Johnson v. American Nat. Red Cross, A01A2276.

• Decision Date: 06 February 2002
• Docket Number: No. A01A2276.,A01A2276.
• Citation: 569 S.E.2d 242,253 Ga. App. 587
• Parties: JOHNSON v. AMERICAN NATIONAL RED CROSS et al.
• Court: Georgia Court of Appeals

569 S.E.2d 242

253 Ga. App. 587

JOHNSON v. AMERICAN NATIONAL RED CROSS et al.

No. A01A2276.

Court of Appeals of Georgia.

February 6, 2002.

Bird & Associates, Wendell R. Bird, Richard L. Brittain, Atlanta, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Alan M. Maxwell, Howard J. Russell, Nelson, Mullins, Riley & Scarborough, Scott P. Hilsen, Jeffrey C. Baxter, Lance P. McMillian, Atlanta, Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert L. Berry, Jr., Stephen B. Moseley, Rome, for appellee. MIKELL, Judge.

Bernice Mantooth brought the underlying action against the American Red Cross (the "Red Cross"), General Hospitals of Galen, Inc. d/b/a Cartersville Medical Center ("CMC"), two individual doctors, and two nurses, alleging claims of professional negligence, ordinary negligence, and negligent and intentional infliction of emotional distress. Mantooth filed suit after she was given a transfusion of blood from a donor who had lived in a region of Africa where a rare undetectable strain of HIV was known to exist. After Mantooth's death on May 23, 2001, Lester Johnson, the executor of her estate (the "Estate") continued to pursue her claims. Presently, the Estate appeals the trial court's grant of the Red Cross's motion to open default and motion for summary judgment, and the grant of a partial summary judgment in favor of CMC. We affirm.

The record shows that prior to her death at age 75, Mantooth suffered from serious medical conditions including anemia, angina, breast cancer, heart disease, lung cancer, asthmatic bronchitis, diabetes, kidney failure, and pneumonia. She never tested positive for HIV or the AIDS virus. The incident giving rise to Mantooth's underlying action took place on August 29, 1998, when she went to the CMC emergency room complaining of chest pain and shortness of breath. After an initial examination by the attending emergency room physician, Mantooth was examined by Dr. David Kim, who was on call for Mantooth's private internist, Dr. Sam Howell. Mantooth was diagnosed with exacerbation of emphysema. Given her current condition and medical history, Dr. Kim ordered that she receive two units of blood.

Fifteen minutes after the transfusion began, Mantooth complained of severe pain in the left side of her chest that radiated down her left shoulder and arm and into her back. Dr. Kim transferred Mantooth to the intensive care unit, where she was treated for asthma, congestive heart failure, and chest pain. When her condition stabilized, Mantooth was transferred to Crawford Long Hospital, where she was discharged several days later. Mantooth was subsequently diagnosed with lung cancer.

On October 28, 1998, the Red Cross notified CMC that it had supplied the hospital with blood that did not meet its standards. As a precaution, the Red Cross normally did not allow people who had lived in Central Africa for longer than 12 months to donate blood. The Red Cross became aware that the blood at issue had come from a donor who had lived for 13 months in a region of Africa where a rare undetectable strain of HIV known as "Group O" had been found. The donor did not test positive for HIV in the five years between the time he lived in Africa and when he donated blood, nor was there any reason, other than his stay in Central Africa, to believe that he had been exposed to the virus. CMC determined that the blood had been given to Mantooth and notified her physician, Dr. Howell, on November 4, 1998.

On or about December 8, 1998, Dr. Howell informed Mantooth that the blood used in the August transfusion should not have been accepted by the Red Cross. He arranged for Mantooth to undergo an HIV test on December 9, and the results were negative. Mantooth had additional HIV tests in March and April 1999, and those results were negative as well. On December 24, 1998, the Red Cross sent Mantooth a letter in which it explained that the likelihood that the blood she received was tainted was "extremely remote."

Mantooth was very upset about the possibility that she had been exposed to an undetectable strain of HIV and claimed that she lived in fear that she had the virus and would pass it to her family members. She did not seek medical treatment for her severe emotional distress, nor did she seek treatment for the physical damage allegedly caused by the transfusion. Mantooth conceded that she did not incur any medical expenses as a direct result of the transfusion.

Mantooth filed suit on August 27, 1999, alleging that Dr. Kim and Dr. Howell were negligent and that CMC was vicariously liable. She also included claims of negligence and negligent and intentional infliction of emotional distress against the Red Cross. The Red Cross was served with the complaint on September 3, 1999; however, due to a misunderstanding in the office of the General Counsel, the Risk Management Division of the organization did not receive the complaint until November 1. The Red Cross moved to open the default on November 18, 1999, and the trial court subsequently granted the motion.

CMC filed a motion for partial summary judgment on September 15, 2000, and the trial court granted it, concluding that the hospital could not be held vicariously liable for the doctors' conduct, because they were independent contractors and not employees of CMC. The court also granted summary judgment to the Red Cross based on the conclusion that Mantooth failed to present any evidence that she was actually exposed to HIV, and thus there was no basis for her claims of negligence or infliction of emotional distress.

1. First, the Estate argues that the trial court erred in granting the Red Cross's motion to open default. OCGA § 9-11-55(b) allows a default to be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case. The four conditions are: (1) a showing made under oath, (2) an offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. Ford v. St. Francis Hosp., 227 Ga.App. 823, 824-825(1), 490 S.E.2d 415 (1997). "Whether to open the default on one of the three grounds rests within the discretion of the trial judge." (Citation and punctuation omitted.) Id. at 825(1), 490 S.E.2d 415. "The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible, cases should be decided on their merits for default judgment is not favored in law." (Punctuation and footnote omitted.) Kaylor v. Atwell, 251 Ga.App. 270, 271(1), 553 S.E.2d 868 (2001). See also Exxon Corp. v. Thomason, 269 Ga. 761, 762(2), 504 S.E.2d 676 (1998); Patel v. Gupta, 234 Ga.App. 441, 443(1), 507 S.E.2d 763 (1998).

Contrary to the Estate's argument, we conclude that the four conditions for opening default were met. First, the Red Cross provided the sworn affidavit of Randy Jouben, a corporate claims associate in the Risk Management Division of the Red Cross, to explain the delay in responding to Mantooth's complaint.¹ Second, the Red Cross offered to plead instanter and attached an answer to its motion to open default. Third, it announced that it was ready to proceed to trial. Fourth, the Red Cross set up a meritorious defense through its answer. This condition does not require a defendant to show that it will "completely defeat plaintiff's claim"; rather, the defendant must demonstrate that "if relief from default is granted, the outcome of the suit may be different from the result if the default stands." Exxon Corp., supra at 761(1), 504 S.E.2d 676. The Red Cross presented defenses including failure to state a claim upon which relief can be granted, assumption of the risk, and Mantooth's consent to the blood transfusion. "Although these defenses were not set out in great factual detail, they are sufficient to satisfy OCGA § 9-11-55(b)." Ford, supra at 825(1), 490 S.E.2d 415. Having concluded that the Red Cross met the four requisite conditions, we now must determine if one of the three grounds for opening default existed.

The court's order does not specify the ground on which it relied in opening the default; therefore, we will presume the court's decision was based on the "proper case" ground. Ford, supra at 826(1), 490 S.E.2d 415. This ground is broader than the other two, and we will not interfere unless the court's discretion was manifestly abused. Miller v. Tranakos, 198 Ga.App. 668, 670(1), 402 S.E.2d 772 (1991). See also Ford, supra.

Upon reviewing the record, we conclude that the trial court did not manifestly abuse its discretion in opening the default. Jouben's affidavit shows that the complaint was served on the Medical Director of the Regional Chapter of the Red Cross in Atlanta; that the Risk Management Division did not receive the complaint until November 1, 1999; that there was a misunderstanding in the office of the General Counsel which led the Red Cross to believe that the complaint was being handled properly; and that immediately upon receiving the complaint, the Risk Management Division forwarded it to the third-party administrator for the Red Cross, who sent it to outside counsel. Additionally, there is no evidence that Mantooth was prejudiced by the opening of default. See Ford, supra at 826, 490 S.E.2d 415.

The Estate's reliance on Azarat Marketing Group v. Dept. of Administrative Affairs, 245 Ga.App. 256, 537 S.E.2d 99 (2000), and Ellis v. Five Star Dodge, 242 Ga.App. 474, 529 S.E.2d 904 (2000), is misplaced. Those cases involved the excusable neglect ground for opening default, while the case sub judice involves the proper case ground. In Ellis, supra, we held that the trial court abused its discretion in opening default on the basis of excusable neglect. But as we recognized in Miller, supra, a trial judge is afforded broader...