BD. OF REGENTS OF UNIVERSITY SYS. v. Frost

• Decision Date: 30 July 1998
• Docket Number: No. A98A1170., No. A98A1169
• Citation: 233 Ga. App. 692,505 S.E.2d 236
• Parties: BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al. v. FROST. FROST v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al.
• Court: Georgia Court of Appeals

505 S.E.2d 236

233 Ga. App. 692

BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al. v. FROST.

FROST v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA et al.

Nos. A98A1169, A98A1170.

Court of Appeals of Georgia.

July 30, 1998.

Certiorari Denied December 4, 1998.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Jennifer D. Roorbach, Assistant Attorney General, for appellants.

Samuel W. Cruse, Augusta, for appellee.

RUFFIN, Judge.

Thomas Lamar Frost, Jr., as administrator and next friend of his son Thomas Lamar Frost III, sued Dr. Francis Tedesco in his official capacity as the president of the Medical College of Georgia, and the Board of Regents of the University System of Georgia d/b/a the Medical College of Georgia ("Board of Regents"), claiming that the defendants' negligence caused his son's death.¹ In Case No. A98A1169, the defendants appeal from the trial court's denial of their motion to dismiss the action. In Case No. A98A1170, Frost appeals from the trial court's setting aside of a default judgment entered against the defendants. For reasons which follow, we reverse with direction.

The underlying facts are as follows. On April 7, 1995, Frost's son, Thomas, sought treatment from Dr. Yogesh Pareek, a psychiatrist at the Medical College of Georgia's out-patient clinic. Dr. Pareek diagnosed Thomas with major depression. Thomas returned to Dr. Pareek on April 10, 1995 for a scheduled session. Thomas advised Dr. Pareek that he had nothing to live for, and he asked the doctor about the best way to die. Thomas warned Dr. Pareek during the session that if the doctor attempted to commit him, he would run to his car where he kept a gun and shoot himself. Dr. Pareek left the room to notify public safety officials and to complete forms committing Thomas to Georgia Regional Hospital. While Dr. Pareek was absent from the room, Thomas left, went to his car and shot himself.

On April 10, 1997, Frost sued Dr. Tedesco in his official capacity and the Board of Regents. Frost perfected service on the Board of Regents and Dr. Tedesco, but failed to provide the requisite notice to the Department of Administrative Services ("DOAS") in accordance with OCGA § 50-21-26. After the defendants failed to file a timely answer to the suit, the trial court granted Frost a default judgment. The defendants moved to set aside the default judgment and to dismiss the action, highlighting Frost's failure to properly notify DOAS. The trial court granted the motion to set aside the default judgment, denied the motion to dismiss, and certified the case for immediate review by this Court.

In Case No. A98A1169, the defendants assert that the superior court erred in denying their motion to dismiss since Frost failed to provide the ante-litem notice to the DOAS as required by OCGA § 50-21-26 and that Dr. Tedesco is immune from suit.

In Case No. A98A1170, Frost asserts, inter alia, that the trial court erred in setting aside the default judgment since the ante-litem notice to DOAS was not required. In support of this assertion Frost relies in part on the Georgia Supreme Court's decision in Keenan v. Plouffe, 267 Ga. 791, 482 S.E.2d 253 (1997).

Case No. A98A1169

1. We first conclude that Dr. Tedesco is immune from suit. OCGA § 50-21-25(a) provides in part that "[t]his article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her duties or employment is not subject to lawsuit of liability therefor." Moreover, "[a] person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission..., the state government entity for which the state officer or employee was acting must be substituted as the party defendant." OCGA § 50-21-25(b). Because Dr. Tedesco, a state officer working for the Board of Regents d/b/a the Medical College of Georgia, a state agency, was sued only in his official capacity, he is entitled to immunity. OCGA § 50-21-25. Accordingly, the trial court erred in not dismissing Frost's suit against him.

Furthermore, we note that Keenan is inapplicable. Keenan involved a physician, a faculty member at the Medical College of Georgia, who operated on a private-pay patient at the medical college hospital. The surgery resulted in brain damage to the patient, for which the patient's husband sued the physician. The Supreme Court ruled that the physician was not acting within the course of his official duties as a state employee in treating the patient because the duties he was alleged to have violated were independent of his duties as a professor at the Medical College. Id. at 793, 482 S.E.2d 253. Accordingly, the physician was not shielded from liability by the provisions of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. Id.

While Frost attempts to apply Keenan here, the Court limited the scope of Keenan by stating that "[b]ecause this case involves the exercise of ... medical discretion on a private-pay patient that was not controlled by the government employer or by statute, we do not consider whether immunity is appropriate for state-employed physicians who are required to treat particular patients, or who are alleged to have violated governmental, as opposed to medical, responsibilities, or whose medical discretion is controlled or impacted by governmental standards or constraints." Id. at 796, n. 17, 482 S.E.2d 253.

In the instant case, Frost sued Dr. Tedesco in his official capacity as the president of the Medical College. Frost never claimed that Dr. Tedesco treated Thomas as a private-pay patient and is therefore liable for his negligent treatment. As well, there is no evidence of record to show that Dr. Tedesco in any way assisted in Thomas' psychiatric care. Clearly, Frost sued Dr. Tedesco for violations of his governmental duties as the president of the Medical College, rather than for any violation of his medical responsibilities. See id. Accordingly, Keenan is not controlling.

2. As it is clear that the Tort Claims Act applied in this case, Frost was required to...