Glisson v. Hospital Authority of Valdosta & Lowndes County

• Decision Date: 14 February 1997
• Docket Number: No. A96A2128,A96A2128
• Parties: , 97 FCDR 629 GLISSON v. HOSPITAL AUTHORITY OF VALDOSTA & Lowndes County et al.
• Court: Georgia Court of Appeals

Page 612

481 S.E.2d 612

224 Ga.App. 649, 97 FCDR 629

GLISSON v. HOSPITAL AUTHORITY OF VALDOSTA & Lowndes County et al.

No. A96A2128.

Court of Appeals of Georgia.

Feb. 14, 1997.

O. Wayne Ellerbee, Valdosta, for appellant.

Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, Valdosta, for appellees.

ELDRIDGE, Judge.

This is an action for medical malpractice wherein the trial court granted appellees' motion to dismiss on April 12, 1996, based upon appellees' assertion that appellant failed to comply with the provisions of OCGA § 9-11-9.1(b).

On November 3, 1995, appellant filed a medical malpractice action against appellees. Appellant contacted an attorney only eight days prior to the running of the statute of limitation. Appellant did not attach an expert's affidavit to the complaint when it was originally filed, as is required by OCGA § 9-11-9.1(a), because there was not sufficient time to do so before the statute of limitation ran. However, in Count 1, paragraph 20 of the complaint, appellant states "[t]he affidavit as required by law will be filed in accordance with OCGA § 9-11-9.1(b) since the complaint is filed within ten days of the expiration of the applicable statute of limitations." Appellant also states in Count 2, paragraph 28, of her complaint that "[t]he applicable statute of limitations will expire within 10 days of the date of this filing." Appellant did not plead in the original complaint that the appellant was prevented from obtaining the affidavit because there was not sufficient time to do so before the statute ran, since the lawyers had not been retained more than ten days prior to the running of the statute of limitation: "The affidavit as required by law shall be filed in accordance with OCGA § 9-11-9.1(b) since the complaint is filed within ten days of the expiration of the applicable statute of limitations." Subsequently, on December 13, 1995, appellant filed the affidavit of Larry R. Leichter, M.D., which satisfied the affidavit requirements under OCGA § 9-11-9.1.

On December 18, 1995, appellees answered appellant's complaint, alleging that appellant failed to comply with OCGA § 9-11-9.1 including, but not limited to, OCGA § 9-11-9.1(b), because appellant did not specifically plead in the complaint that because of time restraints, an affidavit could not be prepared and filed at the time the original complaint was filed. On that basis, appellees requested that appellant's complaint be dismissed.

On January 10, 1996, appellant filed an amendment to her complaint, amending paragraph 28 to state that "[t]he affidavit as required by law shall be filed in accordance with OCGA § 9-11-9.1(b) since this complaint is filed within ten (10) days of the expiration of the applicable statute of limitations. Plaintiff first consulted the undersigned counsel on October 30, 1995, a mere eight days prior to the expiration of the statute of limitations. Plaintiff's counsel was unable to obtain an affidavit because of the aforementioned time constraints. Therefore, the plaintiff is invoking the automatic fourty-five [sic] (45) day extension provided for in OCGA § 9-11-9.1(b)."

On April 11, 1996, the trial court granted appellees' motion, even though appellant had raised equal protection and due process issues in opposition to appellees' motion to dismiss, which issues attacked the necessity to plead the reason for the delay and non-amendability of the complaint as being unconstitutionally applied. Appellant appealed the superior court's dismissal to the Georgia Supreme Court, alleging that OCGA § 9-11-9.1(b) is unconstitutional because it violates due process of law and equal protection rights and violates the prohibition against retroactive laws.

The Supreme Court has exclusive jurisdiction over appeals challenging the constitutionality of a statute for the first time when the constitutional issue has not been previously passed upon by the Supreme Court. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II(1). However, the Supreme Court, on its own motion, entered an order holding that the appeal raised only issues of statutory construction, rather than constitutional issues, and transferred the appeal to this Court. The transfer represents the Supreme Court's determination that the case sub judice is not a case involving a constitutional issue over which the Supreme Court has exclusive jurisdiction. Atlanta Independent School System v. Lane, 266 Ga. 657, 469 S.E.2d 22 (1996). The Supreme Court has previously held that OCGA § 9-11-9.1 as enacted by the General Assembly is constitutional. Lutz v. Foran, 262 Ga. 819, 427 S.E.2d 248 (1993).

However, a constitutional statute can be unconstitutionally applied. Therefore, this Court has jurisdiction to construe OCGA § 9-11-9.1(b) in order to determine if the trial court erred in its application of that statute by granting appellees' motion to dismiss and to determine if OCGA § 9-11-9.1(b), as applied by this Court to the factual scenario in Keefe v. Northside Hosp., 219 Ga.App. 875, 467 S.E.2d 9 (1996), impacts upon appellant's rights of equal protection and due process under the law; such applications of OCGA § 9-11-9.1 were the enumerations of error presented to the Supreme Court for determination.

1. OCGA § 1-3-1(a) requires that "[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy." "A statute is presumed to be valid and constitutional until the contrary appears." Williams v. Ragsdale, 205 Ga. 274, 277, 53 S.E.2d 339 (1949). "An act of the General Assembly carries a strong presumption of constitutionality, and therefore, should not be set aside unless it 'plainly and palpably' conflicts with a constitutional provision." City of Atlanta v. MARTA, 636 F.2d 1084 (5th Cir.1981). " 'It is the duty of courts, to put such a construction upon statutes, if possible, as to uphold them and carry them into effect.' " Lamons v. Yarbrough, 206 Ga. 50, 55 S.E.2d 551 (1949), quoting Winter v. Jones, 10 Ga. 190 (1851). "That construction which will uphold a statute in whole and in every part is to be preferred." Exum v. City of Valdosta, 246 Ga. 169, 170(1), 269 S.E.2d 441 (1980). Under such standards of statutory construction, to avoid a constitutional issue, and under the transfer order from the Supreme Court directing that the case sub judice be decided by application of statutory construction, this Court will address on appeal the issue of the validity of the amendment to appellant's complaint filed under OCGA § 9-11-9.1(b), because such enumeration of error is the sole underlying basis for the constitutional errors enumerated.

First, it is important to note that this case is distinguishable on both the facts and the law from Keefe v. Northside Hosp., supra. In Keefe, the plaintiffs never amended or sought to amend their complaint to include the language of OCGA § 9-11-9.1(b) or the substantial equivalent. In the case sub judice, appellant immediately amended the complaint to provide language in full compliance with OCGA § 9-11-9.1(b). Further, the amendment to the complaint in the instant case in order to plead the language of OCGA § 9-11-9.1(b) occurred prior to the trial court's ruling and prior to the Keefe decision. Moreover, that portion of the Keefe decision which states that the failure to include the language of OCGA § 9-11-9.1 is a situation "which cannot be cured by amendment pursuant to OCGA § 9-11-15," id. at 877, is obiter dictum; it was outside the holding and facts of Keefe, was unnecessary in order to decide the issues and facts properly before the court for decision, and, thus, "lack[ed] the force of an adjudication." White v. State, 213 Ga.App. 429, 430, 445 S.E.2d 309 (1994).

Additionally, our decision in Thompson v. Long, 201 Ga.App. 480, 481(1), 411 S.E.2d 322 (1991), permitted amendment to the body of the complaint in order to allow for the pleading of the provisions of OCGA § 9-11-9.1(b). Keefe distinguished Thompson v. Long, on the basis that the complaint was filed pro se and the amendment was filed by subsequently retained counsel. Thus, Keefe properly distinguished Thompson v. Long, on the facts and law, because in Keefe there was no amendment whatsoever to the pleadings under OCGA § 9-11-9.1(b). However, Thompson v. Long, is controlling in the case sub judice, because in both Thompson v. Long, and in the instant case a factual pattern existed wherein there was an amendment in order to add the affidavit within 45 days, the filing of the affidavit within such time, and an amendment to the body of the pleadings to set forth such right under OCGA § 9-11-9.1(b), a scenario which did not exist in Keefe. In Thompson v. Long, this Court found that OCGA § 9-11-15 did permit amendment to the body of the complaint under OCGA § 9-11-9.1(b), pursuant to the authority of St. Joseph's Hosp. v. Nease, 259 Ga. 153, 154(1), 377 S.E.2d 847 (1989). See also Bell v. Figueredo, 259 Ga. 321, 381 S.E.2d 29 (1989); Patterson v. Douglas Women's Center, P.C., 258 Ga. 803, 374 S.E.2d 737 (1989); Glaser v. Meck, 258 Ga. 468, 369 S.E.2d 912 (1988); Waldroup v. Greene County Hosp. Auth., 204 Ga.App. 256, 419 S.E.2d 36 (1992); Reid v. Brazil, 193 Ga.App. 1, 387 S.E.2d 1 (1989); Hosp. Auth. of Fulton County v. McDaniel, 192 Ga.App. 398, 385 S.E.2d 8 (1989). Moreover, permitting amendment to a complaint filed under OCGA § 9-11-9.1 is consistent with the intent of the legislature as demonstrated by a review of the legislative history of the act.

The legislative purpose for OCGA § 9-11-9.1 was "to reduce the number of frivolous malpractice suits being filed" where the plaintiff did not have an expert to testify as to a single act of professional negligence in contravention of the professional standard of care. 0-1 Doctors, etc. Co. v. Moore, 190 Ga.App. 286, 288(1), 378 S.E.2d 708 (1989). In Ga. L.1987, p. 887, § 3, the...