IN THE SUPREME COURT OF THE
STATE OF GEORGIA

CURTIS LEON BELL,
Appellant,
v.
DEBORAH G. AUSTIN and
JERRY AUSTIN,
Appellees. 
CASE NO. S04A2004

BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION, AMICUS CURIAE
GEORGIA TRIAL LAWYERS ASSOCIATION

Dennis Cathey, President
R. Hutton Brown and Mathew G. Nasrallah,
Co-Chairs, Amicus Curiae Committee

This Brief Prepared By:

Charles M. Cork, III
Ga. Bar No. 187915
Reynolds & McArthur
P. O. Box 26610
Macon, Georgia 31221-6610
(478) 405-0300

Statement of Interest of Amicus Curiae. The Georgia Trial Lawyers Association, comprised of over 2,000 members of the State Bar of Georgia, is committed to the preservation of the jury system and the efficient adjudication of the rights of persons injured by the negligence of others. It submits the following brief against positions advocated by the appellant that would eliminate OCGA § 24-3-18, the medical narrative statute, which promotes the “speedy, efficient, and inexpensive resolution of disputes and prosecutions.” 1982 Ga. Const. Art. VI, Sec. IX, Par. I.; cf. OCGA § 9-11-1.

SUMMARY OF THE ARGUMENT
The medical narrative statute is within the constitutional power of the General Assembly, and it is not unconstitutional for any reason assigned by the appellant.

ARGUMENT AND CITATION OF AUTHORITY
This amicus joins the excellent brief of counsel for the appellee, and will add a few additional points that have not been previously addressed.

First, under the 1983 Constitution, Art. VI, Sec. I, Par. VIII, “[a]ll rules of evidence shall be as prescribed by law.” This constitutional provision, which had not appeared in prior constitutions, placed ultimate power to create rules of evidence in the lawmaking branch of government, subject to higher constitutional norms. Therefore, OCGA § 24-3-18 supersedes all prior common law rules and creates an exception to statutory hearsay rules. OCGA § 24-3-18 is valid unless it conflicts with some higher constitutional norm.
This Court has already ruled against the appellant’s constitutional challenges here. As noted by appellee’s counsel, OCGA § 24-3-18 was patterned on the rule applicable in workers’ compensation cases, OCGA § 34-9-102(e)(2). A comparison of the statutes shows that OCGA § 24-3-18 adopts almost verbatim the language of OCGA § 34-9-102(e)(2) to which appellant takes exception. Construing the earlier statute, this Court rejected the appellant’s challenges in Foster v. Aladdin Mills, Inc., 237 Ga. 704 (1976). Contrary to the contention that the statute “deprives [a party] of the right to confront and cross examine this adverse medical witness,” id., 705, this Court observed that the statute gives a party in the appellant’s position the right to cross-examine the witness by deposition, and this right satisfies the party’s right to confront and cross-examine the witness. Id. (agreeing with the analysis of the Court of Appeals in Commercial Union Ins. Co. v. Crews, 139 Ga. App. 521, 523-24 (1976)). This Court added that “[t]here is no constitutional right in this case to confront and cross examine the witnesses in the courtroom.” Id., 706 (emphasis added).

This amicus agrees with appellee’s point (Appellee Br., 12) that the appellant lacks standing to raise his equal protection challenge to the scope of professionals to whom OCGA § 24-3-18 applies (Appellant Br., 11-13). To prove a violation of the equal protection clause, a party must show that the party is similarly situated to another party in the same class, but receives different treatment. Dobbins v. State, 262 Ga. 161, 161 62 (1992). A member of a profession outside the scope of OCGA § 24-3-18 may have standing to complain about the boundary lines drawn by the General Assembly, but the parties in this case were treated equally under this law.
Furthermore, it is certainly within the prerogative of the General Assembly to weigh the conflicting interests among health professionals and their patients on the one hand, and civil litigants on the other, and to prescribe a rule that preserves the just rights of the latter while reducing the number of occasions in which health professionals must take time away from their patients. The needs of those patients are certainly significant, and they justify the selection of professionals in OCGA § 24-3-18.
Where, as here, neither a fundamental right nor a suspect class is involved, the legislative classification ... can withstand constitutional assault when the classification is based on rational distinctions and bears a direct and real relation to the legitimate object or purpose of the legislation. ... A classification will be upheld in the face of an equal protection challenge so long as under any conceivable set of facts, it bears a rational relationship to a legitimate end of government not prohibited by the Constitution.

Old South Duck Tours, Inc. v. Mayor of Savannah, 272 Ga. 869, 873 (2000) (internal quotes omitted).
This amicus also agrees with appellee’s point (Appellee Br., 12-13) that the meaning of “narrative” in OCGA § 24-3-18 is sufficiently clear to avoid a vagueness challenge (Appellant Br., 13-14).
The legislature is not required to draft its statutes with mathematical precision. [Cit.] Although uncertainties may lurk in the words employed by the act, [Cit.], we believe that persons of common intelligence will readily ascertain what the act prohibits.

State v. Old S. Amusements, Inc., 275 Ga. 274, 276 (2002) (finding that the words "slot machine," "simulation," "variation," "pictures," "representations," and "symbols," all possess common meaning). See further Payne v. State, 275 Ga. 181, 182 (2002) (rule regarding driving in the “emergency lane” was sufficiently definite); Noble v. State, 275 Ga. 635 (2002) (rule regarding grams of alcohol per liter of “breath” was sufficiently definite). Furthermore, outside of cases involving the First Amendment, vagueness challenges must focus on the facts of the case; a party who comes clearly within the statute lacks standing to assert the vagueness of the law in other contexts. Thelen v. State, 272 Ga. 81, 81 (2000). Because appellant does not assert any uncertainty as to whether the narrative in issue was a “narrative” under OCGA § 24-3-18, his due process challenge must fail.

The foregoing points should dispose of the constitutional challenge. This amicus notes in addition that, in response to appellant’s concerns over lack of an oath, this Court has noted that the “oath is not as strong a guaranty of truth as once it may have been." Holiday v. State, 272 Ga. 779, 780 (2000). Moreover, it is the nature of most hearsay exceptions to dispense with cross-examination under oath. Circumstances increasing the trustworthiness of such narratives include, e.g., the doctor’s professional licensing statute, OCGA § 43-34-37, which prohibits inter alia knowingly making untrue statements in the practice of medicine and “unprofessional, unethical, deceptive, or deleterious conduct,” and authorizes the loss of licenses for those who violate these rules. Coupled with the doctor’s knowledge that she may still be required to undergo cross-examination, the legislature could rationally conclude that there are sufficient circumstantial guarantees of trustworthiness to allow the admission of medical narratives, subject to the parties’ right to cross-examine the doctor on the narrative.
CONCLUSION
OCGA § 24-3-18 is not unconstitutional for any reason assigned by the appellant. It is a reasonable attempt to balance numerous competing interests and policies and to promote the “speedy, efficient, and inexpensive resolution of disputes and prosecutions.” 1982 Ga. Const. Art. VI, Sec. IX, Par. I.; cf. OCGA § 9-11-1.

CHARLES M. CORK, III
Ga. Bar No. 187915
Reynolds & McArthur
P. O. Box 26610
Macon, Georgia 31221-6610
(478) 405-0300

CERTIFICATE OF SERVICE

I certify that I have this day served a copy of the foregoing document, with any attachments, upon all counsel of record by mailing the same with sufficient postage in a properly addressed envelope, as follows:

Mr. Hugh M. Worsham, Jr.
400 Mall Blvd., Ste. D-1
Savannah, GA 31046

Mr. Robert P. Killian
Killian & Boyd
506 Monk St.
Brunswick, GA 31520

Dated this November ____, 2004.

CHARLES M. CORK, III