*1 FORAN; S92A1068, vice versa. et al. v. and S92X1069. LUTZ 248) (427 SE2d Justice.
Fletcher, constitutionality re- of the affidavit appeal challenges the This OCGA We hold that quirement professional actions. against prohibition violate the constitutional 9-11-9.1 does not § in the subject in a bill or a matter of than one matter inclusion more on the title. Because the law was unsettled body different from the filed, complaint was we re- coverage professionals when the act’s plaintiffs appropriate to file an affida- verse and remand to enable the vit. River. shrimp
Reid Lutz owned a boat that sunk the Savannah buoys.1 salvageable, Lutz it He had The boat was and marked ship piloted it within five feet of the surface when a Michael raised repair. Foran, pilot, beyond it Lutz damaged a licensed harbor hit and salvage equipment negligence owner sued Foran for and the Foran failing causing to control his vessel and the collision boats. fail- a and to dismiss for Lutz’s denied that collision occurred moved compliance to attach affidavit with OCGA 9-11-9.1. ure an § complaint. In dismissing court’s appeals Lutz from the trial order adjudication an cross-appeal, argues Foran the dismissal was prejudice. merits should have been with requirement provides: The expert 1. affidavit malprac- In any damages alleging professional action for tice, complaint required file with plaintiff shall be testify, expert competent which affidavit specifically negligent set or omis- shall forth at least one act sion claimed to exist and the factual basis for each such claim. (a) (1982 1992). Supp. & on the
OCGA 9-11-9.1
This court relied
§
Greene,
Housing
plain language
to hold in
Auth.
statute
867) (1989),
“applies
‘any
action
malpractice’
damages alleging professional
part
on the
of an architect
professional.”
or
re
Subsequently,
we held that affidavits are
quired only
professional
occu
lawsuits filed
a
one
(2)
pations
licensing
14-7-2
enumerated
OCGA
or
(2)
OCGA
14-10-2
Gillis v. Good
regulation under
and 43-1-24.
§§
game,
197) (1992). A
pilot
of a listed in 14-7-2. Lutz file an affida allegations professional malprac vit if involve with his tice. merely professional
2. “A action is question the conduct of a negligence action calls into *2 v. deleted.) Hosp. Candler Gen. expertise.” in (Emphasis his area of (354 872) (1987). McNorrill, 107, 110 App. malprac- 182 Ga. SE2d actions, plaintiff expert testimony present tice a must “to establish v. Executive parameters acceptable professional the of conduct.” Self Committee, 548, (266 168) (1980). act every 245 Ga. 549 Not however, professional performs, professional that a is a act re- that Co., Engineering v. Southern Kneip quires testimony. expert 260 Ga. 809) 409, (395 (1990). negli- If professional’s alleged the skill, gence require professional judgment does the not exercise Candler, theory. the simple negligence cause of action is based on a expert testimony 111. App. example, appropri- Ga. For on the at ate care patient standard of is not needed when a falls as a result a fixture. Self, hospital’s repair leaking failure a bathroom 245 Ga. at Creel v. Cotton States Mut. Ins. 548-549; see also 260 Ga. (no (1990) required affidavit when a financial planner plan annuity). the wrong payment transmits for an in allegations complaint
The the establish that Lutz filed a claim professional, simple, for rather negligence. than Lutz’s al- leges negligently failing person acting that Foran acted have a ship, ship away as a lookout the to steer sub- failing the from the markers, merged failing prevent ship hitting boat’s the from simple the shrimp Unlike negligence profes- boat. case where the administrative, clerical, performs sional an demanding or routine act special expertise, no executing required Foran was a task that his ex- pert judgment and skill. was an navigating ship He ocean-going through Only channel narrow Savannah River. a licensed pilot qualified harbor ship to direct the of a movement as it travels into and from the ports out state’s and rivers. See OCGA 52-6-30. conducting ship Because an ocean-going the Savannah River calls pilot, skill of a harbor Lutz file an complaint. affidavit his alleges
3. Lutz that the affidavit OCGA 9-11-9.1 should be down as part struck unconstitutional because it is of an act subject that more subject contains than one matter different expressed from Specifically, the matter in the title. argues he that apply professions Medical Reform Act of 1987 cannot III, V, violating than medicine without Art. III Sec. Par. Georgia Constitution. provides provision pass
This constitutional
that
bill shall
“[n]o
more
refers to
than one
contains
dif
matter or
matter
Const.,
Art.
expressed in the title thereof.”
from what
ferent
prevent
III,
V,
paragraph
enacted this
legislature
Par. III. The
Sec.
omnibus bills
legislation such as the “Yazoo Fraud” and
surreptitious
v.
passage. Camp
matters to secure their
combine several adverse
MARTA,
Requiring the act’s
229 Ga.
body
to the matters contained
its
is to
title to “alert
the reader
Collins,
Corp.
Mead
v.
protect against surprise legislation.”
258 Ga.
Jardine,
Cady
790) (1988);
see also
869) (1937) (recalling
provision’s
event that caused the
SE
State,
Central
Ga. R. Co. v.
Constitution);
enactment
the 1798
531) (1898)
(describing
prohibi
SE
rationale for
act).
against multiple subject
tion
matters
same
(a)
express
the title to
is in the
requiring
what
act
Cady,
given
interpretation.2
must be
a reasonable
Id. at
accord
at
only
object
protect
with in
to
general
indicate
to be dealt
the act
State Ga. v. Resolute Ins.
people against
legislation.
covert
221 Ga.
statute,
Applying
interpretation
a reasonable
we hold that
gives
the title of the act
the reader sufficient notice that
the affidavit
requirement
cap-
in
apply
will
actions. The
pro-
in
provide
tion states that
the act is “to
case which
competent
malpractice
alleged,
to
fessional
filed with the
testify setting
particulars
forth the
of the claim shall be
complaint.” (Emphasis supplied.)
p.
language
Ga. L.
887. The
caption.
Id. at 889.
section three of the act tracks the words
provisions
the four-
Section three is one of
three substantive
cap-
in the
page
proportionate
act and receives its
share of the lines
cap
the word “title” in the Constitution to mean the act’s
This court has construed
See,
239; Cady,
opinion
e.g.,
Corp.,
uses the terms
tion.
Mead
tion.3 1987,” caption gives Assembly public the General and the Act of relating malpractice adequate notice that the act contains matter to professionals. actions history supports this conclusion. The Gover- legislative
The act’s Advisory report on Tort Reform its final nor’s Committee requirement malpractice the affidavit “medical recommended A composed cases.” conference committee pro- leaders of both the house and senate added the affidavit of three Jour, Jour, 957; 1 Bill 2. 1 S. at H. at 1189. The bill vision to Senate intensely passed part as of an debated effort to reform the state’s was Presumably, Assembly members of the General tort laws. looked be- yond caption the short title and read the of the bill to determine its voting. contents before
Although previously challenged constitutionality no one has 9-11-9.1, previously arguments of OCGA we have considered the Housing Auth., dissenting opinion relies. See 259 Ga. at rejected argument requirement ap the affidavit 437-438. We actions, plies solely malpractice despite to medical the reference malpractice, presump the 1989 amendment to because of Assembly knowledge that the General enacts statutes with full tion existing condition of the law and that statutes are to be inter Housing Auth., preted prior reference to decisions of the courts. Folsom, (quoting Ga. at 438 Ins. Co. v. 256 Ga. Gulf Life 368) (1986)). amendment, Prior the passage of the 1989 Appeals interpreted apply any profes the Court of the statute to Johnson, Barr v. App. sional action. See denied, (1989). (1988), cert. Moreover, if that the citizens lacked notice affida- field, applied professions vit outside the medical as The entire states as follows: provide comprehensive affecting To substantive reforms claims for medical title; malpractice; provide a short to amend Title 9 of the Official Code of Annotated, relating practice, civil so as to that minors who have attained *4 age years incompetents subject pro- of five shall be to limitations of actions regarding malpractice; provide periods visions medical to for of limitation and re- pose; provide exceptions; provide findings; provide to to to shall that certain actions extinguished; provide any not be revived or to case in which alleged, expert competent testify setting is to forth the particulars complaint; provide of the claim shall be filed with the to the contents of affidavit; provide exceptions; provide procedures; provide pe- such to to that no to by filing requirements; Chapter 1 riod of limitation is extended such to amend Annotated, relating general provisions Title 51 of the Official Code of to torts, affecting provide immunity so as to from civil to certain health care providers providing professional compensation or other entities services without or thereof; expectation provide exceptions; applicability; repeal laws; conflicting purposes. and for other
823 contends, interpre- this court’s surprise resulted from the dissent statute, concluding that the statute not the act itself. tation of the unconstitutional, the rule of statu- dissenting opinion ignores possi- construe a statute as valid when tory that we must construction Anderson, v. 786, City Hapeville 787 246 Ga. ble. See 713) (1980). constitutional, even under the anal- The statute would be dissent, requirement if the affidavit were limited to the ysis of the Yet, declined invitations profession. legislature has medical 1989, 1990, to limit the affidavit re- and 1991 to amend statute profession.4 medical quirement to the inadequate notice because the gives
To conclude that the provisions is located between professional affidavit providers place jeopardy malpractice and health care legislature passes. Our court has major portion a of the bills passes it to such a strict legislature held either the or the bills never reasonableness, test and the title of the standard of notice. The of the act’s con- gives reasonable notice to reader challenged act tents.
(b)
multiple
matter rule de-
subject
an act violates the
Whether
accomplish a
provisions seek to
sin-
pends on
all of the bill’s
whether
Elections,
v. Bd.
242
570
gle objective. Wall
Ga.
Central R.
“unity
purpose.”
The Constitution looks
Co.,
As used matter”] [the allow the meaning extended so as to given be a broad and having authority in one Act all matters legislature to include plurality of logical or natural connection. To constitute matter, or more dissimilar an Act must embrace two can be subjects by no fair intendment and discordant or relation having any logical connection with considered as requires All is that to each other. that our Constitution general subject. one Act embrace (1964). Cook, 490)
Crews v. This court has Ga. 481 220 they challenges that em- upheld several acts constitutional Wall, (upholding See Ga. at 570 multiple subject braced matters. changing the method extending city act limits annexation and Crews, act body); (upholding city’s governing Ga. at electing a (“should Engineering, legislature that our Southern determine 260 Ga. at See statute”); intended, broadly may interpret rewrite more than it decisions the statute (1989) J., Wall, (Benham, Planning App. con v. Precision 815) (1991), Goodgame, App. curring specially); see also Gillis Gillis, grounds, at 117. on other rev’d *5 estates); Capitol
dealing with wills and the administration of
Distrib.
(57
578) (1950)
Redwine,
(upholding
Co. v.
SE2d
act
wine).
beverages
excise taxes on both malt
and
increasing
challenged
is
general purpose
of the
act
to reform tort liabil-
ity
providers
professionals.
and other
The act seeks
of both medical
liability
against professionals. By
to reduce the number of
claims
es-
against
provid-
for suits
tablishing a new statute of limitation
by
incompetents,
requiring injured persons
support
ers
minors or
allegations
their
with an affidavit
an
immunity
liability
expert,
granting
prov-
and
from civil
to health care
(codi-
pay.
iders who render services without
Ga. L. 1987 at 888-891
51-1-29.1).
9-3-73; 9-11-9.1; and
All
provisions
fied at OCGA
three
§§
general subject
professional
are
related to the
logically
and
Therefore,
subjects.
do not embrace discordant
the act is constitu-
multiple
provision.
subject
tional under the
matter
4. A complaint
is
to dismissal for failure to state a claim
plaintiff
expert
required.
when the
fails to file an
affidavit as
OCGA
(e).
9-11-9.1
A dismissal for failure to state a claim is a dismissal on
Clinic,
Dillingham
v. Doctor’s
merits.
S92X1069 and remanded with C. P. direction. Benham, Hunstein, JJ., Judge Eugene concur; H. Gadsden Sears-Collins, J., dissents. Justice, Presiding concurring.
Hunt, abstract, One argue logic cannot with the of the dissent. In the it entirely correct: the title of Medical Reform Act of gives applies no clue that than medical malpractice.5 allegation invalidity Constitution, Georgia While the in this case based on the subject” which,
“single
pertains
procedural
irregularity
constitutional
at issue
to a
unimportant,
equal
magnitude
ongoing
while
not
the least
trivial or
not
of an
years,
that,
five
again,
over the last
reality is
time
But the
aspects applied the Act to all
we,
Appeals, have
the Court of
Goodgame,
Gillis v.
Ga. 117
negligence. See
(all
197) (1992)
under
law
professions recognized
Henderson,
(2); 43-1-24); Cheeley v.
(2); 14-10-2
OCGA
14-7-2
§§
Engi
Kneip v. Southern
865) (1991)
(lawyers);
Ga. 498
Housing
809) (1990)
neering
(engineers);
Ga. 409
(architects); Pre
867) (1989)
Greene,
Auth. v.
Sears-Collins, 3 of the asked to decide is whether Section The issue we are now (hereafter Act”), now “the Malpractice Reform Act of 19876 Medical III, V, 9-11-9.1, III of the Art. Sec. Par. at OCGA offends codified pass which Constitution, bill shall provides which Georgia “[n]o different subject matter or contains matter more than one refers to in noted As this court expressed the title thereof.” from what 531) (31 State, 831, Ga. Co. v. 845-847 SE Central R. 104 Ga. of c law7 ont (1898), American constitutional Georgia contribution to this requirement and a “single subject” separate restrictions: a ains two to “inhibit subject provision designed single The requirement. title bills,” ‘log-rolling’ or is often termed ‘omnibus’ passage of what Co., 846-847, many diverse mat Central Ga. R. 104 at Ga. of combining their the view of one bill “with ters are contained process protection due violation. or substantive 6 1987, pp. Ga. L. 887-891. 7 require single-subject adopt Georgia a constitutional title was the first state Jardine, 869) (1937). 1982, 9, 10 (193 forty-one Cady consti As of state v. SE ment. 185 Ga. Sutherland, object. provided more than one or that an act shall not embrace tutions 1992). (Sands Construction, Supp. its had Statutory & Our 17.01 4th ed. 1985 Fraud, legislative provision not genesis in which an obscure in the notorious Yazoo Land 35,000,000 of land which over acres its statute authorized the sale of indicated in the title of companies speculation Mississippi comprise to certain land the states of Alabama and now 1796, 13, February dollars, per By $500,000 acre. an act of or less than two cents for a mere egregious The United States Legislature fraud null and void. this tried to declare good purchaser could not Supreme land held title which Court held that an innocent (6 Cr.) (1810) (the Peck, first case act. Fletcher v. S. 87 abrogated 10 U. be the 1796 Cady unconstitutional). v. generally See Supreme as struck down a state law which the Court Jardine, supra. 826 securing passage of all and thus
favor the advocates measures no one of which could succeed several
upon
Camp
its own merits.”
require
MARTA,
35,
38
Ga.
title
legislative process
important ways. First,
in two
ment facilitates the
prevents
fully
may
surprise
result when the title of an act does not
legislators
Weeks,
inform
Fortson v.
act’s contents.
68) (1974) (citing
Orr,
Ga.
Prothro & Kendall v.
763)
(1852));
State,
12 Ga.
(1950).
Cade v.
Second,
state,
the title
alerts the citizens of this
especially
groups
parties,
subjects
legislature
affected
to the
Bryson,
considering.
Green v.
(1968);
Guaranty
Co.,
Nelson v. Southern
Ins.
424) (1966);
supra,
Central Ga.
R.
Greene, 259 Ga.
correctly
this court
held
plain language,
applies
‘any
§
that “under its
OCGA 9-11-9.1
to
ac-
damages alleging professional malpractice’
tion for
restricted to
[and]
. . .
is not
medical-malpractice
(Emphasis supplied.)
actions.”
Id.
Goodgame,
197) (1992),
In
at 438. Gillis v.
alleged, expert competent setting to particulars be filed com- forth the of the claim shall with the affidavit; plaint; provide provide to the contents of such to exceptions; provide procedures; provide period to to that no by requirements; filing of limitation is extended such to Code Chapter amend of Title 51 of the Official Annotated, torts, general provisions affecting so relating to health provide immunity to from civil to certain as providers providing professional care or other entities ser- thereof; compensation expectation vices without or the provide exceptions; applicability; repeal laws; purposes. conflicting and for other
(Emphasis supplied.) pp. Ga. L. 887-888. deciding put In whether and the short title citizens this 9-11-9.1, legislators impact and their on notice of the broad of § provision. purpose we must mind the of the constitutional bear protect people purpose “The of this constitutional Nelson, supra, 221 at surprise legislation,” covert or Ga. “ particularly practice pass since is a common bills their title short, [i]t Orr, only. . . Prothro & Kendall v. at 43. supra, .” provide adequate must It must notice to citi- title of a bill be honest. To this subjects contained therein. zens and their end, upon casual “deceiving title not be we have held that the Lee reading [caption] (Emphasis supplied.) of the [a]ct.” State, *8 case, opinion purpose In of the majority this the undermines the mal- provision by focusing phrase “professional on the constitutional determining what is practice” caption in the in isolation instead of by the Act’s short legislators communicated to or concerned citizens first, see, the caption, we that caption. Examining title and entire the and com- provide Act is substantive opening clause states that the “to legis- A malpractice.” prehensive affecting reforms claims for medical clause, reading especially given or this lator citizen that the short title preceding opening that clause is the “Medical Reform 1987,” would, justification, Act of with some believe that the remain- caption ing clauses of the would set forth the substantive com- prehensive malpractice medical in opening reforms mentioned Moreover, phrase “professional malpractice” clause. is mentioned twenty-one caption, once lines of the buried the mid- caption, provision dle of the and is bracketed affecting medical malpractice repose statutes of limitation and provision and another liability health care reforming providers emergency or chari- settings. caption, table The especially contents of the when read title, alongside gave inadequate the Act’s short notice that the affida- requirement apply captains vit would to suits riverboat Rather, pilots. probably harbor the title legisla- left most reasonable tors impression and concerned citizens with the distinct the affi- requirement davit designed was to reform malpractice only. medical focusing phrase “professional addition to on the malpractice” isolation, majority legislative history invokes the of the affida- requirement support vit its conclusion that the gave title of the Act legislators adequate and citizens notice. legislative This reliance on however, history, First, misplaced. provision the constitutional question requires provide notice; the title of the act to adequate say legislative history does not will suffice. Considering the profusion legislators review, of bills that contrary it is to the spirit of the rely constitutional legislative history if legislators determine adequate received notice of what was con- tained in of an act.
Moreover, legislative history requirement of the affidavit leads inescapable to the conclusion that were not ade- quately requirement notified that the affidavit beyond extended profession professionals. to other The Senate included a blanket affidavit in the Senate substitute for the House bill eventually broadly applicable became the Tort Reform Act but the rejected House substitute bill. H. Jour. 1134. caption bill, rejected of the caption like the of the Tort Reform Act of began comprehensive with the statement: “To comprehensive substantial civil justice affecting reform tort litigation.” claims See 1 H. Jour. 1131 caption and 1193. The of the rejected bill then proposed any that “in case malpractice product or alleged, competent setting particulars the field forth the shall claim be complaint.” filed with the 1 H. Jour. opening 1131. Since the caption clause of the dealt with in general, tort reform citizen or legislator who “profes- read the clause of the dealing with sional product liability” or would have obtained real no- *9 Per- requirement. nature of the affidavit comprehensive tice of the notice, legislature the the members of such clear haps because of therein was bill, requirement contained and the affidavit rejected the Reform Act of 1987. comprehensive Tort equally included the not supporters of the Instead, that the defeated can be surmised Trojan Horse smuggled requirement, the requirement affidavit broad liability,” into and “product the fashion, the words and without Malpractice Reform Act of Medical the more limited caption of with: “To caption ambitious begins its much less which affecting claims for medical reforms comprehensive and substantive 887; words 1 H. 1189. Had the p. L. Jour. malpractice.” Ga. had requirement liability” the affidavit “product remained caption in the malpractice” “professional the words they accompanied Act, upon reading the legislator, a Malpractice Reform the Medical requirement affidavit of the broad have been reminded caption, might “product liabil- Reform Act. The words part of the Tort defeated as mal- Given the medical just that reason. ity” possibly deleted for were of the Medical caption of the reform orientation practice liability” “product the words Act, the deletion of given Reform Act, majority’s Tort Reform provision of the rejected from the history of the affidavit legislative reliance on ad- legislators received citizens and Act to conclude that Tort Reform Malpractice Reform Medical caption of the equate notice from misplaced. Act is Act, which refers
Moreover, to the 1987 the 1989 amendment malpractice ac- in medical an affidavit requiring as OCGA 9-11-9.1 many legislators believed tions, supports the conclusion opinion only. majority malpractice actions applied to medical Act not so. This is already argument. this rejected have states that we statutory question of Ga., involved Greene, supra, caption construction, the medical simply found that we plain lan- light of the be construed had to the 1989 amendment interpreting the prior cases light 9-11-9.1 and guage of OCGA § now, consider, probative value do not as we Act. We did — first case for the in this presented on the issue 1989 amendment — adequate gave of the Act the short title time whether scope 9-11-9.1. notice of the the dissent chastising the mark is off
Similarly, Majority must con- we statutory construction the rule of “ignor[ing] Clearly, pp. 822-823. Majority, possible.” as valid when strue a statute statutory construction rules of however, properly ignores the dissent the con- involve does not by this case presented the issue because adequate gave the Act the title of but whether struction of 9-11-9.1 of that statute. scope the broad notice of opinion majority
Furthermore,
point out that
I
like to
would
internally
By concluding
“manifestly
inconsistent.
that it would be
prejudice
unfair” to allow Reid Lutz’s
to be dismissed with
majority
implicitly
law,
because of
holding
unclear state of this
give citizens,
that the title of the 1987 Act did not
not even
represented by
adequate
bar,
ones
able members of the
notice. We
Kneip
Engineering
reached a similar conclusion in
v. Southern
(4) (395
409, 411
purpose
reforming
types
However laudable the
of mal
practice
quire
quate
give
good government
actions, both
and our state constitution re
give
that the titles of our laws
citizens and their
ade
passage they
notice of the actual substance of laws to whose
*10
praiseworthy provisions,
assent. We
so held
the face of other
supra,
Weeks,
in Fortson v.
Ga. 90
State,
and Carsello v.
fairly
Since the citizens of
and their
were not
apprised
ap
breadth,
of OCGA 9-11-9.1’strue
I conclude that the
plication by
pro
our courts of OCGA 9-11-9.1to other than medical
despite being
plain
actions,
fessional
language
warranted
provision,
of that
nevertheless is unconstitutional under the
Georgia,
Constitution
III,
V,
of the State of
Art.
Sec.
Par. III. Fort
supra,
son,
Decided March 1993. Searcy Joseph Berrigan, Wayne Brannen, Smith, & J. L. Dur- appellants. den, for Wiseman, Doug- Futrell, Blackburn & Blackburn, Jr., James B. Gray, Robinson, las M. appel- Oliver, Maner & Pannell, James L. lee. Conley Ingram, Bird,
Alston & G. McCallum, Jr., Robert D. Kent, Parker, Johnson, Daniel A. Dunlevie, Cook & Robert P. Con- stantine, Jr., III, Everett Greene, W. Gee Richard L. amici curiae.
S92A1354.COLANTUNO v. THE STATE.
Clarke, Chief Justice. 17, 1990, On November Edward Francis Colantuno shot Nicole argument Boswell to death after an in her mother’s home. He fled the immediately police scene in a rented car. The found Boswell’s nude body lying pool signs in blood the kitchen. There were of a