Doctors Hosp. Surgery Ctr. v. Webb

• Decision Date: 23 November 2010
• Docket Number: No. A10A1317.,A10A1317.
• Citation: Doctors Hosp. Surgery Ctr. v. Webb, 307 Ga.App. 44, 704 S.E.2d 185 (Ga. App. 2010)
• Parties: DOCTORS HOSPITAL SURGERY CENTER, L.P.v.WEBB et al.
• Court: Georgia Court of Appeals

307 Ga.App. 44

704 S.E.2d 185

10 FCDR 3836

DOCTORS HOSPITAL SURGERY CENTER, L.P.

v.WEBB et al.

No. A10A1317.

Court of Appeals of Georgia.

Nov. 23, 2010.

Wargo & French, Michael S. French, John P. Mittelbach, Insley & Race, Brian K. Mathis, Atlanta, for appellant.Stanley G. Jackson, Douglas M. Nelson, for appellees.Victor C. Hawk, amicus curiae.DOYLE, Judge.

Doctors Hospital Surgery Center, L.P., d/b/a Evans Surgery Center (the “Hospital”) appeals from the certification of a class action filed by Charlie and Dora Webb.The Hospital contends that the trial court abused its discretion by certifying the class action because the claims brought by the Webbs do not satisfy the statutory prerequisites authorizing them to sue as representative parties.For the reasons that follow, we agree and reverse the trial court's certification order.

The Webbs' complaint alleged that in January 2009, Charlie Webb had a colonoscopy performed with an endoscope at the Hospital.In February 2009, the Hospital discovered that the endoscope equipment had not been sterilized in accordance with the manufacturer's specifications from September 10, 2007, to February 9, 2009.Also in February 2009, the Hospital sent letters to the approximately 1,300 potentially affected patients seen during that time period, including Charlie Webb.The letter informed patients of the improper sterilization protocol and explained that the risk of infection was “near zero” according to “leading authorities in infectious diseases,” and the Hospital offered free testing at an independent lab (any LabCorp location) to discover certain infectious diseases.Follow-up testing was apparently later offered as patients received their initial results.Charlie was tested twice and received negative results.

In April 2009, the Webbs sued the Hospital, later moving to represent the class of patients who received endoscopic procedures during the affected time period.The complaint enumerated claims for breach of contract, rescission, and negligence, seeking damages for the following types of losses: money paid for the procedures, compensation for any contracted diseases, continued medical monitoring at the Hospital's expense, loss of consortium, anxiety, worry, emotional distress, punitive damages, litigation costs, and attorney fees.Following limited discovery, briefing, and a hearing, the trial court entered an order prepared by the Webbs granting their motion to certify the class action with respect to liability and the availability of punitive damages, reserving individual damages for separate determination if liability is established.The Hospital now appeals.

The Webbs have the burden of establishing their right to class certification in the trial court, and we review the trial court's decision in certifying a class action for abuse of discretion.¹

The statute authorizing class actions is OCGA § 9–11–23, which provides as follows:

(a) One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class.

(b) An action may be maintained as a class action if the prerequisites of subsection (a) of this Code section are satisfied, and, in addition: ...(2)The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or (3)The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.The matters pertinent to the findings include: (A) The interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) The difficulties likely to be encountered in the management of a class action.²

Thus, “[t]o obtain class action certification, the named individuals are required to satisfy all four prerequisites of OCGA § 9–11–23(a), [and] at least one of the requirements set forth in ... OCGA § 9–11–23(b).”³Certification is improper if “a plaintiff fails to establish even one of the required factors listed in OCGA § 9–11–23(a) and (b).”⁴“In determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [the statute] have been met.”⁵This involves an analysis of “considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.”⁶

The trial court's order certified the Webbs' case under two theories.The first, under OCGA § 9–11–23(b)(2), was that the Webbs sought injunctive relief in the form of continued medical monitoring for patients and spouses, which the Hospital allegedly declined to provide.The second, under OCGA § 9–11–23(b)(3), was that the Webbs sought damages for contractual and negligence claims that presented common issues predominating over individual questions.

1.Certification under OCGA § 9–11–23(b)(2)—whether class-wide injunctive relief was appropriate based on the Hospital's refusal to act on grounds generally applicable to the class.The trial court ruled that the medical monitoring sought by the Webbs authorized certification under OCGA § 9–11–23(b)(2).The Hospital argues that the claim for continued medical monitoring is moot in light of the fact that the incubation periods for any infectious diseases passed many months ago.To the extent that this claim seeks monitoring that was never offered by the Hospital, e.g., of spouses, the claim is not moot because it seeks a purported remedy not yet obtained.⁷

Nevertheless, “certification under [OCGA § 9–11–23](b)(2) is inappropriate if the predominate relief sought in the action is monetary damages.Monetary relief predominates in the action unless it is incidental to requested injunctive or declaratory relief.”⁸We conclude that the trial court abused its discretion in granting certification based on the claim for medical monitoring because the recovery of monetary damages is at the core of this dispute.In addition to medical monitoring, the Webbs' complaint seeks payment for the following types of losses: money paid for the procedures, compensation for any contracted diseases, loss of consortium, anxiety, worry, emotional distress, and punitive damages.Indeed, the trial court's order bifurcating the liability and damages phases, trying damages separately to a jury if necessary, demonstrates that the damages claims in the complaint overwhelm the injunctive relief sought and are not merely incidental thereto.⁹Therefore, the trial court erred by certifying the action under OCGA § 9–11–23(b)(2).

2.Certification under OCGA § 9–11–23(b)(3)—whether common questions predominate over individual questions.The Webbs' complaint enumerated three claims (breach of contract, rescission, and negligence) and, as noted above, sought damages including money paid for the procedures, compensation for any contracted diseases, loss of consortium, anxiety, worry, emotional distress, punitive damages, litigation costs, and attorney fees.Applying the requirements of OCGA § 9–11–23 in the context of these claims, it becomes apparent that the claims for damages fall into two categories: (1) breach of contract and rescission, which are premised on money paid for the allegedly improper procedure itself, and (2) the negligence claim, which encompasses various other harms flowing from the allegedly improper procedures (such as loss of consortium, anxiety, worry, and emotional distress).

Breach of contract and rescission are somewhat susceptible to class action treatment because the Webbs are typical members of the class for purposes of questions such as payment for an allegedly flawed service, and the liability for breach of contract and rescission can readily be proven based on general contractual concepts applicable across the class.The negligence claim, however, is less susceptible to class action treatment because that claim, as pleaded by the Webbs, includes highly personalized injuries including anxiety, emotional distress, and loss of consortium.

In the present context, the particularity of the negligence claim is important because if “the issue of liability vel non turns upon highly individualized facts, the [plaintiff] cannot meet the predominance requirement of [OCGA § 9–11–23](b)(3).”¹⁰The qualitative analysis necessary to show liability for injuries such as loss of consortium, anxiety, and emotional distress demonstrates that common questions vital to proving causation must be answered on a highly individualized basis.

The trial court's order attempts to address this problem by bifurcating the trial into a liability phase and a damages phase.But this approach ignores the fact that, aside from proving the amount of damages, the essential elements of a negligence claim include “a reasonable close causal connection between the conduct and the resulting injury....”¹¹...