Fulton-DeKalb Hosp. Authority v. Fanning, FULTON-D

• Decision Date: 12 July 1990
• Docket Number: No. A90A0336,FULTON-D,A90A0336
• Citation: 196 Ga.App. 556,396 S.E.2d 534
• Parties: eKALB HOSPITAL AUTHORITY v. FANNING.
• Court: Georgia Court of Appeals

Page 534

396 S.E.2d 534

196 Ga.App. 556

FULTON-DeKALB HOSPITAL AUTHORITY v. FANNING.

No. A90A0336.

Court of Appeals of Georgia.

July 12, 1990.

Rehearing Denied July 30, 1990.

Certiorari Denied Sept. 4, 1990.

Alston & Bird, Robert D. McCallum, Jr., Geoffrey H. Cederholm, III, Atlanta, for appellant.

William N. Robbins, Atlanta, Joseph A. Maniscalco, Jr., Powder Springs, for appellee.

BEASLEY, Judge.

Fanning, as administratrix of her father's estate, sued the hospital authority ("Grady") for allegedly negligent medical care and treatment of the decedent. Grady moved for summary judgment, supported by the affidavit of a physician attesting to the level of care and treatment provided. In a supplemental motion Grady advanced the charitable immunity defense (initially asserted in its answer) as a basis for summary judgment. The trial court denied summary judgment, and this court denied an interlocutory appeal.

In a bifurcated proceeding as to decedent's status as a charity patient vel non, the jury, after being instructed that Grady had the burden of proving the decedent's charitable status, found that Grady had not met this burden. The trial court reiterated its previous denial of summary judgment. Grady again sought interlocutory appeal. It was granted to examine the issues of the decedent's status in the light of recent decisions and to determine whether the burden of proof was properly allocated.

1. As a charitable institution Grady is generally entitled to the defense of charitable immunity. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834, 353 S.E.2d 515 (1987); Morton v. Savannah Hosp., 148 Ga. 438, 96 S.E. 887 (1918). "There is an exception to this general rule[, however]: a charitable hospital may be liable for negligence to a paying patient ..." (Emphasis supplied.) Ponder, supra 256 Ga. at 834, 353 S.E.2d 515, citing Morton; accord Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga.App. 505, 388 S.E.2d 372 (1989); Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga.App. 167, 384 S.E.2d 205 (1989).

The services rendered decedent were worth some $5,600, including current charges of $52.45 and about $5,500 for emergency psychiatric services rendered some months previously. Grady never requires payment for emergency psychiatric treatment regardless of the patient's financial status, so only the $52.45 figures here. None of these charges was paid, either by decedent's administratrix, by insurance, or otherwise.

As to decedent's financial capacity to pay the bills, the Director of Patient Investigations (the unit responsible for determining financial eligibility for free or low-cost treatment) testified that the "X" rating assigned decedent on his first admission indicated one of two statuses: (1) ineligibility for a discount or (2) inability to verify income at time of admission. She further testified that the "40" on his admission record indicated he had stated that he had insurance. Grady billed the insurer named by decedent for $52.45, but payment was declined for reasons not stated in the record. Grady never billed the estate. The line on decedent's admission record captioned "Insurance verified" bears the handwritten notation, "No Ins." The same notation appears in the upper left-hand corner of two of the three otherwise identical copies of the filled-in form contained in the record. A computer-generated statement dated July 26, 1985, and marked "Transfer to Attorney," shows itemized charges for June 2, 1985, of $15 for electrocardiology and $37.45 for laboratory work, a total of $52.45.

The witness further testified that, unlike most other hospitals, Grady does not require "up front" payment at the time of admission and that, consequently, all rankings on the financial eligibility scale at admission are necessarily tentative until the Patient Investigations staff can verify the data provided. She also stated that, according to Grady's records, decedent had no savings account and his checking account contained less than $100.

Grady produced evidence that at the time of decedent's psychiatric admission he had stated that he earned $200-$400 per week but had recently earned less than that. Grady also produced evidence that, although decedent owned a house and an automobile, IRS income tax information showed that he filed no return for 1981 through 1983 and that 1984's return indicated gross income of $4,545, with one dependent.

Grady contends in its fourth enumeration of error that the jury's verdict should be set aside and the denial of summary judgment reversed because the trial court improperly assigned to Grady the burden of proving that decedent was not a "paying patient" but a "charity patient." Under OCGA § 24-4-1, "[t]he burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential." Where the defendant asserts an affirmative defense (here, that decedent did not come within the "paying patient" exception to the charitable immunity rule but was a charity patient instead), the burden of establishing such a defense is on the party asserting it. Pembrook Mgmt. v. Cossaboon, 157 Ga.App. 675, 278 S.E.2d 100 (1981); Parsons v. Harrison, 133 Ga.App. 280, 211 S.E.2d 128 (1974).

However, where the opposing party has access to and control over most or all of the evidence necessary to prove or disprove an issue raised as an affirmative defense, the burden may be allocated to that party rather than to the party who raised the defense. The trial judge has discretion to reassign the burden of going forward, once a certain quantum of evidence has been adduced by the party who technically had the burden.

Many cases since Morton refer to it in considering whether a particular plaintiff is a charity patient or not. Morton does not define what is a charity patient, a patient whose care is paid for by the public because he or she is indigent and for this reason unable to pay. Morton is a case in which the Supreme Court simply answered six questions certified to it by the Court of Appeals.

One of the questions set up a hypothetical case and asked in effect whether the hospital would be immune from suit by such a patient (with one exception not at issue here). The facts posited were that the person received as a patient was able to pay and did pay for board, medical attention, and other services and suffered injuries due to the carelessness, negligence, or incompetence of a nurse or servant of the hospital. The Court answered that question, saying that the hospital was not immune from suit by "such non-charitable pay patients," limited to certain funds. Id., 148 Ga. at 441, 96 S.E. 887.

It did not define the other side of the coin, charity patients, nor designate factors which would identify one as a charity patient for non-liability purposes. It did not describe the category "charity patients" nor even fully describe the universe of non-charity patients. A patient who is able to pay but simply refuses to do so is not a "charity patient." The costs for his care constitute a bad debt, not a charitable benefit underwritten by a willing public. Nor may a patient who may himself be unable to pay and thus be in effect an indigent person, but whose total expenses are paid from some other source, be categorized as a charity patient. The reason is that the costs for his care are not borne by the public as an expression of charity. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga.App. 167, 168, 384 S.E.2d 205 (1989), where partial payment made by insurance did not remove the patient from the charity category. What was crucial was that the patient "was admitted without any agreement to pay for the services to be rendered and that he does not have assets sufficient to pay for the services...."

If a person qualified for free or reduced-rate medical care which is paid for (in whole or in part) by the charitable trust fund, then he is a "charity patient" against whom the immunity may be asserted so as to protect those charitable funds from depletion by a recovery for damages for negligence, so that they can be devoted to the purpose intended by the public which dedicated and supplied them, i.e., the treatment of other charity patients as well. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834(1), 353 S.E.2d 515, supra. As indicated there, a beneficiary of the public munificence cannot recover from those funds. Nor could he recover from the funds paid for other patients' care and treatment, because he does not, from inability to do so (indigency), contribute to that pool. Compare Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga.App. 505, 506(2), 388 S.E.2d 372 (1989).

The hospital is immune from suit brought by recipients of its charity, to use the words of Cutts v. Fulton-DeKalb Hosp. Auth.,...