Jarallah v. Schwartz

• Decision Date: 28 October 1991
• Docket Number: No. A91A0759,A91A0759
• Citation: 202 Ga.App. 32,413 S.E.2d 210
• Parties: JARALLAH v. SCHWARTZ.
• Court: Georgia Court of Appeals

Page 210

413 S.E.2d 210

202 Ga.App. 32

JARALLAH v. SCHWARTZ.

No. A91A0759.

Court of Appeals of Georgia.

Oct. 28, 1991.

Reconsideration Denied Nov. 22, 1991.

Certiorari Denied Jan. 10, 1992.

Taj Jarallah, pro se.

Freeman & Hawkins, Andrew H. Meyer and Neely & Player, Andrew J. Hamilton, Atlanta, for appellee.

ARNOLD SHULMAN, Judge, sitting by designation.

The appellant sued the appellee and three other defendants seeking damages for numerous alleged torts, including interference with contract, intentional infliction of emotional distress, defamation, fraud, invasion of privacy, and conspiracy, all arising from certain neuropsychological testing and evaluation which he had received in connection with a work-related head injury for which he had claimed workers' compensation benefits. The appellee is the psychologist who actually administered the tests and performed the evaluation in question. The gist of the appellant's complaint appears to be that the appellee administered the tests and performed the evaluation under the false pretense of providing "cognitive rehabilitation treatment" for his head injury and thereafter communicated the results to others, including the workers' compensation carrier, without his consent or authority.

The appellee moved to dismiss the complaint based on the appellant's failure to file with it an expert's affidavit tending to show that he (the appellee) had committed an act of professional malpractice. See OCGA § 9-11-9.1(a). The trial court granted this motion to the extent the complaint sought to recover damages for professional malpractice but denied it to the extent recovery was sought on the theories of unauthorized treatment and/or disclosure. Later on, however, the court granted summary judgment to the appellee with respect to these other claims, and the present appeal is from that order. Prior to granting summary judgment to the appellee, the trial court had granted summary judgment to the other three defendants in the case. An attempt by the appellant to appeal that ruling was dismissed by this court as untimely in Jarallah v. Aetna Cas., etc., Co., 199 Ga.App. 592, 405 S.E.2d 510 (1991).

The appellant was referred to the appellee by his treating physician "for cognitive rehabilitation treatment, neuropsychological assessment, and anything else [the appellee], in his professional opinion, deemed necessary." Based on the results of the neuropsychological tests at issue, the appellee prepared a report which was not supportive of the appellant's claim for workers' compensation benefits. In an affidavit submitted in support of his motion for summary judgment, the appellee averred that he had given a copy of this report to the appellant and had reviewed his findings with him at the time. He stated that although the appellant indicated during this discussion that he understood the findings and did not disagree with them, he telephoned the following day to complain that the report was incorrect and should never have been written. The appellee stated that the appellant failed to keep his next appointment and that he (the appellee) later learned from the referring physician that the case had been transferred to a Dr. O'Hara at the appellant's request. Acting pursuant to instructions from the appellant's workers' compensation carrier, which was also named as a defendant in the present action, the appellee subsequently forwarded copies of his report and the underlying neuropsychological data to Dr. O'Hara and discussed his findings with her. He heard nothing further about the matter until he was served with the summons and complaint in the present action several months later.

1. The appellant contends that the trial court erred in failing to consider certain audiotape recordings of conversations between himself and the appellee which, he asserts, support his claims. However, no such audiotapes are contained in the record before us, nor does the record reflect that any such tapes were before the trial court at the time it ruled on the summary judgment motion. (While the appellee's counsel noted at the summary judgment hearing that the appellant had made reference to a tape recording in his response to the summary judgment motion and expressed concern that the appellant had "filed materials with this court with which we have not been served a copy of," there is no...