296 S.E.2d 693 (Ga. 1982), 38636, Bradley Center, Inc. v. Wessner

Docket Nº:38636.
Citation:296 S.E.2d 693, 250 Ga. 199
Opinion Judge:GREGORY, Justice.
Party Name:The BRADLEY CENTER, INC. v. William Kenneth WESSNER, et al.
Attorney:[250 Ga. 203] Lee R. Grogan, William C. Rumer, G. Michael Agnew, Columbus, Milton D. Jones, Manchester, for William Kenneth Wessner et al. S.E. Kelly, Jr., J. Ronald Mullins, Jr., Columbus, Sidney F. Wheeler, Michael T. Bennett, D. Keith Calhoun, Atlanta, for Bradley Center, Inc.
Judge Panel:WELTNER, Justice, concurring specially.
Case Date:October 27, 1982
Court:Supreme Court of Georgia
 
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Page 693

296 S.E.2d 693 (Ga. 1982)

250 Ga. 199

The BRADLEY CENTER, INC.

v.

William Kenneth WESSNER, et al.

No. 38636.

Supreme Court of Georgia.

October 27, 1982

Concurring Opinion Nov. 23, 1982.

Page 694

[250 Ga. 203] Lee R. Grogan, William C. Rumer, G. Michael Agnew, Columbus, Milton D. Jones, Manchester, for William Kenneth Wessner et al.

S.E. Kelly, Jr., J. Ronald Mullins, Jr., Columbus, Sidney F. Wheeler, Michael T. Bennett, D. Keith Calhoun, Atlanta, for Bradley Center, Inc.

GREGORY, Justice.

In a matter of first impression the Court of Appeals held that appellant, a private mental health hospital, may be held civilly liable for the murder of appellee's mother by appellee's father, a patient in appellant's facility. The Bradley Center, Inc. v. Wessner, et al., 161 Ga.App. 576, 287 S.E.2d 716 (1982).

Briefly, the relevant facts are as follows: Appellee's father, Matthew Wessner, and appellee's mother, Linda Wessner, had experienced long-term marital problems, apparently resulting from Mrs. Wessner's extramarital affair. Because of these problems Mr. Wessner became a "voluntary" patient in appellant's facility. Two months after he was discharged from his first voluntary admission, he attempted suicide and was voluntarily admitted into appellant's facility for the second time. Under appellant's voluntary admission program, patients must agree to comply with the restrictions imposed by appellant on their activities and mobility; if a patient seeks discharge against medical advice, appellant has authority to detain him from leaving for 48 hours while they attempt to persuade him to stay. The trial court was authorized to find that during this [250 Ga. 200] second period in the hospital, the treatment of Mr. Wessner revealed to appellant's staff that Mr. Wessner would likely cause bodily harm to his wife if he had the opportunity. In spite of this, Mr. Wessner was issued an unrestricted weekend pass privilege by appellant's staff. While exercising his pass, Mr. Wessner obtained his gun, confronted his wife and her paramour and shot and killed both of them. Mr. Wessner was tried and convicted of two counts of murder.

Appellees instituted this wrongful death action on the theory that their father's criminal act was reasonably foreseeable to appellant and that the death of their mother was proximately caused by appellant's negligence in issuing the weekend pass and in failing to exercise proper control over their father's freedom to leave the premises. The jury returned a substantial verdict for appellees, and the Court of Appeals affirmed.

Page 695

The court found that: (1) Where the treatment of a mental patient involves an exercise of "control" over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient; (2) the evidence supports the trial court's finding that appellant breached its duty to exercise control over Mr. Wessner; (3) the evidence demonstrated that appellant's action was the proximate cause of the death of appellees' mother; and (4) the damages awarded to appellees were not excessive as a matter of law.

We granted certiorari to consider whether an individual other than the patient can recover for the alleged malpractice of the physician where that person is injured by the criminal conduct of the patient and there is no privity...

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