Hunter v. Emory-Adventist, Inc.
| Decision Date | 16 July 2013 |
| Docket Number | No. A13A0189.,A13A0189. |
| Citation | 323 Ga.App. 537,746 S.E.2d 734 |
| Parties | HUNTER, et al. v. EMORY–ADVENTIST, INC. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Joseph H. King Jr., Atlanta, for Appellant.
Natalie Marie Christensen Beasman, James D. Meadows, Atlanta, for Appellee.
In this medical malpractice action, the defendant hospital obtained summary judgment on the grounds that it did not employ the treating physician and that it was protected from vicarious liability because, in compliance with Georgia law, it posted a notice in a public area of the hospital to the effect that some or all of the health care professionals performing services at the hospital were independent contractors. On appeal, the plaintiff contends an issue of fact remains as to whether the notice was located in a public area of the hospital. The plaintiff also appeals the denial of her motion to add the treating physician's true employer as a defendant. For the reasons stated below, we affirm.1
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245(1), 577 S.E.2d 564 (2003).
Construed in favor of the plaintiff, the material facts relevant to this appeal are that on December 31, 2005, Charles Hunter was admitted to Emory–Adventist, Inc. d/b/a Emory–Adventist Hospital (“EAH”), “with a previous cardiac history and symptoms of chest pain, shortness of breath, and urinary difficulties” and he was eventually assigned to be treated by Dr. Michaele Brown, the attending physician at EAH emergency room. Hunter, supra at 215, 687 S.E.2d 267. It is undisputed that during Hunter's entire course of treatment, Brown was employed by Cobb Medical Associates, LLC (“Cobb Medical”), and not EAH. At the time of Hunter's hospitalization, the hospital had a notice posted in a hallway stating:
NOTICE
Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.
It is alleged that Brown failed to properly treat Hunter for his heart condition and that, as a consequence, he died of a heart attack on January 2, 2006.
On December 31, 2007, almost two years after Hunter's death, Laura Hunter, the decedent's widow, filed suit against, among others,2 Brown and EAH. In its answer, EAH asserted that it was not a proper party to the suit. On April 2, 2008, Brown served Hunter with responses to discovery requests, which stated that Brown was employed by Cobb Medical at the time of Hunter's treatment. In November 2010 (two and a half years later), EAH moved for summary judgment on the grounds that it was not Brown's employer and that any theory of apparent agency was inapplicable because the notice referenced above was posted in accordance with Georgia law. In April 2011, three years after Brown revealed her actual employer, Hunter moved to add Cobb Medical as a defendant. On July 25, 2011, the trial court held a hearing on both motions, following which the trial court granted EAH's motion for summary judgment and denied Hunter's motion to add Cobb Medical as a defendant. This appeal ensued.
1. OCGA § 51–2–5.1(b), (c) provides that in the absence of actual agency or an employment relationship between the hospital and the health care professional, hospitals are not liable in tort for the acts or omissions of health care professionals working in the hospital if the hospital has posted a notice “in the form and manner described herein.” The statute provides that the notice must
(1) Be posted conspicuously in the hospital lobby or a public area of the hospital; (2) Contain print at least one inch high; and (3) Provide language substantially similar to the following:
OCGA § 51–2–5.1(c).3 The statute does not define “public area.” The adjective “public” has been defined as “[o]pen or available for all to use, share, or enjoy.” Black's Law Dictionary (9th ed.2009).
Hunter contends that Brown was the apparent agent of EAH and that the trial court erred by granting summary judgment in favor of EAH because there is an issue of fact regarding apparent agency and whether the Section 51–2–5.1 notice was “posted conspicuously in a public area of the hospital.”
EAH introduced an affidavit by David Ferguson, the EAH construction supervisor who personally affixed the notice to a wall, in which Ferguson avers that the notice contained the proper wording, that the print was at least one inch high, and that the notice was posted on “a wall in a conspicuous public area in EAH.” Ferguson deposed that the notice was placed “outside of the trauma room as you walk into the [emergency room].”
Hunter countered with the affidavit of her attorney, Joseph H. King, Jr. King averred that the relevant notice was not in a public area of EAH and that it was “not visible from any public area of the hospital.” But the remainder of King's affidavit shows that he had no basis for drawing these conclusions.
King averred that he went to EAH with a videographer in order to photograph the relevantsignage; that upon arrival, he was “prevented from proceeding further by hospital attendants who politely asked [him] and [his] videographer to wait for defense counsel in the waiting room area of the lobby”; and that the relevant notice “was in an area which [he] was able to view only because [he] was being escorted by [EAH's] attorney.” But none of these facts constitute a basis for concluding which areas of EAH were public areas.
King then averred that defense counsel led him to “areas of the hospital not normally accessible to the public” where he was permitted to take photographs and video. Yet King failed to explain or define what areas of EAH were “accessible to the public” or what he meant by “ normally accessible to the public”; he also failed to provide any facts regarding the areas of the hospital, such as signage that indicated where the public was allowed or statements by hospital personnel that would support a conclusion about what portions of EAH were “public areas.” King averred that defense counsel eventually required King to delete some video and some photographs “because those showed non-public areas, and the hospital administrator had concerns regarding privacy issues.” Yet King attached photographs of the relevant notice hanging conspicuously on a wall in a hall of EAH; in other words, he was allowed to keep photographs of the relevant notice. It follows from King's statement that the photographs of the notice were not taken in non-public areas of EAH. Finally, at the hearing, King argued that the hallway in which the notice was posted was open to emergency room patients but not the public in general. His affidavit, however, contains no factual support for this distinction.
In short, King's affidavit is insufficient to create an issue of fact regarding whether the relevant notice was posted in a public area of EAH.
[C]onclusory allegations by way of an affidavit, unsupported by specific allegations of fact, will not be sufficient to avoid summary judgment.... [A]ffidavits containing mere legal conclusions and allegations present no issues of fact on a motion for summary judgment. An affidavit in contravention of a motion for summary judgment must state more than mere conclusions; it must state specific adverse facts.
(Citations and punctuation omitted.) Swanson v. Lockheed Aircraft Corp., 181 Ga.App. 876, 879–880(1)(b), 354 S.E.2d 204 (1987). King's affidavit fails to provide a basis for his conclusion that the notice was not posted in a public area. Thus, Hunter has failed to present any evidence to counter the testimony of the construction supervisor of EAH that the notice was posted conspicuously in a public area of the hospital. Because Hunter's only argument that the trial court erred by granting summary judgment lacks merit, we affirm the trial court's grant of summary judgment in favor of EAH.
2. Hunter also argues that OCGA § 51–2–5.1(b) is unconstitutional, but we do not have jurisdiction to consider this claim because the trial court never ruled on the constitutional claim that Hunter raises on appeal. Hunter initially brought the present appeal before the Supreme Court of Georgia because she sought to challenge the constitutionality of OCGA § 51–2–5.1(b). The Supreme Court reviewed the record and concluded that it did not have jurisdiction to consider the constitutional issue because the trial court never ruled on that issue below. See Nathans v. Diamond, 282 Ga. 804, 654 S.E.2d 121 (2007). The Supreme Court therefore transferred the case to this Court. The jurisdictional ruling of the Supreme Court controls in this Court as well. See Baum v. Moore, 230 Ga.App. 255, 256, 496 S.E.2d 307 (1998). See also Bain v. State, 258 Ga.App. 440, 445–446(3), 574 S.E.2d 590 (2002) ().
3. Finally, Hunter contends the trial court erred by denying her motion to add Cobb Medical as a party. The trial court held that because the statute of limitations had expired on Hunter's action well before Hunter moved to add Cobb Medical as a party and because Hunter did not show that Cobb Medical received actual notice of the suit prior to the expiration of ...
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