Harrell v. Louis Smith Memorial Hosp.

• Decision Date: 05 October 1990
• Docket Number: No. A90A1970,A90A1970
• Citation: 397 S.E.2d 746,197 Ga.App. 189
• Parties: HARRELL et al. v. LOUIS SMITH MEMORIAL HOSPITAL.
• Court: Georgia Court of Appeals

Page 746

397 S.E.2d 746

197 Ga.App. 189

HARRELL et al. v. LOUIS SMITH MEMORIAL HOSPITAL.

No. A90A1970.

Court of Appeals of Georgia.

Oct. 5, 1990.

Sutton & Slocumb, Berrien L. Sutton, B. Jean Crane, Homerville, for appellants.

Wade H. Coleman, Valdosta, William U. Norwood III, Thomasville, for appellee.

BIRDSONG, Judge.

This appeal arises from the granting of summary judgment in favor of appellee, Louis Smith Memorial Hospital (see generally OCGA § 9-11-56(h)). The children of the deceased brought suit for medical malpractice against the treating physician and the hospital. The hospital asserted, inter alia, the defense of charitable immunity. Held:

1. Appellants assert that the trial court erred in making factual findings instead of utilizing the procedures under OCGA § 9-11-56. OCGA § 9-11-52 does not apply to certain actions including all motions except as provided in OCGA § 9-11-41(b). OCGA § 9-11-52(b); see generally Fudge v. Colonial Baking Co., 186 Ga.App. 582(1), 367 S.E.2d 814; Karsman v. Portman, 173 Ga.App. 108(3), 325 S.E.2d 608. However, in certain cases when the trial court makes findings of fact and conclusions of law in ruling on motions for summary judgment, it can be "helpful to the appellate courts and instructive to the parties." Lewis v. Rickenbaker, 174 Ga.App. 371, 372(1), 330 S.E.2d 140. Accordingly, the mere entry of findings of fact and conclusions of law in ruling on a motion for summary judgment does not constitute error per se. Moreover, it appears on the face of the order that the trial court did apply the test of OCGA § 9-11-56, as it concluded "[t]here are no genuine issues as to any material facts and said defendant is entitled to a judgment as a matter of law." See generally OCGA § 9-11-56(c). It is the duty of the party asserting error to show it by the record; mere assertions of error in briefs cannot satisfy this duty. Denny v. Nutt, 189 Ga.App. 387, 389, 375 S.E.2d 878. Appellants have failed to carry their burden. In any event, we will review this case using well-established principles of law pertaining to summary judgment. See Division 2(b), below.

2. Appellants assert the trial court erred in entering summary judgment on behalf of appellee hospital on the grounds of the charitable immunity doctrine.

(a) On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. When, as in the instant case, movant is a defendant, it has the additional burden of piercing the plaintiffs' pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing parties should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the parties opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. Yet once the party moving for summary judgment has made out a prima facie case, the burden of proof shifts to the opposing parties who must come forward with rebuttal evidence or suffer judgment against them. Leah Enterprises v. Chouinard, 189 Ga.App. 744, 745-746, 377 S.E.2d 514.

(b) Today, virtually all states have "rejected the complete immunity of charities"; however, Georgia is among a "handful of states" which have "attempted to modify the immunity so that it is retained in some cases but not in others." Prosser & Keeton on Torts (5th ed.), Immunities, § 133. In Georgia an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees. Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833(1), 353 S.E.2d 515; Wynn v. Fulton-DeKalb Hosp. Auth., 196 Ga.App. 52, 395 S.E.2d 343.

"[T]he doctrine of charitable immunity ... does not extend to the corporate or original negligence of the charitable entity in the employment or retention of incompetent employees...." Y.M.C.A. etc. v. Bailey, 107 Ga.App. 417, 420, 130 S.E.2d 242. Moreover, "[t]he failure to exercise ordinary care to provide a sufficient number of competent and adequately instructed employees and the failure to exercise ordinary care in selecting or retaining competent employees cannot be distinguished." Y.M.C.A., supra. Thus, the doctrine of charitable immunity would not extend to any negligence of the appellee hospital, assuming it qualifies as a charitable entity, in failing to provide a sufficient number of competent and adequately instructed employees for its staff. See Y.M.C.A., supra; Hipp v. Hospital Auth., 104 Ga.App. 174, 177(2), 121 S.E.2d 273.

Appellants averred, inter alia, in their complaint that appellee hospital "was at such time required to provide a staff adequately trained to exercise a reasonable degree of medical care and skill in the delivery of health care," that it "failed to provide staff who were qualified to adequately diagnose and to treat myocardial infarction," and that it "failed to properly refer [deceased] to a facility capable of handling acute myocardial infarctions at a proper time." Compare Hipp, supra. This pleading was sufficient to place appellee hospital on reasonable notice of an averment of inadequate staffing beyond the pale of the doctrine of charitable immunity. Thereafter, the record reflects that the appellee hospital failed to pierce appellants' pleadings as to these particular averments of inadequate staffing. In fact, the president of the hospital in his deposition testimony made several admissions which per se would create a genuine issue of material fact as to whether the hospital, particularly its emergency room, was adequately staffed with personnel who were competent and adequately instructed. As appellee hospital failed to pierce appellants' pleadings as to the averment of inadequate staffing, appellants were entitled to rely on their pleadings and were not required to come forward with rebuttal evidence or suffer judgment against them. See Division 2(a) above. Accordingly, the trial court erred in granting summary judgment for the appellee hospital.

(c) In its order, the trial court concluded that decedent was not a "paying patient." See generally Cutts v. Fulton-DeKalb Hosp. Auth. 192 Ga.App. 517(1), 385 S.E.2d 436; Wynn, supra; compare Fulton-DeKalb Hosp. Auth. v. Fanning, 196 Ga.App. 556, 396 S.E.2d 534 (principal and concurring opinions). As this issue and the related issue of non-charitable assets undoubtedly will be litigated also at trial, we will address these issues in the interest of judicial economy. Appellants averred in the complaint that decedent, "while receiving care at [appellee] Louis Smith Memorial Hospital and by Dr. Guy Mann was at all times a paying patient." (Emphasis supplied.) In its responsive answer to appellants' complaint, appellee hospital expressly admitted this averment, and did not thereafter timely and effectively withdraw its admission. See generally, Green, Ga. Law of Evid. (3rd ed.), Admissions, § 238.1. "The averment in the answer stands as a solemn admission in judicio, which the defendant may not controvert by the introduction of evidence." Y.M.C.A. v. Bailey, 112 Ga.App. 684, 689, 146 S.E.2d 324. Moreover, we find no merit in appellee's assertion that its admission by way of pleadings was not an admission in judicio because the admission only constituted a conclusion of law or fact, rather than the admission of a factual matter. See generally Conaway v. American Guarantee, etc., Co., 189 Ga.App. 194, 195, 375 S.E.2d 144. The manner in which the averment was crafted in the complaint in this case expressed a factual matter, and appellee's answer constituted an unconditional admission of the fact that deceased was a "paying patient." Appellee cannot be heard to complain on appeal regarding the effect of its own pleading procedures before the trial court.

Moreover, assuming arguendo the admission in appellee's pleading had not met the criteria of an admission in judicio, as the admission in pleadings nevertheless remained in effect, it would appear to constitute evidence for purpose of summary judgment. Compare Behar v. Aero Med. Intl., 185 Ga.App. 845(1), 366 S.E.2d 223; see also OCGA § 9-11-56(c); Four Square Constr. Co. v. Jellico Coal, etc., Co., 145 Ga.App. 650, 244 S.E.2d 612; Wood v. Brunswick Pulp, etc., Co., 119 Ga.App. 880, 881-882, 169 S.E.2d 403; cf. OCGA § 9-11-36(b).

(d) The trial court further held that even if decedent met the three-prong test of a "paying patient" (see generally Wynn, supra), appellee hospital does not have "non-charitable assets" from which to satisfy a tort liability judgment. Among the trial court's findings of fact in support of this legal conclusion were that the appellee hospital had a substantial loss in its operation for the year 1987 and had no assets or properties which are not employed in its total operation used for its charitable purpose.

Some cases have stated that recovery is limited to non-charitable "assets." See e.g., Medical Center Hosp. Auth. v. Andrews, 250 Ga. 424, 426(2), 297 S.E.2d 28; Medical Center Hosp. Auth. v. Andrews, 162 Ga.App. 687, 689(2), 292 S.E.2d 197, affd. 250 Ga. 424, 297 S.E.2d 28. Others have stated that recovery is limited to the extent of "income" derived from patients who paid for their services. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga.App. 167, 168, 384 S.E.2d 205 with Fulton-DeKalb Hosp. Auth. v. Alexander, 193 Ga.App. 505(2), 388 S.E.2d 372. Some cases state "recovery [is] to be satisfied only out of the noncharitable assets or income." Y.M.C.A., supra 112 Ga.App. at 687, 146 S.E.2d 324; Morehouse College v. Russell, 109 Ga.App. 301, 317, 136 S.E.2d 179. These cases are not...