Lane v. Tift County Hosp. Authority, A97A1743

CourtUnited States Court of Appeals (Georgia)
Citation492 S.E.2d 317,228 Ga.App. 554
Docket NumberNo. A97A1743,A97A1743
Decision Date17 September 1997

Page 317

492 S.E.2d 317
228 Ga.App. 554, 97 FCDR 3556

No. A97A1743.
Court of Appeals of Georgia.
Sept. 17, 1997.

Page 319

O. Wayne Ellerbee, Laurie L. Paterson, Valdosta, Howard E. McClain, Adel, for appellant.

Reinhardt, Whitley & Wilmot, Robert C. Wilmot, Tifton, for appellee.


On July 22, 1992, William Frank Lane, now deceased, told his wife that he had fallen at home and showed confusion. Late in that evening Lane was admitted to Tift General Hospital for diagnostic purposes. Upon admission, Lane had mild pain and was x-rayed in the early morning of July 23, 1992; such initial x-rays showed no fracture. Prior to the x-ray examination, Lane had movement in his extremities without limitation, could speak with a normal voice, could sit up in bed, and appeared neurologically intact. After the return from the second x-ray session in the afternoon of July 23, 1992, Lane spoke only in a whisper, had no control over his extremities, and showed observable indications of pain. When his wife, appellant Mary Sumner Lane asked him what was wrong with him, Lane stated that he had been dropped by two black men. After it was reported that Lane had been dropped, a CT scan of the cervical spine was ordered by Dr. Gerald L. Sapp, and it revealed that Lane had sustained a broken neck. Dr. Sapp and appellant had Lane transferred to Palmyra Medical Center in Albany as a result of the injuries revealed by the CT scan.

Appellee's employee, radiology technologist Robert Price, testified that at 12:17 a.m., he attempted to take x-rays of Lane, who seemed confused; muscle spasms caused suboptimal x-ray results. Price did not state who brought Lane to x-ray from the emergency room; all he could testify to was that he did not drop Lane or see [228 Ga.App. 555] Lane dropped. Radiology technologists Brenda Brett, Sharon Connell, and Eloise Nipper all testified by affidavit that, at 2:35 p.m. on July 23, 1992, Lane was brought to x-ray again by undisclosed hospital personnel in an undisclosed manner, where he was x-rayed without being dropped; that he was confused and suffered muscle spasms; and that they did not see Lane dropped or drop him. They did not disclose how he was transported to his room or what, if anything, the x-rays showed.

Lane's discharge summary was read into the depositions of his son, Ronnie Lane, and appellant by appellee's counsel as part of a question to them; the report indicated that neither Dr. Sapp nor Dr. Shah found any

Page 320

fracture on the x-rays taken of Lane while he was in appellee's custody. Appellee tendered the depositions of both appellant and Ronnie Lane into evidence in support of the motion for summary judgment.

Lane appeared lucid, oriented, and coherent prior to his admission to Palmyra Medical Center from Tift General Hospital. Dr. Sapp and Lane's daughter, who is Dr. Sapp's wife, both testified that Lane exhibited mental confusion and that at the time of the x-rays on July 22, 1992, Lane had received demerol which "in all likelihood would alter the patient's mental abilities."

On July 22, 1994, after the death of Lane, appellant brought suit for personal injuries and wrongful death against Tift General Hospital as widow and executrix of Lane's estate. This suit alleged that Lane died on November 30, 1992, as a proximate cause of injuries incurred while he was a patient of appellee.

On August 9, 1996, appellee Tift County Hospital Authority filed a motion for summary judgment and filed the affidavits of several employees of the x-ray department who denied having dropped Lane during their shifts. On February 21, 1997, the trial court granted summary judgment. On March 7, 1997, appellant filed her notice of appeal.

1. Appellant's enumeration of error is that the trial court erred in granting the summary judgment. We agree and reverse.

(a) In the case sub judice, appellee failed to pierce the appellant's pleadings that x-rays taken of Lane July 22, 1992, showed no fracture. Although appellee in its answer admits that the x-rays were inconclusive, revealing no fracture, the complaint alleged that a CT scan made subsequent to July 23, 1992, showed a fracture of Lane's neck. None of the affidavits of the radiology technologists stated what was shown on the July 23, 1992 x-rays. While appellee offers the affidavit of Dr. Sapp, Lane's treating physician, his affidavit did not state that, in his opinion, the sole proximate cause of Lane's fractured neck was a fall at home, nor did it state that the x-rays taken on July 22, 1992, or on July 23, 1992, were inconclusive. As pled, the [228 Ga.App. 556] x-rays of July 22, 1992, negate any reasonable inference that the fractured neck was a prior existing injury, which leaves a reasonable, favorable inference to be drawn from the existence of the fractured neck: that such fracture occurred while Lane was under the care and control of the appellee. Appellee's evidence does not address the issue of when, where, how, or who caused such fracture, which appellee had not found on July 22, 1992. Such evidence merely shows that, if any injury occurred to Lane, then it did not occur in the x-ray department on their watch. However, such evidence fails to negate the favorable inference that must be drawn that the fracture occurred sometime while Lane was under appellee's care and control after the x-rays were taken on July 22, 1992.

Further, Dr. Sapp admitted Lane to appellee's care while Lane was in a confused mental state, and the doctor administered demerol to Lane, which would "alter the patient's mental abilities"; such known condition of Lane created a duty that the appellee exercise reasonable care to watch Lane in order to ensure that he did not fall or hurt himself in such confused state. Thus, the favorable inferences that must be made in favor of appellant by the trial court on summary judgment are that, while under the exclusive control of appellee, the deceased broke his neck either by being dropped by appellee's employees other than the radiology technologists, as alleged, or by falling in the hospital while appellee's employees were not watching this mentally confused patient. Under either favorable inference, there exists a factual question for jury determination, and summary judgment should have been denied.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56(c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of

Page 321

plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga.App. 436, 278 S.E.2d 85 (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case." (Emphasis in original.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

[228 Ga.App. 557] Appellee, the moving party, failed to meet its burden. "On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden." Ham v. Ham, 230 Ga. 43, 45, 195 S.E.2d 429 (1973); see also Sawgrass Builders v. Key, 212 Ga.App. 138, 441 S.E.2d 99 (1994); Huntington v. Fishman, 212 Ga.App. 27, 29-31, 441 S.E.2d 444 (1994). Appellant pled that the x-rays showed no fracture, and appellee admitted that the x-rays were inconclusive. Appellee could neither admit nor deny that Mr. Lane had a fracture of the neck at either time he was x-rayed.

"Nothing in Lau's Corp. [v. Haskins, supra at 491, 405 S.E.2d 474], however, places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint--even on issues not raised in the defendant['s] motion. Indeed, until appellees pierced the allegations of [appellant's] complaint on a particular issue, [she] was neither required to respond to the motion on that issue ( [cits.] ), nor required to produce evidence in support of [her] complaint on that issue. [Cits.] The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, [appellant] was not required to present proof on all matters raised in [her] complaint until appellees pierced [her] complaint on those issues." Hodge v. SADA Enterprises, 217 Ga.App. 688, 690, 458 S.E.2d 876 (1995). Allegations of a complaint must be taken as true on motion for summary judgment unless the movant successfully pierces the allegations so as to show that no material issue of fact remains as to an essential element of the cause of action. Sapp v. ABC Credit, etc., Co., 243 Ga. 151, 253 S.E.2d 82 (1979); Joiner v. Mitchell County Hosp. Auth., 125 Ga.App. 1, 186 S.E.2d 307 (1971), aff'd, 229 Ga. 140, 189 S.E.2d 412 (1972); Alexander v. Boston Old Colony Ins. Co., 127 Ga.App. 783, 195 S.E.2d 277 (1972). The respondent is to be given the benefit of all reasonable doubts in determining whether a genuine issue of fact exists, and the trial court must give the respondent the benefit of all...

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