Mullen v. Nezhat

• Decision Date: 22 October 1996
• Docket Number: No. A96A1014,A96A1014
• Citation: 223 Ga.App. 278,477 S.E.2d 417
• Parties: , RICO Bus.Disp.Guide 9145, 96 FCDR 3811 MULLEN v. NEZHAT et al.
• Court: Georgia Court of Appeals

Page 417

477 S.E.2d 417

223 Ga.App. 278, RICO Bus.Disp.Guide 9145,

96 FCDR 3811

MULLEN v. NEZHAT et al.

No. A96A1014.

Court of Appeals of Georgia.

Oct. 22, 1996.

Dickinson, Noel & Mixson, Michael K. Mixson, Monroe, for appellant.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., Atlanta, Walbert & Mathis, David F. Walbert, Atlanta, for appellees.

ANDREWS, Judge.

Mary S. Mullen appeals from the grant of partial summary judgment to Dr. C. Nezhat, Dr. F. Nezhat, and Atlanta Center for Endocrinology, Inc. on her RICO claims arising from her surgery on December 16, 1991, at Northside Hospital.

Mullen's complaint, as amended, also named Dr. Earl Pennington, and Northside Hospital, Inc. as defendants. Numerous causes of action were alleged against the doctors and hospital, including malpractice, battery, fraud, and the RICO claim.

1. Viewing the evidence presented under the standard of Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991), it was that C. and F. Nezhat were obstetricians/gynecologists who performed laparoscopic surgery for endometriosis and other problems. Mullen had been suffering from severe pelvic pain and was referred to Drs. Nezhat by her gynecologist in California, where she resided. In December 1988, she underwent surgery by video laseroscopy by Dr. C. Nezhat for treatment of endometriosis, as well as rectal and colon adhesions and ovarian cysts. This surgery was successfully completed.

Due to recurring problems, however, Mullen returned to Drs. Nezhat for further treatment in December 1991. She was admitted to Northside Hospital on December 17 for her surgery on December 18, 1991. This surgery is the basis for the present litigation.

As part of the admission process, Mullen signed a Consent To Surgical Or Diagnostic Procedures And Waiver Of Right To Receive Information In Connection Therewith. The procedures to be performed or possibly performed were listed therein as "video laseroscopy, hysteroscopy, and any other procedure deemed necessary, possible bowel resection, possible laparotomy, possible colostomy." (Emphasis supplied.) Subsection B of that document stated that "I acknowledge and understand and duly evidence in writing by executing this form that under Georgia law I am entitled to receive the following information relative to the procedure(s) described in paragraph (A): 1. A diagnosis of the condition requiring the procedure(s): 2. The nature and purpose of the procedure(s): 3. The material risks of the procedure(s): 4. The likelihood of success of the procedure(s): 5. The practical alternatives to such procedure(s): and 6. The prognosis if the procedure(s) is (are) rejected."

The final paragraph stated that the form had been explained to Mullen, that she understood it, consented to the surgery, and "I fully and completely waive the right to be informed of the information specified in paragraph (B) and request that such information not be disclosed."

Mullen was operated on under general anesthesia on December 18, 1991, from 7:30 a.m. to 11:00 a.m. As part of the surgery, her bowel was mobilized and prolapsed through her rectum for examination for endometriosis and a portion of tissue removed. The rest of the bowel was then sutured and reinserted. Mullen's recovery was normal until approximately 7:00 p.m. when she went to the bathroom and a portion of the rectum prolapsed. Dr. Pennington reinserted the bowel, and Mullen was discharged on December 23, 1991, no further problems with prolapse having been observed or reported. While this surgery is the basis for this litigation, Mullen underwent an additional surgery by Dr. C. Nezhat in July 1992. She contends that, while she was told the 1991 bowel resection was necessary because of endometrioma, or cancer, and that it would be done only if the endometrioma was deep in the bowel wall, in fact, very few endometriosis cells were found by the pathologist, and there was no evidence of deeply invasive endometrioma.

2. The complaint was originally filed in December 1993 and repeatedly amended, ¹ both before and after the defendants filed the motion for partial summary judgment at issue here and the hearing was held. Mullen's second amended complaint was filed on July 22, 1994, and contained as Count 8 allegations of violation of OCGA § 16-14-4, RICO, against Dr. C. and Dr. F. Nezhat. The predicate acts are alleged as failure to obtain informed consent, supplying false data to medical journals, and excessive and improper billing sent to insurance companies or patients for the allegedly "experimental surgery."

On March 6, 1995, plaintiff's third amendment was filed, alleging Count 9 to the complaint, another RICO charge against both Nezhats and Dr. Pennington. This count alleged that the doctors failed to obtain "valid informed consent ..., by fraudulently misrepresenting the true nature of their experimental surgery, [and] by repetitively performing non-indicated, unnecessary surgery ..." on Mullen and other patients, thereby "deliberately and maliciously causing bodily harm" amounting to aggravated battery. On March 20, 1995, Mullen filed her fourth amendment, adding to Count 9 the allegations that the Nezhats had engaged in experimental and non-consensual medical treatment by implanting Estradiol pellets into "hundreds if not thousands of women without their knowledge that this hormonal implant was not approved." It was again alleged that this experimental treatment was improperly billed to insurance companies as other treatment, constituting mail and wire fraud as predicates under OCGA § 16-14-3.

OCGA § 16-14-4 prohibits any person, through a pattern of racketeering activity, from acquiring or maintaining any enterprise, real or personal property, including money. " 'Racketeering activity' means to commit, to attempt to commit, ... any crime which is chargeable by indictment ..." as listed in numerous specified statutes, including OCGA § 16-5-24, aggravated battery. OCGA § 16-14-3(9)(A).

As set out above, the two required predicate acts initially alleged by Mullen were aggravated battery committed against her and unnamed "other patients." OCGA § 16-5-24(a) provides that a person commits aggravated battery "when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof."

In essence, Mullen contends that the scienter (knowledge which can be proven by showing consent to the touching was obtained by fraud) which is needed to prove a civil tort claim based on battery, Smith v. Wilfong, 218 Ga.App. 503, 507(2), 462 S.E.2d 163 (1995), is equivalent to the mens rea (general criminal intent) needed to prove a criminal charge under OCGA § 16-5-24. That statute, however, requires malicious intent to cause bodily harm, see Mullen v. State, 51 Ga.App. 385, 387, 180 S.E. 521 (1935), not fraudulently misrepresenting the type of surgery to be done, the conditions under which it would be done, or the fact that such surgery is experimental. As alleged, the complaint does not indicate the doctors' malicious intent to commit bodily harm, but intent to profit financially from conducting experimental medical treatment. As alleged in the complaint, it was to the benefit of the doctors that such surgery be seen as "successful," thereby negating malicious intent to injure the patients.

Here, Mullen does not dispute that she signed the consent form, although she apparently did not read it fully and did not mean to waive her right to information about the surgery. The consent form specifies that a bowel resection was one of the contemplated procedures.

These circumstances do not amount to aggravated battery because they do not allege acts indictable under the criminal statute. Cobb County v. Jones Group P.L.C., 218 Ga.App. 149, 155(8), 460 S.E.2d 516 (1995); Avery v. Chrysler Motors Corp., 214 Ga.App. 602, 603(1), 448 S.E.2d 737 (1994); see State v. Burrell, 189 Ga.App. 812, 813, 377 S.E.2d 898 (1989).

Therefore, the grant of summary judgment to appellees on the RICO allegations premised on aggravated battery as predicate acts was proper.

3. As to the mail or wire fraud allegations, the doctors argue that violations of the federal mail and wire fraud statutes cannot be predicate acts under Georgia's RICO statute. This is not the case. Brown v. Freedman, 222 Ga.App. 213, 474 S.E.2d 73 (1996); Reaugh v. Inner Harbour Hosp., Ltd., 214 Ga.App. 259, 264(5), 447 S.E.2d 617 (1994); Dover v. State, 192 Ga.App. 429, 385 S.E.2d 417 (1989); see State of Ga. v. Dairymen, Inc., 813 F.Supp. 1580, 1585(10) (S.D.Ga.1991).

These statutes require that a person, "having devised ... any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ..." use the mails or wire communication for the purpose of executing the scheme. 18 U.S.C. §§ 1341, 1343; InterAgency v. Danco Financial Corp., 203 Ga.App. 418, 426(3), 417 S.E.2d 46 (1992).

The trial court's order found that Mullen's allegations of fraud were inadequately pled and, since the defendants had pierced Mullen's pleadings in this regard on their motion for summary judgment, this defect could not be corrected by a motion for more definite statement. We agree. Having reviewed the record, we find that the doctors have pierced Mullen's allegations of mail and wire fraud, making it incumbent upon her to come forward with evidence of two predicate acts. Lau's Corp., supra; Brown v. Freedman, supra. In response, Mullen relied below and continues to rely here solely on the allegations of her complaint.

Even considering these bare allegations, they fail for other reasons. Although Mullen alleges that the doctors submitted fraudulent billing statements to insurers and patients, the only patient specified is herself and no specific insurers are named. That Mullen...