Haughton v. Canning

• Decision Date: 06 July 2007
• Docket Number: No. A07A0772.,A07A0772.
• Citation: 287 Ga. App. 28,650 S.E.2d 718
• Parties: HAUGHTON v. CANNING.
• Court: Georgia Court of Appeals

287 Ga. App. 28

650 S.E.2d 718

HAUGHTON v. CANNING.

No. A07A0772.

Court of Appeals of Georgia.

July 6, 2007.

Reconsideration Denied July 31, 2007.

Kennon Peebles, Jr., for appellant.

Milton B. Satcher, III, Sparwath & Satcher, Marietta, for appellee.

BARNES, Chief Judge.

Cherry Haughton sued psychiatrist Suzanne Canning for medical malpractice and invasion of privacy for sending letters containing psychiatric information to Haughton's other physicians and for releasing her psychiatric records to an attorney. During the jury trial, the trial court granted Canning's motion for directed verdicts on Haughton's claims of medical malpractice and invasion of privacy arising from the letters, and for punitive damages. The jury returned a defense verdict on Haughton's invasion of privacy claim related to the release of her records, and she appeals, contending that the trial court erred in granting the directed verdicts, in failing to give certain jury charges, in making certain evidentiary rulings, and in denying her motion for a judgment notwithstanding the verdict. For the reasons that follow, we affirm.

1. A motion for directed verdict should be granted only if none of the evidence conflicts and all of the evidence demands a particular verdict. Miranda v. Fulton DeKalb Hosp. Auth., 284 Ga.App. 203, 204-205(1), 644 S.E.2d 164 (2007). In considering the motion, the court must view the evidence in the light most favorable to the nonmovant. "[T]his approach governs the actions of appellate courts as well as trial courts." (Citation and punctuation omitted.) Church's Fried Chicken v. Lewis, 150 Ga. App. 154, 159(1), 256 S.E.2d 916 (1979). The standards for granting a motion for judgment notwithstanding the verdict are the same as those governing the direction of a verdict. Goggin v. Goldman, 209 Ga.App. 251, 252, 433 S.E.2d 85 (1993).

2. Haughton first contends that the trial court erred in granting Canning's motion for a directed verdict on her medical malpractice claims, which were based on Canning's three letters to Haughton's treating physicians. Haughton conceded at trial that one of the letters did not constitute medical malpractice, but argues that the jury should have considered whether the two letters Canning sent on August 22, 1997 constituted malpractice.

Three elements are essential to establish a medical malpractice claim: the doctor's duty to his patient; the doctor's breach of that duty through the failure to exercise the requisite degree of skill and care; and an injury proximately caused by the doctor's failure. Miranda, supra, 284 Ga.App. at 205-206, 644 S.E.2d 164. Plaintiff must prove "that the injury complained of proximately resulted from [a] want of care or skill. A bare possibility of such result is not sufficient." Id. at 205, 644 S.E.2d 164.

When arguing to the trial court that she was entitled to a directed verdict on the malpractice claim, Canning stated that Haughton's expert witness did not testify that any breach of her duty caused Haughton damages, and therefore she had not met the third requirement of showing that Canning proximately caused an injury. In fact, she argued, Haughton's expert specifically testified that he could not say if Haughton's mental anguish was caused by the disclosure of her psychiatric information or by being exposed to toxic mold, for which she successfully sued her builder after 1997. The trial court agreed that Haughton had failed to establish that Canning's actions proximately caused Haughton any injury, and granted the directed verdict on her medical malpractice claim.

Here, citing to the expert's affidavit attached to her complaint, Haughton argues that because she could recover for injured feelings alone due to Canning's invasion of her privacy, her testimony that she suffered emotional distress from the unauthorized disclosure was sufficient to establish harm. She cannot cite any testimony by her expert establishing that a breach of the standard of care proximately caused an injury, however, because while portions of the deposition of Haughton's expert witness were read to the jury, that testimony was not transcribed and the deposition is missing from the record.

Damages due to an invasion of privacy do not establish injuries due to medical malpractice. They are separate causes of action. Further, without reviewing the expert's testimony, "we must assume as a matter of law that the evidence . . . supported the trial court's rulings." Studard v. Dept. of Transp., 219 Ga.App. 643, 644(1), 466 S.E.2d 236 (1995). "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. [Cit.]" Jarallah v. Schwartz, 202 Ga.App. 32, 34(1), 413 S.E.2d 210 (1991). Accordingly, the trial court did not err in directing a verdict on Haughton's malpractice claims or in denying the motion for judgment notwithstanding the verdict. See King v. Zakaria, 280 Ga.App. 570, 575(2)(a), n. 4, 634 S.E.2d 444 (2006).

3. Haughton also contends that the trial court erred in granting Canning's motion for a directed verdict on her claim that Canning's letters to her treating physicians violated her right to privacy, asserting that the evidence showed an improper release of psychiatric information constituting an actionable invasion of privacy.

There are at least three elements necessary to recovery for an invasion of one's right of privacy: (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; [and] (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.

( Citations and punctuation omitted.) Dortch v. Atlanta Journal, 261 Ga. 350, 352(2), 405 S.E.2d 43 (1991) (log of cell phone calls is not "private" and thus available under Open Records Act).

In most cases, whether the private facts were "published" was not an issue, involving, for example, a photograph in a newspaper (Cabaniss v. Hipsley, 114 Ga.App. 367, 372(2), 151 S.E.2d 496 (1966); Bazemore v. Savannah Hosp., 171 Ga. 257, 155 S.E. 194 (1930)); or the broadcast of a recognizable face on television (Multimedia WMAZ v. Kubach, 212 Ga.App. 707, 443 S.E.2d 491 (1994)). The issue of psychiatrist-patient privilege arises most often when the psychiatrist provides information to a third party through the discovery process or when a party seeks to introduce psychiatric information during a court proceeding. In those cases, whether the private facts were or would be publically disclosed is not analyzed, but is accepted as true. See, e.g., OCGA § 24-9-40 (governing release of medical information); Gilmore v. State, 175 Ga.App. 376, 378, 333 S.E.2d 210 (1985) (no error in failure to suppress evidence obtained from defendant's doctor); OCGA § 24-9-21(5) (relationship of psychiatrist and patient privileged); Bobo v. State, 256 Ga. 357, 358(2), 349 S.E.2d 690 (1986) (no error in denying admission of witness's psychiatric history). In this case, Haughton has not shown that her private facts were disclosed publically.

Instead, the evidence shows that Haughton signed a consent form to allow Canning to obtain her medical record from her treating pain specialist, and after Canning obtained those records, she sent letters to him and to Haughton's family doctor on August 22, 1997, thanking the specialist for sending the records and reviewing Haughton's history and symptoms with both doctors. These two letters constituted part of Haughton's invasion of privacy claim, along with a third letter to her family doctor. Canning testified that she sent these two letters because she was very concerned about the marked change Haughton demonstrated since 1995, and could not determine which medications Haughton was taking, who had prescribed them, or what course of treatment Haughton was undergoing. Haughton also verbally authorized Canning to communicate with the specialist Chandler and her family doctor, Melville, about her care. In the third letter, written on October 10, 1997, Canning documented the substance of a telephone call between herself, Haughton and her family doctor.

Along with a separate disclosure of records related to Haughton's suit against her builder, which went to the jury, these three letters formed the basis of Count 5 of Haughton's complaint, in which she alleged that Canning's "acts constitute the tort of unauthorized public disclosure of private facts (invasion of privacy)." The trial court denied Canning's motion for directed verdict on Haughton's invasion of privacy claim regarding the records disclosure, but granted a directed verdict to Canning on whether the three letters could constitute an invasion of privacy.

The information in the three letters was disclosed to Haughton's treating physicians in an attempt to coordinate care. According to Canning, Haughton's expert witness testified regarding the importance of coordinating care, a representation Haughton does not dispute. Assuming but not deciding that sharing this information with treating physicians is not a malpractice issue, it did not amount to a "public" disclosure. No evidence shows that either of these doctors shared the information with anyone else. Without a public disclosure, Haughton's invasion of privacy claim regarding the three letters does not present a jury question as a matter of law, and the trial court did not err in directing a verdict in...