Fulton County Hosp. Authority v. Hyman, 76657
| Citation | 376 S.E.2d 689,189 Ga.App. 613 |
| Decision Date | 19 September 1988 |
| Docket Number | No. 76657,76657 |
| Parties | FULTON COUNTY HOSPITAL AUTHORITY v. HYMAN et al. |
| Court | United States Court of Appeals (Georgia) |
Allen & Ballard, Hunter S. Allen, Jr., Dennis A. Elisco, Atlanta, for appellant.
Goldstein & Schatten, Lee S. Goldstein, Atlanta, for appellees.
On May 21, 1982, appellee Jared Hyman, an infant represented by his father, appellee Steven Hyman, cut his left thumb and was taken by his parents, appellees Steven and Robin Hyman, to Northside Hospital's emergency room for treatment. The wound was cleaned, dressed, and bandaged and the baby dismissed with instructions for care of the wound and the suggestion that he be taken to see his pediatrician in a few days for follow-up care. He was taken to his regular pediatrician five days later on May 27, 1982, and on the following day the parents noted that the thumb appeared worse and was apparently causing the child pain. The parents took Jared back to the pediatrician's office, whence he was referred to Scottish Rite Children's Hospital. He was hospitalized briefly, discharged, and then hospitalized again after four days. Shortly thereafter, the upper part of the distal (outer) joint of the thumb was surgically removed, this being done at Scottish Rite on an out-patient basis. Jared was further seen by, and his parents consulted with, specialists in pediatric surgery and hand surgery. The parents sought to obtain disability ratings and prognoses as to the likelihood of the necessity for further surgical or other treatment aimed at giving Jared more nearly normal use of the thumb and hand during childhood and youth and as an adult.
On January 31, 1983, the Hymans instituted an action against Northside Hospital. Northside answered and served interrogatories upon the plaintiffs. After three months defendant Northside filed a motion to compel discovery, later filing a motion to dismiss for failure to complete discovery. Plaintiffs then voluntarily dismissed the complaint without prejudice, but almost exactly six months later, on July 6, 1984, refiled. Process was left with a secretary who apparently did not transmit the papers either to her supervisor or to the hospital's insurer in a timely manner, with the result that Northside's answer was untimely and the case went into default. Northside sought to open the default on the basis of insufficiency of service, contending that the secretary was not an agent authorized to receive process. The trial court declined to open the default, and the case proceeded to trial, judgment being rendered in favor of appellees in March 1987. In the meanwhile, there had been a mistrial and a protracted contretemps regarding completion of discovery.
Before commencement of the trial the court instructed defense counsel that evidence tending to establish comparative or contributory negligence would be inadmissible, even if such evidence also had a bearing upon the measure of damages. A Fulton County jury awarded Mr. and Mrs. Hyman damages in the amount of $4,200 (the approximate amount of unreimbursed medical expenses), plus interest and costs; Jared Hyman received $118,000 for pain and suffering, plus interest and costs. On appeal Northside Hospital enumerates as error (1) the trial court's entry of default judgment when service had allegedly been insufficient; (2) the trial court's refusal to open default; (3) the denial of appellant's motion to dismiss the complaint for alleged willful failure to make discovery; (4), (5), and (6), certain evidentiary rulings regarding the use of expert testimony; and (7) the exclusion of evidence regarding allegedly inadequate home care of the wound on the ground that this evidence would tend to establish contributory or comparative negligence. Held:
1. It is undisputed that appellant did not file a timely response to the complaint. Appellant at no time made any affirmative showing that the secretary served was not an authorized agent for service of process. Cf. Southwest Community Hosp., etc. v. Thompson, 165 Ga.App. 442, 444, 301 S.E.2d 501 (1983). Therefore, the trial court properly ruled that service was sufficient. As to the trial court's refusal to open the default resulting from the untimely filing of the response, ...
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...in plaintiff's complaint is admitted due to the default of defendant and requires no further proof." [Fulton Co. Hosp. Authority v. Hyman, 189 Ga.App. 613, 615, 376 S.E.2d 689 (1988).] See also Whitby v. Maloy, 150 Ga.App. 575, 576, 258 S.E.2d 181 (1979) ("Defenses which go to the right of ......
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...otherwise tend to contest the right of recovery] on the part of the plaintiff, is inadmissible. [Cits.]" Fulton County Hosp. Auth. v. Hyman, 189 Ga.App. 613, 615(4), 376 S.E.2d 689; compare Krystal Co. v. Carter, 180 Ga.App. 667, 669, 350 S.E.2d 306. Appellant's motion to produce is so broa......
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...fault would be proper.” Harless v. Kuhn, 403 So.2d 423, 425 (Fla.1981) (citation omitted). And, in Fulton County Hospital Authority v. Hyman, 189 Ga.App. 613, 376 S.E.2d 689, 691 (1988), the Georgia Court of Appeals refused to allow a defaulted defendant in a medical malpractice action to p......
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