disabled child filed a

medical malpractice case against the estate and professional

corporation of the physician who delivered the child. As a

result of the physician’s alleged negligence, the child sustained

irreversible brain damage. The alleged negligence occurred

in Indiana and, therefore, the Indiana statute of limitations

applied. The Indiana statute provided a two-year limitations

period for medical malpractice cases, except that “[i]f the injury

occurs to a minor under the age of six, the action may be

commenced any time before the child’s eighth birthday.”

Id. at 1244, citing Ind. Code § 16-9.5-3-1. Under the pertinent

facts, the parents had until 1977 to file suit, but they did not

do so until 1984. The district court found that the Indiana

statute of limitations barred the parents’ action and awarded

14

sumrnary judgment to the defendants. On appeal, the parents

argued that the Indiana statute violated the equal protection

and due process clauses of the Fourteenth Amendment,

because minors such as their child “ who will never be free of

their legal disability ... should be treated as a suspect class

warranting strict scrutiny, or ata minimum, as a quasi-suspect

class requiring heightened scrutiny.” Douglas, 870 F.2d at 1245.

The Seventh Circuit began by identifying the proper level

of scrutiny to apply.

The success of plaintiffs’ equal protection challenge

to the malpractice statute of limitations turns on

the level of scrutiny applied to the statutory

classification. Economic or social legislation w nich

does not involve suspect classifications or infringe

on a fundamental interest is presumed

constitutional and will be upheld if it is rationally

relaied to a legitimate state interest. City of New

Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511,

96 S. Ct. 2513 (1976). It is a rare statute, indeed,

which cannot withstand the minimal rational

relationship analysis. But see, City of Cleburne v.

Cleburne Living Center, 473 U.S. 432, 87 L. Ed. 2d

313, 105 S. Ct. 3249 (1985).

Douglas, 870 F.2d at 1245. Judge Cummings noted that the

parents “have chosen an uphill battle in trying to persuade

this Court that persons legally disabled because of minority

and mental incapacity are a suspect classification.” Id. The

court rejected the parents’ attempt to analogize the

classification of mentally incompetent minors “to that of

illegitimate children, who have been recognized by the

Supreme Court as a quasi-suspect class warranting heightened

scrutiny.” Id. at 1246. In City of Cleburne, supra, this Court

specifically declined “to extend either strict or heightened

review to classifications involving the mentally retarded.”

Douglas, 870 F.2d at 1246, citing City of Cleburne, 473 U.S. at

446.

15

The Seventh Circuit then turned to classifications based

on age.

Likewise, statutes which classify on the basis of

age are subject only to the minimal rational

relationship review. ‘While the treatment of the

aged in this Nation has not been wholly free of

discrimination, such persons, unlike, say, those

who have been discriminated against on the basis

of race or national origin, have not experienced a

“history of purposeful unequal treatment” or been

subjected to unique disabilities on the basis of

stereo-typed characteristics not truly indicative of

their abilities.’ Massachusetts Board of Retirement v.

Murgia, 427 U.S. 307, 313, 49 L. Ed. 2d 520, 96S. Ct.

2562 (1976). Although the classification contained

in the malpractice statute of limitations

disadvantages minors rather than the elderly as in

Murgia, the reasoning behind the Supreme

Court's refusal to extend heightened scrutiny to

classifications of the aged applies equally to this

statute disadvantaging minors; i.e., when the

characteristics of a statutory classification are

relevant to the legitimate interests of the State,

the judiciary need not closely scrutinize the

legislation in question.... Legislative

classification based on youth ... is clearly

relevant to the state’s parens patriae

responsibilities toward minors.

870 F.2d at 1246-1247 (emphasis added.). The court

continued:

The challenged statutory classification of minor

children with permanent legal disabilities due to

diminished mental capacity implicates the

intersection of two characteristics, which

individually warrant only rational relationship

review. The concurrence of these two

characteristics does not change the Supreme

16

Court's directive that age and mental capacity are

often relevant statutory classifications which

need only be rationally related to a legitimate

state interest.

Id. at 1247 (emphasis added.).

Next, the court determined whether a rational relationship

existed “between the classification of minors with permanent

mental handicaps and the goals of the” Indiana statute. Id.

The Indiana legislature enacted the medical malpractice statute

of limitations “to address the concerns of rising medical costs

and the need for comprehensive, affordable health coverage.”

Id. It also “sought to control the escalation of malpractice

awards and concomitant increases in insurance premiums and

health care costs by modifying the procedural rules for

litigation.” Id. at 1248. Relying on Chase Securities Corp. v.

Donaldson, 325 U.S. 304 (1945) and G.D. Searle & Co. v. Cohn,

455 U.S. 404 (1982), the Seventh Circuit observed that “[i]n

general, statutes of limitations provide a desired order and

finality to the litigious process by way of an albeit arbitrary,

but bright line.” Douglas, id. The court then found that

“|cjreating a shorter period of limitations in which to

commence actions against health care providers is clearly a

rational legislative response to the fiscal uncertainties in the

health care industry.” Id. While sympathetic to the parents

and their child, the court was “compelled to find that the limits

imposed by the malpractice statute of limitations are certainly

rationally related to the stated goals of preventing stale claims

and controlling the cost of medical care.” Id. at 1249.

Here, the Petitioners challenge the Georgia statutes for

classifying minors with medical malpractice claims differently

from minors with other types of tort claims. Similar to the

parents in Douglas, the Petitioners frame the statutory

classification “by contrasting the general tolling statute of

limitations with the more limited malpractice tolling period.”

Id. at 1245. Douglas and, more importantly, Murgia establish

that statutory classifications based on age are subject to

17

“rational relationship review.” ° This level of scrutiny requires

the Petitioners as the challenging party to show that there is

no “reasonably conceivable state of facts that could provide a

rational basis for the classification.” Heller v. Doe, 509 U.S. 312,

320 (1993), quoting FCC v. Beach Communications, Inc., 508 U.S.

307, 313 (1993). Therefore, the Petitioners must show that

O.C.G.A. §§ 9-3-71 and 9-3-73 are not rationally related to a

legitimate state interest, and in doing so must refute (1) the

Georgia General Assembly’s clearly stated objectives and

(2) the Georgia Supreme Court’s determinations that the

subject statutes satisfy the applicable level of scrutiny.

O.C.G.A. § 9-3-71(a) provides a two-year statute of

limitations for medical malpractice actions, and O.C.G.A. § 9-

3-71(b) imposes a five-year statute of “ultimate repose and

abrogation.” See O.C.G.A. § 9-3-71(c). Prior to 1987, O.C.G.A.

§ 9-3-90(a) tolled the statutes of limitations and repose as they

applied to a minor's cause of action for medical malpractice.

See Smith v. Cobb County-Kennestone Hospital Auth., 423 S.E.2d

235, 236 (Ga. 1992). However, in 1987 the Georgia General

Assembly amended O.C.G.A. § 9-3-73 and “significantly

6. Other federal circuit courts of appeals have applied the rational

basis test in rejecting equal protection challenges to legislation creating

classifications in the medical malpractice context. See Gronne v. Abrams,

793 F.2d 74, 77-78 (2™ Cir. 1986)(New York “statutory distinctions” between

medical malpractice plaintiffs and other tort plaintiffs do not amount “to

the sort of invidious discrimination prohibited by the fourteenth

amendment”); Montagino v. Canale, 792 F.2d 554, 556-557 (5'* Cir.

1986)(Louisiana medical malpractice statute of limitations “does not

impinge on a fundamental right ... or involve a suspect classification”);

Hoffman v. United States, 767 F.2d 1431, 1435-1436 (9 Cir. 1985)(California

statutory cap on noneconomic losses in medical malpractice cases “does

not involve any suspect or quasi-suspect classification, a fundamental right,

or a classification req:1iring a heightened scrutiny” ); Brubaker v. Cavanaugh,

741 F.2d 318, 321 (10" Cir. 1984)(analyzing Kansas medical malpractice

statute of limitations and finding “that a rational relation exists between

the shorter limitation period for health care providers and the legitimate

objective of providing quality health care in Kansas”); DiAntonio v.

Northampton-Accomack Memorial Hosp., 628 F.2d 287, 291-292 (4" Cir.

1980)(Virginia legislation found not to violate equal protection because

“[t)he different treatment of medical malpractice plaintiffs from other tort

plaintiffs is not a denial of equal protection, when the special problems

posed by soaring insurance costs are considered”).

18

restricted the period of disability that would toll the operation

of O.C.G.A. § 9-3-71." Smith, id.

As amended, O.C.G.A. § 9-3-73(b) states that,

notwithstanding the general tolling provision in O.C.G.A.

§ 9-3-90(a),

all minors who have attained the age of five years

shall be subject to the periods of limitations for

actions for medical malpractice provided in this

article (the two-year limitations period in O.C.G.A.

§ 9-3-71(a)]. A minor who has not attained the age

of five years shall have 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.

O.C.G.A. § 9-3-73(c)(2)(A) and (B) require a medical

malpractice action on behalf of a minor to be commenced

before his tenth birthday if he was under the age of five on the

date the malpractice occurred, or within five years from the

date of the wrongful act if the minor was five or older on that

date. O.C.G.A. § 9-3-73(b) is a statute of limitations for minors’

medical malpractice claims; O.C.G.A. § 9-3-73(c) is a statute

of repose. See O.C.G.A. § 9-3-73(d). The 1987 amendment also

contained O.C.G.A. § 9-3-73(f), which states:

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 providin, 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 forthe —

public safety, health, and welfare as a whole.

The Georgia Supreme Court has rejected several

constitutional challenges to the post-1987 versions of O.C.G.A.

19

§§ 9-3-71 and 9-3-73. In Smith, supra, the court rejected an equal

protection challenge to O.C.G.A. § 9-3-73(b). Applying a

rational basis test, the court held “that the separate

classification of minors for purposes of medical malpractice

actions could accomplish the stated legislative objectives,”

namely those stated in O.C.G.A. § 9-3-73(f). Smith, 423 S.E.2d

at 239. In Craven v. Lowndes County Hosp. Auth., 437 S.E.2d 308

(Ga. 1993), the plaintiff argued that O.C.G.A. § 9-3-71(b) denied

him equal protection of the law because it “creates an arbitrary

classification” of medical malpractice claimants. Id. at 309. In

rejecting this argument, the court applied the rational basis

test and identified multiple state interests furthered by

O.CG.A. § 9-3-71(b): “Because of the nature of the practice of

medicine, uncertainty over the causes of illnesses and injury

make 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 310. Crowe v. Humana, Inc., 439 S.E.2d 654 (Ga.

1994) involved another equal protection attack on O.C.G.A. §

9-3-73(b). The plaintiffs, parents of a minor child, contended

that “O.C.G.A. § 9-3-73(b) violates constitutional equal

protection guarantees by excluding minors bringing medical

malpractice actions from the general period of disability

provided by O.C.G.A. § 9-3-90, and by establishing an arbitrary

and unreasonable period of disability.” Id. at 655. The court

found that it already decided this issue adversely to the

plaintiffs in Smith, supra. Crowe, id.

These decisions of the Georgia Supreme Court are

consistent with this Court's determination in Murgia that the

rational basis test applies to legislation containing age-based

classification. Moreover, the Georgia General Assembly has

identified rational, legitimate reasons for separately classifying

minors for purposes of medical malpractice cases. SeeO.C.G.A.

§ 9-3-73(f); Douglas, 870 F.2d at 1248-1249. The Petitioners have

pointed to no decisions of this Court that require a different

result, and they certainly have not met their burden of showing

why this Court should reject the Georgia General Assembly’s

“stated legislative objectives.” Therefore, the Georgia Supreme

20

Court correctly held in this case (as well as in Smith, Craven

and Crowe) that O.C.G.A. §§ 9-3-71 and 9-3-73 do not violate

the equal protection clause of the Fourteenth Amendment.

B. Due Process

The Petitioners also challenge O.C.G.A. §§ 9-3-71 and 9-

3-73 on due process grounds. They argue that due process

requires a “discovery rule”’ for limitations and repose

purposes “where the patient has not discovered either the

negligent act or the resultant injury.” (Petition, p. 17.) In the

medical malpractice context, Georgia law applies the discovery

rule only to those situations where a foreign object is left in

the patient: the limitations period does not begin to run until

after discovery of the negligent act, i.e. the failure to remove

or identify the foreign object. See O.C.G.A. § 9-3-72. For all

other medical injuries, the statute of limitations begins to run

at the first manifestation of an injury ®, and the statute of repose

“runs from the date on which the negligent or wrongful act or

omission occurred without regard to when the injury arising

from the negligent or wrongful act or omission occurred or

was discovered.” Christian v. Atha, 598 S.E.2d 895, 896

(Ga. App. 2004). According to Petitioners, applying the

discovery rule only to retained foreign object cases “is

arbitrary, unconscionable and denies due process because

patients, particularly minor ones, lack the competence and the

education to discern when a medically negligent act has

occurred, and children have no ability to ensure the protection

of their rights by age seven or ten, as O.C.G.A. § 9-3-73

prescribes.” (Petition, p. 11.)

The Seventh Circuit rejected a very similar argurnent in

Douglas, supra. The plaintiffs there argued that “application

of the occurrence rule which ties the running of the limitations

7. Under this theory, the statutes of limitation and repose would not

attach and begin to run until the plaintiff knew he was injured, could

identify his injury and the cause of his injury.

8. The one exception occurs in cases of misdiagnosis of an existing

condition, such as the case before this Court, when the statute of limitation

attaches and begins to run on the date of the misdiagnosis. See Kane v.

Shoup, 580 S.E.2d 555 (Ga. App. 2003).

21

period to the occurrence of the act or omission causing the

injury denie[d] them access to court before they [were] aware

of the existence of a cause of action.” Douglas, 870 F.2d at 1249.

The court began by dismissing the plaintiffs’ premise “that

due process requires the state to toll the statute of limitations

for persons with legal disabilities such as minority or mental

handicap.” Id. States can modify general tolling provisions

without violating due process, just as Indiana did in limiting

the general tolling statute’s applicability to product liability

actions. See Ind. Code § 33-1-1.5-5, Douglas, id.

The plaintiffs also claimed that “due process requires an

indefinite length of time” for filing medical malpractice actions,

particularly since the general tolling statute preexisted the

malpractice statute of limitations. Id. The court disagreed,

holding that “a tolling statute, like any procedural rule, cannot

vest plaintiffs with a substantive right in the continued

protection of that rule.” Id. See also Chase Securities Corp. v.

Donaldson, 325 U.S. at 314 (1945). Again explaining that

legislatures can modify procedural rules, the Seventh Circuit

cited this Court’s pronouncement in Martinez v. California, 444

U.S. 277, 282 (1980), “that the state’s interest in fashioning its

own rules of tort law is paramount to any discernible federal

interest except perhaps an interest in protecting the individual

citizen from state action that is wholly arbitrary or irrational.”

Douglas, 870 F.2d at 1250.

The Douglas court concluded with what is essentially the

Respondents’ position in this case.

As discussed supra, the malpractice statute of

limitations is clearly rationally related to its-goal

of relieving the malpractice insurance crisis. It is

the province of the Indiana legislature to allocate

the increased cost of health care between the health

care providers, insurance carriers and patients and

to determine under what circumstances it is

appropriate to delay the running of the statute of

limitations in spite of the increased risk of lost

evidence and lapse of memory. The state need not

provide a tolling provision for minority and mental

22

incompetence or a discovery rule in order to

comply with the due process guarantees of a

meaningful opportunity to be heard.

Id.

III. Contrary to Petitioners’ Claims on Pages 9-10 and 19-30

of Their Petition, There Are Not Square Conflicts Between

the Georgia Courts’ Constitutional Analyses of its

Medical Malpractice Statutes of Limitation and Repose

and Other State and Federal Courts’ Constitutional

Analyses of Those Respective States’ Medical Malpractice

Statutes of Limitation and Repose.

A. Cases cited by Petitioner as conflicting with Georgia

courts’ constitutional analyses of Georgia’s statutes

of limitation and repose are distinguishable as:

(1) the relevant statutes cited in those cases are

dissimilar to Georgia’s statutes of limitation and

repose; and (2) cases cited by Petitioner were held

to be unconstitutional as a matter of state

constitutional law, and not as a matter of federal

constitutional law.

(1) The state statutes cited by Petitioners as “conceptually

indistinguishable” (Petition, p. 9) from Georgia's statutes of

limitations and repose are in fact dissimilar to Georgia’s

statutes in several ways: (a) most of the cited statutes of

limitation attach and begin to run on the date of the negligent

act, whereas O.C.G.A. §§ 9-3-71(a) and 9-3-73(b) do not attach

and begin to run until an injury arising from a negligent act

first manifests itself; (b) most of the cited statutes of repose

have terms that are shorter than the five year term inO.C.G.A.

§ 9-3-71(b) and the five to ten year terms for minors inO.C.G.A.

§ 9-3-73(c); (c) health care providers can opt-in or opt-out of

the protections of some of the limitations statutes which

Petitioner cites; (d) these statutes are usually part of larger

medical malpractice acts, the purposes of which are to create

statutory medical malpractice insurance funds to cover those

providers who opt-in to and pay fees to these statutorily

created insurance funds; (e) the state and/or federal courts

reviewing the majority of the limitations statutes Petitioners

23

cite found that the sole purpose of the legislation was to combat

a perceived medical malpractice crisis, but they fail to take

into consideration and to discuss the difficulties and

consequences of litigating stale claims; (f) the prevention of

stale claims is stressed as one of the stated objectives of the

Georgia statutes, and the reasoning of the Georgia appellate

courts in finding O.C.G.A. §§ 9-3-71 and 9-3-73 constitutional

is heavily influenced by the undesirable alternative

consequences of statutorily mandated litigation of stale claims

which could conceivably result in tolling a minor's claim for

as many as twenty-three years after the negligent act; and

(g) at least one of the limitations/repose statutes Petitioners

cite does not act as a limitation at all because the state courts

decide whether or not to enforce the statute depending on the

judges’ subjective beliefs as to what may be reasonable or

unreasonable under the circumstances of individual cases.

The statutes of limitation from New Mexico, South Dakota

and Texas’ which Petitioners allege to be indistinguishable

from Georgia's statutes of limitation in O.C.G.A. §§ 9-3-71(a)

and 9-3-73(b) (See, Petition, pp. 9, 19-21, 25, and 28-25), actually

run from the date of the negligent act which is/can be much

earlier than the point at which Georgia’s statutes attach and

begin to run; i.e., from the date of the first manifestation of an

injury. Furthermore, the statutes of repose in New Mexico,

South Dakota, Texas, Utah, and Ohio,’® which Petitioners

allege to be indistinguishable from O.C.G.A. §§ 9-3-71(b) and

9-3-73(c), are actually shorter than the five year term set out in

O.C.G.A. § 9-3-71(b) and the five to ten year terms set out in

O.C.G.A. §9-3-73(c). Had the courts of these states had the

opportunity to apply statutes of limitation and repose identical

to Georgia’s, which attach at the point when the injury first

manifested itself (See, O.C.G.A. §§ 9-3-71(a) and 9-3-71(b)), and

9. See Jaramillo v. Heaton, 100 P.3d 204, 206-207 (N.M. Ct. App. 2004),

Lyons v. Lederle Laboratories, 440 N.W.2d 769, 770 (S.D. 1989), and Sax v.

Votteler, 648 S.W.2d 661, 663 (Tex. 1983).

10. See Jaramillo, 100 P.3d at 206-207, 208; Lyons, 440 N.W.2d at 770;

Sax, 648 S.W.2d at 663; Lee v. Gaufin, 867 P.2d 572, 574 (Utah 1993), Schwan

v. Riverside Methodist Hospital, 452 N.E.2d 1337, 1338 (Ohio 1983), Mominee

v. Scherbarth, 503 N.E. 2d 717, 719-720 (Ohio 1986).

24

which provide minors with a five to ten year period after the

negligent act before the statute of repose abrogates their claims

(See O.C.G.A. § 9-3-73(c)), the outcomes of these cited cases

may well have been different.

Additionally, in New Mexico, health care providers can

either opt-in to the protections of the state’s three year statute

of limitation/repose by paying $600,000.00 to the state

superintendent of insurance and by making regular payments

into the statutorily created insurance fund; or, if they choose

not to invest these amounts, they do not get the protection of

the three year statute of limitation/ repose in the New Mexico

Medical Malpractice Act.‘ Whereas, Georgia’s medical

malpractice statutes of limitation and repose apply to all

licensed physicians in Georgia; nobody gets to “opt-in” or

“opt-out”. Furthermore, the New Mexico courts are not

consistent in their application of the state’s statute of

limitation/ repose as the courts may decide not to enforce the

statute at all in any given situation depending on whether the

judges think its effects would be “unreasonable” under the

circumstances of the individual case.”

In the cases Petitioners cite from New Mexico, South

Dakota, Texas, Utah, Ohio and Arizona, the purpose or

objective given for each state’s medical malpractice statutes

of limitation and/or repose is primarily, if not completely,

limited to addressing the perceived medical malpractice crisis

facing that state or the nation as a whole.” The Petitioners

expend a great deal of ink denouncing the validity of the states’

use of their perceived medical malpractice crises as the basis

for the implementation of their respective medical malpractice

statutes of limitation and repose (See Petition, pp 21-23, 27

and 29); however neither the Petitioners nor the cited opinions

11. See the Medical Malpractice Act of New Mexico, N.M.S.A. §§ 41-5-1

et seq.

12. Jaramillo, 100 P.3d at 207.

13. See Jaramillo, 100 P.3d at 208; N.M.S.A. § 41-5-2; Lyons, 440 N.W.2d

at 771; Sax, 648 S.W.2d at 666; Lee, 867 P.2d at 576; Schwann, 452 N.E. 2d at

302; Mominee, 503 N.E.2d at 721; and Kenyon v. Hammer, 688 P.2d. 961, 964

(1984). ‘

25

dedicate any amount of discussion to the consideration of the

difficulties and consequences of litigating stale claims when

determining whether the states’ objectives are legitimate and

whether the statutes in question are rationally related to those

objectives. Whereas, prominent in the opinions of Georgia's

appellate courts are the acknowledgments and discussions that

the objectives of Georgia’s medical malpractice statutes of -

limitation and repose are to avoid the difficulties and

consequences of litigating stale claims.

The Georgia Supreme Court opined in Allrid v. Emory

University, 285 S.E.2d 521 (Ga. 1982) and Smith et al. v. Cobb

County-Kennestone Hospital Authority, 423 S.E.2d 235, 240 (Ga.

1992):

Statutes of limitation . . . in their conclusive effects

are designed to promote justice by preventing

surprises through the revival of claims that have

been allowed to slumber until evidence has been

lost, memories have faded, and witnesses have

disappeared. The theory is that even if one has a

just claim it is unjust not to put the adversary on

notice to defend within the period of limitation and

that the right to be free of stale claims in time comes

to prevail over the right to prosecute them.

This Court may recognize these words and phrasing as they

are almost identical to those in Order of Railroad Telegraphers v.

Railway Express Agency, Inc.,321 U.S. 342, 349 (1944), and Chase

Securities Corp., v. Donaldson et al., Executors, 325 U.S. 304, 314

(1945) concerning the purposes of limitations statutes. The

Chase Court elaborated further:

Statutes of limitation find their justification in

necessity and convenience rather than 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 evidence has been lost. [internal cite omitted].

They are by definition arbitrary, and their operation

26

does not discriminate between the just and the

unjust claim, or the voidable and unavoidable

delay. They have come into the law not through

the judicial process but through legislation. They

represent a public policy about the privilege to

litigate.

Chase, 325 U.S. at 314 (emphasis added).

In Craven v. Lowndes County Hospital Authority, 437 S.E.2d

308 (Ga. 1993), the Georgia Supreme Court reiterated its

opinion that Georgia’s medical malpractice statutes of

limitation and repose were rationally related to the legitimate

interest of the state in eliminating stale claims:

This amounts to a recognition that the legislature

may conclude that the time may arrive when past

transgressions are no longer actionable. The long

history of such conclusions emphasizes their rationality.

From the biblical time of the Year of Jubilee to the

present day, policymakers have exercised the right

to “wipe the slate clean” after a fixed period of time.

In doing this, there is a clear distinction between a

statute of limitation “barring” an action, and a

statute of repose providing for abolition of a cause

- of action after the passage of the time provided.

We cannot say that the legislature acted irrationally

when it amended the statute in question.

Craven, 437 S.E.2d at 31 (emphasis added).

In text, extent, intent and purpose, the medical malpractice

statutes of limitation and repose Petitioners cite as being

indistinguishable from O.C.G.A. §§ 9-3-71 and 9-3-73 are in

fact very distinguishable as explained, supra; and the

constitutional analyses of these allegedly similar statues can,

therefore, only be different from the constitutional analyses

of Georgia’s statutes.

(2) Cases and their constitutional analyses cited by

-Petitioners as conflicting with Georgia’s appellate courts’

constitutional analyses of its medical malpractice statutes of

limitation and repose were decided as a matter of state

27

constitutional law, and not as a matter of federal constitutional

law.

There is no prohibition against a state constitution

providing to its citizens rights and protections in addition to

those provided by the U.S. Constitution. Sax, 648 S.W.2d at

664. The statutes cited from New Hampshire, South Dakota,

Texas, Arizona, Utah and Ohio were all found to violate

various provisions of those states’ constitutions“ which have

no counterparts in the federal constitution. The courts either

held that: the right to recovery for personal injury and/or the

right to access to the courts were fundamental or important

substantive rights under their constitutions; or that the states’

constitutions included open courts provisions; or that the

statutes created suspect or quasi-suspect classes; and therefore,

the statutes in question had to undergo strict or elevated

scrutiny to pass constitutional muster.’® Georgia does not have

similar additional provisions in its constitution, which instead

tracks the U.S. Constitution. Therefore, since Georgia's statutes

of limitation and repose do not impinge on a fundamental or

important substantive right guaranteed by the federal

constitution, and they do not involve a suspect or quasi-suspect

class, they must only undergo rational basis scrutiny in order

to be constitutional.”

B. Statutes of limitation and repose are exactly those

types of legislation which may conflict from state

to state because they are examples of social and

economic legislation, for which the Equal Protection

clause of the Fourteenth Amendment gives

legislatures wide latitude to formulate.

Legislatures are given wide latitude in formulating social

and economic legislation based on the individual state’s goals

14. See Carson v. Maurer, 424 A.2d 825, 831 (1980); Lyons, 440 N.W.2d

at 770-772; Sax, 648 S.W.2d at 664-667; Kenyan, 688 P.2d at 968-975; Lee, 867

P.2d at 577-589; Schwann, 452 N.E.2d at 301-303; and Mominee, 503 N.E.2d

at 720-722.

15. Id.

16. City of New Orleans, 427 U.S. at 303.

28

and governmental interests.'”? Courts are reluctant, as they

should be in our federal system with our respect for the

separation of powers, to closely scrutinize legislative choices

as to whether, how, and to what extent those interests should

be pursued. City of Cleburne, 473 U.S. at 441. To be

constitutional, the Equal Protection Clause requires only a

rational means to serve a legitimate end. Id., at 442. Courts

must refrain from acting as a super-legislature to judge the

wisdom or desirability of legislative policy determinations

made in the legislative sphere. Houk v. Furman, 613 F.Supp.

1022, 1030 (1985) citing City of New Orleans, 427 U.S. at 303; see

also, Martinez, 444 US. at 283 ("As federal judges we have no

authority to pass judgment on the wisdom of the [legislature’s]

underlying policy determination”).

Because of the wide latitude given in formulating social

and economic legislation, it is not a surprise that states may

address similar problems with widely varying legislation, or

that they may use similar legislation to address very different

problems. Regardless, these statutes are presumed valid and_

not in violation of the equal protection clause or the due

process clause of the Fourteenth Amendment to the U.S.

Constitution as long as they do not concern a suspect class or

a fundamental right or gender or illegitimacy, and they must

be rationally related to a legitimate governmental interest.”

In order to make this determination the courts must answer

two questions: (1) Does the legislation have a legitimate

purpose; and (2) Was it reasonable for lawmakers to believe

that implementation of the statutes in question would promote

that iegitimate purpose.

The main underlying purpose of Georgia’s medical

malpractice statutes of limitation and repose is the prevention

and elimination of stale claims, which has been found by the

state supreme court to be a legitimate governmental interest,

as discussed previously. Moreover, this Court in Chase and

Order of Railroad Telegraphers has recognized the prevention

and elimination of stale claims as a legitimate governmental

17. City of Cleburne, 473 U.S. at 440.

18. City of New Orleans, id. _

29

interest; most, if not all, state and federal courts would be hard-

pressed to disagree.

In response to the second question involved in rational

basis scrutiny, it was and is certainly reasonable for Georgia

lawmakers to believe that a two year statute of limitation for

medical malpractice claims of adults and minors over the age

of five, would promote the legitimate objective of eliminating

stale claims; especially when the alternative suggested by

Petitioners would allow minors to wait as many as twenty

years to bring a claim, at which time the disability of minority

would be removed.” Likewise, it was and is certainly

reasonable for Georgia lawmakers to believe that the five year

statute of repose for adults and minors age five and older,

and the repose statute for minors injured prior to age five

which does not expire until the minor’s tenth birthday, would

promote the legitimate purpose of eliminating state claims;

especially when the alternative for minors suggested by the

Petitioners would be to toll the five year statute of repose until

the child reaches majority, which could conceivably allow as

many as twenty-three years to pass before the minor's cause

of action would be abolished. In this amount of time memories

will no doubt fade, witnesses will disappear and/or die, and

evidence will most definitely be lost, making the successful

pursuit and/or defense of that claim almost impossible for

either the plaintiff or the defendant.

Georgia’s interest in preventing and eliminating stale

claims is legitimate, and its medical malpractice statutes of

limitation and repose rationally promote that interest. These

statutes do not involve suspect classes, fundamental rights,

or issues of gender or illegitimacy, therefore they must

only survive rational basis scrutiny to be constitutional.

As demonstrated by Respondents’ brief, supra, Georgia's

medical malpractice statutes of limitation and repose are

constitutional, and Petitioners’ premature petition for

certiorari should be denied.

19. Majority status in Georgia is eighteen years old. Therefore, if the

two year statute of limitation is determined to be tolled until a minor turns

eighteen, then it is possible that twenty years could elapse before a minor

is required to file his claim.

30

CONCLUSION

The Petition does not warrant review. The Petitioners

cannot establish that this Court has jurisdiction under 28 U.S.C.

§1257(a) in order to address the constitutional challenges raised

by Petitioners. In fact, the Respondents have affirmatively

shown the lack of any such jurisdiction. Nor can the Petitioners

carry their burden of showing that the Georgia statutes are

unconstitutional. The Respondents have shown that the

rational basis test applies to the statutes and that the Georgia

legislature and judiciary have identified legitimate

justifications for the statutory classification. And, the

Respondents have further demonstrated that there is no true

conflict among the state courts in this country in their analyses

of their respective statutes of repose and limitations. For these

reasons, Respondents respectfully urge this Court to deny

Petitioners’ Petition.

Respectfully submitted,

WILLIAM P. FRANKLIN, JR. ADAM L. AppEL*

Leste Pickett SHEEHAN Kim M. RUDER

Oxtrver Maner & Gray LLP Carvock CopeLanpb

P.O. Box 10186 SEMLER & STAR, LLP

Savannah, GA 31412 2600 Marquis Two Tower

Attorneys for Respondent 285 Peachtree Center Avenue

Ayman Al-Jabi, M.D. Atlanta, GA 30303

: (404) 522-8220

James S. V. WESTON Attorneys for Respondent

HuL_, TowiL_, NORMAN, Sharon J. Kaminer, M.D.

BarRETT & SALLEY

P.O. Box 1564

Augusta, GA 30903-1564

Attorneys for Respondent

MCG Health, Inc. * Counsel of Record