Ford v. Saint Francis Hosp., Inc.

• Court: Georgia Court of Appeals
• Writing for the Court: BEASLEY; ANDREWS, C.J., BIRDSONG, P.J., and SMITH; McMURRAY
• Citation: Ford v. Saint Francis Hosp., Inc., 490 S.E.2d 415, 227 Ga.App. 823 (Ga. App. 1997)
• Decision Date: 11 July 1997
• Docket Number: A97A0754,Nos. A97A0753,s. A97A0753
• Parties: , 97 FCDR 2748, 97 FCDR 2962 FORD et al. v. SAINT FRANCIS HOSPITAL, INC. SAINT FRANCIS HOSPITAL, INC. v. FORD et al.

Page 415

490 S.E.2d 415

227 Ga.App. 823, 97 FCDR 2748, 97 FCDR 2962

FORD et al. v. SAINT FRANCIS HOSPITAL, INC.

SAINT FRANCIS HOSPITAL, INC. v. FORD et al.

Nos. A97A0753, A97A0754.

Court of Appeals of Georgia.

July 11, 1997.

Reconsideration Denied July 31, 1997.

Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, Paul Kilpatrick, Jr., Columbus, William U. Norwood III, Thomasville, Teresa P. Majors, Decatur, Samuel W. Oates, Jr., Columbus, for appellants.

Allen & Peters, Paul E. Weathington, Gary R. McCain, Michael D. Flint, Atlanta, Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Robert C. Martin, Jr., Columbus, for appellee.

BEASLEY, Judge.

Ford entered Saint Francis Hospital for heart surgery, including a double bypass graft and an aortic valve replacement. During surgery he contracted a nosocomial (i.e. acquired in the hospital) staphylococcus infection of the aortic valve which required a second operation to replace the valve and to insert a pacemaker, which resulted in numerous other negative consequences. Ford and his wife sued the hospital, alleging several claims but not including professional malpractice.

The complaint's basic contention is that Saint Francis maintained a dirty environment in and around its operating rooms. The first count was for simple negligence based on a failure to provide clean and sterile facilities and equipment, failure to inform Ford of the risk of acquiring nosocomial staphylococcus, maintaining inadequate infection control procedures and negligently administering the procedures it had, and "failure to exercise due care in the face of factual and medical circumstances" which revealed an unreasonably high incidence of staphylococcus among patients.

The second count alleged premises liability in that the hospital failed to keep its premises safe from defects, in this case bacteria, and failed to warn Ford of the dangerous conditions. The third count was failure to warn of the hazard of infection attendant to undergoing surgery in the hospital. The complaint also asserted a claim under the Georgia Fair Business Practices Act ("FBPA"), OCGA § 10-1-390 et seq., based on misrepresentation to the public and referring physicians of the quality of the hospital's services and facilities. Subsequently abandoned was another claim for breach of contract based on a failure to provide sanitary facilities. Finally, the complaint asserted that punitive damages were appropriate because the hospital's tortious acts were done with a wanton and reckless disregard of Ford's health.

The complaint was served on the hospital on November 1, 1995. The hospital did not answer, and 48 days later, on December 19, the court entered default against the hospital with damages to be proved at trial. On December 28, Saint Francis filed a motion to "Open Default or in the Alternative to Set Aside Judgment." It was accompanied by payment of costs, a verified answer, an announcement that Saint Francis was ready to proceed with trial, and affidavits seeking to explain the failure to timely answer. The answer denied liability on all counts and raised as a defense that the complaint was subject to dismissal because an affidavit setting forth at least one act of professional malpractice was required by OCGA § 9-11-9.1 but not contemporaneously filed. The answer also asserted the defense of assumption of the risk.

After hearings on the motion to open default, the court opened the default on February 23, 1996, and accepted the answer as timely filed. On March 21, the hospital filed a motion to dismiss based on a failure to comply with OCGA § 9-11-9.1. The court did not enter a written order denying the motion to dismiss but orally denied it prior to trial, which began on April 15. ¹

After a week of trial and approximately three hours of deliberation on the theories of ordinary negligence, premises liability, and failure to warn, the jury returned a verdict in favor of the hospital which was made the judgment of the court. The Fords' motion for new trial was denied, and the Fords' appealed (Case No. A97A0753). The hospital filed a cross-appeal (Case No. A97A0754).

Case No. A97A0753

1. The Fords first enumerate error in the court's opening the default. OCGA § 9-11-55(b) allows the court to open a default before final judgment in certain circumstances. "[A] default may be opened if the [hospital] satisfied the four conditions and one of the three grounds for opening a default. The four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed to trial, and (4) setting up a meritorious defense. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) a proper case. [Cit.] Whether to open the default on one of the three grounds rests within the discretion of the trial judge. [Cit.]" Bryant v. Haynie, 216 Ga.App. 430, 431(1), 454 S.E.2d 533 (1995). If the four conditions are not met, the court cannot exercise its discretion to open the default. C.W. Matthews Contracting Co. v. Walker, 197 Ga.App. 345, 346(1), 398 S.E.2d 297 (1990).

The Fords assert that the hospital did not set forth a meritorious defense. "Georgia law requires that facts regarding such a defense be set forth, and a mere statement ... that the party 'has a good and meritorious defense to the declaration' is inadequate." Coleman v. Dairyland Ins. Co., 130 Ga.App. 228, 229, 202 S.E.2d 698 (1973). The latter is a mere conclusion. Ga. Hwy. Express Co. v. Do-All Chemical Co., 118 Ga.App. 736, 737, 165 S.E.2d 429 (1968). The verified answer was accompanied by the affidavit of the hospital's Director of Infection Control, a registered nurse, who averred that the hospital infection control practices met the requisite standards of care. The answer also set forth the defense of assumption of the risk based upon Ford's signing a consent form in compliance with OCGA § 31-9-6.1. As it turned out, the meritorious nature of the hospital's defense was confirmed by the verdict. Although these defenses were not set out in great factual detail, they are sufficient to satisfy OCGA § 9-11-55(b). See Pinehurst Baptist Church v. Murray, 215 Ga.App. 259, 261-262(1), 450 S.E.2d 307 (1994).

The Fords insist the court nonetheless abused its discretion because of the absence of a valid ground for excusing tardiness. The affidavit of the hospital's risk management officer showed it was his duty to forward the complaint to counsel and the hospital's insurer. He averred he received the complaint on November 1, 1995, but did not know exactly why it was not answered. On learning of the default, he contacted the hospital's attorneys; they had no knowledge of the complaint. The affiant considered it possible he had overlooked the complaint as the hospital had seven similar nosocomial infection cases at the same time. When the complaint arrived, he believed the hospital's standard procedure would result in an answer being filed in this case, as in the others which preceded it.

The court's order opening the default states no basis. At the hearing the day before entry of the order, the court stated it would open the default because there were nine similar cases, the court saw no reason this case should not be tried as the others, this was a significant case, and considering the possible prejudices involved, plaintiffs would be less harmed by opening than defendant would be by denying the motion. Although the court should specify the ground and underlying facts on which it exercises its discretion, we will presume it was based on the "proper case" ground, the broadest of the three. See Miller v. Tranakos, 198 Ga.App. 668, 670(1), 402 S.E.2d 772 (1991); Colonial Penn Life Ins. Co. v. Market Planners Ins. Agency, 209 Ga.App. 562, 563, 434 S.E.2d 124 (1993). We will not interfere unless the court's discretion was manifestly abused. Miller, supra.

" 'The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense. In determining whether a situation is extreme, among the factors which may be considered, but which will not standing alone authorize the opening of default pursuant to OCGA § 9-11-55(b), are: whether and how the opposing party will be prejudiced by opening the default; whether the opposing party elected not to raise the default issue until after the time under OCGA § 9-11-55(a) had expired for the defaulting party to open default as a matter of right; and whether the defaulting party acted promptly to open the default upon learning no answer had been either filed or timely filed. Further, any additional delay occasioned by a failure to file promptly for opening default upon its discovery can be considered in determining whether defendants' neglect was excusable.' ... [Cit.] Nevertheless, the facts in each case are different and the court must look at each case in the light of the facts peculiar thereto. [Cit.] In determining whether to open or to decline to open default, a trial judge 'is always required to exercise a legal discretion, and in order to do that, some facts must be proven before him which warrant the exercise of legal discretion.' ... [Cit.]" Ryles v. First Oglethorpe Co., 213 Ga.App. 327, 328-329(1), 444 S.E.2d 578 (1994). See also Strickland v. Galloway, 111 Ga.App. 683, 685, 143 S.E.2d 3 (1965) (construe OCGA § 9-11-55(b) liberally to promote justice and the establishment of the truth).

The Fords do not show they faced prejudice by the opening of default. Further, they did not seek default until the time for opening as a matter of right under OCGA § 9-11-55(a) had passed. The hospital acted promptly when...