Hooks v. Humphries, A09A1694.

• Decision Date: 07 September 2010
• Docket Number: No. A09A1694.,A09A1694.
• Citation: 692 S.E.2d 845,303 Ga.App. 264
• Parties: HOOKS, et al.v.HUMPHRIES, et al.
• Court: Georgia Court of Appeals

303 Ga.App. 264

692 S.E.2d 845

HOOKS, et al.v.HUMPHRIES, et al.

No. A09A1694.

Court of Appeals of Georgia.

March 30, 2010.

Certiorari Denied Sept. 7, 2010.

Ford & Barnhart, James L. Ford, Sr., Atlanta, for Appellants.

McCall, Williams, Wilmot & Powell, W. Earl McCall, Tifton, Henry E. Williams, Albany, for Appellees.

BERNES, Judge.

Cynthia and Marcus Hooks filed this medical malpractice action against Charles M. Humphries, Jr., M.D. and his professional corporation seeking damages for injuries sustained by S.J., their minor child, during her birth.¹ They alleged claims of professional and ordinary negligence and breach of fiduciary duty. Dr. Humphries filed a motion for partial summary judgment on the breach of fiduciary duty and ordinary negligence claims. The trial court granted the motion for summary judgment as to the breach of fiduciary duty claim and dismissed the ordinary negligence claim. The trial court also denied the Hooks' motion to compel evidence related to the breach of fiduciary duty claim.

Following trial, the jury rendered a verdict in favor of Dr. Humphries. The Hooks filed a motion for new trial, which the trial court denied. They subsequently filed the instant appeal, contending that the trial court erred in granting partial summary judgment in favor of Dr. Humphries; in denying their motion to compel; in dismissing their ordinary negligence claim; and in denying their motion for new trial based upon the allegedly improper remarks of defense counsel. We discern no error and affirm.

The record evidence ² shows that in April 1998, after Mrs. Hooks became pregnant with S.J., she went to Dr. Humphries for prenatal care. During their initial consultation, Dr. Humphries told Mrs. Hooks that he no longer delivered babies, that his medical treatment would be limited to her prenatal care, and that he would refer her to another obstetrician for delivery of the baby. The other obstetrician, Dr. Willie Adams, Jr., had previously delivered several of Mrs. Hooks's other children.

Mrs. Hooks did not return for a follow-up visit with Dr. Humphries until July 27, 1998. At that time, Dr. Humphries counseled Mrs. Hooks about her failure to appear for scheduled appointments and told her that her pregnancy was considered high risk based on her age and her history of smoking, of complications in prior pregnancies, and of failing to comply with doctor's instructions. Dr. Humphries referred Mrs. Hooks to a specialist, Dr. Michael Scott Edwards, for further evaluation.

Dr. Humphries next examined Mrs. Hooks in September 1998. A glucose test performed during that visit indicated the possibility of gestational diabetes. Dr. Humphries again referred Mrs. Hooks to Dr. Edwards.

On November 6, 1998, Dr. Humphries relinquished Mrs. Hooks's prenatal care to Dr. Adams, who treated her for the duration of the pregnancy. Dr. Humphries sent his medical records on Mrs. Hooks to Dr. Adams.

Mrs. Hooks also began to receive specialized care from Dr. Edwards. During their initial visit, Mrs. Hooks told Dr. Edwards that Dr. Adams would be delivering her baby. On November 10, 1998, Dr. Edwards performed a sonogram on Mrs. Hooks and tested her blood. He diagnosed Mrs. Hooks with gestational diabetes and noted that the baby was abnormally large, approximately 10 lbs., 5 oz. Dr. Edwards referred Mrs. Hooks to a diabetes management course, instructed her to control her diet, and scheduled another sonogram for November 16, 1998. When Mrs. Hooks failed to appear on the appointed date, the sonogram was rescheduled for November 20, 1998. Mrs. Hooks failed to appear on this date as well.

On November 21, 1998, Mrs. Hooks went into labor and was taken to the hospital. Although Mrs. Hooks told the hospital staff that Dr. Adams was her obstetrician, the on-call physician, Dr. Yung-Chun Tsai, performed the delivery. The Hooks allege that the sonogram report prepared by Dr. Edwards, which showed S.J.'s large size, had not been transmitted to the hospital prior to S.J.'s delivery. Rather than performing a Cesarean section, which is typically recommended for babies of S.J.'s size, Dr. Tsai performed a vaginal delivery. During the delivery, S.J. sustained a shoulder dystocia, Erb's palsy, and meconium aspiration syndrome.

The Hooks subsequently filed the instant lawsuit against Dr. Humphries and his medical practice, seeking to recover damages for the injuries sustained by S.J. They allege that Dr. Humphries negligently failed to ensure that Mrs. Hooks's prenatal medical records, including the sonogram report, were available in the labor and delivery unit of the hospital at the time S.J. was delivered. Following a trial, the jury rendered a verdict in favor of Dr. Humphries.

1. The Hooks contend that the trial court erred in granting Dr. Humphries's motion for partial summary judgment on their breach of fiduciary duty claim.³ “Summary judgment is appropriate when the evidence, construed favorably to the nonmoving party demonstrates that no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law.” Prince v. Esposito, 278 Ga.App. 310(1), 628 S.E.2d 601 (2006). Based on the record evidence, the trial court's entry of summary judgment on this claim was authorized.

The Hooks alleged that Dr. Humphries breached his fiduciary duty by failing to disclose to Mrs. Hooks the reasons he no longer delivered babies. During her deposition, Mrs. Hooks testified that Dr. Humphries informed her during their initial visit that he no longer delivered babies and that he would refer her to Dr. Adams for completion of her prenatal care and for delivery of the baby. The record evidence, however, does not reflect that Mrs. Hooks asked Dr. Humphries his reasons for limiting his obstetrics practice; rather, she simply proceeded with the understanding that Dr. Humphries would only be providing prenatal care. No inquiry as to Dr. Humphries's reasons for limiting his practice was made until after the lawsuit was filed and discovery commenced. During his deposition, Dr. Humphries testified that he no longer practiced in labor and delivery for “mostly personal and some political reasons.”

Absent an inquiry by Mrs. Hooks at the time of treatment, Dr. Humphries had no duty to voluntarily disclose the reasons he ceased delivering babies. Although a physician has a duty to truthfully answer a patient's questions regarding medical risks, the physician has no duty to voluntarily disclose negative information about his personal life to patients. See Albany Urology Clinic v. Cleveland, 272 Ga. 296, 298-299(1), 528 S.E.2d 777 (2000); Prince, 278 Ga.App. at 313(1)(b), 628 S.E.2d 601. This is true even if the patient indicates that the information would have been useful in determining whether to seek treatment elsewhere. See Prince, 278 Ga.App. at 313(1)(b), 628 S.E.2d 601. A physician's duty to disclose risks associated with medical treatment is limited to the specific categories of information set forth in Georgia's informed consent statute, OCGA § 31-9-6.1(a).⁴ See Albany Urology Clinic, 272 Ga. at 298-299(1), 528 S.E.2d 777. The personal reasons why a doctor might decide to limit his or her practice area is not included in the list of mandatory disclosures under the informed consent statute.

Because Dr. Humphries had no duty to make the alleged disclosure, the Hooks' breach of fiduciary duty claim failed as a matter of law. See Albany Urology Clinic, 272 Ga. at 298-299(1), 528 S.E.2d 777; Prince, 278 Ga.App. at 313(1)(b), 628 S.E.2d 601.

2. The Hooks contend that the trial court erred in denying their motion to compel Dr. Humphries to further elucidate his reasons for no longer delivering babies. As previously noted, Dr. Humphries deposed that he no longer practiced in labor and delivery for “mostly personal and some political reasons.” He also stated that his ability to practice had never been restricted by any hospital or governing authority. Dr. Humphries refused, however, to expound upon his reasons for limiting his practice and invoked the statutory privilege set forth in OCGA § 24-9-27(a).⁵ Dr. Humphries's counsel stated that they would be willing to revisit the issue at a later time following the deposition.

The Hooks subsequently filed a motion to compel under OCGA § 9-11-37(a)(2),⁶ which the trial court denied.

We will not interfere with the trial court's decisions regarding discovery matters absent an abuse of discretion. Strong v. Wachovia Bank of Ga., 215 Ga.App. 572(1), 451 S.E.2d 524 (1994). No abuse of discretion occurred in the instant case.

The Hooks' motion to compel failed to comply with Uniform Superior Court Rule (“USCR”) 6.4(B), requiring counsel for the movant to certify that prior to filing the motion, he conferred with opposing counsel in a good faith effort to resolve the discovery dispute. That fact alone authorized the trial court's denial of the Hooks' motion. Strong, 215 Ga.App. at 572(1), 451 S.E.2d 524. But more importantly, once summary judgment was granted on the breach of fiduciary duty claim, the evidence sought to be compelled became irrelevant to the issue in the lawsuit, i.e., whether Dr. Humphries breached the standard of care by failing to ensure that Mrs. Hooks's prenatal medical records were timely transmitted to the hospital. See Snider v. Basilio, 281 Ga. 261, 263-264, 637 S.E.2d 40 (2006) (holding that the reason why a nurse was unlicensed was irrelevant to the issue of whether there was a breach in the standard of care). Accordingly, the trial court did not err in denying the motion to compel. See Hightower v. Kendall Co., 225 Ga.App. 71, 72-73(4), 483 S.E.2d 294 (1997) (affirming the denial of a motion to compel based upon noncompliance with USCR 6.4(B) and failure to show that the responses would lead to the discovery of relevant evidence).

3. The Hooks next contend that the trial court erred in dismissing their claim for ordinary negligence. Based upon the record before us, no error has...