Bruscato v. O'brien.

• Decision Date: 16 December 2010
• Docket Number: No. A10A1230.,A10A1230.
• Citation: 307 Ga.App. 452,705 S.E.2d 275
• Parties: BRUSCATOv.O'BRIEN.
• Court: Georgia Court of Appeals

307 Ga.App. 452

705 S.E.2d 275

10 FCDR 3980

BRUSCATO

v.O'BRIEN.

No. A10A1230.

Court of Appeals of Georgia.

Dec. 1, 2010.Reconsideration Denied Dec. 16, 2010.

William G. Quinn III, Jerry D. McCumber, Decatur, for appellant.Owen, Gleaton, Egan, Jones & Sweeney, Milton B. Satcher III, Laura C. Marshall, Atlanta, for appellee.ELLINGTON, Judge.

Vito J. Bruscato, in his capacity as the guardian of Victor Bruscato, appeals from the order of the Superior Court of DeKalb County, which granted summary judgment to Victor Bruscato's psychiatrist, Derek Johnson O'Brien, M.D., in this medical malpractice case.¹ The superior court concluded that Bruscato's malpractice claims were barred either by the application of the “impact rule” or on public policy grounds. For the following reasons, we reverse.

To prevail at summary judgment under OCGA § 9–11–56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal of a grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law.(Citations omitted.) Boggs v. Bosley Med. Institute, 228 Ga.App. 598, 599, 492 S.E.2d 264 (1997).

So viewed, the record reveals the following. O'Brien began treating Victor Bruscato, a then 38–year–old, mentally ill patient with a history of violence, in January 2001. O'Brien reviewed Bruscato's treatment records, which revealed that Bruscato's mental illness manifested in childhood and that he had been diagnosed over the course of his life with mental retardation, organic mood disorder, pervasive developmental disorder, schizophrenia, a nonspecified psychotic disorder, pedophilia, and intermittent explosive disorder. Bruscato had expressed homicidal thoughts toward his parents, and he had physically assaulted them and others, including a hospital employee and a young girl. He had also experienced auditory hallucinations that commanded him to kill people or to molest girls.

When O'Brien began treating Bruscato, Bruscato had been living with his parents for almost two years. Before that, he had been living in a group home operated by the Gwinnett-Rockdale-Newton Community Service Board (“CSB”), but he had been removed from the home because of the risk that he might sexually assault a girl. Bruscato's expert witness opined that his elderly parents were ill-equipped to manage a severely mentally-ill adult and were “strong-armed” into taking him home. While at home, Bruscato continued receiving outpatient treatment from the CSB. Bruscato's expert witness opined that the medications the CSB staff administered to Bruscato controlled his violent behavior and sexual impulses. O'Brien knew that, because Bruscato was potentially dangerous, the CSB required his parents to monitor him continuously.

In late May 2002, O'Brien ordered that two of Bruscato's medications, Zyprexa and Luvox, be discontinued for six weeks to rule out the possibility that Bruscato might be developing neuroleptic malignancy syndrome (“NMS”). O'Brien's own expert witness opined that, if Bruscato had NMS, which the expert believed he did not, the proper procedure would be to hospitalize him. He also opined that withholding Bruscato's medications for that period to rule out the possibility of NMS, which is very rare, was not medically justified.

According to a family friend, about two-and-a-half weeks after Bruscato stopped taking Zyprexa and Luvox, he began having nightmares, panic attacks, and bouts of heavy sweating. He also started hearing voices telling him to kill, and he became increasingly hostile toward his parents. On July 22, O'Brien met with Bruscato briefly and noted that he spoke rapidly, seemed excited, and was feeling angry at women. O'Brien, however, did not make any changes to Bruscato's treatment plan. On August 11, Bruscato scrawled a “prayer note,” stating: “[I] need prayer big time devil tormenting me.” O'Brien opined in his deposition that the letter “could convey psychosis.” On August 14, a friend visiting Bruscato's home observed him rocking back and forth on his bed, pleading for the voices in his head to leave him alone. A nurse, who also visited on the same day, noted that Bruscato was argumentative, was expressing thoughts about sexual fantasies and dreams, and was generally irritable.

On August 15, Bruscato crushed his mother's skull with a battery charger and stabbed her 72 times, killing her. When questioned by the arresting officers, Bruscato said that he killed his mother and that he knew it was wrong, but that the devil had told him to do it. After Bruscato was jailed, the assistant director of prison mental health services wrote Bruscato's criminal defense attorney. She advised him that, when Bruscato was arrested, he had been “non-compliant with his anti-psychotic medications,” and, during his intake assessment, he had reported auditory hallucinations that were “persecutory in nature,” that he had trouble controlling his impulses, and that he had very poor insight into his situation, asking “what member of his family would become his new mother.” Bruscato wondered whether his mother could be “brought back to life.” After reintroducing Zyprexa into Bruscato's medication regimen, the director noted that he became “compliant” and that his condition “improved steadily.” Although Bruscato was indicted for his mother's murder in 2002, he was found to be incompetent to stand trial. As of the date of the trial court's summary judgment order in the instant case, Bruscato has been residing at Central State Hospital, where he had been committed.

Bruscato's expert witness opined that when O'Brien “abruptly terminated [Bruscato's] Zyprexa, not only was this a violation of the standard of care required of Dr. O'Brien, it resulted in the imposition of chemical changes in [Bruscato's] brain. Those chemical changes in turn produced adverse physical responses in [Bruscato's] brain and ultimately in his body.” The expert stated that Bruscato's mental illness was not merely emotional or behavioral, but neurological—“a medical disorder.” The expert further opined that the chemical changes that resulted from withholding medication caused Bruscato to “decompensate” and experience the return of the most severe symptoms of his medical disorder, including auditory command hallucinations, agitation, and hostility. The expert concluded that O'Brien's treatment “manifested gross negligence and a disregard of the consequences of leaving a historically violent and potentially psychotic patient unmedicated,” which ultimately led to Bruscato's killing his mother while in a psychotic state.

1. Bruscato contends the trial court erred when it granted O'Brien's motion for summary judgment based upon a finding that he “failed to establish an injury for which the law provides recovery,” and entered judgment in favor of O'Brien on all counts of the complaint. Specifically, Bruscato argues that the court erred in characterizing his claim for damages arising prior to the attack on his mother as a claim for “[m]ental distress and anguish” and concluding that, because Bruscato had suffered no physical injury or pecuniary loss prior to the attack, he was barred from recovering for the “negligent infliction of emotional distress” by the so-called “impact rule.” ² We agree.

“Three elements are essential to establish a medical malpractice claim: the doctor's duty to his patient; the doctor's breach of that duty through the failure to exercise the requisite degree of skill and care; and an injury proximately caused by the doctor's failure.” (Citations omitted.) Haughton v. Canning, 287 Ga.App. 28(2), 650 S.E.2d 718 (2007). OCGA § 51–1–27, which pertains to actions for medical malpractice, provides: “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” (Emphasis supplied.) The statute clearly provides that a compensable injury may result from a physician's failure to properly administer medicine, and we have held that whether drugs were administered properly is a medical question involving professional judgment and skill. See Williams v. Alvista Healthcare Center, 283 Ga.App. 613, 615–616(1)(a), 642 S.E.2d 232 (2007); Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga.App. 408, 409–410(1), 587 S.E.2d 873 (2003).

Bruscato asserts that O'Brien, his psychiatrist, breached his duty of care to him when he misdiagnosed him with possible NMS, negligently altered his medication regimen as a result thereof, and negligently monitored his physical, mental, and emotional status while he withdrew from the medications. Bruscato avers that, as a result of O'Brien's medical malpractice, he suffered these injuries: he “decompensated” to the point where he experienced auditory command hallucinations telling him to kill, he succumbed “to a state of profound mental confusion ... to the extent that [he] was deprived of any ability to control his violent impulses,” he experienced the “reemergence of his underlying psychosis,” and he suffered a psychotic break with reality, during which he killed his mother. Further, in opposition to O'Brien's motion for summary judgment, Bruscato's expert witness opined that, when O'Brien abruptly discontinued Bruscato's medication, Bruscato experienced chemical changes in his brain and, ultimately, his body that affected him physiologically.

Pretermitting whether the injuries that Bruscato alleges he suffered as a result of O'Brien's professional negligence were physical, psychological, or both, we conclude that the question is irrelevant to...