Torts
| Jurisdiction | Georgia,United States |
| Publication year | 2017 |
| Citation | Vol. 69 No. 1 |
Torts
Christopher R. Breault
Christopher B. Newbern
Brian C. Mickelsen
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This Article surveys recent developments in Georgia tort law between June 1, 2016 and May 31, 2017.1
In Thomas v. Tenet Healthsystem GB, Inc.,2 the Georgia Court of Appeals addressed whether physicians accused of malpractice were independent contractors of a defendant hospital.3 The plaintiff was involved in an automobile collision and arrived at Atlanta Medical Center's (AMC) emergency room on a backboard and with a cervical spine collar. A radiologist performed and read a CT scan, found no fractures, and communicated this to a physician working in AMC's emergency room. The emergency room physician instructed an AMC nurse to remove the cervical spine collar and discharge the plaintiff from the hospital. The plaintiff was then placed in a wheelchair and taken to the curb to await her ride home. The plaintiff's brother arrived to pick her up and found
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her unresponsive and slumped over in the wheelchair. She was readmitted to AMC and found to have a cervical fracture. When the cervical collar was removed, the fracture was displaced, causing spinal and neurological damage.4
The plaintiff sued AMC for imputed liability based on the actions of the radiologist and emergency room physician. AMC filed a motion for summary judgment pursuant to Section 51-2-5.1(f)5 of the Official Code of Georgia Annotated (O.C.G.A.), which states:
Whether a health care professional is an actual agent, an employee, or an independent contractor shall be determined by the language of the contract between the health care professional and the hospital. In the absence of such a contract, or if the contract is unclear or ambiguous, a health care professional shall only be considered the hospital's employee or actual agent if it can be shown by a preponderance of the evidence that the hospital reserves the right to control the time, manner, or method in which the health care professional performs the services for which licensed, as distinguished from the right to merely require certain definite results.6
The radiologist and physician involved were each part of a separate physician group, and each of those groups had a contract for services with AMC. The contract for services described the physicians as independent contractors. It was on this basis that the trial court found summary judgment was proper, and AMC was not liable for the actions of the radiologist and physician.7
The court of appeals disagreed and reversed because O.C.G.A. § 51-2-5.1(f) makes no mention of physician groups or contracts that exist between physician groups and hospitals, but only mentions health care professionals and hospitals.8 The court noted that, although AMC is not entitled to summary judgment under O.C.G.A. § 51-2-5.1(f), it may be entitled to summary judgment under O.C.G.A. § 51-2-5.1(g)9 which states that "[i]f the court finds that there is no contract or that the contract is unclear or ambiguous as to the relationship between the hospital and
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health care professional," a court may consider a variety of factors to determine whether an agency relationship exists.10
In a separate appeal,11 the court of appeals took up an additional issue concerning the "relation back" of claims added after the expiration of the original statute of limitations. The original complaint was filed against the radiologist, physician, and AMC. After learning during discovery that AMC's policy prohibited nurses from removing a cervical collar—as happened here—the plaintiff amended the complaint after the expiry of the statute of limitations, adding allegations of simple negligence against AMC for its nurse's conduct.12
AMC filed a motion to dismiss, arguing that the statute of limitations had passed and the new claims, as put forth in the amended complaint, did not relate back to the original complaint.13 The court of appeals disagreed, stating that the relation back provision of the Georgia Civil Practice Act14 should be construed liberally and states, "Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."15 The court stated, "The question of relation back of the amendment turns on fair notice of the same general fact situation from which the claims arises."16 The court held that because the original complaint alleged that "the C-collar was removed by Defendant Atlanta Medical personnel"17 and AMC had fair notice of the same general fact situation from which the simple negligence claim arose, the trial court erred and AMC's motion to dismiss should have been denied.18
In Doctors Hospital of Augusta, LLC v. Alicea,19 the Georgia Supreme Court held that to qualify for immunity from civil liability for noncompliance with a health care agent's directions, a surgeon and medical staff must act in good faith reliance on the agent's instructions
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not to provide life-saving treatment to the patient in question.20 In this case, the patient had executed an "advanced directive" which designated her granddaughter as her healthcare agent. The patient told her granddaughter directly and stated in the advanced directive she did not want action taken to prolong her life if she had an incurable and irreversible condition that would result in her death in a relatively short period of time.21
At age ninety-one, the patient was admitted to the hospital where blood tests and a chest x-ray showed that she was suffering from pneumonia, sepsis, and acute renal failure. Her granddaughter accompanied her to the hospital and gave the hospital the advance directive.22 The granddaughter spoke to the surgeon treating her grandmother and told him about the advance directive and that "by no means was CPR [cardio-pulmonary resuscitation] to ever be administered," and "no heroic measures were to be used" to prolong the patient's life.23 During her care at the hospital, the patient was intubated, had most of her right lung removed, and was put on a ventilator—all in contradiction to what the advanced directive dictated and the explicit directions of the patient's health care agent, her granddaughter. After multiple other procedures and surgeries to extend the patient's life, she finally died ten days after she was admitted to the hospital.24
The plaintiff sued the hospital and surgeon alleging breach of contract, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty.25 Following discovery, and pursuant to the Advance Directive Act,26 the defendants filed a motion for summary judgment, which was denied, on the basis that they were immune from liability. After taking up the issue on interlocutory appeal, the court of appeals also denied the motion, holding that defendants were not entitled to summary judgment because there was a genuine issue of material fact whether a good faith effort was made to rely on the advanced directive and the directions of the granddaughter, the health care agent.27
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The Georgia Supreme Court held that "the Advance Directive Act is all about letting patients and their health care agents, rather than the health care provider, control such decisions," such as those pertaining to invasive "life-sustaining" procedures.28 The supreme court affirmed the ruling of the court of appeals and trial court, stating that the surgeon (and hospital) is not entitled to immunity because he did not act "in good faith reliance—in honest dependence" on any decision made by the patient's health care agent—he did not make any decision whatsoever based on the advanced directive.29
The opinion in George v. Hercules Real Estate Services, Inc.30 concerns a resident at an apartment complex who was shot and severely injured during an attempted home invasion. The resident's apartment unit had been burglarized approximately one month before the subject incident. Sometime thereafter, the management company overseeing the apartment complex repaired the resident's front door and installed a metal burglar guard. In addition, all units in the complex, including the resident's, had alarm systems, which included a twenty-four-hour panic button. According to the resident, he obtained a shotgun following the burglary because he believed the complex was unsafe.31
In the early morning hours, the resident heard a knock at his door. He turned the porch light on and looked through the peephole. He saw the silhouette of an individual but did not hear anything from the person on the other side of the door. Although he was not expecting additional guests, he opened the door a bit and propped his foot against it. Once he opened the door, a second individual appeared, and the two individuals then attempted to push the door open. The resident tried but failed to push the door closed, and he then retrieved his shotgun. He shot at the intruders, who in return shot the resident four times. The intruders fled and were never apprehended. Although the management company had on-site security at various times, requests for increased security had been made before the attempted home invasion. The resident sued the management company alleging negligent security. The management company later moved for summary judgment, which the trial court granted.32
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In a divided opinion, the Georgia Court of Appeals affirmed the trial court's grant of summary judgment.33 The majority opinion held that summary judgment was proper because the resident failed to provide evidence sufficient to establish causation.34 Specifically, the majority noted several security measures that had been instituted at the apartment complex as part...
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