Raskin v. Wallace, A94A1870
Court | United States Court of Appeals (Georgia) |
Citation | 451 S.E.2d 485,215 Ga.App. 603 |
Docket Number | No. A94A1870,A94A1870 |
Parties | RASKIN v. WALLACE. |
Decision Date | 22 November 1994 |
Fred Raskin, pro se.
Sullivan, Hall, Booth & Smith, John E. Hall, Jr., David G. Goodchild, Atlanta, for appellee.
Appellant, Fred Raskin, is an inmate who was convicted of murdering his wife. Prior to the murder, Raskin was a psychiatric patient of appellee, Dr. James Wallace. Raskin filed an action for medical malpractice against Wallace alleging that Wallace was unprofessional and erred in his care of Mr. and Mrs. Raskin, resulting in Mrs. Raskin's death and Mr. Raskin's imprisonment. Contemporaneously with the complaint, Raskin filed his own affidavit entitled "The Affidavit of Fred Raskin as to the Expert Witness Harold Clifford Morgan and his testimony." Dr. Morgan is a Board certified psychiatrist who evaluated Raskin and testified at Raskin's criminal trial that Raskin's physician should have hospitalized him immediately after Raskin began threatening to kill his wife. Raskin attached to his affidavit certain portions of the transcript from Dr. Morgan's trial testimony and averred the transcript should be incorporated into the affidavit, thereby satisfying the expert affidavit requirement under OCGA § 9-11-9.1.
Wallace moved to dismiss the complaint and the trial court granted the motion, holding that Raskin's affidavit was based on hearsay, not based upon proper expert testimony and otherwise insufficient to constitute a proper affidavit under OCGA § 9-11-9.1.
1. Raskin contends the trial court erred in ruling that his affidavit was insufficient because he is an indigent inmate who cannot afford an expert witness as required by OCGA § 9-11-9.1 and, accordingly, he has been denied access to the courts and equal protection of the law. " ' " Archie v. Scott, 190 Ga.App. 145, 146(1), 378 S.E.2d 182 (1989). Thus, only if the constitutionality of OCGA § 9-11-9.1 had been raised and ruled upon below, would it be proper to transfer this case to the Supreme Court. Although Raskin raised his equal protection argument below, the trial judge did not "distinctly pass" or rule on it. Accordingly, Raskin's equal protection enumeration presents nothing for review by any appellate court. Id.
2. Raskin also contends the trial court erred because Dr. Morgan is an expert in psychiatry competent to testify and Raskin's affidavit, which recited and attached parts of Dr. Morgan's trial testimony, was sufficient to satisfy OCGA § 9-11-9.1. 0-1 Doctors Mem. Holding Co. v. Moore, 190 Ga.App. 286, 288(1), 378 S.E.2d 708 (1989). Our Supreme Court...
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