Alternative Health Care Systems v. McCown

• Decision Date: 16 March 1999
• Docket Number: No. A98A2449.,A98A2449.
• Citation: 514 S.E.2d 691,237 Ga. App. 355
• Parties: ALTERNATIVE HEALTH CARE SYSTEMS, INC. et al. v. McCOWN.
• Court: Georgia Court of Appeals

514 S.E.2d 691

237 Ga. App. 355

ALTERNATIVE HEALTH CARE SYSTEMS, INC. et al. v. McCOWN.

No. A98A2449.

Court of Appeals of Georgia.

March 16, 1999.

Reconsideration Denied March 30, 1999.

Kellogg, Saccoccia & Sigelman, Edward H. Kellogg, Jr., Decatur, Steven W. Saccoccia, Atlanta, Christopher J. McFadden, Decatur, for appellants.

Silfen, Segal, Fryer & Shuster, William R. Lester, Atlanta, Jeannine M. van der Linden, for appellee. SMITH, Judge.

Shelley McCown brought this action against Alternative Health Care Systems, Inc., d/b/a Peachtree Hospice ("AHC"), Sandra H. Yates, R.N., and Judith Ann Musco, R.N., among others, seeking damages for trespass to and mutilation of her husband's body, intentional infliction of emotional distress, negligence per se in violating OCGA § 31-23-6, wanton failure on the part of AHC to train and supervise its employees, punitive damages, and bad faith penalties. McCown contended that AHC personnel wrongfully instructed an eye bank to remove her deceased husband's eyes after she had refused permission, then concealed their actions from her and falsified records pertaining to the eye removal.

After the first portion of a bifurcated trial under OCGA § 51-12-5.1(d), the jury completed a special verdict form declining to award "special damages" and awarding "compensatory damages" against AHC, Yates, and Musco. The jury also found that the conduct of AHC justified the award of punitive damages. After the punitive damages phase of the trial, the jury returned a verdict against AHC for punitive damages, but declined to find specific intent to harm McCown. See OCGA § 51-12-5.1(f). The motion for new trial by AHC, Yates, and Musco and the motion for judgment notwithstanding the verdict by AHC were denied; they appeal, asserting 11 enumerations of error. Finding no error, we affirm.¹

1. While appellants assert the trial court erred in denying their motions for judgment on the pleadings, summary judgment, directed verdict, and j.n.o.v., they present no record references, argument, or citation of authority on this enumeration in their brief, and it is therefore deemed abandoned.² Court of Appeals Rule 27(c)(2). To the extent that the issue of sufficiency of the evidence arises in other enumerations of error, the standard of appellate review for the denial of motions for directed verdict and j.n.o.v. is the "any evidence" test. Ruben's Richmond Dept. Store v. Walker, 227 Ga.App. 867(1), 490 S.E.2d 536 (1997). Appellants must show that there was no conflict in the evidence as to any material issue and that the evidence introduced, with all reasonable deductions therefrom, demanded a verdict in their favor. Union Planters Nat. Bank v. Crook, 225 Ga.App. 578, n. 2, 484 S.E.2d 327 (1997).

2. In a series of enumerations, appellants raise multiple contentions concerning McCown's failure to prove damages. First, they contest the award of punitive damages because it was foreclosed by an award for damages to the peace and feelings of McCown under OCGA § 51-12-6. Second, appellants claim damages under OCGA § 51-12-6 were not recoverable. Third, appellants contend special damages could not be awarded. None of these claims has merit, largely because of appellants' failure to provide a special verdict form quantifying the damages awarded by the jury on McCown's multiple causes of action.

(a) Appellants contend the trial court erred in allowing a verdict for punitive damages to be considered by the jury when an award was made under OCGA § 51-12-6 for a claim in which the "entire injury is to the peace, happiness, or feelings" of McCown. In essence, they complain that McCown received a double recovery. See Southern Gen. Ins. Co. v. Holt, 200 Ga.App. 759, 768(5), 409 S.E.2d 852 (1991), rev'd in part on other grounds, 262 Ga. 267, 270(2), 416 S.E.2d 274 (1992). But Holt also recognizes that a jury may award different measures of damages on multiple claims if the evidence establishes several distinct torts. Id. at 768(5), 409 S.E.2d 852.

As noted above, a number of distinct tortious acts and causes of action were pled separately by McCown. For example, McCown asserted a claim of trespass on her quasi-property rights in the body of her deceased husband, arising from the removal of Mr. McCown's eyes despite her refusal to consent. See Ga. Lions Eye Bank v. Lavant, 255 Ga. 60, 61(1), 335 S.E.2d 127 (1985). She alleged that AHC failed to train and supervise its nursing personnel and that AHC employees later falsified records and refused to communicate with her in an apparent attempt to conceal their wrongful removal of Mr. McCown's eyes. This Court has distinguished between the mishandling of a deceased patient's body and the intentional infliction of emotional distress by the hospital's later conduct towards the survivors. They are separate causes of action. See McCoy v. Ga. Baptist Hosp., 167 Ga.App. 495, 306 S.E.2d 746 (1983).

While the jury's award theoretically could have been based entirely on a claim of injury to the peace and feelings of McCown, it is equally possible that the jury awarded compensatory damages and punitive damages on one of McCown's other claims or on a combination of claims, as recognized by Holt, supra.

(b) Similarly, appellants contend that McCown was required to make an election before trial between damages under OCGA § 51-12-6 and special damages. But, as noted above, McCown asserted multiple claims against appellants based upon different evidence. Several times during the trial, McCown's counsel laid out McCown's various causes of action and the measure of damages sought under each one.

Despite these clear indications that McCown was seeking recovery for distinct types of damages on several causes of action, appellants failed to present a special verdict form or object to the form of the verdict on any ground they now present. Their sole objection after the verdict was returned was that punitive damages could not be awarded in the absence of special damages. This is not a correct statement of the law. See generally Holt, supra, 262 Ga. at 270(2), 416 S.E.2d 274.

In addition, appellants did not object to the verdict form as it was submitted to the jury by the trial court. Although McCown originally requested a more specific verdict form, one was never submitted by any party. The trial court informed the litigants that it expected "we are going to do a blank jury form and the parties will argue what the verdict ought to be," and the record does not reflect that appellants ever objected to this procedure. Without special interrogatories in the verdict form to distinguish between McCown's various claims and causes of action, any attempt to determine the jury's reasoning in calculating its award is futile. Appellants ask this Court to speculate as to the findings of fact supporting the verdict, a task we will not undertake. Strong v. Wachovia Bank of Ga., 215 Ga.App. 572, 575(4), 451 S.E.2d 524 (1994). We also note that the verdict simply found for McCown for compensatory damages in the amount of $418,000. It is not illegal on its face. Appellants did not request special findings in this case and did not object to the verdict form and have therefore waived any complaint of deficiency in the verdict. Id. at 576, 451 S.E.2d 524. See also First Union Nat. Bank v. Boykin, 216 Ga.App. 732, 735(1), 455 S.E.2d 406 (1995).

(c) Appellants complain that McCown was improperly allowed to seek special damages. Once again, appellants have presented no record references, argument, or citation of authority for this enumeration, and it is deemed abandoned. But even had it been preserved for review, appellants cannot demonstrate any harmful error because the jury found against McCown on her claim for special damages. See generally Ross C. Shaw, Jr., Inc. v. Reynolds, 221 Ga.App. 548, 549(2), 472 S.E.2d 125 (1996).

(d) In the course of appellants' arguments on damages, they attempt to assert additional claims of error based on the trial court's instructions to the jury on damages and the preclusive effect of a grant of directed verdict on other issues in the trial. But "[m]atters not enumerated as error will not be considered on appeal. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration." ( Citation and punctuation omitted.) William N. Robbins, P.C. v. Burns, 227 Ga.App. 262, 265(2), 488 S.E.2d 760 (1997). Accordingly, we do not consider these additional claims.

3. Appellants contend that McCown failed to show evidence that their conduct was the proximate cause of the removal of Mr. McCown's eyes. But, construing the evidence in favor of the verdict, some evidence of proximate cause was presented. While appellant Musco may have responded affirmatively to a suggestion from appellants' counsel that the nurse who received McCown's refusal "equivocated" when she transmitted the information to her, the first nurse denied this.³ She insisted that she gave Musco the paperwork indicating refusal, and Yates agreed that the form originally indicated a refusal. Other evidence indicated that Musco told the eye bank she had obtained consent. This was sufficient evidence to present the question of proximate cause to the jury.

4. Appellants also contend in several enumerations that the trial court erred in its instructions to the jury. We note that appellants have attempted to include multiple assertions of error in the trial court's charge to the jury within several other enumerations regarding proof of damages and negligence claims. The attempt to assert multiple errors within these enumerations violates OCGA § 5-6-40.

When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. This court may elect to treat the remaining

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