Goins v. Tucker

• Decision Date: 03 July 1997
• Docket Number: Nos. A97A0324,A97A0325,s. A97A0324
• Citation: 489 S.E.2d 857,227 Ga.App. 524
• Parties: , 97 FCDR 2549, 97 FCDR 3091 GOINS et al. v. TUCKER et al. SOUTHSIDE HEALTHCARE, INC. v. GOINS et al.
• Court: Georgia Court of Appeals

Page 857

489 S.E.2d 857

227 Ga.App. 524, 97 FCDR 2549, 97 FCDR 3091

GOINS et al. v. TUCKER et al.

SOUTHSIDE HEALTHCARE, INC. v. GOINS et al.

Nos. A97A0324, A97A0325.

Court of Appeals of Georgia.

July 3, 1997.

Reconsideration Denied July 24, 1997.

Certiorari Denied Nov. 21, 1997.

Ellerin & Associates, Irwin M. Ellerin, Atlanta, Mia I. Frieder, Peachtree City, DeLong, Caldwell & Wisebram, Steven R. Wisebram, Atlanta, for Goins et al.

Schnader, Harrison, Segal & Lewis, James M. Hunter, Mary A. Hall, Timothy H. Kratz, Atlanta, for Tucker et al.

Love & Willingham, Kimberly L. Woodland, Atlanta, for Southside Healthcare, Inc. Duvall, McCumber & Doverspike, Michael G. Frick, for Georgia Baptist Health Care System.

McMURRAY, Presiding Judge.

Plaintiff Goins filed this negligence and wrongful death action arising from the stillbirth of her child. The defendants include individual physicians Tucker, Narain, and Overstreet, along with corporate defendants Georgia Baptist Healthcare System ("Georgia Baptist") and Southside Healthcare, Inc. In Case No. A97A0324, plaintiff appeals the grant of partial summary judgment to defendants Tucker and Southside Healthcare, Inc. ("Southside"), as well as the grant of a motion to dismiss plaintiff's claims against Georgia Baptist for failure to state a claim. In Case No. A97A0325, defendant Southside cross-appeals from the denial of its motion for summary judgment. Held:

1. Based on a conclusion that the OCGA § 9-11-9.1 affidavit filed with the complaint did not attribute any negligent act to the nursing staff of Georgia Baptist, the superior court granted a motion to dismiss plaintiff's claim against this defendant, contained in Count 4 of the complaint, for failure to state a claim upon which relief could be granted. We agree that the affidavit submitted in the case sub judice does not satisfy the statutory mandate with regard to Georgia Baptist.

Of the twelve substantive paragraphs of the affidavit, the first three identify the affiant and state his qualifications. The fourth paragraph lists the medical records reviewed by the affiant. The following six paragraphs are devoted in pairs to the three defendant physicians, each of whom the affiant concludes was negligent and failed to exercise the degree of care generally employed by medical professionals in the field of obstetrics and gynecology under similar conditions and like circumstances for reasons that are stated for each defendant physician.

The remaining paragraphs state:

"11. The parameters of the acceptable standard of medical care that pertains to this instance would dictate that the following apply: a) That available diagnostic techniques be utilized to establish a proper and definitive diagnosis; b) That there be adequate supervision of the personnel administering the care and treatment to mother and child. c) That the diagnosis of fetal distress and abruptio placenta have been timely made and appropriately treated. d) That signs and symptoms of an abruptio placenta be timely attended to.

"12. This affidavit is given pursuant to O.C.G.A. § 9-11-9.1 and is intended to set forth at least one negligent act or omission concerning the care and treatment provided to Bonnifer M. Goins and her child by the named defendants. It is not intended to set forth all acts or omissions amounting to deviations from the acceptable standards of medical care and the opinions expressed herein are subject to modification as discovery progresses and other relevant facts become known."

Plaintiff seeks a liberal construction of the affidavit stressing that it must be read in conjunction with the complaint. Gadd v. Wilson & Co., etc., 262 Ga. 234, 236, 416 S.E.2d 285 (Hunt, J., concurring specially). See also Howard v. City of Columbus, 219 Ga.App. 569, 466 S.E.2d 51; Bowen v. Adams, 203 Ga.App. 123, 416 S.E.2d 102.

However, reference to Georgia Baptist appears on the document only because the caption of the case precedes the affidavit. The body of the affidavit contains no reference to Georgia Baptist or its staff. Even in the Howard case the alleged negligent acts were broadly attributed to the staff of the jail's health clinic. When examining the affidavit as a whole, the eleventh paragraph is clearly only a summation of the negligent acts attributed to the defendant physicians in the preceding six paragraphs. The expression of intent in the twelfth paragraph cannot serve to remedy a failure to attribute any act of negligence to a party. The affidavit does not meet the requirements of the statute with regard to defendant Georgia Baptist, and this failure subjects Count 4 of the complaint to dismissal for failure to state a claim. Candler Hosp. v. Carter, 224 Ga.App. 425, 480 S.E.2d 876.

2. Via Count 1 of her complaint, plaintiff seeks to recover from defendant Tucker for her alleged mental and physical pain and suffering. "Any mental suffering or emotional distress [plaintiff] suffered as a result of injuries to her child is not compensable in this claim." Littleton v. OB-GYN Assoc., etc., 199 Ga.App. 44, 46, n. 1, 403 S.E.2d 837, aff'd, OB-GYN Assoc., etc. v. Littleton, 261 Ga. 664, 410 S.E.2d 121. Defendant Tucker's motion for summary judgment as to these allegations was predicated on a lack of evidence that he had caused any physical injury to plaintiff. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474. Plaintiff responded with her affidavit which stated that she suffered physical injuries on September 28, 1992, when she was given an intravenous infusion of Pitocin, when she suffered a vaginal delivery of her child, when she was given an episiotomy, and when she suffered a prolonged, painful labor. While plaintiff was admitted to the hospital and attended by other physicians in the absence of defendant Tucker, there is evidence that this coverage ended at 8:00 a.m. on September 28, 1992, and that from this point in time it was defendant Tucker's responsibility to acquire knowledge of plaintiff's presence in the hospital and medical situation. In fact, defendant Tucker spent the morning in question seeing patients and was not informed of plaintiff's presence in the hospital until past noon, after plaintiff's child had expired. Under the evidence elicited from plaintiff's expert, at the time responsibility for plaintiff's care reverted to defendant Tucker, it would have been proper to induce labor for the purpose of obtaining a vaginal delivery. But labor was not induced at that time, and the medical circumstances evolved so that later in the morning a Caesarean delivery should have been performed. Since plaintiff has presented proof that the negligent failure of defendant Tucker to perform a Caesarean delivery was the cause of her physical injuries, the present case appears indistinguishable from Littleton v. OB-GYN Assoc., etc., 199 Ga.App. 44, 403 S.E.2d 837, supra.

The superior court granted defendant Tucker's motion for summary judgment based upon an erroneous application of the rule from Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680, that unexplained contradictory testimony must be construed against the party providing it. While plaintiff's affidavit contained additional information concerning her injuries the affidavit did not contradict her earlier interrogatory answers. Littleton v. OB-GYN Assoc., etc., 199 Ga.App. 44, 46, 403 S.E.2d 837, supra. Additionally, plaintiff's testimony did not constitute the only evidence of her injuries since such were documented in her medical records. See Assoc. Hosts of Ga. v. Marley, 184 Ga.App. 352(1), 353, 361 S.E.2d 496.

It follows that the superior court's grant of partial summary judgment in favor of defendant Tucker on Count 1 of plaintiff's complaint must be reversed. Additionally, the grant of a partial summary judgment as to Count 1 of plaintiff's complaint in favor of defendant Southside, which is allegedly liable for the negligence of defendant Tucker under the doctrine of respondeat superior, must also be reversed.

3. The superior court also erred in granting in part the motion for summary judgment of defendant Southside by finding that if defendant Tucker was determined to be an independent contractor, he was not an apparent agent of defendant Southside Healthcare, Inc. In Abdul-Majeed v. Emory Univ. Hosp., 213 Ga.App. 421, 422(1), 445 S.E.2d 270, this Court held that by furnishing an attending physician, a hospital is in effect holding him out as its own and calling upon the patient to accept his services based on its own reputation rather than the physician's so that if the hospital supplied the physician without explicitly informing the patient that the doctor was not its employee the circumstances would be sufficient to support a finding that the hospital held out the doctor as its agent. Defendant Southside Healthcare, Inc., a non-profit community health center, if not a hospital might be viewed as such in many communities since it provided "not only primary health care but specialty care, ancillary type care, lab, pharmacy, x-ray, ... dentistry, [and] optometry." In any event it is not...