Davis v. Stover

• Decision Date: 07 April 1988
• Docket Number: No. 45181,45181
• Citation: Davis v. Stover, 258 Ga. 156, 366 S.E.2d 670 (Ga. 1988)
• Parties: DAVIS v. STOVER.
• Court: Georgia Supreme Court

Page 670

366 S.E.2d 670

258 Ga. 156

DAVIS v.STOVER.

No. 45181.

Supreme Court of Georgia.

April 7, 1988.

Robert G. Tanner, Mark E. Bergeson, Long, Weinberg, Ansley & Wheeler, Atlanta, for Guy C. Davis.

James C. Simmons, Jr., A. Leroy Toliver, Simmons & Toliver, Atlanta, for Mary Lorraine Stover et al.

SMITH, Justice.

We granted certiorari in Davis v. Stover, 184 Ga.App. 560, 362 S.E.2d 97(1987), to decide whether a medical malpractice action against a company physician is barred by the exclusive remedy provision of the Workers' Compensation Act,OCGA § 34-9-11.The trial court denied the appellant's motion for summary judgement on the defense of co-employee immunity.The Court of Appeals granted an interlocutory appeal and affirmed the trial court's holding.We affirm.

The appellant, Dr. Guy C. Davis, was employed as a company physician for the Ford Motor Company's Hapeville assembly plant.Wendell Stover, a worker at the plant, experienced chest pain and shortness of breath while on the job.The appellant diagnosed Stover as having a respiratory problem and prescribed some medication.The next day Stover suffered a heart attack and died before he could be transported from the plant to a hospital.

The appellee, the deceased's wife, was awarded workers' compensation benefits.The appellee then filed a medical malpractice action against the appellant alleging misdiagnosis and negligent treatment of her husband's heart condition.

The appellant's affidavit stated, "Ford [Motor Company] controlled my practice of medicine and manner of treatment in that they required me to give every employee or [prospective] employee a physical examination, prescribing to me the tests to be done, and provid[ing] me with specific management and direction to the effect that any patient with 'chest pain' was to be sent out of the plant for care.This control contributed to my decision not to do an EKG or other heart related testing on Wendell A. Stover."However, in a deposition, the appellant referred to Mr. Stover as his patient and as a person he had known for 20 years.When asked whether the decision not to perform an essential test was a product of his independent professional judgment, the appellant replied that it was.

This court has held, "where a professional co-employee is charged with fraud, deceit, and violation of professional trust, he may be held liable in tort for his wrongdoing to an injured co-employee."Downey v. Bexley, 253 Ga. 125, 317 S.E.2d 523(1984).The appellant contends...