McCafferty v. Medical College of Georgia

• Decision Date: 04 February 1982
• Docket Number: No. 37727,37727
• Citation: 287 S.E.2d 171,249 Ga. 62
• Parties: , 2 Ed. Law Rep. 915 McCAFFERTY et al. v. MEDICAL COLLEGE OF GEORGIA et al.
• Court: Georgia Supreme Court

Page 171

287 S.E.2d 171

249 Ga. 62, 2 Ed. Law Rep. 915

McCAFFERTY et al. v. MEDICAL COLLEGE OF GEORGIA et al.

No. 37727.

Supreme Court of Georgia.

Feb. 4, 1982.

Rehearing Denied Feb. 23, 1982.

James B. Wall, Burnside & Wall, P.A., Augusta, for appellants.

Arthur K. Bolton, Atty. Gen.,

Michael J. Bowers, Asst. Atty. Gen., Atlanta, for appellees.

HILL, Presiding Justice.

According to the complaint Jessica McCafferty was born two months prematurely on April 6, 1979, at a private hospital in Augusta. Because of a possible abdominal obstruction she was transferred the next day to Eugene Talmadge Memorial Hospital as a paying patient. At Talmadge Memorial she was placed in neonatal intensive care and given normal saline solutions intravenously until she would be able to undergo abdominal surgery. On April 14, 1979, a concentrated intravenous saline solution, inappropriate for direct administration without dilution, allegedly was injected into the infant by hospital personnel.

When her parents saw her, they found that Jessica's fontanel (the soft spot in an infant's head) was greatly depressed. She had become severely dehydrated because of the abnormal amount of salts administered to her and, as a result, she suffered from electrolyte imbalance and intracranial hemorrhaging. Thus the child's physical and mental development were retarded and she is partially blind and suffers from seizures. The complaint alleges that she is permanently disabled and lacks the ability to control her movements and bodily functions.

Jessica and her parents sued the Medical College of Georgia, the Board of Regents of the University System of Georgia and the Regents of the University System of Georgia because the hospital at which the alleged malpractice occurred is the teaching hospital of the Medical College, a branch of the University System of Georgia governed by the Board of Regents. See Code Ann. § 32-103. Jessica's mother, as next friend, seeks damages for her permanent injuries and the parents seek to recoup their medical expenses alleged to exceed $19,000. ¹

By motion to dismiss, all three defendants raised sovereign immunity as a defense. The trial court granted their motion, leading to this appeal by the McCaffertys. The defendants rely upon Ga.L.1976, p. 452; Code Ann. § 32-101.1, defining and reaffirming the applicability of the doctrine of sovereign immunity to the Board of Regents of the University System of Georgia. The McCaffertys challenge the constitutionality of the 1976 act under the 1945 and 1976 Constitutions. They also challenge the constitutionality of the 1976 act and the doctrine of sovereign immunity itself under the due process and equal protection provisions of the Georgia and U. S. Constitutions.

1. Enumerations of error 1 and 3 raise the issue of sovereign immunity as to the Medical College and the Board of Regents, respectively. The Eugene Talmadge Memorial Hospital, where the injury occurred, was established by the Board of Regents under the authority of Ga.L.1945, p. 453 as amended, Ga.L.1953, p. 117: "The Board of Regents of the University System of Georgia in the exercise of its public and governmental functions shall have power and is hereby authorized to lease, buy, build, construct, establish, contract for the use of, maintain and operate a general non-profit teaching hospital at Augusta, Georgia, which said hospital may be that hospital known as the Eugene Talmadge Memorial Hospital now under construction, to be operated in conjunction with the Medical College of Georgia for the benefit of indigent, near indigent and pay patients...." Id. at pp. 117, 118. Thus, since the Eugene Talmadge Memorial Hospital is run in conjunction with the Medical College, which is a branch of the University System of Georgia, governed by the Board of Regents, the defendants contend that Ga.L.1976, p. 452, granting sovereign immunity to the Regents and Board of Regents, controls this litigation. We must first examine the history of the Medical College of Georgia to The Medical College of Georgia was founded by an 1828 act creating "a body corporate, by the name and style of the trustees of the Medical Academy of Georgia." Ga.L.1828, p. 111. ² The trustees were authorized to establish a medical school and had the authority "by their corporate name, to sue and be sued, plead and be impleaded, answer and be answered unto, in any court of law or equity...." In the 1895 Code the Medical College and several other colleges were designated "branches of the University of Georgia ... governed in the manner prescribed in the respective acts incorporating the same." 1895 Political Code § 1300.

determine whether the 1976 act also applies to the Medical College of Georgia.

The Court of Appeals, in Medical College of Georgia v. Rushing, 1 Ga.App. 468, 57 S.E. 1083 (1907), recognized that the Medical College was originally established as a corporate body capable of suing and being sued, and held that it did not become immune from malpractice suits when it was designated a branch of the University of Georgia under § 1300 of the 1895 Political Code. The court relied on the facts that the Medical College was originally authorized "to sue and be sued, plead and be impleaded, answer and be answered unto, in any court of law or equity" and the General Assembly, when it made the Medical College a branch of the University of Georgia, had declared that the branches would be "governed in the manner prescribed in the respective acts incorporating the same." 1 Ga.App. at 470-471, 57 S.E. 1083. It thus held that the Medical College did not have immunity from suit.

The legislature in 1911, however, provided "that from and after the passage of this Act, the Medical College of Georgia, located at Augusta, Georgia, and designated in the Civil Code of Georgia as one of the branch colleges of the University of Georgia, shall be under the management and control of a Board of Directors composed of nine members, appointed as hereinafter provided, subject, however, to the control of the Board of Trustees of the University of Georgia." Ga.L.1911, p. 154 at § 1. The act also provided for the transfer of the property of the Medical College to the Trustees of the University of Georgia, Ga.L.1911, pp. 154, 156 at §§ 4, 5, and provided that the Trustees of the University of Georgia not be responsible for the debts, contracts or liabilities of the Medical College greater than the extent of the property transferred. Ga.L.1911, pp. 154, 157 at § 6.

In 1931, as part of the reorganization of that year, the General Assembly created the Board of Regents of the University System of Georgia to govern the University of Georgia and all its branches, including the Medical College at Augusta. Ga.L.1931, pp. 7, 20; Code Ann. §§ 32-101 through 32-103. The members of the Board of Regents were appointed by the Governor who was an ex-officio member, Ga.L.1931 at pp. 21-22. The Board was "vested with all the powers, privileges, and rights vested in former Boards of Trustees of the University of Georgia, and all former boards of trustees or directors of its branches ... and they are charged with all of the duties, obligations, and responsibilities incumbent upon and/or pertaining to said former boards." Ga.L.1931 at p. 23. The Board of Regents acquired all of the powers, rights, privileges and duties of the Board of Trustees of the University of Georgia, Ga.L.1931 at p. 25; Code Ann. § 32-112, and of the boards of trustees and directors of the branches of the University. Ga.L.1931 at p. 26; Code Ann. § 32-128. All existing laws pertaining to the Board of Trustees of the University of Georgia and all laws pertaining to the trustees and directors of its branches, except those repealed expressly or by implication, were made applicable to the Board of Regents. Ga.L.1931 at pp. 25, 26; see Code Ann. § 32-114. The act provided further that "The said Board of Regents shall carry out the purposes and intent of the various Acts creating the [branches], it not being the intent of this Act to repeal any of One of the powers thereby assumed by the Board of Regents was the power "to sue and be sued, plead and be impleaded, answer and be answered unto", belonging to the Trustees of the Medical College of Georgia. Here, then, the history of the Medical College merges with that of the Board of Regents. Thus, we agree with the defendants that the power to sue and be sued which originally resided in the Medical College has been taken from that college and vested in the Board of Regents. The trial court did not err in dismissing the Medical College of Georgia as a defendant.

                the laws creating said institutions or defining their functions, but merely to abolish the separate Boards of Trustees or Directors of said institutions and place the management and control of said institutions in one Board with all the powers formerly vested in the several Boards of Trustees or Directors except such powers and duties expressly or by implication repealed."   Ga.L.1931 at pp. 27-28.   Finally, the act expressly repealed certain prior acts, including specified sections of the act of 1911, but it did not expressly repeal those parts of the 1911 act quoted above, Ga.L.1931 at p. 28
                

In Busbee v. Georgia Conference, American Association of University Professors, 235 Ga. 752, 221 S.E.2d 437 (1975), we traced the history of the Trustees of the University of Georgia from its creation in 1785 into the Board of Regents. The creating act declared the Trustees to be "a person in law, capable to plead and be impleaded, defend and be defended, answer and be answered unto." Ga.L.1785, p. 560, § 3; Cobb's Digest, p. 1084 (1851). The status of the Trustees of the University of Georgia as a "person in law, able to plead and be impleaded" was continued in the Code of 1863 (§ 1117), and the Codes of 1868 (§ 1198), 1873 (§ 1193), 1882 (§ 1193), 1895 (§ 1272), and 1910 (§ 1364). We found that upon the...