Novak v. Cobb County-Kennestone Hosp. Authority, Civ. No. 1:90-cv-1316-JEC.

• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
• Writing for the Court: CARNES
• Citation: 849 F. Supp. 1559
• Parties: Gregory Alan NOVAK, individually and by his next friend June Lowery Novak and June Lowrey Novak, individually and on behalf of her son Gregory Alan Novak, Plaintiffs, v. COBB COUNTY-KENNESTONE HOSPITAL AUTHORITY dba Kennestone Hospital, Samuel D. Bishop, Bradley D. Henderson, John David Tucker, Richard D. Gray, W. Grady Pedrick, Jerry A. Landers, and Robert D. Ingram, Defendants.
• Docket Number: Civ. No. 1:90-cv-1316-JEC.
• Decision Date: 28 February 1994

849 F. Supp. 1559

Gregory Alan NOVAK, individually and by his next friend June Lowery Novak and June Lowrey Novak, individually and on behalf of her son Gregory Alan Novak, Plaintiffs,
v.
COBB COUNTY-KENNESTONE HOSPITAL AUTHORITY dba Kennestone Hospital, Samuel D. Bishop, Bradley D. Henderson, John David Tucker, Richard D. Gray, W. Grady Pedrick, Jerry A. Landers, and Robert D. Ingram, Defendants.

Civ. No. 1:90-cv-1316-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

February 28, 1994.

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Larry R. Wight, Roswell, GA, Donald T. Ridley, Brooklyn, NY, Billy E. Moore, Atlanta, GA, James M. McCabe, Pawling, NY, and Calvin A. Rouse, North Augusta, SC, for plaintiffs

Roy E. Barnes, Benny C. Priest, Marietta, GA, Daniel S. Reinhardt, Alan P. Shor; Michael A. O'Quinn, Atlanta, GA, Y. Kevin Williams, Marietta, GA, Daniel A. Kent; and William S. Allred, Atlanta, GA, for defendants.

ORDER

CARNES, District Judge.

This case is presently before the Court on defendants W. Grady Pedrick's and Jerry A. Landers' Motion for Summary Judgment 114-1, defendant Richard G. Gray's Motion for Summary Judgment 115-1, defendants Bradley E. Henderson's and John David Tucker's Motion for Summary Judgment 116-1, and defendants Cobb County-Kennestone Hospital Authority's and Samuel D. Bishop's Motion for Summary Judgment 117-1. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that all defendants' motions for summary judgment should be granted.

BACKGROUND

Plaintiff Gregory Novak was seriously injured in an automobile accident in Cherokee County, Georgia in the early morning hours of June 18, 1989. He was sixteen years old at the time of the accident. He informed the ambulance personnel at the scene that he was a Jehovah's Witness and that for medical and religious reasons he did not wish to have a blood transfusion. When he arrived at Kennestone Hospital's emergency room, he repeated his wish to have no blood transfusions. After his natural father, Milan Novak, gave permission for Gregory to have surgery, the doctors performed surgery on Gregory without the use of a blood transfusion.¹

During his stay at Kennestone, Gregory received regular and frequent blood tests due to the nature of his injuries. The last blood test prior to surgery was taken at 3:15 a.m. and reflected a Hemoglobin reading of 11.7 gm/dl (normal range 12.5-15 gm/dl) and a Hematocrit reading of 34% (normal range of 36-46%). The first blood test following surgery was taken at 9:10 a.m. and reflected a Hemoglobin reading of 8.2 and a Hematocrit of 24. The last blood test on June 18, 1989 was taken at 5:18 p.m. and reflected a Hemoglobin reading of 6.6 and a Hematocrit of 20.

By 3:15 a.m. on June 19, 1989, Gregory's blood tests results reflected a Hemoglobin reading of 5.3 and a Hematocrit of 16. At this time, Gregory's doctors became increasingly concerned about the continued decline in these blood test results and attempted to persuade Gregory and June Novak to change their minds with respect to the possibility of a blood transfusion. Both Gregory and his mother remained, nonetheless, resolute. At 2:02 p.m., Gregory's blood tests results reflected a Hemoglobin reading of 5.0 and a Hematocrit reading of 14. Sometime in the afternoon of June 19, 1989, the orthopedic surgeon treating Gregory sought legal intervention by calling the situation to the attention of Kennestone Hospital and its attorneys. In doing so, he expressed his opinion that Gregory was in eminent danger of suffering life-threatening consequences if he did not receive a blood transfusion. The last blood test on June 19, 1989, was taken at 8:42 p.m. and reflected a Hemoglobin reading of 4.7 and a Hematocrit reading of 13.

Kennestone Hospital is operated by defendant Cobb County-Kennestone Hospital Authority ("the Hospital Authority"). On June 19, 1989, legal counsel for the Hospital Authority presented an application for the appointment of a guardian ad litem in a hearing before the presiding judge on duty at the

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Cobb County Superior Court. Defendants Bishop, Pedrick and Landers were present at this hearing. The application was filed in the Clerk's office of the Superior Court of Cobb County at approximately 4:49 p.m. on June 19, 1989, and the matter was assigned to presiding Judge P. Harris Hines. A hearing was held on the application on the evening of June 19. As a result of this hearing, defendant Robert D. Ingram² was appointed guardian ad litem for Gregory Novak

Another hearing was held on the morning of June 20, 1989 at the Intensive Care Unit of Kennestone Hospital. After speaking with defendant Bishop, Kennestone Hospital's risk manager, and learning that Mr. Bishop had been advised that Gregory's condition had deteriorated during the night, Judge Hines informed Mr. Bishop that he was coming to the hospital immediately to hold a hearing. Judge Hines initiated the hearing, directed Mr. Bishop as to who should be present, and then presided over the hearing. Defendants Henderson, Tucker, Bishop, Pedrick, Landers and Ingram were present at the hearing. During the hearing, doctors Henderson and Tucker were questioned by the guardian ad litem, Mr. Ingram, and Judge Hines about Gregory Novak's medical condition and treatment needs. Upon completion of the testimony, Mr. Ingram petitioned the court to allow Gregory to receive a blood transfusion. At the conclusion of the hearing, Judge Hines entered an order permitting the transfusion to take place. Pursuant to the court's order, Gregory Novak was physically restrained and transfused with three units of packed red blood cells during the afternoon of June 20, 1989.

Gregory Novak was discharged from Kennestone Hospital on August 2, 1989. He is alive and well today and suffers from no known medical complications or adverse physical reactions as a result of the blood transfusion of June 20, 1989. After a lengthy recovery period, he has resumed normal physical activity for a person of his age but suffers from a slight limp due to the injuries he suffered as a result of his accident.

Plaintiffs were not present at either of the hearings nor were they given advance notice of such hearings. Plaintiff June Novak is Gregory Novak's mother and is also a Jehovah's Witness. Neither she nor Gregory ever assented to Gregory Novak's blood transfusion, and both she and Gregory assert separate claims against the defendants. These claims include claims under 42 U.S.C. § 1983³ and various state causes of action.

DISCUSSION

I. Plaintiffs' Claims Under 42 U.S.C. § 1983.

Plaintiffs' Complaint seeks redress pursuant to 42 U.S.C. § 1983 ("§ 1983") and various state tort law causes of action. The plaintiffs seek to hold each and every defendant jointly and severally liable for the alleged § 1983 violations. The defendants in this case include the Hospital Authority, Kennestone Hospital's risk manager, the attorneys who represented the Hospital Authority in the hearings conducted on June 19 and 20, 1989, and the doctors treating plaintiff Gregory Alan Novak. The parties agree that defendant Samuel D. Bishop was acting under color of state law in his position as the hospital's risk manager. The plaintiffs argue that the Hospital Authority is liable under § 1983 because Mr. Bishop either acted pursuant to the Authority's official policy or was acting as a policymaker in this case. Plaintiffs further argue that the private defendants are liable under § 1983 because they conspired or acted in concert with a state actor in a course of conduct that resulted in their constitutional deprivations.⁴

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In order for there to have been a violation of § 1983, "the conduct complained of must have been committed by a person acting under color of state law and must result in a deprivation of rights, privileges, or immunities secured by the Constitution or laws of the United States." Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990) (citations omitted). Although it is not clear from plaintiffs, pleadings, the Court concludes that there were three events during which the conduct of the various defendants arguably could have violated the constitutional rights of the plaintiffs, as alleged in the Complaint:

1) When the ex parte hearing to appoint a guardian ad litem was sought in Cobb County Superior Court on June 19, 1989;

2) When the June 20, 1989 hearing, which resulted in the order allowing a blood transfusion, was held without notice to the plaintiffs; and

3) When the blood transfusion was administered against the wishes of the plaintiffs on June 20, 1989.

The constitutional questions raised by each of these events are discussed below.

II. The Summary Judgment Standard.

Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. at 2552-53.

The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323, 106 S.Ct. at 2553; Apcoa, Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 (11th Cir.1990). However, the movant is not required to negate his opponent's claim. The movant may discharge his...