Ermutlu v. McCorkle

• Decision Date: 28 February 1992
• Docket Number: No. A91A1938,A91A1938
• Parties: ERMUTLU v. McCORKLE et al.
• Court: Georgia Court of Appeals

Page 792

416 S.E.2d 792

203 Ga.App. 335

ERMUTLU v. McCORKLE et al.

No. A91A1938.

Court of Appeals of Georgia.

Feb. 28, 1992.

Reconsideration Denied March 12, 1992.

Certiorari Denied April 24, 1992.

Michael J. Bowers, Atty. Gen., Mary F. Russell, Asst. Atty. Gen., Hicks, Maloof & Campbell, Bruce M. Edenfield, Atlanta, for appellant.

Henning, Aitkens, Snellings & Kearns, Stanley T. Snellings, McLain & Merritt, Howard M. Lessinger, Atlanta, Johnson & Montgomery, Albert S. Johnson, Chamblee, for appellees.

Alston & Bird, Ruth H. Gershon, Atlanta, amicus curiae.

POPE, Judge.

Plaintiffs/appellees brought a negligence action against defendant/appellant Ilhan Ermutlu, M.D., a psychiatrist employed by the North DeKalb Mental Health Center, seeking damages for the wrongful death of their daughter Lisa L. McCorkle. The trial court denied defendant's motion for summary judgment, and this appeal follows our grant of the defendant's application for interlocutory review of the trial court's order.

Camille Watkins was a patient of Dr. Ermutlu who had been treated by the doctor on an outpatient basis since June of 1986. Prior to her becoming a patient of Dr. Ermutlu, Mrs. Watkins had a history of mental illness for which she had, for the most part, received continuous treatment since the illness' onset in 1964. Occasionally she would have cyclical relapses which were either treated by an increase in the dosage of her medication or hospitalization. Her last hospitalization had been in 1984. In between inpatient hospitalizations, Mrs. Watkins was stabilized to the extent that she could function at home provided she complied with her medication schedule. Mrs. Watkins' mental condition had never affected her coordination, mental acuity or ability to concentrate, nor had she ever been involved in an accident or received a traffic ticket. Mrs. Watkins was also taking medication for diabetes, and had available to her pain medication for discomfort caused by a herniated disc.

On June 29, 1988, around 3:00 in the morning, Mrs. Watkins went outside her home and began singing and lecturing her neighbors about her relationship with her husband. Later that day, her husband took her to see Dr. Ermutlu at the North DeKalb Mental Health Center who determined that Mrs. Watkins had experienced a manic episode. Based upon his past experience with Mrs. Watkins, Dr. Ermutlu prescribed an increase in the dosage of her medication. Because Mrs. Watkins did not express any suicidal or homicidal ideations, Dr. Ermutlu did not believe her to present a substantial risk of imminent harm to herself or others so he sent her home with her husband. The medical expert witnesses of record are in agreement that Mrs. Watkins' mental status at the time of her appointment with Dr. Ermutlu did not meet the criteria for involuntary commitment set forth in OCGA § 37-3-1(9.1).

On July 1, 1988, two days after her manic episode and her appointment with Dr. Ermutlu, Mrs. Watkins left her home in her automobile to run some errands. At approximately 12:45 p.m., while driving at an excessive speed in the turn lane of Roswell Road, Mrs. Watkins drove her vehicle into the rear of a vehicle being driven by 21- year-old Lisa McCorkle, killing Ms. McCorkle and Mrs. Watkins instantly. The evidence indicates that immediately preceding the fatal accident, Mrs. Watkins had been involved in a hit and run accident on Roswell Road. Neither of the medical expert witnesses nor Dr. Ermutlu could offer an opinion as to what caused Mrs. Watkins' behavior or whether the fatal accident was caused by or even related to her mental illness.

1. To state a cause of action for negligence in Georgia, the following elements are essential: "(1) [a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) some loss or damage flowing to the plaintiff's legally protected interest a result of the alleged breach of the legal duty. [Cit.]" Lee Street Auto Sales v. Warren, 102 Ga.App. 345, 347(1), 116 S.E.2d 243 (1960).

In regard to the first element, the plaintiffs seek to recover from Dr. Ermutlu pursuant to the theory of liability set forth in Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982), in which the Georgia Supreme Court affirmed the holding of this court in Bradley Center v. Wessner, 161 Ga.App. 576, 581, 287 S.E.2d 716 (1982) that while, as a general rule, there is no duty to control the conduct of third persons to prevent them from causing harm to others, "where the course of treatment of a mental patient involves an exercise of 'control' over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient." Thus, under Bradley Center, a two-part test has been established for determining under what circumstances a physician may be liable to a third party: (1) the physician must have control over the mental patient; and (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others. Bradley Center, 161 Ga.App. at (1), 287 S.E.2d 716.

In regard to the first part of the test, plaintiffs contend Dr. Ermutlu exercised sufficient control over Mrs. Watkins such that he could be liable for his failure to prevent the automobile accident and the death of Lisa McCorkle. We disagree. In Bradley Center, the patient was a voluntary inpatient in a mental hospital, who shot and killed his wife and her lover while on an unrestricted weekend pass from the private mental hospital. Prior to his release, the patient had made numerous...