Se. Ga. Health Sys., Inc. v. Berry, A21A1544

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtGobeil, Judge.
Citation362 Ga.App. 422,868 S.E.2d 820
Docket NumberA21A1544
Decision Date31 January 2022
Parties SOUTHEAST GEORGIA HEALTH SYSTEM, INC. v. Frank W. BERRY, in His Capacity as Commissioner, et al.

362 Ga.App. 422
868 S.E.2d 820

SOUTHEAST GEORGIA HEALTH SYSTEM, INC.
v.
Frank W. BERRY, in His Capacity as Commissioner, et al.

A21A1544

Court of Appeals of Georgia.

January 31, 2022


868 S.E.2d 821

Armando Luis Basarrate II, David Boone Darden, Atlanta, Jameson Brendan Bilsborrow, for Appellant.

Christopher Michael Carr, Atlanta, Cathelynn Tio, Robert Charles Threlkeld, Elliott Leigh Coward, Atlanta, for Appellee.

Gobeil, Judge.

362 Ga.App. 422

Southeast Georgia Health System, Inc. ("SGHS") appeals from the superior court's order dismissing its mandamus petition that sought to compel Frank W. Berry, Commissioner of the Department of Community Health ("DCH"), to investigate allegations that a rival hospital was running more operating rooms than it was permitted and to enforce the statutes that DCH administers. For the reasons set forth below, we affirm the trial court's decision.

We review de novo a trial court order granting a motion to dismiss a mandamus petition brought under OCGA § 9-11-12 (b) (6). Hildebrand v. City of Warner Robins , 354 Ga. App. 164, 164, 840 S.E.2d 503 (2020). The record in this case shows that SGHS is a nonprofit corporation that operates two community hospitals in the cities of Brunswick (Glynn County) and St. Mary's (Camden County), both of which offer outpatient surgical services. Premier Surgery Center ("Premier") is a limited liability company that operates a surgical center in Glynn County, which also offers outpatient surgical services.

In January 2020, SGHS requested that DCH investigate whether Premier was running a third operating room ("OR") that was unauthorized under Georgia's Certificate of Need ("CON") program.1 Under the CON program, an organization must submit an application and obtain a CON whenever it is developing, expanding, or offering a new health care facility or new institutional health service as set forth in OCGA § 31-6-40 (a). The DCH is the administrative agency tasked with administering the CON program. OCGA § 31-6-21 (a). After reviewing its records, DCH determined that Premier was authorized to operate three ORs and declined to initiate a formal investigation into the matter. In April 2020, SGHS filed a request for an administrative appeal of DCH's decision not to investigate. DCH denied the request.

Thereafter, in October 2020, SGHS filed a petition for a writ of mandamus, requesting that the superior court order Berry, in his capacity as DCH's Commissioner, "to determine that Premier's operation of a third OR is in violation of the CON laws and to issue a cease and desist order against further operation

868 S.E.2d 822

of the third OR." SGHS asserted

362 Ga.App. 423

that Berry was refusing to perform his non-discretionary duty to enforce the CON laws, and mandamus was its only avenue for relief.

Berry answered the mandamus petition, and filed a motion to dismiss the petition for failure to state a claim. The trial court granted Berry's motion to dismiss. Specifically, the trial court found that DCH had the authority, but not the duty, to conduct investigations into potential CON violations and seek injunctive relief to enforce the CON statutes. Thus, the trial court found that SGHS had not shown entitlement to mandamus relief and dismissed the petition. The instant appeal followed.

A writ of mandamus "is an extraordinary remedy to compel a public officer to perform a required duty when there is no other adequate legal remedy." Love v. Fulton County Bd. of Tax Assessors , 311 Ga. 682, 692 (3) (a), 859 S.E.2d 33 (2021) (citation and punctuation omitted); see also OCGA § 9-6-20 (allowing writ of mandamus to compel public officials to performance if no other specific legal remedy exists). Mandamus is proper "only if (1) no other adequate legal remedy is available to effectuate the relief sought; and (2) the applicant has a clear legal right to such relief." Love , 311 Ga. at 692-693 (3) (a), 859 S.E.2d 33 (citation and punctuation omitted). Under Georgia law, SGHS has no other adequate legal remedy available to achieve the relief sought. Diversified Health Mgmt. Svcs., Inc. v. Visiting Nurses Assn. of Cordele, Inc. , 254 Ga. 500, 502 (4), 330 S.E.2d 885 (1985) (a competitor cannot sue for injunctive relief as an "interested person" under the CON statutes). Therefore, the only question remaining is whether SGHS showed a clear legal right to the relief sought.

Mandamus can lie to compel a public official to exercise discretion "but not to direct the manner in which that discretion is exercised." Bland Farms, LLC v. Ga. Dept. of Agriculture , 281 Ga. 192, 193, 637 S.E.2d 37 (2006). "[W]hether official action is required depends on the law governing the subject matter in question." Bibb County v. Monroe County , 294 Ga. 730, 735 (2) (b), 755 S.E.2d 760 (2014).

As described above, Georgia law authorizes DCH to govern the CON program. OCGA § 31-6-21 (a). The statute defining DCH's mandatory duties states that the "functions of the department shall be ..." and then enumerates several duties,...

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1 practice notes
  • In re A. A., A21A1724
    • United States
    • United States Court of Appeals (Georgia)
    • 31 Enero 2022
    ...or endanger the safety of the other person" and that her "disregard constitute[d] a gross deviation from the standard of care which a 868 S.E.2d 820 reasonable person would exercise in the situation."27 362 Ga.App. 434 For all these reasons, we affirm A. A.’s adjudication of delinquency.Jud......
1 cases
  • In re A. A., A21A1724
    • United States
    • United States Court of Appeals (Georgia)
    • 31 Enero 2022
    ...or endanger the safety of the other person" and that her "disregard constitute[d] a gross deviation from the standard of care which a 868 S.E.2d 820 reasonable person would exercise in the situation."27 362 Ga.App. 434 For all these reasons, we affirm A. A.’s adjudication of delinquency.Jud......

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