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Information compiled from the Florida Democrat, "Anneewakee A House of Cards" By Albert Oetgen, Creative Loafing "Anneewakee Their Secret Shame" By Moret and Atlanta Journal/Constitution staff writers David Corvette and Charles Walston

Michael Laken, a 23-year-old former patient described Anneewakee as the "Chernobyl" of teen-age therapeutic center because of the "emotional meltdown" patients underwent there.  Laken recalled stories of patients being forced to eat human feces and "run hills all day if Anneewakee policy was not obeyed.

Kim Caspari was married to Jim Caspari a former Anneewakee patient and admitted pal of Doc Poetter.  Kim lost custody of their child to his parents after a Massachusetts judge ruled that she did not adequately protect herself from his abuse while in the presence of their toddler.  Kim reported that he beat her, locked her in closets, forced her to eat feces, replaced apple juice containers in the fridge with urine and hired a cab driver to cruise S. Cobb Drive while he pulverized her face beating her to a pulp and dumping her in a remote, wooded lot.  Jim Caspari is a registered sex offender in Norton, Massachusetts and expressed admiration for Doc Poetter.

Another former pal, William Anthony Lipham, was convicted of malice murder, rape, armed robbery, and burglary in 1987, and sentenced to death for the murder. His death sentence was overturned by the Georgia Supremes.  http://www2.state.ga.us/Courts/Supreme/op981123.htm#Powell

"People became human closed-circuit cameras," Laken said "You could either sow the seeds of more rebellion or become someone like 'Doc' Poetter."

Leaning against a wall or picking up a pencil without permission could easily result in another day of E&O, where sparse surroundings were punctuated by sound monitors and watchful eyes.  A patient sent there might be subject to the degrading "green robe" ritual where he was forced to remove all clothing in front of people.  They would watch as he rolled the clothing into a tight bundle before the onlookers threw him a green robe, signifying "scarlet letter" status, to wear for a duration determined by the staff.

Gary Laken concluded that the old program was doomed to failure because it was based "not on conditional love but conditional hatred."

"Its like, 'If you perform this act it's not that I will respect you but I won't hate you," he explains of the old Anneewakee philosophy.

The silver-haired, bespectacled man -- well-trusted as the founder and director of the Anneewakee Therapeutic Center for Troubled Adolescents -- had initiated his slow methodical seduction of the 17-year-old with kissing, hugging and promises of affection.  One of many victims, Gary Succumbed to the sexual advances of the older man, who under the guise of therapy, fed the boy's need for love and affection with a mock substitute.

The hugging and kissing led to fondling and, eventually, repeated acts of sexual abuse.  The manipulation spread like a slow, terminal cancer, as an increasing number of young male patients were drawn into Poetter's web.

For more than two decades, clinical psychologist Louis J. Poetter seduced many of the male teen-age patients who were seeking therapy at Anneewakeee. Eventually, forced by his attorney, to plead guilty to 19 counts of sodomy and one count of simple battery before the case went before a jury and before he completed a plan to murder his accusers, Poetter served an eight-year term and appealed his conviction after the Supremes ruled Georgia's sodomy laws unconstitutional.

In the suit - Brown, et al. vs. Anneewakee [Anneewakee, Inc., Anneewakee Estates and Poetter himself] a record $35 million settlement was reached arising from the sexual abuse and malpractice scandal at Anneewakee psychiatric treatment center for adolescents. [In addition to Carol Brown, et al, v. Anneewakee, Inc. et al. Civil Action No. 144620, Fulton State Court, were William Smith et al. vs. Anneewakee, Inc. Civil Action File No.:  D-36724;  and Becky Stone, et al vs. Anneewakee, Inc. et al. Civil Action File No.:  148018]

Terms of the settlement were sealed, but a source involved in the cases said the agreement allocates $34 million for 110 plaintiffs in eight lawsuits, plus $1 million to create a therapeutic care trust fund for other psychiatric patients who suffer abuse or neglect in mental institutions in Georgia. After the agreement was announced in court, parents, plaintiffs and other participants - some wearing buttons that said, "Please uncover child abuse" - exchanged hugs and handshakes.  Beneath the elation, however, ran an undercurrent of sadness.

"There are no bragging rights to this case," said Randall Blackwood, lead counsel for the plaintiffs.  "Anneewakee represents a chapter in our community' history that should never have been written and should never be repeated."

Co-counsel Patricia S. Edelkind said the lawsuits "helped bring justice to a group of people who had become essentially disenfranchised.  They would have gone unnamed and uncompensated."

For one key participant the settlement was a bittersweet ending to nearly four years of investigation and litigation.

"I feel empty that the true story of what really went on at Anneewakee has not been told, and probably never will be, but it needed to be settled for everyone." said Sarah Tillis, a former Anneewakee trustee who in 1986 alerted authorities to the abuses at the center.

Both sides in the case agreed to split the costs of that trial, estimated to be at least $100,000.  They also will pay $50,000 for two special courtrooms constructed at the Rich's office building downtown, primarily for the Anneewakee trials.

Poetter was cited in Brown vs. Anneewakee as having engaged in exploitative methods to "amass personal wealth, to satisfy his own sexual perversion and to illegally siphon off portions of the huge profits of this "non-profit" corporation to avoid taxes [with the help of his attorney [Governor Roy Barnes] and buy real estate in foreign countries and invest money in foreign banks.

To Poetter's victims, his eight-year sentence for the 19 counts of sodomy is a "slap in the face," when each count carries a 20-year potential sentence, says one former patient.  Poetter's attorney, Robert Fierer, has speculated his client will be a free man in two years -- an average stay for one Anneewakee patient.  "If he is treated like a regular, he'll probably run into some of his victims," a victim surmises, "In his 25th month he'll be f---g kids again."

While Poetter's plea has resolved a few questions in the ongoing Anneewakee saga, shrapnel from the Wreckage left behind by Poetter's physical and mental Abuse continues to infect the lives of many former patients.

*Information compiled from the Florida Democrat, "Anneewakee A House of Cards" By Albert Oetgen, Creative Loafing "Anneewakee Their Secret Shame" By Moret and Atlanta Journal/Constitution staff writers David Corvette and Charles Walston.

For more on Louis Poetters Anneewakee, Psych of Shame, see:  http://nafcj.org/ChronAnneewakee.htm 

 

J. Tom, an internationally reknowned child sexual abuse expert, who couldn't race to the door fast enough when introduced to Jeannie Wrightson, after turning a deaf ear that Sheriff Pat Jarvis and Judge Gail Flake had covered-up a serial child molestation case in behalf of child Internet porngrapher, habitual DUI offender, violent batterer and dog biter.  Since J. Tom's appointment, over 800 children died in DFACS custody as covered by AJC staff writer, Jane O. Hansen.

D.A. excited about chairing state panel on child abuse

Four children died from abuse in DeKalb County last year.

In Georgia, several suspected fatal abuse cases last year were known to state authorities before the children's deaths.

DeKalb District Attorney J. Tom Morgan, who quoted the statistics, has been designated to find out why.

Gov. Zell Miller appointed Mr. Morgan to chair the newly created Statewide Child-Abuse Prevention Panel, which will review suspicious child fatalities in Georgia and make recommendations to the governor and General Assembly by Dec. 1 on how to reduce them.

"The Legislature has given us a tremendous responsibility to accomplish within a short period of time," Mr. Morgan said. "I'm excited about it. The people on the panel are top-notch in their areas of expertise."

The 13-member panel includes state Sen. Mary Margaret Oliver (D-Decatur) and DeKalb County Medical Examiner Joseph Burton.

Mr. Morgan was elected district attorney in November. He formerly was a DeKalb assistant district attorney, specializing in the prosecution of crimes involving child sexual abuse, child physical abuse and child homicides. He was the first prosecutor in Georgia to specialize in this area.

"Anytime someone is called upon to review the bureaucracy of a state agency it is an incredible undertaking," Mr. Morgan said about his appointment. "We all on the panel know how the state government works.

We'll just be putting our heads together to come up with solutions. . . .

It's going to be a pleasure working with them to accomplish our goal."

photo: J. Tom Morgan

Copyright 1993, The Atlanta Journal and Constitution, All rights reserved.
By Lessie Scurry STAFF WRITER, D.A. excited about chairing state panel on child abuse., 07-15-1993, pp A/03.

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To The Editors:

The Constitution Editors write: >>No one in the state of Georgia can match Oliver's knowledge of the state Division of Family and Children Services.>>

No one? Come on, give us a break! What about one of the guys at Men Stopping Violence; Ken Duke, Gwinnett County DFACS Director; Laura Burton, one of the few trial lawyers, in the divorce industry, who actually has won cases against child abusers; or George Casper, the Governor's liaison to DFACS, who has already been performing this function with his hands tied behind his back by the previous administation?

The Editors go on to say, >>"As a legislator, Oliver's signature appeared on every piece of legislation crucial to child welfare. She toughened the collection of child support, banned stalking and cut red tape to speed up adoption of abused and neglected children. Equally important, Oliver blocked dozens of initiatives aimed at weakening protections for children.">>

Oliver also blocked Sen. Joe Burton's proposed child abuse legistion which would force judges to consider evidence of domestic violence and child sexual abuse in custody cases [a bill she co-sponsored] from the Senate Judiciary Committee. When Burton held hearings in Sen. Michael Egan's Special Senate Judiciary Committee, Oliver didn't even bother to show up.

When DeKalb protective parents, mostly mothers, tried to enlist her help, as a strong advocate of protecting abused children, Oliver turned a deaf ear. Pointing an accusing finger at Gov. Roy Barnes, the Editors censure: >>"With such an outstanding resume, it's difficult to fathom why Barnes would overlook Oliver. There are no good reasons, only political ones. Oliver ran for the Democratic nomination for lieutenant governor in 1998 against the eventual winner, Mark Taylor, who is apparently still smarting from the campaign.>>

Obviously, the Editors' amnesia regarding an AJC story on Oliver's abuse of her Public Relations Director in the 1998 Lt. Governor's Campaign was synchronized with the AJC Stacks deletion the election story from their archives. [When I tried to look up the name of Oliver's PR Director, who resigned claiming Oliver mentally and verbally abused her, I found most of the older stories going back to 1986, which were previously accessible have been removed.]

To make Oliver appear more pallable, the Editors included a sweet, angelic picture of Oliver, but if any of them have had the chance, according to sources, to get caught in traffic behind her navigating downtown Decatur in a red convertible BMW, with a cigarette in one hand, flipping a bird with the other and shouting out curse words at hapless drivers caught in Decatur's unbearably, congested and confusing one-way streets, the Editors might have painted a more realistic picture of the real Mary Margaret -- "when she's good, she's very, very, good, when she's bad she's horrid."

O-kay so they admit it: >>"Admittedly, Oliver can be caustic, but she is capable of forging relationships with prickly political personalties as House Speaker Tom Murphy. When differences arose between the House and Senate on key bills, Oliver was always called upon to negotiate the compromises.>>

Big fat deal, they're both trial lawyers who do little to help battered women protect themselves and their children in divorce. Murphy recently sided with a batterer against his own female client. It wasn't until Murphy's former client who had been brutally beaten by her husband retained Sandy Springs Attorney, Gary Bunch, did she get adequate representation and won her damages in suit for assualt against her ex-husband, a man who had been married six times prior, all with domestic violence incidents. According to sources, Murphy and authorities went so far as to exclude her from testifying in husband's criminal trial thereby denying this woman, the victim, due process in a court of law.

Georgia's women and children need more of this?

In response to Jane Hansen's absolutely fabulous series on DFACS' child deaths, Oliver had the audacity to write that there weren't many legislators under the Gold Dome, who hadn't heard or known of someone who had been falsely accused of child sexual abuse. Hansen's articles did not, at any time, include DFACS' improper conduct in child sexual abuse custody cases.

In fact, Hansen told a non-custodial mother that the Editors would not allow her to cover said subject. Oliver's inappropriate comments had nothing to do with child deaths in Hansen's DFACS custody story, and when Alpharetta resident Rob Stanback's letter to the Editor was printed in opposition to her comments, according to sources, Oliver went ballistic.

Stanback writes: >>"Mary Margaret Oliver, a former state senator, abuses the facts by asserting that false accusations of child abuse are rampant and primarily the result of custody disputes ("Legislators can stem tide of tragedy," Viewpoints, Dec. 12). It is a widespread myth that charges of child abuse are usually false when they occur in custody disputes. As a result, the accusing parent is often treated with skepticism and the abusing parent gets the benefit of the doubt. Studies have shown that, even when child abuse accusations are first raised during a custody dispute, false charges are uncommon. Oliver refers to the "damage" and "horror" that result from false charges of child abuse. One wonders what words she would use to describe the result of falsely dismissing legitimate charges of child abuse and returning a child to an abusive parent.">>

One wonders, indeed, but will we ever know? Will the Editors ever ask her?

Will the subject ever be published in the AJC? Children need this?


Ex-senator is ideal choice for child advocate post
BYLINE: STAFF
DATE: 06-06-2000
PUBLICATION: The Atlanta Journal and Constitution
EDITION: Home
SECTION: Editorial
PAGE: A; 10

In establishing the new office of child advocate, Gov. Roy Barnes heralded a fresh chapter in the state's dismal history of protecting innocent young victims of abuse and neglect. But it will be the same old story if Barnes refuses to fill that office with a tough and independent voice for children.

He has the ideal child advocate in former state Sen. Mary Margaret Oliver.

She's an attorney with a lot of courtroom experience with issues involving children, and she's strong enough to revamp an agency so troubled that Barnes himself describes it as a "mess."

No one in the state of Georgia can match Oliver's knowledge of the state Division of Family and Children Services. As a legislator, Oliver's signature appeared on every piece of legislation crucial to child welfare. She toughened the collection of child support, banned stalking and cut red tape to speed up adoption of abused and neglected children. Equally important, Oliver blocked dozens of initiatives aimed at weakening protections for children.

With such an outstanding resume, it's difficult to fathom why Barnes would overlook Oliver. There are no good reasons, only political ones. Oliver ran for the Democratic nomination for lieutenant governor in 1998 against the eventual winner, Mark Taylor, who is apparently still smarting from the campaign.

Another stumbling block to Oliver's appointment is the governor's apparent determination to micromanage this new office. Barnes stopped short of creating a truly independent child advocate, contending that the state constitution stood in the way of granting the advocate the right to sue state agencies in court for failure to protect children. The more likely reason is that Barnes wanted to retain control over the office.

As a student of history, Barnes understands that strong and effective leaders surround themselves with people of strength. Oliver's keen intellect, her passion for children and her knowledge of the system are assets to Barnes, not threats to his power.

Admittedly, Oliver can be caustic, but she is capable of forging relationships with such prickly political personalties as House Speaker Tom Murphy. When differences arose between the House and Senate on key bills, Oliver was always called upon to negotiate the compromises.

As the co-author of the bill creating the child advocate, Rep. Georganna Sinkfield (D-Atlanta) says the person will have to be aggressive in pushing the agenda of the office and still be able to persuade state agencies to do what is right for children. Oliver has proven herself capable on each of those fronts.

The speculation under the Gold Dome is that Barnes is eying several state employees for the advocate's post. Their most outstanding qualification seems to be their malleability. Since children's lives are at stake with this appointment, Barnes ought to think long and hard before he allows politics to dictate his choice. This is a case where his conscience ought to be his guide.

Photo Voice for children: While Mary Margaret Oliver served in the state Senate, her name appeared on every major piece of legislation crucial to child welfare./ DAVID TULIS / Staff

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SUPREME COURT OF GEORGIA

OPINIONS PUBLISHED
NOVEMBER 23, 1998

The following opinions are available in the Clerk's office located at 244 Washington Street, Room 572. If you need any further information, please call the public information officer at (404) 651-9385. This list and the following summaries are intended to help you determine whether to obtain copies of the decisions.

November 23, 1998

  • SODOMY

Powell v. State, No. S98A0755 (Nov. 23, 1998)

  • HABEAS CORPUS

Turpin, Warden v. Lipham, Nos. S98A0724, S98X0770 (Nov. 23, 1998)

  • MURDER-LIFE

Owens v. State, No. S98A0590 (Nov. 23, 1998)

Bryant v. State, No. S98A1455, Hale v. State, No. S98A1456, and Wade v. State, No. S98A1457 (Nov. 23, 1998)

Parker v. State, No. S98A1195 (Nov. 23, 1998)

McAllister v. State, No. S98A0965 (Nov. 23, 1998)

Suits v. State, No. S98A1193 (Nov. 23, 1998)

Palmer v. State, No. S98A1735 (Nov. 23, 1998)

Shorter v. State, No. S98A1787 (Nov. 23, 1998)

Johnson v. State, No. S98A1187 (Nov. 23, 1998)

  • CONSERVATION AND NATURAL RESOURCES

Emmons et al. v. City of Arcade, No. S98G0279 (Nov. 23, 1998)

Franklin County et al. v. Fieldale Farms Corp., No. S98A1583 (Nov. 23, 1998)

  • CERTIFIED QUESTION

Escareno v. Carl Nolte Sohne GMBH, No. S98Q1334 (Nov. 23, 1998)

  • WILLS

Lamb et al. v. Nationsbank, N.A., et al., Nos. S98A1261, S98A1262, and Fredlund v. Nationsbank, N.A., et al., No. S98A1264 (Nov. 23, 1998)

  • DOMESTIC RELATIONS

Wright v. Wright, No. S98A0983 (Nov. 23, 1998)

  • MEDICAL MALPRACTICE

Fulton-DeKalb Hospital Authority v. Dawson et al., No. S97G1953, and Georgia Medical Care Foundation v. Dawson et al., No. S97G1956 (Nov. 23, 1998)

  • WORKERS' COMPENSATION

Bahadori v. National Union Fire Insurance Company et al., No. S98G0610 (Nov. 23, 1998)

 

SODOMY

In a 6-1 decision, the Georgia Supreme Court has ruled that the state's sodomy law violates the right to privacy guaranteed by the Georgia Constitution. Powell v. State, No. S98A0755 (Nov. 23, 1998).

Chief Justice Robert Benham, writing for the majority, found that the sodomy statute, O.C.G.A. §16-6-2, "insofar as it criminalizes the performance of private, non-commercial acts of sexual intimacy between persons legally able to consent, 'manifestly infringes upon a constitutional provision' . . . which guarantees to the citizens of Georgia the right of privacy."

Justice George H. Carley dissented, arguing that "the Court has usurped the legislative authority of the General Assembly to establish the public policy of this state."

Justice Leah J. Sears wrote a separate concurring opinion taking issue with the dissent's assertion and insisting that the majority "has fulfilled its constitutional responsibility within the American tripartite system of checks and balances."

The issue arose in the appeal of Anthony San Juan Powell, who was convicted in Gwinnett Superior Court of violating the sodomy law for engaging in a sex act with his 17-year-old niece. Powell was charged with rape and aggravated sodomy, but insisted at trial that he had engaged in consensual intercourse and oral sodomy.

The trial court instructed the jury on the law of rape and aggravated sodomy. In addition, the trial judge, of its own motion and not at the request of any of the parties, instructed the jury on the law of sodomy.

The defense repeatedly objected to the instructions on the sodomy law, arguing that it violated Powell's constitutionally protected right of privacy. The defense also argued that the trial court erred in giving the instruction because Powell was not charged with sodomy and neither side requested instructions on the law.

The Supreme Court held that the trial court had the authority to instruct the jury on the law of sodomy of its own volition. The court also found that the defendant's admission and the niece's testimony established sufficient evidence to support a sodomy conviction.

The Supreme Court then turned to the constitutional issue, pointing out that Georgia was a pioneer in the realm of the right of privacy. The Georgia Supreme Court was the first court of last resort to recognize a right to privacy, holding in a 1905 decision "that Georgia citizens have a 'liberty of privacy' guaranteed by the Georgia constitutional provision which declares that no person shall be deprived of liberty except by due process of law." That decision, Pavesich v. New England Life Ins., 122 Ga. 190 (1905), recognized a right of privacy 60 years before the U.S. Supreme Court recognized the right under the federal Constitution in Griswold v. Connecticut, 381 U.S. 479 (1965).

"Today, we are faced with whether the constitutional right of privacy screens from governmental interference a non-commercial sexual act that occurs without force in a private home between persons legally capable of consenting to the act," Benham wrote, pointing out that Pavesich and the decisions that have followed it "do not set out the full scope of the right of privacy in connection with sexual behavior."

"We cannot think of any other activity that reasonable persons would rank as more private and more deserving of protection from governmental interference than consensual, private, adult sexual activity," the majority opinion stated. "We conclude that such activity is at the heart of the Georgia Constitution's protection of the right of privacy."

The Supreme Court then turned to the question of "whether the government's infringement upon that right is constitutionally sanctioned." In so doing, the court considered whether the government-imposed limitation serves a compelling state interest and is narrowly tailored to effectuate only that compelling interest.

Citing numerous statutes prohibiting sexual assault, child molestation and public sex, the Supreme Court pointed out that the state "fulfills its role in preventing sexual assaults and shielding and protecting the public from sexual acts by the enactment of criminal statutes prohibiting such conduct" and through "the vigorous enforcement of those laws through the arrest and prosecution of offenders."

"In light of the existence of these statutes," the court added, "the sodomy statute's raison d'ętre can only be to regulate the private sexual conduct of consenting adults, something which Georgia's right of privacy puts beyond the bounds of government regulation."

The Supreme Court found that the statute exceeds the permissible bounds of the state's police power because "the only possible purpose for the statute is to regulate the private conduct of consenting adults, the public gains no benefit, and the individual is unduly oppressed by the invasion of the right to privacy."

The Supreme Court rejected the state's argument that laws setting "social morality" are exempt from judicial review. "'Social morality legislation,' like any legislative enactment, is subject to the scrutiny of the judicial branch under our tripartite system of 'checks and balances,'" Benham wrote.

"In undertaking the judiciary's constitutional duty, it is not the prerogative of members of the judiciary to base decisions on their personal notions of morality," the court added. "Indeed, if we were called upon to pass upon the propriety of the conduct herein involved, we would not condone it. Rather, the judiciary is charged with the task of examining a legislative enactment when it is alleged to impinge upon the freedoms and guarantees contained in the Georgia Bill of Rights and the U.S. Constitution, and scrutinizing the law, the interests it promotes, and the means by which it seeks to achieve those interests, to ensure that the law meets constitutional standards. While many believe that acts of sodomy, even those involving consenting adults, are morally reprehensible, this repugnance alone does not create a compelling justification for state regulation of the activity."

HABEAS CORPUS

In a 5-2 decision, the Georgia Supreme Court has affirmed a lower court decision finding that William Anthony Lipham's death sentence must be reversed because he received ineffective assistance of counsel during the penalty phase of his trial. Turpin, Warden v. Lipham, Nos. S98A0724, S98X0770 (Nov. 23, 1998).

Lipham was convicted of murder, rape, armed robbery and burglary and received a death sentence in Coweta County on Feb. 12, 1987.

According to evidence presented at trial, Lipham broke into the home of the 79-year-old victim, Kate Furlow, on Dec. 4, 1985. He raped her, killed her, and took jewelry from the house.

The habeas court found that Lipham's trial lawyers, Steve Fanning and Ike Hudson, were ineffective in their presentation of mitigating evidence during the penalty phase of trial.

The lawyers had about 2500 pages of medical, psychological and social records from Lipham's nine years in foster homes, mental hospitals, and the Anneewakee juvenile institution, but they never obtained an expert to distill or explain the records. They simply introduced them into evidence at the sentencing phase, made passing remarks about them and then asked to jury to "look at it." The jury returned a death sentence after only two hours of deliberation.

The Supreme Court majority, in a decision written by Justice P. Harris Hines, found that the trial lawyers' presentation of the mitigation case was not reasonable under the circumstances and constituted deficient performance. The Supreme Court also agreed with the habeas court that there was a reasonable probability that Lipham would have received a sentence less than death but for trial counsel's errors.

"Although Lipham's crimes are horrific, his mental disorders and the abuse, neglect and isolation he experienced as a child were not adequately presented to the jurors, and thus not reasonably available for their consideration. The habeas court ruled that Lipham met his burden of showing actual prejudice, and we cannot conclude that this ruling was error. Therefore, we affirm the habeas court's vacation of Lipham's death sentence," Hines wrote.

The Supreme Court agreed with the habeas court that Lipham failed to prove he was prejudiced by counsel's performance in the guilt/innocence phase of trial.

The Supreme Court remanded the case to the habeas court for consideration of five claims raised in Lipham's last amended habeas petition that were not addressed in its December 1997 order. "Because the habeas court never ruled on the timeliness of the last amended petition or on the merits of these claims, we remand these issues to the habeas court for a ruling. Until there is a decision in the habeas court, they are not ripe for appeal," Hines wrote.

Justice George H. Carley, in a dissent that Justice Carol W. Hunstein joined, argued that the habeas court's determination that Lipham received ineffective assistance of counsel during the penalty phase was erroneous and should be reversed. "The availability of unbridled post-trial inquiry, as sanctioned by the Court today, has transformed Georgia's state habeas proceedings into nothing more than a second trial wherein the habeas petitioner's trial attorney becomes, in effect, the defendant and, if he did not obtain a life sentence for his client, he is presumed to be constitutionally ineffective. Because I cannot subscribe to this consequence, I dissent," Carley wrote.

Justice Leah J. Sears wrote a separate concurring opinion taking issue with Carley's assertion. "This Court's own records show that since 1995, twenty-eight habeas petitions have been filed in this Court by petitioners who have been sentenced to death for their crimes. Most, if not all, of these habeas petitioners claim that either their trial counsel or their appellate counsel, or both, were ineffective. Of the twenty-eight death penalty habeas petitions filed since 1995, this Court has reversed and remanded one habeas appeal on grounds relative to a petitioner's claim of ineffective counsel. Accordingly, the statement in the dissent is untrue," Sears wrote.

MURDER-LIFE

The Georgia Supreme Court has affirmed murder convictions and life sentences in appeals from Bartow, Clayton, Gwinnett, Hall, Liberty, Muscogee and Richmond counties, but reversed in a Fulton County case.

In the Fulton County case, the Supreme Court reversed the murder and aggravated assault convictions Robyn Owens received for the Jan. 20, 1995, shooting death of her husband, Atlanta Police Sgt. Charlie Owens. Owens v. State, No. S98A0590 (Nov. 23, 1998).

Justice Leah J. Sears, writing for a unanimous Supreme Court, found the convictions must be reversed because the trial court erred in excluding evidence that Mr. Owens became aggressive toward his wife when he drank and would waive his gun in the air.

In so doing, the Supreme Court found that the Uniform Superior Court Rules that required defendants to give the state 10 days notice of their plans to introduce evidence of prior difficulties between the victim and the accused are no longer viable in light of a decision earlier this year which held that the state no longer has to comply with those requirements when it seeks to introduce evidence of prior difficulties.

According to evidence presented at trial, Robyn Owens first told police that a mechanic had come to the house and shot her husband. Later she told police that the gun discharged accidentally when she and her husband struggled over a gun after he pointed it at her and threatened to kill her during an argument.

The night of the shooting Charles Philips voluntarily came to the police station and stated he and Robyn Owens had been having an affair and that six months earlier she had wanted him to kill her husband for insurance money, but he refused. Phillips testified at trial that she discussed killing her husband for insurance money and told him that she put rubbing alcohol and eyedrops in his drinks. Another friend also testified about the rubbing alcohol and eyedrops.

A crime scene technician testified that the location of the bullets at the scene was not consistent with the account of the struggle. Also, the technician said if someone grabbed a barrel of a gun while it was being fired, that person would have significant hand injuries.

The Supreme Court concluded that the evidence presented at trial was sufficient to support the convictions.

In finding that the trial court should have allowed the defense to present evidence of prior difficulties between the Owenses despite the failure to give the prosecution advance notice, the Supreme Court relied on its decision in Wall v. State, 269 Ga. 506 (1998). In that case, the court held that the state no longer has to comply with the requirements of USCR 31.1 and 31.6 to introduce evidence of prior difficulties.

"Because of our decision in Wall, there is now 'an imbalance of forces between the accused and his accuser' with regard to the requirements for introducing evidence of prior difficulties between the victim and a defendant," Sears wrote for the court. "Accordingly, we rule that the requirements of USCRs 31.1 and 31.6 should no longer be imposed on a defendant when she seeks to introduce evidence of prior difficulties with the victim to support her claim of justification."

The court pointed out that both the state and the defense are still required to give pre-trial notice of their intent to introduce evidence of the defendant's or victim's prior acts against third parties.

"In addition," Sears added, "a defendant's right to introduce evidence of prior acts by the victim against her is still contingent upon the defendant making out a prima facie case of justification." The defense made a prima facie showing of justification in this case and that the excluded evidence was relevant to her claim.


In the Bartow County cases, the Supreme Court affirmed the murder and attempted armed robbery convictions Brandon Bryant, Josiah Hale and Quincy Wade received for crimes committed April 18, 1995. Bryant v. State, No. S98A1455, Hale v. State, No. S98A1456, and Wade v. State, No. S98A1457 (Nov. 23, 1998).

Justice Leah J. Sears, writing for a unanimous Supreme Court, found the evidence presented at trial supports the verdicts and that the trial court did not err in trying the three defendants together. (A fourth co-defendant, Shawndray Carson, was tried separately and ultimately pleaded guilty to the charges against him.)

"We also conclude that the trial court did not err in either its evidentiary rulings, or its rulings on challenges raised during voir dire," Sears wrote. "Therefore, we affirm."

According to evidence presented at trial, these three defendants and Carson went to the convenience store the murder victim, Shirley Hayes, managed. While Bryant, the driver, stayed in the car, the other three men went inside the store where Carson shot Hayes in the head. Hale and Wade tried unsuccessfully to take money from the cash register drawer which would not open. Appellants then left the store and drove off.

Meanwhile witnesses saw the three men run from the store, get into a vehicle, and drive off quickly with the vehicle's lights off. Those witnesses followed long enough to get a tag number and were fired upon by someone in the fleeing car. When the witnesses went back to the convenience store, they found the badly wounded Hayes alive on the floor behind the counter.

Hayes, who was hospitalized from April 18, 1995, until June 1, 1995, died at home on June 25, 1995, of a pulmonary embolism. Evidence introduced at trial showed that the pulmonary embolism resulted when a blood clot that originated in her leg became dislodged and traveled to her pulmonary artery, blocking the transfer of blood to the heart.

The defendants made statements to police after their arrests describing their roles in the attempted robbery and shooting. An acquaintance of appellants testified at trial that Bryant told her in Wade's presence of his role in the crimes.

Among the evidentiary issues raised in the appeal was a claim that the trial court erred in allowing the jury to review a redacted version of the death certificate during deliberations. The court held that the trial court's action did not violate the "continuing witness rule", which prohibits writings from going out with the jury when the evidentiary value of those writings depends upon the credibility of the maker.

Unlike the types of writings usually banned from the jury room, such as written interrogatories, written dying declarations and signed statements of guilt, the court found that a death certificate is prima facie evidence of the death and its cause and its evidentiary value is not dependent upon the medical examiner's credibility.

As a result, the Supreme Court held "that death certificates that are properly redacted to show only prima facie evidence of the fact that a death occurred and the causes of the death are not subject to the 'continuing witness rule.'"


In the Clayton County case, the Supreme Court affirmed the murder and cruelty to children convictions Michael Lee Parker received for the January 27, 1995, slaying of Zachary "Zack" Lamonte Martin, who died as a result of blunt force trauma to the head. Parker v. State, No. S98A1195 (Nov. 23, 1998).

Chief Justice Robert Benham, writing for the court, found the evidence presented at trial supports the convictions.

According to evidence presented at trial, Zack spent the day on Jan. 27, 1995, with Parker, who was his mother's boyfriend. Zack's mother, Renae Martin, found her son dead on Jan. 28, 1995, when she attempted to wake him.

Parker prevented Martin from calling 911 immediately so that he could remove illegal narcotics from the apartment and so he could tell her what their 'story' would be. Parker told medical personnel that he accidentally dropped Zack on the stairs. Parker later offered other explanations, saying Zack had been knocked out when Parker hit a blind curve in his van, that Zack had hit his head on the floor and a dresser and that Zack sometimes got mad and hit his head on the floor. Parker also said he had accidentally hit the child's head on the wall and a ceiling fan.

None of the explanations was consistent with the medical examiner's report.

In sentencing Parker, the trial court found that the conviction for cruelty to children merged with the malice murder conviction. A majority of the Supreme Court disagreed, finding that the cruelty to children offense is not an offense included in malice murder and did not merge into that conviction. However, Justice P. Harris Hines, in a concurring opinion that Presiding Justice Norman S. Fletcher joined, disagreed with the statement that the trial court erred in ruling that the two crimes merged for sentencing purposes.

The court rejected defense claims that the trial court erred in refusing the defense request that the jury be charged on the principle that mere presence at the scene of a crime is insufficient to support conviction; in refusing the defense request that the jury be charged that jurors are judges of both the law and the facts; and in giving a charge at the state's request that a reckless disregard for human life may be the equivalent to a specific intent to kill.

In rejecting the defense claim that the charge on reckless disregard could have improperly led the jury to convict Parker solely on the basis of criminal negligence, the majority distinguished this case from one decided earlier this year in which the court found error in an instruction that criminal negligence could substitute for criminal intent as an element of the crime of aggravated assault. Benham wrote that the earlier decision, Dunagan v. State, 269 Ga. 590 (1998), "is not controlling authority for the proposition that a reckless disregard for human life cannot substitute for the specific intent to kill as an element of the crime of malice murder. The elements of malice murder are entirely different from those of aggravated assault."

The majority added that malice murder can be proved with evidence that a defendant acted with implied malice, which the court previously had defined to mean conduct exhibiting a "reckless disregard for human life."

The majority found that the charge the trial court gave "does not erroneously equate general criminal negligence with a specific intent to kill, but it does properly equate implied malice with that intent. Consistent with the applicable long-standing authority in the area of malice murder, this instruction that a reckless disregard for human life may be equivalent to a specific intent to kill is a correct statement of the law and was properly given."

Justice Carol W. Hunstein, in a special concurrence that Presiding Justice Norman S. Fletcher and Justice Leah J. Sears joined, disagreed that the instruction on reckless disregard for human life was correct. "I believe this charge misleads juries into believing that malice murder can be committed by criminal negligence," Hunstein wrote. However, in light of the charge as a whole and the weight of the evidence against Parker, Hunstein concluded that there was no reasonable possibility that the jury would have returned a different verdict had the challenged instruction not been given.


In the Gwinnett County case, the Supreme Court affirmed the murder conviction Michael Gabriel McAllister received for the Oct. 6, 1995, strangulation of Donna Evelyn Ward. McAllister v. State, No. S98A0965 (Nov. 23, 1998).

Justice P. Harris Hines, writing for a unanimous court, found the evidence presented at trial supports the conviction.

According to evidence presented at trial, Ward's 7-year-old son found her nude body lying in a few inches of water in her bathtub. The cause of death was found to be strangulation by a soft and broad object, consistent with the crook of an arm held in a choke hold manner. Ward also had bruises on her head consistent with the impact that could be caused by a fist.

Ward had known McAllister for three years. He wanted to marry her and assume the role of her child's father and he was upset that she was planning to move nearer to the child's biological father.

The day before she was found dead, Ward had brought a co-worker home and after smoking marijuana with him called McAllister, who drove a taxi cab, to come to take the co-worker back to their place of employment.

McAllister, who talked several times to police during a two-month investigation of the murder, eventually told police that he and Ward argued over the co-worker being at her home and that he struck her. When Ward slumped from the blow, McAllister claims to have grabbed her from behind around the neck with the crease of his elbow and forearm. When she went limp and fell to the floor, he put her in the bathtub to revive her. When she did not come to, McAllister panicked and went home.

After making the statement to police, McAllister called his mother and told her "I did it; they got me." On the way to jail, he ranted, "Oh my god, Donna, what have I done. I've f----- up my life."

The court rejected defense claims that the trial court erred in allowing evidence of the statement to police and in admitting autopsy photos.


In the Hall County case, the Supreme Court affirmed the murder and firearms convictions Marcus Raymond Suits received in the April 24, 1995, slaying of Melinda Garrett. Suits v. State, No. S98A1193 (Nov. 23, 1998).

Justice Leah J. Sears, writing for a unanimous Supreme Court found the evidence presented at trial supports the convictions.

"On appeal," Sears wrote, "Suits raises numerous issues, including that the trial court erred in admitting hearsay, and erred in permitting the medical examiner to testify that the cause of death was a homicide and not a suicide. With regard to Suits's contentions, we conclude that all but two of them are without merit, and that, as for those two contentions, if any error occurred, it was harmless. Accordingly, we affirm."

According to evidence presented at trial, police found Garrett lying on the sofa with a large gaping head wound covered with towels. A baby lay next to her unharmed. Although Garrett was right handed, she had a pistol in her left hand.

Suits initially claimed that he had planned to kill himself, but the Garrett had taken the gun from him and shot herself. He later told police that Garrett had tried to take the cocked gun from Garrett when it discharged in a struggle.

Over defense counsel's hearsay objection, the trial court permitted a friend of the victim and the victim's sister to testify about statements Garrett made to them about her relationship with Suits.

The Supreme Court found that the sister's testimony met the prerequisites for the admission of hearsay evidence and that even if the friend's testimony did not meet those requirements any error in its admission was harmless because it covered essentially the same subject matter as other admissible evidence.

The court also found that it need not decide whether the trial court erred in allowing the medical examiner to testify that Garrett died as a result of a homicide and not a suicide because any error in the admission of such testimony would be harmless.

The court also rejected defense claims that the trial court erred in allowing graphic autopsy photos and repetitive photos of the deceased; in removing a juror who failed to disclose a conviction for a previous offense; and erred in instructing the jury.


In the Liberty County case, the Supreme Court affirmed the murder conviction Dedrick Palmer received for the May 9, 1996, slaying of Pete Howard. Palmer v. State, No. S98A1735 (Nov. 23, 1998).

Justice George H. Carley, writing for a unanimous Supreme Court, found the evidence presented at trial supports the conviction.

According to evidence presented at trial, Palmer and the victim got into an argument at an establishment known as Larry's Place. After Howard went out and sat under a barbecue shed, Palmer, at the direction of his co-defendant Casey Jenkins, got a gun out of Jenkins' car and fired it several times in the direction of the victim. An employee of Larry's Place found Howard's body the next morning as he cleaned up around the barbecue pit.

The court rejected defense claims that the trial court erred in instructing the jury and in denying his motion to sever his trial from that of Jenkins.


In the Muscogee County case, the Supreme Court affirmed the murder, aggravated assault and firearms convictions Eric Shorter received for firing shots into a gathering of approximately 50 people in the parking lot of a Comfort Inn in Columbus. The June 7, 1995, shooting injured Jerekese Chaney and killed Tyrone Robinson. Shorter v. State, No. S98A1787 (Nov. 23, 1998).

Justice Carol W. Hunstein, writing for a unanimous Supreme Court, found the evidence presented at trial supports the convictions.

According to evidence presented at trial, Shorter was attending a party in the parking lot when he saw two people whom he did not know start to argue. Shorter pulled out a pistol and when the partygoers started to run away, he fired shots into the fleeing crowd.

The Supreme Court rejected defense claims that the trial court erred in refusing to instruct the jury on the defense of accident and in instructing the jury on aggravated assault.


In the Richmond County case, the Supreme Court affirmed the murder and firearms convictions Kelvin Johnson received for the Jan. 10, 1992, slaying of Ricky Harris, a 10th grader at Glenn Hills High School. Johnson v. State, No. S98A1187 (Nov. 23, 1998).

Justice George H. Carley, writing for the court, found the evidence presented at trial supports the convictions.

According to evidence presented at trial, Johnson and Harris had a history of animosity based in part on the fact that Harris was the former boyfriend of Johnson's current girlfriend. In addition, Johnson suspected that Harris damaged his car.

On the day before the shooting, Johnson started several fist fights with Harris and threatened to kill him. The next day, as Harris walked to the school bus, Johnson confronted him and fired one shot. As Harris lay on the ground, a witness heard him say, "Please don't shoot me no more; please don't shoot me no more." The witness saw Johnson then walk up to Harris and shoot him in the head.

The court rejected defense claims that the trial court erred in barring the defense from using the term "gang" in questioning state witnesses about their associations; that the trial court erred in granting the state's motion to bar evidence of prior bad acts by the victim; that the trial court erred in allowing the prosecution to ask the defendant's mother about his prior arrests; and that Johnson received ineffective assistance of counsel at trial.

All members of the court concurred in the entire opinion except Presiding Justice Norman S. Fletcher who concurred in all portions of the opinion except that regarding the prior bad acts evidence and concurred in the judgment.

CONSERVATION AND NATURAL RESOURCES

The Georgia Supreme Court has ruled that a city's annexation of land can begin a process to select a site for a municipal solid waste disposal facility. The Supreme Court also held that a Superior Court has jurisdiction to enjoin a city for a violation of the state law which requires a city to hold a public meeting to discuss waste management needs and the process of site selection to the public before selecting a site for such a facility. Emmons et al. v. City of Arcade, No. S98G0279 (Nov. 23, 1998).

Justice P. Harris Hines wrote the Supreme Court's unanimous decision which affirms in part and reverses in part a Court of Appeals decision in an action brought by city of Arcade residents seeking to stop development of a landfill. The Court of Appeals had affirmed an order voiding a contract between the city and the landfill company, but reversed the grant of an injunction. City of Arcade v. Emmons, 228 Ga. App. 879 (1997).

City residents opposed development of the landfill in 1992 when the city first considered annexing 400 acres which the landfill company was considering as a site.

Although the city initially had decided not to annex the property, the council held a closed door meeting on May 27, 1993, and voted to annex the property so that the city would collect the local government host revenue under O.C.G.A. §12-8-39(d) if a developer sited a landfill on the property. No public notice had been given that the annexation would be addressed.

The city also gave no public notice of its intention to discuss the landfill issue at its Sept. 14, 1993, meeting in which Bartram Environmental, Inc. made a proposal to the city regarding terms under which Bartram would operate the landfill. The City Council voted to approve the conditions and prepare a contract with Bartram.

On Nov. 16, 1993, the city contracted with Bartram to own and operate a landfill on a portion of the annexed property. The contract was contingent on Bartram getting a permit from the Environmental Protection Division and purchasing the land. On Dec. 30, 1994, Bartram filed an application for a solid waste handling permit with the EPD. In January 1995, EPD requested Bartram to indicate whether or not it had met O.C.G.A. §12-8-26's public notice siting requirements. In March 1995, Bartram told EPD that the requirements had been met, citing the May 1993 and September 1993 City Council meetings.

Greg Emmons and others filed suit in 1996 seeking to bar the city from permitting Bartram's operations, and for a declaratory judgment that the contract between the city and Bartram was void for failure to comply with O.C.G.A. §12-8-26. The trial court ruled that the city violated the public notice requirements and ordered that the city's contract was void. The Superior Court also enjoined the city from taking any actions with Bartram flowing from the May 1993 decision to site a landfill on the annexed property.

The Supreme Court agreed with the trial court that the site selection process began in this case with the May 27, 1993, annexation. "Although an annexation decision may only rarely begin the process under O.C.G.A § 12-8-26 (a), whether it did so in this case is a fact question for the superior court, and the Court of Appeals erred in reversing the superior court on this determination," Hines wrote.

In addition, the Supreme Court upheld the Superior Court decision voiding the contract based on the violation of O.C.G.A. § 12-8-26.

The Supreme Court also disagreed with the portion of the Court of Appeals decision which found that the Superior Court did not have jurisdiction to enter an injunction because the statute gives EPD the power to decide whether to issue a landfill permit.

The Supreme Court found that the law that gives a right to appeal an EPD decision on the issuance of a permit affords no relief to the petitioners in this case.

"The administrative jurisdiction of the EPD does not include determination of whether the city has comported with meeting and notice requirements, and does not provide for remedies for the city's violations of OCGA § 12-8-26; it provides redress only to those 'aggrieved or adversely affected by any order or action of the director.' It is the city's flawed decision-making process that has aggrieved the petitioners. Therefore, the administrative permitting process, and its appeal provisions, do not provide the petitioners with an adequate remedy and the superior court did have jurisdiction to issue an injunction," Hines wrote. "The city's actions taken at the May 27 council meeting were ultra vires, as were any actions flowing from that meeting, and the superior court was empowered to enforce its ruling by enjoining the city from actions that would attempt to circumvent the court's order."

The Supreme Court added that the injunction does not completely prohibit the city from taking steps to obtain a landfill. "Under the facts of this case, the city has failed to make a lawful siting decision, and has not lawfully begun a process to select a site. However, the city could, in the future, begin a process to select a site and make a siting decision in compliance with OCGA § 12-8-26 (a) and (b)," Hines wrote. "Such a process, and any resulting decision, would not 'flow from the May 27, 1993 decision,' and would not be barred under the injunction."


The Georgia Supreme Court has ruled that a state law regulating the application of sludge to land preempts Franklin County's Land Disposal Ordinance. Franklin County et al. v. Fieldale Farms Corp., No. S98A1583 (Nov. 23, 1998).

Presiding Justice Norman S. Fletcher wrote the court's unanimous decision. "We conclude that the General Assembly has failed to give local governments authority to regulate the application of sludge to land, except in the specific area of monitoring," Fletcher wrote. "Because Franklin County has sought to establish a duplicate permit system that is not authorized by general law, we hold that OCGA § 12-5-30.3 preempts the county's Land Disposal Ordinance by implication."

The issue arose after Fieldale Farms Corp. applied with the state Environment Protection Division in 1994 for a permit to apply on farmland sludge it removed from wastewater treatment lagoons at a chicken rendering plant. The EPD issued a state permit for a one-time application of sludge.

Franklin County property owners challenged the decision in administrative proceedings with the EPD. Meanwhile, the County Commission adopted a Land Disposal Ordinance to regulate the disposal of such waste. The county denied Fieldale's application for a permit under the county ordinance.

Fieldale sued the county and commission seeking a declaratory judgment, injunction and mandamus. The trial court granted Fieldale summary judgment on several grounds including that state law preempted the county from enacting any ordinance dealing with water quality control.

CERTIFIED QUESTION

Answering a certified question posed by the 11th U.S. Circuit Court of Appeals, the Georgia Supreme Court has ruled that state law authorizes the appointment of an administrator for an estate in the county where the decedent had a pending lawsuit. Escareno v. Carl Nolte Sohne GMBH, No. S98Q1334 (Nov. 23, 1998).

Presiding Justice Norman S. Fletcher wrote the court's unanimous decision holding that appointment of an administrator for an estate in Fulton County was proper in this case involving a man who eventually died from burns suffered when a crucible allegedly made by Carl Nolte Sohne burst and showered him with molten zinc. The injured man, Alejandro Escareno, filed a federal suit in January 1992. He died in December of that year while he was a resident of Mexico. He left no property in Georgia other than his interest in the lawsuit and the file in his lawyer's possession.

The Supreme Court found that the appointment of the administrator in Fulton County was proper based on the pending cause of action.

WILLS

The Georgia Supreme Court has affirmed a Chatham Probate Court decision holding that under the will of Herschel V. Jenkins the estates and descendants of the deceased children of his deceased niece and nephew did not have any right to share in the estate. Lamb et al. v. Nationsbank, N.A., et al., Nos. S98A1261, S98A1262, and Fredlund v. Nationsbank, N.A., et al., No. S98A1264 (Nov. 23, 1998).

Justice P. Harris Hines, writing for the court, found that the lower court correctly found that the trust created in the will was intended to be distributed to a class consisting of the testator's nieces and nephews, or their children, living at the death of the testator's last surviving daughter.

All members of the court joined in the decision except Justice Leah J. Sears, who was disqualified. Judge T. Jackson Bedford Jr. of the Atlanta Judicial Circuit sat in her place and concurred in the decision.

 

DOMESTIC RELATIONS

In a 6-1 decision, the Georgia Supreme Court has ruled that a Barrow Superior Court erred in refusing to set aside the final judgment and decree of divorce entered against a pro se litigant who never received a copy of the trial calendar because his name was omitted from the mailing list. Wright v. Wright, No. S98A0983 (Nov. 23, 1998).

Justice P. Harris Hines wrote the majority decision in the case which held that a subpoena that the party received that did not state the nature of the proceeding did not give him adequate notice of the trial so as to satisfy due process.

Justice George H. Carley dissented, arguing that the subpoena gave the litigant adequate notice and thus satisfied due process concerns.

MEDICAL MALPRACTICE

The Georgia Supreme Court has ruled that an agency that pre-certifies surgical procedures to determine whether they will be covered by Medicaid is not immune from potential liability under a state statute that shields peer review organizations from liability.

The Supreme Court's decision also holds that a trial court did not abuse its discretion in admitting evidence that the plaintiff in this case failed to keep appointments for her son at special clinics at Grady Memorial Hospital.

The Supreme Court's decision in DeKalb Hospital Authority v. Dawson et al., No. S97G1953, and Georgia Medical Care Foundation v. Dawson et al., No. S97G1956 (Nov. 23, 1998), reverses the Court of Appeals on the evidentiary issue and affirms the lower appellate court on the immunity issue. Dawson v. Fulton-DeKalb Hospital Auth., 227 Ga. App. 715 (1997).

These medical malpractice cases against Grady Memorial Hospital and the Georgia Medical Care Foundation stem from the death of a 10-year-old boy who died in his sleep from cardiac arrest, induced by obstructive sleep apnea, less than a year after recommended surgery was not performed.

A jury returned a verdict of just $26,700 in favor of the boy's mother in her suit against the hospital. And the trial court granted summary judgment to the foundation which conducted the pre-approval review of his surgery required by Medicaid. The Court of Appeals reversed both of those decisions.

Ten-year old Antonio Dawson had been undergoing treatment at Grady since April 1991 where he was seen by the pediatric neurology clinic and diagnosed with sleep apnea and Pickwickian syndrome. He was evaluated by several different clinics at Grady between April and September of 1991. Between May and June of that year he missed four scheduled appointments.

At an appointment at the ear, nose and throat clinic on July 25, 1991, Antonio was diagnosed with enlarged adenoids and scheduled for adenoidectomy surgery on August 14, 1991.

Because Antonio was a Medicaid recipient, and Medicaid would not pay for the adenoidectomy without pre-approval, Grady submitted a request for approval to the Georgia Medical Care Foundation, an organization contracted by the Georgia Department of Medical Assistance to perform utilization review of Medicaid eligible procedures. The physician who reviewed the case determined that Antonio's tonsils should be removed in addition to his adenoids. The physician testified that he did not recommend that the surgery be denied.

Instead of notifying Grady that both procedures should be performed, the foundation's prior approval coordinator informed Grady of the determination that the scheduled surgery was not necessary to treat his condition. Grady called Antonio's mother the day before the scheduled surgery to say the operation had been canceled because Medicaid would not cover the cost.

Antonio died in his sleep on May 15, 1992.

In reversing the jury award in the case involving Grady, the Court of Appeals ruled that the trial court should not have admitted evidence that the mother had missed several of her son's doctor's appointments in May and June of 1991.

In granting certiorari in that case, the Supreme Court said it was particularly interested in determining: "Whether the Court of Appeals erred in ruling that the trial court abused its discretion in allowing evidence that plaintiff missed appointments at the Grady clinic in May and June 1991."

Justice Hugh P. Thompson, writing for the court, found that the trial court properly exercised its discretion in admitting the evidence because it demonstrated the plaintiff's conduct with regard to the continuing health of her child and thus was "related to the facts of the case on trial and was probative of causation."

The Supreme Court affirmed the portion of the Court of Appeals decision which found that the question of whether the foundation was negligent in failing to notify the mother and the hospital of the reason the surgery was denied was a jury question.

The Supreme Court held that the foundation was not conducting a peer review function when it denied the request for treatment and conveyed the information to Grady. As a result, the court said the foundation was not shielded from potential liability.

Justice Leah J. Sears did not participate in the decision and Judge Jefferson L. Davis of the Cherokee Judicial Circuit sat in her place and joined in the majority decision.

Justice Carol W. Hunstein and Justice George H. Carley concurred in part and dissented in part. In a written dissent that Hunstein joined, Carley explained that they believe the judgment of the Court of Appeals should be affirmed in its entirety because the lower appellate court correctly found that the trial court abused its discretion in allowing evidence that the decedent's mother missed clinic appointments.

WORKERS' COMPENSATION

The Georgia Supreme Court has ruled that the limitation period for an administrative action for the recovery of overpaid workers' compensation benefits is two years. Bahadori v. National Union Fire Insurance Company et al., No. S98G0610 (Nov. 23, 1998).

In reaching that decision, the court first determined that the Workers' Compensation Board has the power to adjudicate an overpayment claim only when it arises in the context of a change of condition hearing.

"[B]ecause the statute of limitations in a change of condition case is two years, we hold that the two-year statute of limitation which is applicable generally to change of condition cases is applicable to a claim for the overpayment of income benefits. It follows that the Court of Appeals erred in holding that the statute of limitation in this case was four years," Justice Hugh P. Thompson wrote for the court. All members of the court joined in Thompson's decision, except Justice Leah J. Sears, who did not participate in the case. Judge Charles B. Mikell of the Eastern Judicial Circuit filled in for Sears and joined in the decision.

The appellant in this case, Resa Bahadori, was shot in 1989 while working for appellee Sizzler #1543. Approximately one year later, while receiving disability benefits, appellant started working for S & S Cafeteria.

In 1992 appellant sought additional benefits which appellees paid. In 1994 appellant demanded more benefits for temporary total disability. Appellees contested this claim and appellant requested a hearing. Appellees then conducted an investigation and sought reimbursement of the benefits paid in 1992.

The trial division of the state board of workers' compensation ordered appellant to reimburse appellees for the benefits paid in 1992, finding that the statute of limitations in OCGA § 34-9-104 (b) did not bar recovery by appellees. The Court of Appeals affirmed in Bahadori v. Sizzler #1543, 230 Ga. App. 52 (1997).

Sizzler asserted that even if the statute of limitations was two years, it should have been tolled due to fraud.

The Supreme Court could not determine whether fraud thwarted Sizzler's original investigation because no findings of fact were made on that issue. As a result, the Supreme Court reversed and remanded "this case to the board to determine whether Bahadori's fraud thwarted a reasonably diligent investigation by Sizzler. On remand, the board should keep in mind that, in the worker's compensation context, 'there must be a balancing between the prompt and voluntary initiation of the payment of workers' compensation benefit[s] to an employee, on the one hand, and the availability, on the other hand, of an opportunity for the employer/insurer to base a notice to controvert upon evidence which the employer/insurer was unable to discover earlier as a result of the employee's own misrepresentation.'"

 

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