Posey v. Medical Center-West, Inc.

• Decision Date: 09 September 1987
• Docket Number: INC,Nos. 73116,73117,CENTER-WES,s. 73116
• Citation: 184 Ga.App. 404,361 S.E.2d 505
• Parties: POSEY et al. v. MEDICALMEDICALv. POSEY.
• Court: Georgia Court of Appeals

Page 505

361 S.E.2d 505

184 Ga.App. 404

POSEY et al. v. MEDICAL CENTER-WEST, INC.

MEDICAL CENTER-WEST, INC. v. POSEY.

Nos. 73116, 73117.

Court of Appeals of Georgia.

Sept. 9, 1987.

Rehearing Denied Oct. 1, 1987.

Certiorari Denied Dec. 1, 1987.

W. Pitts Carr, J. Renee Kastanakis, Atlanta, for appellants.

Judson Graves, Benny C. Priest, Robert G. Tanner, Samuel P. Pierce, Atlanta, for appellee.

SOGNIER, Judge.

In Posey v. Medical Center-West, Inc., 257 Ga. 55, 354 S.E.2d 417 (1987), the Supreme Court reversed the judgment of this court affirming the trial court's grant of summary judgment in favor of Medical Center-West, Inc., d/b/a Parkway Regional Hospital, Parkway Surgery Associates, P.C. and two physicians in Case No. 73116. Posey v. Medical Center-West, Inc., 180 Ga. App. 674, 350 S.E.2d 259 (1986). Accordingly, our judgment in that case is vacated, the judgment of the Supreme Court is made the judgment of this court, and the trial court's order in Case No. 73116 as to the issue addressed in 257 Ga. 55, 354 S.E.2d 417 is reversed. However, there remains for resolution in this court the second enumeration of error made by the Poseys in Case No. 73116, as well as the cross-appeal by Medical Center-West in Case No. 73117.

In the remaining enumeration of error in Case No. 73116, the Poseys contend the trial court erred by dismissing Count V of their complaint. In Count V the Poseys sought recovery in damages for the mental distress they suffered and the emotional and physical injury incurred thereby as a result of the negligent treatment and diagnosis of their daughter. In Georgia it is well established that "[a]s a general precept, damages for mental distress are not recoverable in the absence of physical injury where the claim is premised upon ordinary negligence. [Cit.]" Hamilton v. Powell, Goldstein, Frazer, etc., 252 Ga. 149, 150, 311 S.E.2d 818 (1984). The Poseys do not allege that the physical injury they suffered was the result of any direct physical contact; rather, the physical injury stems from the mental distress they suffered. In the absence of any allegation of gross negligence or wilful and wanton conduct, however, such damages are not recoverable. See Clack v. Thomason, 57 Ga.App. 253, 254(2), 195 S.E. 218 (1938); see also Strickland v. Hodges, 134 Ga.App. 909, 912, 216 S.E.2d 706 (1975). Further, in Strickland, supra, this court held that there is no independent right of action available to parents who are not present at an incident in which serious injuries are inflicted upon their child, thereby disallowing recovery by the parents for emotional distress and mental suffering which results from the parents learning of such injuries and seeing the injured child following the incident. Although the Poseys were present at the medical facilities where their daughter was being treated in an alleged negligent manner, as noted in Posey, 180 Ga.App. at 675(1), 350 S.E.2d 259, the Poseys "do not contend appellees inflicted injuries separate and independent of the accident injuries but instead assert appellees' negligence consisted of the omission of actions which allegedly would have prevented the automobile-inflicted injuries from resulting in death." (Emphasis supplied). It being impossible for the Poseys here to have been present at the omission of an act, under Strickland, supra, the Poseys cannot recover the damages sought in Count V of their complaint. We note that the California cases cited by the Poseys as the sole support for their argument were discussed by Judge Clark in Strickland, along with numerous...