Government Employees Ins. Co. v. Presley

• Decision Date: 12 April 1985
• Docket Number: No. 70002,70002
• Citation: 330 S.E.2d 779,174 Ga.App. 562
• Parties: GOVERNMENT EMPLOYEES INSURANCE COMPANY v. PRESLEY.
• Court: Georgia Court of Appeals

Page 779

330 S.E.2d 779

174 Ga.App. 562

GOVERNMENT EMPLOYEES INSURANCE COMPANY v. PRESLEY.

No. 70002.

Court of Appeals of Georgia.

April 12, 1985.

Joseph H. Chambless, Macon, for appellant.

J. Stephen Manko, Marietta, for appellee.

DEEN, Presiding Judge.

The appellee, Chris Presley, commenced this action against Government Employees Insurance Company (GEICO), seeking payment of no-fault benefits, and statutory penalties, attorney fees and punitive damages because of the non-payment of his claim. GEICO appeals from the jury verdict for the appellee for $8,311.40 no-fault benefits, $2,077.85 as a twenty-five percent penalty and $10,000 punitive damages.

On July 6, 1981, the appellee was involved in a one-car automobile accident when his vehicle slid on wet pavement into an embankment. At the time of the accident he did not believe that he was injured, and made no complaint of injury to the investigating police officers at the scene. On July 7, 1981, he informed GEICO of the incident and reported only the property damage to his automobile. GEICO paid this claim for the collision loss on July 10, 1981, and on the same day, the appellee advised a GEICO representative that he had some stiffness in his neck and that he would report if he went to a doctor.

On the morning of July 20, 1981, the appellee appeared at the hospital emergency room, complaining of chest pain and difficulty with breathing. The emergency room physician, Dr. Edward Burton, diagnosed a collapsed right lung, and referred the matter to Dr. Kam Sreeram, a thoracic surgeon who had treated the appellee in 1979 for a spontaneous pneumothorax of the right lung. Dr. Sreeram's admitting diagnosis was spontaneous pneumothorax. Following the appellee's admission, Dr. Sreeram was obliged to be out of town for a few days, and during the latter's absence, Dr. Joe Robinson, another thoracic surgeon, saw the appellee. Dr. Robinson's diagnosis in discharging the appellee on July 28, 1981, also was spontaneous pneumothorax of the right lung.

The uncontroverted medical evidence distinguished two types of pneumothorax, i.e., spontaneous and traumatic. Spontaneous pneumothorax occurs in young males between the ages of 20 to 40, when blebs (or blisters) form on the lung and rupture, thus collapsing the lung. (The appellee was 25 at the time of his hospitalization.) The medical profession has not discovered any cause for the blebs; there was no dispute, however, that no traumatic injury was required to precipitate a rupture of a bleb, and that there was a very high incidence of recurrent spontaneous pneumothorax. A traumatic pneumothorax referred to a collapse of a lung because of some physical injury, such as the puncture of a lung by a broken rib.

On August 6, 1981, the appellee went to GEICO's office and, in presenting his claim for medical expenses and lost wages resulting from his hospitalization for his collapsed right lung, first asserted to GEICO that he had suffered a chest injury during the accident. On that day he submitted a wage verification form and an attending physician's statement, in which Dr. Sreeram indicated that the appellee had sustained a chest injury in an automobile accident that resulted in the pneumothorax of the right lung; in a note, Dr. Sreeram also advised that the appellee would require corrective surgery on that lung to reduce the risk of future pneumothorax. On August 7, 1981, the appellee gave a recorded statement and formally filed his application for no-fault benefits, and indicated that in addition to the chest injury which resulted in the collapsed lung he had sustained injuries to his neck, back, and four teeth. The insurance agent who took the appellee's statement explained then that she would need additional information before she could determine the claim, and on August 10, 1981, she actually requested the hospital records concerning the appellee's 1979 and 1981 hospitalizations. On August 11, 1981, the appellee submitted two reports completed by his dentist, Dr. Robert Mattox. These statements indicate only that the appellee needed repair of four teeth because of trauma received in an auto accident and that the appellee had first contacted the dentist about the matter on August 4, 1981.

On August 13, 1981, the appellee's attorney discussed the case with Mr. Maurice Lee, GEICO's regional claims director, who authorized payment of $1,051.87 for lost wages. Payment of the claimed medical expenses was delayed until further investigation. (The requested hospital records had not yet been received.) On August 18, 1981, the insurance agent wrote the dentist, requesting the appellee's dental records for the last six months, in order to determine whether the injury to the appellee's teeth resulted from the accident of July 6, 1981. On August 19, 1981, GEICO received a letter from the appellee's attorney, in which he demanded payment of the claim for medical expenses within 30 days and revoked all previous authorizations for release of medical or wage information. The insurance agent eventually received the requested hospital records on or about August 26, 1981, but the records indicated a diagnosis of spontaneous pneumothorax and contained no reference correlating the appellee's collapsed lung with the automobile accident of July 6, 1981. (Also, no other physical injuries or complaints were noted.) The agent again wrote the appellee's attorney on September 2, 1981, confirming receipt of his letter revoking the previous medical releases and advising him that the claim was still pending receipt of reasonable proof that the injuries resulted from the automobile accident. On October 14, 1981, the agent's supervisor also wrote the appellee's attorney, acknowledging the revocation of the previous authorizations for medical and wage information, and requesting additional reports from Dr. Sreeram and Dr. Mattox regarding how the appellee's pneumothorax and tooth injuries were related specifically to the automobile accident of July 6, 1981. On October 21, 1981, however, the appellee commenced this action.

Subsequently, after deposing the dentist, GEICO paid the dental claim on December 14, 1981, approximately two months before the appellee actually had the dental work. On or about December 15, 1981, the appellee submitted another letter, dated November 18, 1981, from Dr. Sreeram, who reiterated that he had treated the appellee for a pneumothorax resulting from an automobile accident on July 6, 1981, and that the appellee had subsequently undergone corrective lung surgery to prevent recurrent pneumothorax. The following day, however, Dr. Sreeram was deposed, and at that time he clarified that while it would have been reasonably possible that the appellee injured his lung and that the injury worsened over the two-week period to the point where the appellee was compelled to seek medical attention, he actually could give no medical opinion as to whether the appellee's collapse of the right lung on July 20, 1981, was related to the automobile accident on July 6, 1981; the physician did recall that during the appellee's hospitalization he had mentioned the automobile accident. Dr. Sreeram's testimony at the trial essentially was the same as that in his deposition, but he emphasized that in this case, involving a patient with a history of spontaneous pneumothorax, it was impossible to state whether the collapsed lung of July 20, 1981, was caused by the accident of July 6, 1981, or was merely a recurrent episode of spontaneous pneumothorax.

Dr. Robinson testified at the trial that it was physiologically impossible for the appellee to have sustained either a chest injury which caused a pneumothorax two weeks later or a collapsed lung at the time of the accident that did not warrant medical treatment for two weeks. Dr. Robinson explained that, if anything, a pneumothorax would improve over a two-week period, and not worsen; he further indicated that had the appellee sustained a chest injury that collapsed his right lung on July 6, 1981, the collapse would have developed within a twenty-four-hour period of the injury, and that the symptoms would have been so severe as to prompt one to seek immediate medical attention. Dr. Robinson had also given essentially the same testimony in a deposition taken on December 16, 1981. The deposition testimony of Dr. Edward Burton and Dr. Charles Ogburn, also taken on December 16, 1981, was read into evidence during the trial. Like Dr. Robinson, Dr. Burton strongly denied the possibility of any causal relationship between the automobile accident of July 6, 1981, and the appellee's pneumothorax of July 20, 1981. Both Dr. Robinson and Dr. Burton vehemently insisted that the appellee merely had suffered recurrent spontaneous pneumothorax, totally unrelated to the accident two weeks earlier. Dr. Ogburn explained that trauma could also cause a spontaneous pneumothorax by rupturing a bleb already present.

The appellee testified at trial that he had experienced chest pain during the two weeks following the automobile accident, but that he had continued to work and had not gone to a doctor earlier because his family could not afford the loss of income. Some of his co-workers described the appellee's difficulty at work during that two week period. The appellee explained that he did not remember how he had injured his chest during the accident, but he surmised that his chest had struck the car's steering wheel. (He testified that the steering wheel actually was bent during the accident, although his claim for property damage did not reflect any such damage.) He further explained that he had not mentioned the automobile accident to Dr. Burton at the emergency room on July 20, 1981, because he had not yet correlated the lung injury to the accident. Held:

1. The appellant contends that there was no competent medical evidence establishing any causal relationship between the appellee's automobile accident of...