Spires v. Kim , 203 Ga. App. 302 ( 1992 )

Carley, Presiding Judge.

After their child was born with a congenital birth defect, appellant-plaintiffs, in their individual capacities and as next friends of their child, brought the instant tort action against appellee-defendants obstetrician and his professional corporation. In their individual capacities, appellants alleged a “wrongful birth” claim and, as the next friends of their child, they alleged a “wrongful life” claim. Appellants appeal from the order of the trial court granting appellees’ motion to dismiss for failure to state a claim.

1. Appellants alleged that they were deprived of the opportunity to abort their child by appellees’ negligent failure to conduct an additional sonogram and by appellees’ fraudulent failure to disclose that an additional sonogram had been recommended by other health care professionals. Although couched in terms of fraud, as well as negligence, these claims are for medical malpractice. “ ‘Wrongful birth’ and ‘wrongful life’ actions are both species of malpractice claims wherein relief is sought for allegedly negligent or intentional treatment or advice that has deprived the parents of the opportunity to abort a fetus and thereby avoid the birth of an impaired child. An action for ‘wrongful life’ is brought on behalf of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant to its parents, the child would never have been born. An action for ‘wrongful birth’ is brought by the parents of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child.” (Emphasis supplied.) Atlanta Ob. & Gyn. Group v. Abelson, 260 Ga. 711, 713 (398 SE2d 557) (1990). Our Supreme Court has held that “wrongful life” claims implicitly and “wrongful birth” claims explicitly “shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature.” Atlanta Ob. & Gyn. Group v. Abelson, supra at 714. Subsequent to the Supreme Court’s decision on Abelson, no such clear mandate from the legislature -has been forthcoming. Accordingly, under the controlling precedent of the Supreme Court of Georgia, the trial court correctly dismissed the complaint for failure to state a claim upon which relief may be granted.

2. Although appellants urged below and now urge on appeal that the decision in Abelson is violative of their constitutional right of due process, that argument can, of course, be successfully advanced only in the Supreme Court because only that court is empowered to overrule that decision. The question thus becomes whether appellant’s advancement of this argument constitutes a viable predicate for transferring the instant case to the Supreme Court. In making that determination, it must be borne in mind that the Supreme Court “does not have jurisdiction of all constitutional questions, but only those which involve the construction of the Georgia and the United States Constitutions, or the constitutionality of state or federal laws.” Bowery Savings Bank v. DeKalb County, 239 Ga. 398, 399 (236 SE2d 757) (1977).

Appellants certainly do not raise any issue of constitutional construction. To the contrary, they contend that the United States Constitution has already been unambiguously construed insofar as their abortion rights are concerned and that the decision in Abelson is violative of that unambiguous construction. Thus, appellants do not seek a construction of any constitutional provision, but a reconstruction of the judicial decision in Abelson in light of certain constitutional provisions.

While the decision in Abelson may be the law of this state, it is not a state “law” so that the Supreme Court would have jurisdiction over any case wherein a constitutional challenge had been raised to its continued viability. See Maner v. Dykes, 183 Ga. 118, 121 (187 SE 699) (1936) (holding that, for purposes of jurisdiction in the Supreme Court, state “laws” are deemed to be only “enactments of the General Assembly”). Since appellants do not question the constitutionality of any state “law,” but merely urge that a judicial decision be overruled as contrary to certain constitutional provisions, jurisdiction would not be in the Supreme Court. “ ‘Jurisdiction is not vested in the Supreme Court merely because it is contended that an action or judgment is or would be contrary to some provision of the Constitution.’ [Cits.]” Aiken v. Richardson, 207 Ga. 735 (1) (64 SE2d 54) (1951).

The instant case is neither more nor less than a medical malpractice action and the constitutional provisions regarding the appeal of such a case could not be clearer. Medical malpractice actions and any other class of cases not otherwise enumerated in Art. VI, Sec. VI, Par. Ill are appealable to this court unless they fall within the ambit of Art. VI, Sec. VI, Par. II (1). If the Supreme Court had jurisdiction over the instant case pursuant to Art. VI, Sec. VI, Par. II (1), it would have jurisdiction over any and all cases not otherwise enumerated in Art. VI, Sec. VI, Par. Ill, based merely upon the invocation of a constitutional provision and the allegation that a prior opinion of the Supreme Court was, for some reason, violative of that constitutional provision. As noted, any contention that this court’s appellate jurisdiction can be evaded by such a loose construction of Art. VI, Sec. VI, Par. II (1) has long since been rejected. Appellants themselves have recognized and followed the applicable procedure for securing an appellate review of their case. They filed a timely notice of appeal to this court and have not requested a transfer of their case to the Supreme Court. Instead, they have acknowledged in their brief that Abelson “is binding upon this court [and that] these issues are appealed for purposes of perfecting the record on any Petition for Certiorari later filed.” This is, of course, the applicable procedure to be followed in any case wherein this court otherwise has jurisdiction and it is simply urged that controlling Supreme Court authority was wrongly decided. It is this court that has jurisdiction over this medical malpractice case and, in performance of our constitutional function, we hereby affirm the judgment based upon what we believe to be the controlling Supreme Court decision in Abelson. Under the constitution of this state, appellants can now seek a writ of certiorari on the ground that that Supreme Court decision should be overruled because it is violative of their due process rights.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Cooper and Andrews, JJ., and Judge Arnold Shulman concur. Pope and Beasley, JJ., dissent.