Raskin v. Wallace, A94A1870

Decision Date22 November 1994
Docket NumberNo. A94A1870,A94A1870
Citation451 S.E.2d 485,215 Ga.App. 603
CourtGeorgia Court of Appeals

Fred Raskin, pro se.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., David G. Goodchild, Atlanta, for appellee.

RUFFIN, Judge.

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. " 'A constitutional question is within (the Supreme) (C)ourt's jurisdiction if it involves ... an attack upon the constitutionality of some law of this state.... (Cit.)' Zepp v. Mayor & Council of Athens, 255 Ga. 449, 451(2) (339 SE2d 576) (1986). However, '(i)t clearly is the law of this state that the Supreme Court is not required to and "will [not] pass upon the constitutionality of an act of the General Assembly unless it clearly appears in the record that the point was ... distinctly passed on by the trial judge. (Cits.)" ' " 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. "We [have construed] OCGA § 9-11-9.1 as establishing an 'exception to the general liberality of pleading permitted under (the Civil Practice Act, ...),' [cit.], by requiring when a malpractice suit is instituted ... an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant.... The purpose of OCGA § 9- 11-9.1 is to reduce the number of frivolous malpractice suits being filed...." 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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13 cases
  • Preston v. Georgia Power Co.
    • United States
    • Georgia Court of Appeals
    • July 16, 1997
    ...this Court on the ground that the trial court decided no constitutional issue in the order appealed from. See Raskin v. Wallace, 215 Ga.App. 603, 604(1), 451 S.E.2d 485 (1994). The trial court granted summary judgment to Ashland on the ground of the workers' compensation tort bar and to Geo......
  • Sherin v. Department of Human Resources
    • United States
    • Georgia Court of Appeals
    • November 4, 1997
    ...§ 50-21-24. Atlanta Independent School System v. City of Atlanta, 266 Ga. 657, 658(1), 469 S.E.2d 22 (1996); Raskin v. Wallace, 215 Ga.App. 603, 604(1), 451 S.E.2d 485 (1994). 3. The first two enumerations deal with the summary judgment granted to Reid on the § 1983 claims and are considere......
  • Trabue v. Atlanta Women's Specialists, LLC
    • United States
    • Georgia Court of Appeals
    • March 7, 2019
    ...of malpractice asserted against each of the defendants named in the complaint").12 (Punctuation omitted.) Raskin v. Wallace , 215 Ga. App. 603, 605 (2), 451 S.E.2d 485 (1994).13 See Bonner , 301 Ga. App. at 447 (1), 687 S.E.2d 676.14 See OCGA § 9-3-71 (a) (Generally, "an action for medical ......
  • Harrell v. LITTLE PUP DEV. AND CONST., S98A0217.
    • United States
    • Georgia Supreme Court
    • February 23, 1998
    ...Ga. 632, 634(2), fn. 2, 458 S.E.2d 818 (1995); Bourn v. Herring, 225 Ga. 67, 69(1)(b), 166 S.E.2d 89 (1969); Raskin v. Wallace, 215 Ga.App. 603, 604(1), 451 S.E.2d 485 (1994). Accordingly, we find that the trial court erred in failing to grant injunctive Judgment reversed. All the Justices ......
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1 books & journal articles
  • Trial Practice and Procedure - C. Frederick Overby and Jason Crawford
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 47-1, September 1995
    • Invalid date
    ...(1993). 2. Id. 3. Sisk v. Patel, 217 Ga. App. 156, 160, 456 S.E.2d 718, 720 (1995). 4. 217 Ga. App. 156, 456 S.E.2d 718 (1995). 5. 215 Ga. App. 603, 451 S.E.2d 485 (1994). 6. 262 Ga. 234, 416 S.E.2d 285 (1992). 7. Id. at 235, 416 S.E.2d at 285 (citations omitted). 8. Raskin, 215 Ga. App. at......

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