Dekalb Medical Center v. Hawkins, A07A1405.

• Decision Date: 29 November 2007
• Docket Number: No. A07A1405.,A07A1405.
• Parties: DeKALB MEDICAL CENTER v. HAWKINS.
• Court: Georgia Court of Appeals

655 S.E.2d 823

288 Ga. App. 840

DeKALB MEDICAL CENTER v. HAWKINS.

No. A07A1405.

Court of Appeals of Georgia.

November 29, 2007.

Timothy H. Bendin, Atlanta, for Appellant.

John Watson Crongeyer, Bryan Anthony Vroon and Rolfe Millar Martin, Atlanta, for Appellee.

ELLINGTON, Judge.

Following the grant of its application for interlocutory review, DeKalb Medical Center, Inc. ("DMC") appeals from the denial of its motion to dismiss the plaintiff's¹ wrongful death action. DMC contends that the claim was a medical malpractice action and that the trial court erred when it failed to dismiss the claim due to the plaintiff's failure to file an expert affidavit, as required by OCGA § 9-11-9.1. It also argues that, even if the claim was not based on medical malpractice, the court erred in applying the minor's tolling provision to the statute of limitation for the wrongful death claim. For the following reasons, we affirm.

A motion to dismiss based upon the lack of an expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12(b)(6). On appeal, an order granting a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. Accordingly, we construe the pleadings in the light most favorable to the losing part[y] with the doubts resolved in their favor.

(Citations, punctuation and footnotes omitted.) Williams v. Alvista Healthcare Center, 283 Ga.App. 613, 613-614, 642 S.E.2d 232 (2007).

According to the complaint, this case arose after Tara Hawkins fell and sustained severe head trauma on November 22, 2003. When Hawkins arrived at DMC, she was unconscious; she never regained consciousness. Hawkins, who was pregnant, remained on life support for nearly four months. During that time, some of her physicians opined that she was brain dead and that her fetus would not survive. Based upon these opinions, DMC repeatedly recommended the abortion of Hawkins' fetus and the discontinuation of her life support. Hawkins' mother refused to consent to the abortion or discontinuation of life support. On March 16, 2004, a DMC nurse discovered that Hawkins had spontaneously delivered her son, Emmanuel Hawkins, without any medical assistance. Emmanuel weighed less than three pounds and suffered from numerous medical problems.

Two days after Emmanuel's birth, DMC removed Hawkins from life support, and she died the same day. There is no evidence in the record that, prior to the discontinuation of life support, Hawkins was terminally ill or that her death was imminent, nor was there any evidence that her brain function deteriorated or that her prognosis changed after Emmanuel's birth. No family member, including Hawkins' mother, consented to the discontinuation of life support. Further, Hawkins did not have a "living will" or other medical directive, and there was no court order authorizing DMC to terminate life support without the family's consent.

On May 15, 2006, more than two years after Hawkins' death, her mother, Nonnie Hawkins, as the next friend and natural guardian of Emmanuel Hawkins, filed a lawsuit against DMC, Marshall Nash, M.D., and DeKalb Neurology Associates, LLC. The suit asserted medical malpractice claims against Nash and DeKalb Neurology for negligence in the treatment of Hawkins and "Malpractice Which Caused Personal Injuries to Emmanuel Hawkins in Utero." The suit also asserted a claim against DMC for "tortious termination of life support," claiming that the hospital discontinued life support without the consent of Hawkins, the consent of any family member, or a court order.

DMC filed a motion to dismiss the termination of life support claim, arguing that it was a medical malpractice claim which must be dismissed in its entirety due to the plaintiff's failure to comply with the affidavit requirement of OCGA § 9-11-9.1. DMC also contended that the claim was time-barred by the two-year statute of limitation applicable to medical malpractice claims. See OCGA § 9-3-71(a). In response, the plaintiff argued that the claim was not a medical malpractice claim but was for wrongful death based upon the intentional tort of discontinuing life support without consent. See OCGA § 51-4-1 et seq. (wrongful death). Thus, according to the plaintiff, the two-year statute of limitation for wrongful death actions applied and, because the plaintiff (two-year-old Emmanuel Hawkins, represented by his grandmother) was a minor, the statute was tolled, so the wrongful death claim was not untimely. See OCGA §§ 9-3-33 (two-year statute of limitation for personal injury claims); 9-3-90(a) (tolling the statute of limitation while the plaintiff is a minor); see also OCGA § 9-3-98 (OCGA § 9-3-90 applies to both tort and contract actions).

The trial court granted DMC's motion to dismiss to the extent that the tortious termination of life support claim against DMC asserted a claim based upon professional negligence, because the plaintiff had failed to comply with the expert affidavit requirements of OCGA § 9-11-9.1.² The court refused to dismiss the claim in its entirely, however, finding that the plaintiff had asserted a wrongful death claim based upon DMC's tortious termination of life support, that the two-year statute of limitation for wrongful death claims had been tolled due to Emmanuel's minority, and, therefore, that the claim was not barred by the statute of limitation.

1. On appeal, DMC contends the court erred when it found that the plaintiff's claim against DMC for tortious termination of life support was not a medical malpractice claim and, as a result, erred when it failed to dismiss the claim based upon the plaintiff's failure to comply with the expert affidavit requirements of OCGA § 9-11-9.1. Under OCGA § 9-3-70(2), the term "action for medical malpractice" refers to any claim for damages resulting from the death of or injury to any person arising out of "[c]are or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment."

As noted above, the plaintiff contends that the claim is not for medical malpractice, but is based upon an intentional tort, that is, termination of life support without the patient's, family's, or court's consent. The record shows that the plaintiff is not claiming that DMC negligently cared for Hawkins prior to terminating her life support or that it negligently performed the actual process of turning off and disconnecting the life support equipment.

Under Georgia law, the decision of whether to continue or terminate life support for an incompetent adult patient who did not have a "living will" and who has no reasonable possibility of regaining cognitive functions belongs exclusively to the patient's family or legal guardian, not to the hospital, the patient's physicians, or the State. In re L.H.R., 253 Ga. 439, 446-447, 321 S.E.2d 716 (1984); see also In re Jane Doe, 262 Ga. 389, 393(2)(b), (c), 418 S.E.2d 3 (1992) (the parents of a comatose minor child in the final stages of a fatal, degenerative neurological disease had the authority to decide whether to terminate life support and other life-prolonging emergency measures). Moreover, a claim based upon a physician's termination of life support of a child over the objections of the child's parents constitutes a claim for wrongful death. In Velez v. Bethune, 219 Ga.App. 679, 680(1), 466 S.E.2d 627 (1995) this Court ruled as follows:

[t]he allegations were sufficient to state a wrongful death claim on the basis that the infant's death resulted either from defendant's reckless disregard of the consequences, or his heedless indifference to the rights and safety of others. When coupled with a reasonable foresight that injury would probably result, this constitutes that criminal negligence equivalent to an intentional tort. . . . [The physician] had no right to decide, unilaterally, to discontinue medical treatment even if, as the record in this case reflects, the child was terminally ill and in the process of dying. That decision must be made with the consent of the parents.

(Citations omitted.) Ultimately, the issue in the instant case is not whether DMC violated professional standards of care (as in a malpractice case), but whether it committed an intentional tort when it deliberately terminated Hawkins' life support without the consent of the decedent, her family, or the court, and over the objections of the decedent's mother. Id.

DMC argues, however, that this is a medical malpractice case, because the plaintiff will need expert medical testimony to prove that Hawkins was not brain dead and, therefore, the termination of life support caused Hawkins' death. But the need for such expert testimony does not automatically transform this case into one for medical malpractice. Expert testimony is often introduced to prove—or disprove—that the defendant's acts or omissions caused the plaintiff's injuries in nonmedical malpractice personal injury and wrongful death actions, as well as in criminal cases. See, e.g., Waits v. State, 282 Ga. 1, 2(1), 644 S.E.2d 127 (2007) (the State charged the defendant with violently shaking the victim and hitting the victim's head, and expert testimony showed that victim's death resulted from traumatic head injuries which were consistent with the allegations); Ambling Mgmt. Co. v. Purdy, 283 Ga.App. 21, 23-24, 640 S.E.2d 620 (2006) (plaintiff introduced medical expert testimony to prove that defendant's negligent maintenance of her apartment caused her...