*1
proof assigned
ski satisfied the burden of
v.
County
under Aden’s Minit Market
App.
supra,
Maloney
Landon,
202 Ga.
overruled in
v. Gordon
supra.
Farms,
825, 827-829,
Judge, dissenting.
Blackburn,
respectfully
opinion
majority,
dissent from the
Ias
expert’s testimony
require-
believe that the
ments of
was sufficient to meet the
Maloney
County
v. Gordon
Farms,
Mundy Gammage, Kelly Gammage, appellant. & B. for Copeland, Webb, Carlock, Stair, Semler & Semler, Robert C. Col- appellees. O’Neill, leen P. A96A0659. BRADEN v. BELL et al.
Birdsong, Presiding Judge. appeals Steven Meredith Braden his wife Martha Braden grant Bell, Jr., M.D., to H. V. H. D. Meltzer, M.D., the estate of Meltzer, M.D., H. D. Bell-Meltzer Pathol- ogy Group, Hospital P.A., and South Fulton n/k/a South Fulton Medi- medical Inc., death Center, in Braden’s action cal alleging malpractice. 1, 1995, filed June was failing appellees in March 1984 medical committed malignant diagnose carcinoma of had a Meredith Braden that Steven on June Meredith Braden’s death caused Steven testes that misdiagnosis alleged dis- further 1993. *2 sought January fur- Braden Steven Meredith in when covered by expert’s supported an was treatment. The ther medical in the taken March had reviewed slides affidavit which he misdiagnosed appellees Steven Meredith that had 1984 and found Braden’s cancer. liability, appellees and denied the
After answered pleadings they judgment which asserted on the filed a motion for by repose five-year the medical statute that the action was barred (b) complaint alleged § the that in 9-3-71 because contained OCGA malpractice in but the com- was committed March the medical plaint (b) provides § 1995. OCGA 9-3-71 was not filed (a) “[n]otwithstanding section, in no of this Code that subsection brought may more than for medical be event an action negligent wrongful or after the date on which the five granted Subsequently, the the motion trial court omission occurred.” pleadings appealed judgment that to and Braden decision on the (b) appeal Supreme § the contended OCGA 9-3-71 our Court because was unconstitutional. appeal merely
Finding “any issue in this that application law to the facts involves the of established constitutional Supreme [this] case,” the the case for consid- Court transferred our alleges by failing to treat eration. Braden the motion for that the trial court erred the as to a motion (b) by finding § claim; to a erred that OCGA does failure state equal protection guarantees not the State of of the Constitutions of violate the Georgia by finding States; and of the United erred that proper apply the the rational basis test was standard when consid- (b) ering equal protection § whether OCGA 9-3-71 violated by failing five-year period § in clauses; erred find that the OCGA 9- (b) (b) arbitrary; finding 3-71 was erred not that OCGA 9-3-71 rights; by finding infringed on Braden’s substantive erred that retro- (b) active does violate Constitu- of OCGA 9-3-71 Georgia; by finding tion of the State of act or erred (b) complete 1984; in omission in OCGA 9-3-71 March and granting judgment pleadings. erred Held: jurisdiction over all cases 1. Our Court “has exclusive involving of the State of and of construction the Constitution constitutionality a in United States all cases which ques- provision law, ordinance, into or constitutional has been'called (1) VI, VI, II tion. Art. Sec. Par. Constitution.” Atlanta 22). System Independent Lane, 266 School Ga. 657 jurisdiction Further, if Court has over a case because of provision, case, this constitutional it “will not transfer that but will addressing a issue decision the merits of the constitutional issues although longer raised therein.” Id. at 658. this Court can no of an deem transfer to this Court as a determination Court that no meritorious constitutional issue was (id.), presented appellate ultimately in review this Court is not jurisdiction affected because this has no to address constitu- except juris- tional limited circumstances. This Court has no (Burke constitutionality diction to determine the of a state law 348)), other than where the law has been held to be constitutional the same attack made (Blackwell 13)), jurisdiction questions applica- “has tion, to decide law involve the general unquestioned unambiguous provi- sense,
in a
given
sions
of a
Constitution
state
facts and that do not
provision directly
ques-
involve construction of some constitutional
tion and doubtful either
its
under
own terms or under the decisions
*3
Court of
or the
Court of the United
(194
107).
State,
States.” Pollard v.
2. Braden’s contention that the trial court erred to judgment pleadings treat § the motion for on the under OCGA 9-11- (c) upon 12 as a motion to dismiss for failure to state a claim which granted party moving can relief he is also without merit. When a judgment pleadings, on the case, as in this does not introduce affida- motion, interrogatories depositions, his vits, or complaint for fail- equivalent of a motion to is the motion ure to state Sulejman granted. upon can be relief a claim which 251). (457 App. Prac. & See Ga. Marinello, 217 Ga. ed.). p. in the com- averments § Because the 9-7, Proc., plaint negligent clearly or omission show not filed and in March 1984 occurred (b) § the trial 9-3-71 and barred OCGA 1995, the is appellees. by granting judgment on the did not err court by failing to find erred trial court contention that the 3. Braden’s complete until Steven was not that the act medical (b) 9-3-71 merit. OCGA Braden’s death is also without Meredith repose abroga- five-year and a of ultimate statute “intended create (b) (c). Therefore, an action OCGA 9-3-71 bars tion.” OCGA from being brought act or from the more than five period injury it is not actionable. omission; if the occurs outside that 719); Bieling App. 874, Hill v. Battle, 876-878 128). Fordham, 357-358 Therefore, above, trial court did not reasons by granting appellees’ pleadings. motion for err Judgment specially. Blackburn, J., concurs and concurs affirmed. Beasley, specially. J.,C. concurs specially. concurring concurring Judge,
Blackburn, agree fully majority opinion that the law is as stated I with the repose which allow a therein. I think statutes of limitation and injured party may inappro- which an sue narrow window within priate passage memories and and the time which erodes availability primarily witnesses, to the detriment works plaintiff plaintiff, defendant, has the burden not the as it is who involving proof. Apparently instru- are better in cases memories 20-year where statute of limita- ments under seal and other cases tion legislature applies. clear, however, The intention of the Georgia Supreme am the decisions of our bound Court. *4 Judge, concurring specially.
Beasley, Chief I that the suit was barred the statute concur in the conclusion (b). repose, filed within of The action was not even OCGA discovery misdiagnosis January years alleged in five from alleged misdiagnosis. As the 1988, within five much less County Hosp. recognized Auth., in Craven v.Lowndes (437 308) (1993), injury if the from 263 Ga. 660 SE2d even designated period legislatively outside the occurs (here years), rights actionable because the the accrual of five it 148
passage of time abolishes the cause of action. policy making right
One of the considerations for of action practical recognition finite is the that time erodes memo- availability supra referring ries, Craven, of and the witnesses. at (298 484) (1983). Singer, to Clark v. 250 Ga. 472 ful- SE2d purpose fillment here, of that is evident on the face of the malpractice, as one of the doctors Meltzer, accused of Dr. has died in the interim and thus be will unable defend the actions he took or happening did not take in 1984. The of this risk increases over the plaintiffs’ course, Of course of time. side the fact that a brought 3, 1993, death action could not be although malprac- death, date of Steven Braden’s a suit for medical happening did not tice continuum have await the of that end extreme injury. majority opinion recites some of the enumerations of error posed rejection appellants. appellants addition, In enumerate as errors fundamentally claims the statute is unfair and and Georgia Constitution, I, I, II, violates the Art. I, XII, Sec. Pars. pro- XXVIII; and that it violates state and federal constitutional due requirements. plaintiffs In court, cess the trial attacked constitution- (Ga. ality protection equal on three bases: state constitutional Const. II), they urged adoption I, I, Art. Sec. Par. as to which of the dissent supra; prohibition Craven, in the constitutional of retroactive law (Ga. X), they I, I, Const. Art. Sec. Par. as to which relied the dis- Wright (1993); Robinson, sent in v. 262 Ga. and, 844 SE2d composite, fundamental fairness as embodied in the Con- pro- stitution, I, I, I, II, Art. Sec. XXVIII, Pars. XII and and the due equal protection cess and clauses of the federal constitution. cognizant propounded The trial court was of the various bases unconstitutionality, reciting order, them in its and it expressly rejected ground. having properly each been raised separate ripe appellate on, and ruled these bases were determina Dept. tion their merits. Resources, Blackston Natural (1) (334 679) (1985). Compare Kelly City 15, 17-18 SE2d Atlanta, Independent See Atlanta System Lane, School Nevertheless, Court transferred the to this giving only Court, the reason that con- established majority involved, stitutional supra, only However, law is as the Craven, recites. protection equal resolved the and Kumar v. 653) (1992), 262 Ga. stitutionality addressed the con- (b), (b), of OCGA 9-3-73 not OCGA 9-3-71 then only against equal protection pro- an attack that it violated and due guarantees cess appears under the state and federal constitutions. Thus it grounds
that all constitutional have not been resolved *5 ruling agree majority’s that in the ostensible I Court. do jurisdiction grounds are without merit. We without these (1); Harper VI, VI, Par. II Ga. Const. Art. Sec. decide them. App. 611, no “this court has in the statement cannot concur also except jurisdiction in limited cir- to address constitutional properly, Majority often, decide issues at 146. We cumstances.” whether constitutionally permissible not, such as behavior 1983 actions. The seizure cases and Section search and protections this is left to court both state federal Light Co. Pub. Svc. in Atlanta Gas v. Ga. This is illustrated to review. App. 575, Commn., 212 exception Finally, as than” to “other I do not concur in constitutionality jurisdiction of a state lack to determine our exception. is no Blackwell law. There What 13) (1986), exception” exception is not an describes “as already Application been settled all. of what has at Court involves a dif- Court or the United States constitutionality given, altogether; inquiry as a not as it takes ferent an issue. 14, 1996 Decided June July 9, 1996 denied
Reconsideration Dorminey, appellant. Firm, A. The Law Blair Johnson appel- Sullivan, Pannier, Smith, Michael A. Booth & lees. DEPARTMENT OF HUMAN RESOURCES v. MONEY.
A96A0786.
(473 SE2d Judge Harold R. Banke. paternity Department and child of Human Resources filed a Money, recovery putative against father of action Obie Money. Money, H. who DHR’s administrative
Brandon rebuffed attempts support, this child denies he is Brandon’s father. to collect judicial alleging counterclaimed, administrative He DHR’s privacy, improper harassment, actions constituted violated his distress in violation state caused him humiliation and emotional appeals 42 USC DHR from the trial court’s refusal law and 1983. the counterclaim. Held: Any law 1. action DHR on state theories disal- based by sovereign immunity. Law, OCGA Tort Claims lowed