Allrid v. Emory University

• Decision Date: 17 March 1983
• Docket Number: No. 65145,65145
• Citation: Allrid v. Emory University, 303 S.E.2d 486, 166 Ga.App. 130 (Ga. App. 1983)
• Parties: , 11 Ed. Law Rep. 1084 ALLRID v. EMORY UNIVERSITY et al.
• Court: Georgia Court of Appeals

Page 486

303 S.E.2d 486

166 Ga.App. 130, 11 Ed. Law Rep. 1084

ALLRID v. EMORY UNIVERSITY et al.

No. 65145.

Court of Appeals of Georgia.

March 17, 1983.

Rehearings Denied March 31, 1983.

Philip C. Henry, George W. Hart, W. Edward Andrews, Atlanta, for appellant.

J. Bruce Welch, Daryll Love, John A. Gilliland, Robert G. Pennington, Kirk M. McAlpin, Jr., Atlanta, for appellees.

POPE, Judge.

This suit was initially brought by James Allrid and Julie Allrid, individually and as husband and wife, against Emory University and others for injuries allegedly sustained by Mr. Allrid as the result of a diagnostic procedure in which a radioactive substance called Thorotrast was used. Mr. Allrid died during the course of this litigation and his wife, as executrix of his estate, was substituted for him as a party plaintiff. The diagnostic procedure took place in February 1956; in March 1979 the Thorotrast was discovered to be still present in Mr. Allrid's body and was alleged to be the cause of Mr. Allrid's chronic sore throats, debilitated physical condition and, by amended complaint, his subsequent death. The trial court granted Emory's motion for summary judgment on the ground that the statute of limitation barred the medical malpractice action against it. Code Ann. § 3-1102 (now OCGA § 9-3-71). The Georgia Supreme Court affirmed the trial court on this ground. Allrid v. Emory Univ., 249 Ga. 35, 285 S.E.2d 521 (1982). However, the Supreme Court found that the trial court had failed to resolve the issue of Emory's liability as a "supplier of dangerous chattel." Thus, the case went back to the trial court for determination of this issue. Emory again moved for summary judgment. The trial court found that "plaintiff's final claim against Emory University as the supplier of a dangerous chattel is encompassed by the definition of an 'action for medical malpractice' contained in Ga.Code Ann. § 3-1101, and is therefore barred by the statute of limitations contained in Ga.Code Ann. § 3-1102...." Summary judgment was granted in favor of Emory and Mrs. Allrid appeals.

1. Appellant contends that the trial court erred in granting summary judgment in favor of Emory because her claim against it is a cause of action based on a theory of products liability (Emory as the supplier of dangerous chattel) which accrued in March 1979 (see King v. Seitzingers, Inc., 160 Ga.App. 318, 287 S.E.2d 252 (1981)) and is therefore not barred by the statute of limitation for medical malpractice. Allrid v. Emory Univ., supra. We do not agree.

Code Ann. § 3-1101 (now OCGA § 9-3-70) provides: "As used in this section, the term 'action for medical malpractice' means any claim for damages resulting from the death of or injury to any person arising out of (a) health, medical, dental, or surgical: (1) service, (2) diagnosis, (3) prescription, (4) treatment, or (5) care, rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of such lawfully authorized person, or (b) care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility or institution, or by any officer, agent or employee thereof acting within the scope of his or her employment." Appellant argues strenuously that because Emory allegedly supplied the Thorotrast for purposes of the diagnostic procedure used on Mr. Allrid, providing the substance should be considered a "sale" rather than a "service" for purposes of defining her cause of action.

It is not necessary for us to distinguish between a "sale" and a "service" here. We hold that in either case appellant's claim fits within the definition of an "action for medical malpractice" under Code Ann. § 3-1101.

While we find no Georgia case directly on point, in Faser v. Sears, Roebuck & Co., 674 F.2d 856 (11th Cir.1982), the United States Court of Appeals, Eleventh Circuit, ruled on a case arising under the Georgia medical malpractice statute. In Faser, the plaintiff sued a pharmacy operated by Sears, Roebuck & Co. for injuries caused by a prescription drug purchased at the pharmacy. In holding that plaintiff's cause of action against the pharmacy fell within the definition of medical malpractice, the Faser court said: "[T]he Georgia definition of 'medical malpractice' specifically includes a 'medical ... prescription ... rendered by a person authorized by law to perform such (a) service.' Ga.Code Ann. § 3-1101(a)(3). Moreover, Georgia law historically has allowed medical malpractice suits against parties other than physicians. See, e.g., Shannon v. Thornton, 155 Ga.App. 670, 272 S.E.2d 535 (1980) (dentists); St. Joseph's Hospital, Inc. v. Mattair, 239 Ga. 674, 238 S.E.2d 366 (1977) (hospitals)." Faser, supra 674 F.2d at 859.

We find the federal court's reasoning persuasive. A hospital supplying a drug or substance to a doctor for medical treatment of a patient is a person authorized by law to perform such a service (Code Ann. § 3-1101(a)) and provision of the drug or substance falls within the ambit of care or service rendered by any public or private hospital (Code Ann. § 3-1101(b)).

2. Mrs. Allrid contends (by supplemental brief) that summary judgment in favor of Emory should be reversed because she has a viable wrongful death claim which is not barred by the statute of limitation. The amended complaint included a count which set forth several allegations of negligence relating to the injection of the drug Thorotrast into Mr. Allrid. This negligence was asserted as the proximate cause of his death.

The Supreme Court has recently held that the statute of limitation for medical malpractice claims cannot constitutionally be applied to wrongful death claims asserting medical malpractice as the cause of death. See Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 [166 Ga.App. 132] (1983). Under the Civil Practice Act "a complaint is not required to set forth a cause of action, but need only set forth a claim for relief...." Mitchell v. Dickey, 226 Ga. 218, 220, 173 S.E.2d 695 (1970). "[T]here is no magic in nomenclature, and in classifying pleadings we will construe them to serve the best interests of the pleader...." Holloway v. Frey, 130 Ga.App. 224, 227, 202 S.E.2d 845 (1973). An action for wrongful death may be premised upon "any negligence which was actionable at common law." Caskey v. Underwood, 89 Ga.App. 418, 420, 79 S.E.2d 558 (1953); see Code Ann. § 105-1301 (now OCGA § 51-4-1(2)). Thus, such an action can be premised upon an allegation of medical malpractice. See Clark v. Singer, supra; Andrews v. Lofton, 80 Ga.App. 723, 57 S.E.2d 338 (1950). Applying these precepts to appellant's amended complaint, there is clearly a cause of action set forth for wrongful death.

In the first appearance of this case on appeal, the Supreme Court determined that appellant's medical malpractice personal injury claim was barred by the statute of limitation and, therefore, that summary judgment was properly entered as to that issue. Allrid v. Emory Univ., supra at (1). The Supreme Court went on to note, however, that an issue raised by appellant's amendment to the complaint--the issue of Emory's liability under the "supplier of dangerous chattel" theory--had not been determined on the summary judgment motion and that this issue remained to be resolved by the trial court. As noted in Division 1 of this opinion, this formerly unaddressed issue has now been resolved adversely to appellant. No mention of the issue of Emory's liability under the wrongful death theory was made in the Supreme Court's decision. Emory had the burden on its motion for summary judgment to affirmatively negative all the appellant's claims and show that she was not entitled to recover under any theory of the case. See First of Ga. Ins. Co. v. Josey, 129 Ga.App 14(3a), 198 S.E.2d 381 (1973). Therefore, since this issue also was raised by the amended complaint, and was not then, nor has it yet been, addressed by the trial court, resolution of this issue is still pending before the trial court.

This brings us to the observation made by the Supreme Court in Clark v. Singer --that this case "was a personal injury and loss of consortium suit" instituted by the Allrids. This observation was not essential to the determination of the Clark case but, rather, was offered merely by way of illustration. Thus, the issue of Emory's liability under a wrongful death theory was not addressed by the Supreme Court in its Allrid decision. The observation is obiter dictum and is not binding on this court. See Wright v. MARTA, 248 Ga. 372, 283 S.E.2d 466 (1981); Browning v. Europa Hair, Inc., 145 Ga.App. 361, 243 S.E.2d 742 (1978); Black's Law Dictionary 541 (4th ed. 1968). Surely the Supreme Court did not intend sub silentio to preclude appellant from a full and fair hearing on an issue clearly raised by her complaint as amended. We find that the effect of the trial court's order in the case at bar was to grant partial summary judgment to Emory but to reserve for future determination the wrongful death issue.

We offer as obiter dicta our opinion that the Supreme Court's decisions in Allrid v. Emory Univ., supra, and Clark v. Singer, supra, appear to be inconsistent. While conceding that there are technical differences between a common law action for personal injury based on medical malpractice and a statutory action for wrongful death based upon the same set of facts (e.g., when the cause of action accrues, who may bring the action, the measure of damages), it seems to us illogical to hold that the statute of limitation for medical malpractice claims is constitutional when applied to a personal injury claim and yet unconstitutional when applied to a wrongful death claim based upon the same set of facts.

In Clark, the Supreme Court noted that application of Code Ann. § 3-1102 could bar a claim for wrongful death before the cause of action accrued. The Court found no rational basis for...