Culberson v. Fulton-DeKalb Hosp. Authority

• Decision Date: 09 September 1991
• Docket Number: Nos. A91A1276,FULTON-D,s. A91A1276
• Citation: 201 Ga.App. 347,411 S.E.2d 75
• Parties: CULBERSON, et al. v.eKALB HOSPITAL AUTHORITY.eKALB HOSPITAL AUTHORITY v. CULBERSON, et al. McMICHAEL v. CULBERSON, et al. to A91A1278.
• Court: Georgia Court of Appeals

Page 75

411 S.E.2d 75

201 Ga.App. 347

CULBERSON, et al. v. FULTON-DeKALB HOSPITAL AUTHORITY.

FULTON-DeKALB HOSPITAL AUTHORITY v. CULBERSON, et al.

McMICHAEL v. CULBERSON, et al.

Nos. A91A1276 to A91A1278.

Court of Appeals of Georgia.

Sept. 9, 1991.

Reconsideration Denied Sept. 30, 1991.

Certiorari Denied March 20, 1992.

William Q. Bird, Atlanta, for Culberson.

Alston & Bird, Robert D. McCallum, Jr., Robert P. Riordan, and James C. Grant, Atlanta, for Fulton-DeKalb Hosp. Authority.

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Atlanta, for McMichael.

BIRDSONG, Presiding Judge.

Appellants/cross-appellees James and Priscilla Culberson, parents of the deceased child, Shermeca Culberson, brought a wrongful death action in their behalf against appellees/cross-appellants. Appellee/cross-appellant, the Fulton-DeKalb Hospital Authority (Authority) d/b/a Grady Memorial Hospital (Grady Hospital or Grady) and appellee/cross-appellant Dr. Julia McMichael filed a joint motion for summary judgment. The trial court granted that part of the motion in behalf of the Authority and Grady Hospital, but denied that portion of the motion as to Dr. McMichael. Appellants James and Priscilla Culberson appeal that portion of the order of the trial court granting motion for summary judgment to the Authority and Grady Hospital in Case No. A91A1276. In Case No. A91A1277, the Authority and Grady cross-appeal that portion of the order of the trial court denying motion for summary judgment on behalf of Dr. McMichael; in Case No. A91A1278, Dr. McMichael likewise cross-appeals. Held:

Case No. A91A1276

1. In the whole court opinion of Hospital Auth. of Fulton County v. Litterilla, 199 Ga.App. 345, 404 S.E.2d 796, the majority concluded inter alia that hospital authorities established pursuant to the Hospital Authorities Law (codified at OCGA § 31-7-71 et seq.) are entitled to the defense of governmental immunity except to the extent there has been waiver under the constitutional provision. This rule was held applicable to the Hospital Authority of Fulton County d/b/a Northside Hospital and is equally applicable to the Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital. Walker v. Fulton-DeKalb Hosp. Auth., 200 Ga.App. 750, 409 S.E.2d 529 (1991).

(a) Appellant's assertion that the Constitution of Georgia (Ga.Const. of 1983, Art. I, Sec. II, Par. IX) does not extend to provide sovereign immunity to the Authority and Grady, because these entities are not encompassed within the term "the state and all of its departments and agencies" is without merit. The Constitution of Georgia extends sovereign immunity to counties and their instrumentalities as well. Litterilla, supra 199 Ga.App. at 346-347, 404 S.E.2d 796, citing Toombs County v. O'Neal, 254 Ga. 390, 330 S.E.2d 95.

(b) There is no evidence in this record that the Authority and Grady have obtained liability insurance thereby waiving their claim of sovereign immunity. Even assuming the Authority and Grady had created their own fund, designated or otherwise, available to pay medical malpractice claims, this would not constitute a self-insurance fund resulting in the waiver of sovereign immunity, as the Authority and Grady are not authorized to establish a self-insurance fund. Logue v. Wright, 260 Ga. 206(2)(3), 392 S.E.2d 235; Litterilla, supra 199 Ga.App. at 350, 404 S.E.2d 796.

(c) Appellant's contention that the Authority and Grady have waived sovereign immunity due to the legislative grant to the hospital authorities established under the Hospital Authorities Law of the power to "sue and be sued" (OCGA § 31-7-75) is without merit. Self v. City of Atlanta, 259 Ga. 78, 80(1), 377 S.E.2d 674; Litterilla, supra 199 Ga.App. at 346, 404 S.E.2d 796. Further, appellant's argument that Self should not be given retroactive operation was decided adversely to this contention in Litterilla.

(d) Although this is an issue of first impression, we find that just because the Authority, pursuant to a written contract, received certain funds from Fulton and DeKalb Counties in general support of an indigent treatment program, including inter alia funds "for the purpose of providing medical care or hospitalization for the indigent sick and poor," such a receipt of funds would not divest the Authority or Grady of their character as agencies or instrumentalities of the county being operated primarily for the benefit of the public rather than for the generation of revenue for the county. Cf., Litterilla, supra. We also are satisfied that receipt of such funds would not per se divest Grady of its legal status as an incorporated hospital primarily maintained as a charitable institution; charitable institutions must obtain funds to operate, maintain, and improve charitable programs somewhere. Cf., Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga.App. 517, 385 S.E.2d 436.

Moreover, the contract, between the Authority and Fulton and DeKalb Counties, in effect at the time of Shermeca Culberson's death, was executed on November 13, 1953, and apparently subject to minor modification in October or November of 1958. This contract, although requiring that the Authority "shall construct, equip and finance such adequate hospital facilities and projects for use in rendering medical care and treatment to said indigent sick of the [two] counties" does not require the Authority or Grady to provide patient care to any particular indigent person. (Emphasis supplied.) In contrast, the contract expressly requires the Authority to provide, upon request, in addition to its treatment and care facilities, "treatment, medicine [and] care" to certain county employees. Further, neither the deceased nor her parents, the appellants, were third-party beneficiaries of this written contract. " 'In order for a third party to have standing to enforce a contract under (OCGA § 9-2-20(b)) it must clearly appear from the contract that it was intended for his [or her] benefit. The mere fact that [the third party] would benefit from performance of the agreement is not alone sufficient.' " Walls, Inc. v. Atlantic Realty Co., 186 Ga.App. 389, 391(1), 367 S.E.2d 278. Examining the written contract in its entirety, we find the parties did not have the requisite intent to make either the deceased or her parents third-party beneficiaries thereof. Also, "[t]here is no [express or implied] intention manifested in the contract that the [parties] compensate any member of the public for injurious consequences." Miree v. United States, 242 Ga. 126, 136, 249 S.E.2d 573.

Additionally, assuming without deciding there exists an implied contract between appellants (or their deceased daughter) and the Authority or Grady Hospital (compare Mattair v. St. Joseph's Hosp., 141 Ga.App. 597, 598, 234 S.E.2d 537 aff'd 239 Ga. 674, 238 S.E.2d 366), as a matter of law, "this is not an action based on a written contract"; and, "[t]hat being so, the [Authority's and Grady's] immunity under the doctrine of sovereign [or governmental] immunity was not waived and [the Authority and Grady also were] entitled to a [grant of motion for summary judgment] on the contract portion of [appellants' claim against them]." Board of Regents & c. of Ga. v. Tyson, 261 Ga. 368, 370(1), 404 S.E.2d 557 (1991).

Appellants' numerous assertions regarding appellees' defense of sovereign or governmental immunity and appellants' enumeration of error are without merit.

2. In view of our above holding, we need not determine whether a genuine issue of material fact existed as to the claim of charitable immunity by appellee Authority and Grady. See generally Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 353 S.E.2d 515; Cutts, supra; see also Litterilla, supra; compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga.App. 167, 384 S.E.2d 205.

Case Nos. A91A1277

and A91A1278

3. Cross-appellants, Dr. McMichael, the Authority and Grady assert the trial court...