Bradley Center, Inc. v. Wessner

• Decision Date: 15 February 1982
• Docket Number: No. 62926,62926
• Citation: 161 Ga.App. 576,287 S.E.2d 716
• Parties: The BRADLEY CENTER, INC. v. WESSNER et al.
• Court: Georgia Court of Appeals

Page 716

287 S.E.2d 716

161 Ga.App. 576

The BRADLEY CENTER, INC. v. WESSNER et al.

No. 62926.

Court of Appeals of Georgia.

Feb. 15, 1982.

As Amended on Denial of Rehearing March 11, 1982.

S. E. Kelly, Jr., J. Ronald Mullins, Jr., Columbus, for appellant.

Lee R. Grogan, Michael Agnew, Columbus, for appellee.

CARLEY, Judge.

The instant wrongful death action raises an issue of apparent first impression in this state--whether appellant, a private mental health hospital, may be held civilly liable for the murder of appellees' mother by appellees' father, a patient in appellant's facility.

The relevant facts are as follows: Appellant admits patients only on a "voluntary" basis. In other words, patients of appellant's private facility "have to sign themselves in." Appellees' father, Matthew Wessner, and mother, Linda Wessner, had been experiencing marital problems for some time, the apparent primary source of which was Mrs. Wessner's extramarital affair. It was because of this disquieting domestic situation that Matthew Wessner originally became a "voluntary" patient in appellant's facility in October of 1974. At the time of his admission, Mr. Wessner made the following response to appellant's inquiry concerning his "chief problems": "My wife is divorcing me, she has been having an affair with another man for more than two years now. I have caught her on numerous occasions with him. I hate this man, and want his life or at least to suffer in some horrible way. I have attempted on occasion to carry this out. I am also harboring thoughts of even taking my wife's life. Just the sight of this man makes me want to do it. I now carry a weapon in my car in the hope of seeing him, and being in the right mood to kill. My family has been my life. When that is gone there is nothing left." In a "Clinical Record" dated October 22, 1974, and signed by a physician employed by appellant, the following notations were made concerning Mr. Wessner: "Presenting Complaints : The patient feels depressed because his wife is divorcing him. As a result, he feels agitated and fears that he is a potential danger to himself and to others because of his fury over his divorce ... Mental Status Examination : ... Except for aural hallucinations, the patient denied visual or factory [sic] hallucinations. He said that these voices came to him only during the last few days. He recognized that they [might] be hallucinations but is realistically frightened that he may be beginning to 'snap' ... Thought content dwelt mainly on his panic about the divorce and the recurrent thoughts about killing himself, his wife or his wife's lover." Thereafter, the medical records for Mr. Wessner's first admission reflect that he was being treated for what can best be termed, in the words of his physician, as "emerging homicidal impulses..."

On November 27, 1974, when Mr. Wessner was finally discharged from his first voluntary admission into appellant's hospital, his wife had likewise been a "voluntary" patient there for some five days. Mrs. Wessner's diagnosis was "depressive neurosis". In a "Doctor's Order Sheet" dated November 21, 1974, the following was noted concerning Mrs. Wessner's admission: "A 27-year old white female who is depressed because of her guilt in having an extramarital affair. Although this affair has been taking place for a year, repercussions only made an impact on her when her husband became almost homicidal in his fury and was admitted to this hospital..." Thereafter and until the time of her final discharge on January 8, 1975, Mrs. Wessner's medical records reflect that she was being treated for the depression occasioned by her marital situation and its resolution. Suffice it to say that the medical records demonstrate that no small part of the resolution of that situation involved Mrs. Wessner's fear of her husband and his threats. Mrs. Wessner's "Patient Discharge Summary", signed by her psychologist, noted that she "had made up her mind; she was going through with her divorce ... Her biggest fear was confronting Matt with her decision. She told him Monday night whereupon he became threatening and abusive..."

On January 14, 1975, after he attempted suicide, Mr. Wessner was voluntarily admitted for the second time into appellant's hospital. On January 24, 1975, the "Team Conference" noted that "[t]he patient, although improved, remains very vulnerable to the existing situation between himself and his wife... He has requested and received schedule for Intensive Group Psychotherapy for him to come to grips with his 'hate' ". The events of the week of February 2 to 9, 1975, are of critical importance to an understanding of Mr. Wessner's final tragic breakdown. On February 3, 1975, the following "In-patient Progress" note was made concerning Mr. Wessner: " 'I am not as angry as I was this morning, but I have this subdued rage inside of me.' This was the opening remark of the patient who wanted to see me to share with me what brought about his angry outburst at the morning meeting today. Over the weekend, while on pass, he went to his former wife's house ('just to see my kids'). One of them told him that 'Uncle George (wife's paramour) buys us candy and takes us for rides.' The patient became infuriated because, 'He first takes my wife, now he is after my kids.' Fortunately the man was not around because, by the patient's own admission, he (the patient) would have committed some sort of act of violence against his rival. The patient was obviously still very agitated and angry..." Also on February 3, 1975, Mr. Wessner "[e]xpressed intense fear of hurting someone--expressed need for help with controls." The "Nursing Notes" of February 5, 1975, reflect that Mr. Wessner "was denied privilege to go bowling because (1) his expression of wanting to leave [the hospital] and harm others as stated in team a. m. [conference] (2) I didn't feel comfortable taking him alone with one more [patient]..." Apparently, at either the "team a. m." conference of February 5, 1975, referred to in the above discussed nursing notes or the conference of February 6, 1975, Mr. Wessner "was very hostile and angry and was voicing his hostility very loudly... And he made a statement that he had a weapon and was just waiting for the right circumstances." On February 7, 1975, Mr. Wessner's "Treatment Plan Review", signed by his physician, contained the following notation: "Review of plans focused on patient's explosive hostility which again came to the surface during his last weekend pass... How will he control it in the future?... (4) Avoid possible stressful situations on outside (avoid visits with his former wife)."

Also on February 7, 1975, the "Doctor's Order Sheet" reflected that Mr. Wessner would be issued a pass "until 11 p. m. today (2-7-75) ... 10 a. m. to 11 p. m. on Sat. (2-8-75) ... 8 a. m. to 1:00 p. m. on Sunday ..." On the morning of Sunday, February 9, 1975, Mr. Wessner exercised his unrestricted pass privilege and left appellant's facility, stating that he was "going to take [his] children to church, have [a] steak dinner and return to [the hospital] about 1:30 p. m." Mr. Wessner drove to Mrs. Wessner's home to pick up the children who were in their mother's custody. The children were outside the house waiting for him and Mr. Wessner did not see his ex-wife at that time. On the way to church one of his children told Mr. Wessner, "Daddy, Mother does not want you to know, but Uncle George is in our house with her." After church, Mr. Wessner spotted his rival's car headed toward his ex-wife's house and he apparently "snapped". Mr. Wessner then secured his gun, confronted his ex-wife and her paramour and shot and killed both of them. Mr. Wessner was subsequently tried and convicted of two counts of murder.

The instant wrongful death action was instituted by appellees on the theory that their father's criminal act was reasonably foreseeable to appellant and that the death of their mother was the proximate result of appellant's negligence both in issuing the pass for the ill-fated day and in failing to exercise more restraint on their father's freedom to leave the premises. The case was tried by a jury and a substantial verdict for appellees was returned. Appellant appeals from the entry of judgment on this jury verdict.

1. Appellant's first assertion is "that the verdict is contrary to law and evidence in that the evidence failed to establish the requisite physician-patient relationship between [appellees'] deceased and [appellant]." Citing Buttersworth v. Swint, 53 Ga.App. 602, 186 S.E. 770 (1936), appellant argues, in essence, that "[i]t is fundamental in Georgia Law that an action against a medical professional can be maintained only by one within the physician-patient relationship." It is true that some cases in this state express adherence to a strict privity requirement in suits against professionals for the negligent performance of their professional services. See Smith v. International Lawyers, 35 Ga.App. 158, 132 S.E. 245 (1926) (attorney); MacNerland v. Barnes, 129 Ga.App. 367, 199 S.E.2d 564 (1973) (accountant). The rationale of such cases is, as in any negligence case, that "[t]he initial requirement for establishing liability is that there be a duty. This arises from the [professional]-client relationship itself. [Cits.]" Hughes v. Malone, 146 Ga.App. 341, 344, 247 S.E.2d 107 (1978). It does not appear, however, that this strict privity requirement is "fundamental" in the medical malpractice area. Buttersworth does not explicitly state such a requirement. On its facts, that case merely stands for the proposition that where there is no physician-patient relationship established there can be no professional duty owed, the breach of which constitutes medical malpractice. As thus construed, Buttersworth does not limit the permissible scope of a physician's liability solely to the patient where a physician-patient relationship does...