Georgia Osteopathic Hosp., Inc. v. O'Neal, A90A1905

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBANKE; COOPER; BIRDSONG
Citation403 S.E.2d 235,198 Ga.App. 770
Docket NumberNo. A90A1905,A90A1905
Decision Date28 February 1991

Page 235

403 S.E.2d 235
198 Ga.App. 770
O'NEAL et al.
No. A90A1905.
Court of Appeals of Georgia.
Feb. 28, 1991.

Page 238

[198 Ga.App. 782] Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Atlanta, for appellant.

Howard, Secret & Howard, James W. Howard, Atlanta, for appellees.

[198 Ga.App. 770] BANKE, Presiding Judge.

The appellees sued the appellant, Georgia Osteopathic Hospital, Inc. d/b/a Doctors Hospital, seeking damages for the death of their father, George O'Neal, who was killed by police after he "went berserk" and began attacking people with a knife while a patient at the hospital. The appellees also sought to recover actual and punitive damages for the pain and suffering allegedly experienced by O'Neal before he died. A jury returned a verdict in their favor in the amount of $550,000, and the case is before us on appeal from the denial of the hospital's alternative motions for new trial and judgment notwithstanding the verdict.

The decedent was originally admitted to the hospital by Dr. Schnapp on November 22, 1983, with complaints of head and neck pain. During the course of that stay, a neurological evaluation was performed on him by Dr. Lara, who determined that he was suffering from neurovascular and muscle-contraction headaches. The decedent was discharged from this hospitalization on December 6, 1983, after a course of treatment which included physical therapy and the administration of various medications for inflammation, pain, and muscle tension. However, he continued to complain of neck and head pain and also began to report numbness in his right hand. Consequently, on December 12, 1983, he was readmitted to the hospital by Dr. Boecker, who was Dr. Schnapp's partner or associate. Because the decedent was additionally exhibiting symptoms of hypertension at this time, there was some concern that he might be a candidate for a stroke. During the course of the following three days, numerous central nervous system depressant drugs--specifically Tigan, Nubain, Flexeril, Indocin, Halcion, Robaxin, Dalmane, Soma, and Haldol--were administered to the decedent. The appellees presented opinion testimony from a psychiatrist, Dr. James S. Cheatham, to the effect that the co-administration of these drugs precipitated an "anti-cholinergic drug reaction" in the decedent which ultimately caused him to go "berserk."

Page 239

The hospital records indicate that the nursing staff first became [198 Ga.App. 771] concerned about the decedent's behavior at approximately 12:25 a.m. on December 15, which was about 20 hours prior to the violent outburst which led to his death. It was noted on his chart at this time that he was exhibiting an "inappropriate laugh" and that he was refusing to take his medications for the stated reason that they were aggravating his pain. During the ensuing hour-and-a-half, notations were made that he had complained of feeling short-winded and of experiencing numbness "in the back of his head" and that he had been observed kneeling over his bed. At 2:10 a.m., he appeared anxious and again refused his medication, prompting his nurse to notify the house intern, Dr. Newlon. After examining the decedent, Dr. Newlon telephoned the admitting physician, Dr. Boecker, at home and was instructed by the latter to discontinue several of the decedent's medications.

The morning shift nurse, Ms. McKenzie, observed that the decedent appeared confused and disturbed; and she was sufficiently concerned about his condition that she spent several hours with him during her shift attempting to reassure and comfort him. The decedent made repeated complaints during this period to the effect that he did not think "all this medication" was helping him, and he threatened at one point to leave the hospital. Nurse McKenzie called Dr. Boecker several times to express concern about the situation, and he visited the decedent at 12:40 p.m. Observing that the decedent exhibited an "inappropriate affect and uncharacteristic confusion regarding time and events," Dr. Boecker called in Dr. Lara, the neurologist who had examined him during his previous hospital stay, for a consultation. Dr. Lara examined the decedent at about 2:00 that afternoon and concluded that he was "suffering from a confusional state secondary to medication effect." However, he testified at trial that he did not feel the decedent was dangerous at this time.

By 3:00 p.m., Dr. Boecker had discontinued all of the decedent's prior medications, prescribing only Haldol, an anti-psychotic drug, on an as-needed basis. The nurse assigned to care for the decedent on the three-to-eleven shift was Ms. Daryle Branch, a licensed practical nurse who normally worked on the obstetrics ward. At 6:00 p.m., she made the following notation in his record: "Remains confused. He's been up walking in the room." Nurse Branch made her next entry in the decedent's hospital record at 10:00 p.m., at which time she described him as "resting quietly" in bed with his eyes closed. Asked at trial to describe his behavior during the interim, Nurse Branch testified as follows: "[H]e was calm, he was quiet.... He was conversing ... probably, with his roommate ... but nothing else was taking place; he was walkin' around, he was watchin' TV ... you know, nothing out of the ordinary."

At approximately 10:15 p.m. the decedent called the nurses' station[198 Ga.App. 772] and asked for someone to come and look at his arm. Nurse Branch responded and found him sitting in a chair beside his bed. When she touched his arm, he jumped back in a manner which she evidently found alarming, prompting her to tell him she would have someone else look at his arm. The decedent replied, "Well, I'm gonna die anyway," and then grabbed an object (which proved to be a pocketknife) and charged at her with it. Although Ms. Branch escaped uninjured, the decedent ultimately stabbed and wounded another nurse, a security guard, and himself before the DeKalb County police arrived and shot him to death in the hallway.

None of the physicians who examined the decedent between his admission to the hospital on December 12 and his death on December 15 was named as a defendant in this action, and none of them was employed by the hospital except for Dr. Newlon, who is not alleged to have been negligent in any way. The appellees' claim against the hospital is predicated on allegations that (1) its pharmacy was negligent in failing to monitor the various medications being provided to the decedent for possible adverse interactions: (2) its nurses were negligent in failing to keep the decedent's physicians as well as their own superiors at the hospital

Page 240

adequately informed about his deteriorating condition; and (3) the nurses were further negligent in failing to apply physical restraints to him before he went berserk. In addition, the appellees sought to prove (4) that Nurse Branch had given the decedent a discontinued drug, Dalmane, approximately a half hour before he went berserk. The appellees' psychiatric expert, Dr. Cheatham, characterized Dalmane as a "very potent central nervous system depressant drug" and testified that if it was in fact administered on the night of December 15, it "was probably the straw that broke the camel's back."

During the trial, Ms. Branch testified that she had not administered Dalmane to the decedent on the night of December 15 but had administered it to him only on the previous night, before it was discontinued. However, she acknowledged having previously testified, during the course of a pre-trial deposition, that she had given him the drug on the night of December 15. It was shown that after consulting with the hospital's attorneys during a break in this deposition, Ms. Branch had sought to correct this "mistake" by submitting an "errata sheet" stating that she had actually administered Dalmane to the decedent on December 14 rather than on December 15. Held:

1. The hospital contends that the trial court erred in allowing the appellees' claims for the decedent's pain and suffering and funeral expenses to be submitted to the jury because only the decedent's estate had standing to pursue these claims, and no administrator or executor had been appointed to represent the estate. In the recent case of Walden v. John D. Archbold Mem. Hosp., 197 Ga.App. 275, 277(3), [198 Ga.App. 773] 398 S.E.2d 271 (1990), this court held that "[u]nder the plain language in OCGA §§ 9-2-41 and 51-4-5(b), upon the death of [the decedent] these causes of action vest[ ] in the administrator of his estate, not ... [in his] heirs and next of kin." Based on this holding, the appellees now concede that "any damages awarded on their pre-death tort claims would have to be reversed." However, they urge this court to presume that no such damages were awarded by the jury because it returned a lump sum verdict of $550,000, without specifying that any portion of it was for the pre-death tort claims. This is, of course, precisely the problem. Because the verdict is not itemized, it is impossible to ascertain whether it did or did not include damages for the pre-death tort claims. Therefore, we have no basis upon which to conclude that the court's action in allowing these claims to go to the jury was harmless error, and a new trial is required.

2. Since punitive damages are not available in a wrongful death action, Truelove v. Wilson, 159 Ga.App. 906, 907(2), 285 S.E.2d 556 (1981), it follows from the foregoing that the appellees were without standing to pursue such damages. Accordingly, we do not reach the issue of whether there was evidence of any wilful or malicious misconduct or conscious indifference to consequences in this case, such as would have authorized an award of punitive damages on the "pre-death" tort claims. See generally Associated Health Systems v. Jones, 185 Ga.App. 798(2), 366 S.E.2d 147 (1988).

3. The hospital contends that under the Supreme...

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