Piedmont Hosp., Inc. v. D.M.

• Decision Date: 28 October 2015
• Docket Number: Nos. A15A1572,A15A1573.,s. A15A1572
• Citation: 779 S.E.2d 36
• Parties: PIEDMONT HOSPITAL, INC. v. D.M. Colquitt v. D.M.
• Court: Georgia Court of Appeals

779 S.E.2d 36

PIEDMONT HOSPITAL, INC.

v.D.M.

Colquitt

v.D.M.

Nos. A15A1572

A15A1573.

Court of Appeals of Georgia.

Oct. 28, 2015.

Reconsideration Denied Dec. 16, 2015.

Weathington Smith, Paul E. Weathington, C. Matthew Smith, Atlanta, Paul I. Hotchkiss, for appellant (case no. A15A1572).

Allen McCain & O'Mahony, Hunter S. Allen, Jr., Joscelyn M. Hughes, Simuel F. Doster, Jr., Atlanta, for appellant (case no. A15A1573).

Warshauer Law Group, Frank A. Ilardi, Atlanta; The Jordan Firm, Jennifer A. Jordan, for appellee.

McMILLIAN, Judge.

Piedmont Hospital ("Piedmont") and Dr. James DeWayne Colquitt assert that the statute of repose for medical malpractice actions bars D.M.'s claims for negligence and fraud in connection with the failure to inform him of the results of a blood test performed while he was a patient at Piedmont. Thus, they contend that the trial court erred in denying their motions for summary judgment.

On May 11, 2005, Colquitt performed an appendectomy

on D.M. at Piedmont after D.M. presented at the hospital's emergency room complaining of abdominal pain.¹ During the surgery, a Piedmont staff member was inadvertently exposed to D.M.'s blood or other bodily fluids, and Piedmont policy dictated that D.M.'s blood be tested for blood-borne pathogens, including HIV, to determine the risk of the employee's exposure. Piedmont's laboratory first used a sample of D.M.'s blood already in the lab's possession to perform a rapid HIV test. On the morning of May 12, 2005, the rapid HIV test showed a presumptively positive result for HIV, necessitating a second confirmatory test, but Piedmont's lab did not have a sufficient blood sample for further testing. D.M. was asked to supply a further sample, and at first he refused. However, after Colquitt explained that a blood test was needed to protect the Piedmont employee, D.M. agreed to give another sample, although he expressed reluctance about hearing the results of the test at that time. D.M. was discharged from the hospital the same day, with Colquitt's instruction to make a follow-up appointment.

Piedmont used the new blood sample drawn from D.M. to perform a "more sensitive" in-house HIV test

and an outside lab test, both of which showed that D.M. was positive for HIV. The second in-house HIV test result was verified on May 13, 2005, and the final confirmatory test result was received on May 14, 2005.² Colquitt did not call D.M. to inform him of these results, planning instead to tell him in person at the follow-up appointment, although he did report the results to D.M.'s primary care physician. However, D.M. never scheduled a follow-up appointment with Colquitt or called him or anyone else to determine the results of his HIV tests

. D.M. was not tested for HIV for another six years, until May 2011. After learning that the results of that test were "indicative of an AIDS diagnosis," D.M. obtained his Piedmont medical records and learned for the first time of the positive results of the 2005 HIV tests.

D.M. filed the lawsuit in this case on May 10, 2013, almost eight years after the HIV tests revealed a positive result, asserting claims for professional negligence, negligence per se under OCGA § 31–22–9.2(d), ordinary negligence, and fraud. D.M. later amended his complaint to assert additional claims for negligence per se, alleging that Colquitt and Piedmont breached duties imposed under OCGA §§ 24–12–21 and 31–12–2(b) to inform the Georgia Department of Public Health and him that he had tested positive for HIV. Piedmont and Colquitt subsequently moved for summary judgment on the ground that OCGA § 9–3–71(b), the statute of repose applicable to medical malpractice claims, barred D.M.'s claims against them.

Following a hearing, the trial court issued an order on December 16, 2014 (the "December 16 order"), in which it found that the statute of repose would be applicable only to the one count of D.M.'s complaint expressly asserting a claim for "professional negligence." However, the trial court also found that D.M. had effectively abandoned that claim and struck it from the complaint.³ The trial court further noted that D.M. had expressly withdrawn his claims for negligence per se against Piedmont. After making these findings, the trial court denied summary judgment as to the remaining claims because they "do not complain of ‘the propriety of a professional decision.’ " On December 19, 2014, D.M. filed a "Second Amended Complaint" that omitted any claims for negligence per se against either defendant.⁴ Accordingly, only D.M.'s claims for ordinary negligence and fraud remain.

Subsequently, at the request of Piedmont and Colquitt, the trial court set aside its December 16 order and reentered it "verbatim" on January 14, 2015. The trial court also issued a certificate for immediate review of that order, and this Court granted the resulting applications for interlocutory appeal filed by Colquitt and Piedmont.

1. We first address D.M.'s argument that we should decline to exercise jurisdiction in this case. He asserts that the trial court used the procedure of setting aside and reentering the December 16 order to improperly grant Piedmont and Colquitt an extension of time for filing their interlocutory applications in violation of Court of Appeals Rule 30(g), which provides that "[n]o extension of time shall be granted for filing of interlocutory applications or responses to interlocutory applications." However, the Supreme Court of Georgia has approved a trial court's use of a similar procedure, noting that "[s]ummary judgment orders [that] do not dispose of the entire case are considered interlocutory and ... are subject to revision at any time before final judgment." (Citation and punctuation omitted.) See Canoeside Properties, Inc. v. Livsey, 277 Ga. 425, 427(1), 589 S.E.2d 116 (2003). And Court of Appeals Rule 30(g) is not intended to limit the authority of a trial court to revise its interlocutory orders. In any event, the rules of the appellate courts "are directory only, and not jurisdictional." Park v. Minton, 229 Ga. 765, 768(1), 194 S.E.2d 465 (1972). Accordingly, we find no error by the trial court and conclude that the applications were timely filed and properly invoked the jurisdiction of this Court.

2. Piedmont and Colquitt argue on appeal that the trial court erred in denying their motions for summary judgment because all of D.M.'s claims constitute an "action for medical malpractice" under OCGA § 9–3–70⁵ and thus are barred by the statute of repose set forth in OCGA § 9–3–71(b).

Under the statute of repose, an action for medical malpractice must be brought within five years from the date on which the negligent or wrongful act or omission occurred. OCGA § 9–3–71(b). And as our Supreme Court has explained,

A statute of repose stands as an unyielding barrier to a plaintiff's right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.

(Citations omitted.) Simmons v. Sonyika, 279 Ga. 378, 379, 614 S.E.2d 27 (2005).

"The test for determining when OCGA § 9–3–71(b)'s period of repose begins is based on the determination of when the negligent act causing the injury occurred." Schramm v. Lyon, 285 Ga. 72, 73(1), 673 S.E.2d 241 (2009). In this case, D.M. alleges that Piedmont and Colquitt were negligent in failing to inform him of the positive HIV results from the HIV tests in May 2005, and it is undisputed that he did not file his complaint until May 2013, almost three years outside the statutory period of repose.

Nevertheless, by its terms, OCGA § 9–3–71 applies only to claims for medical malpractice, not to claims for ordinary negligence, and D.M.'s complaint contains a claim designated as "ordinary negligence." "While complaints against professionals may state a claim based on ordinary as well as professional negligence, the complaint's characterization of the claims as professional or ordinary negligence does not control." Carr v. Kindred Healthcare Operating, Inc., 293 Ga.App. 80, 82(2), 666 S.E.2d 401 (2008). Rather, "[w]e must look to the substance of the action against a medical professional in determining whether the action is one for professional or simple negligence." (Citation omitted.) Atlanta Women's Health Group v. Clemons, 287 Ga.App. 426, 427, 651 S.E.2d 762 (2007). This determination presents a question of law for the court. Wellstar Health System, Inc. v. Painter, 288 Ga.App. 659, 662, 655 S.E.2d 251 (2007).

Under Georgia law, "[t]he confidential relationship between doctor and patient creates a duty to inform the patient of his or her condition." (Citations and punctuation omitted.) In re Carter, 288 Ga.App. 276, 287(4), 653 S.E.2d 860 (2007). See also Oliver v. Sutton, 246 Ga.App. 436, 438, 540 S.E.2d 645 (2000). And this Court has found that "a lawsuit premised upon a breach of this duty is a classic medical malpractice action." Carter, 288 Ga.App. at 287(4)(a), 653 S.E.2d 860. See also Stafford–Fox, 282 Ga.App. at 671(2), 639 S.E.2d 610 (holding that failure to inform patient of vitamin deficiency stated claim for medical malpractice); Peace v. Weisman, 186 Ga.App. 697, 699 –700(3), 368 S.E.2d 319 (1988) (noting that a treating physician's failure to inform a patient of his condition constituted medical malpractice, but finding no physician-patient relationship existed in that case where doctor performed the examination on behalf of the Department of Human Resources). As this Court explained in Peace,

[t]here are three essential elements imposing liability [in a medical malpractice case] upon which recovery is bottomed: (1)[t]he duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.... [S]uch cases [are] calle

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