Posey v. Medical Center-West, Inc.

• Decision Date: 08 April 1987
• Docket Number: CENTER-WES,INC,No. 44081,44081
• Citation: 354 S.E.2d 417,257 Ga. 55
• Parties: POSEY et al. v. MEDICAL, d/b/a Parkway Regional Hospital et al.
• Court: Georgia Supreme Court

Page 417

354 S.E.2d 417

257 Ga. 55

POSEY et al. v. MEDICAL CENTER-WEST, INC., d/b/a Parkway Regional Hospital et al.

No. 44081.

Supreme Court of Georgia.

April 8, 1987.

Reconsideration Denied April 29, 1987.

W. Pitts Carr, J. Renee Kastanakis, Carr, Tabb & Pope, Timothy W. Wolfe, Atlanta, for William G. Posey et al.

Judson Graves, Alston & Bird, Samuel P. Pierce, Jr., Benny C. Priest, Drew, Eckl & Farnham, Robert G. Tanner, Long, Weinberg, Ansley & Wheeler, Atlanta, for Medical Center-West, Inc., d/b/a Parkway Regional Hosp., et al.

GREGORY, Justice.

This is a medical malpractice action against a hospital and two doctors who treated a child injured when struck by an automobile. The trial court granted summary judgment to the defendants on the ground that a general release was given by the child's parents to the automobile driver and her insurer thus also releasing the hospital and doctors. The Court of Appeals affirmed. Posey, et al v. Medical Center-West, Inc., 180 Ga.App. 674, 350 S.E.2d 259 (1986). We granted certiorari to consider the impact of Williams v. Physicians and Surgeons Community Hospital, Inc., 249 Ga. 588, 292 S.E.2d 705 (1982), on this case. We reverse.

The issue reached is whether to continue to follow the principle that a general release given to one joint tortfeasor releases all joint tortfeasors. We decide today not to follow that principle any longer.

The complaint filed in Douglas Superior Court alleged the plaintiff's eleven-year-old daughter was struck and seriously injured by an automobile on August 24, 1983. She was taken to defendant hospital by ambulance where she received medical treatment from defendant doctors. The complaint alleged the treatment was negligently rendered with death the proximate result.

Lengthy litigation followed the filing of the complaint in the trial court until summary judgment was granted the defendants. The basis was a general release executed by the parents on March 7, 1984. The trial court found the release discharged the driver of the automobile in particular and all other persons, firms or corporations from all claims arising from the accident. The release contained no express reservation of claims. There is no contention the medical defendants contributed to the consideration of $10,000 given in exchange for the release, nor that they in any way participated in or were even aware of the negotiations for and execution of the release.

The Court of Appeals reasoned that, notwithstanding the absence of concert of action between the driver of the car and the medical defendants, there was but a single indivisible injury, death, resulting from the alleged acts, and this rendered all the defendants joint tortfeasors. As the Court of Appeals correctly pointed out, the general proposition that the release of one joint tortfeasor operates to release all joint tortfeasors is of long standing in Georgia. Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135 (1897). This court followed the rule as recently as 1985 in answer to a certified question. Menendez et. al. v. Perishable Distributors, Inc., et. al., 254 Ga. 300, 329 S.E.2d 149 (1985). The rule was stated by this writer even more recently. Fulghum v. Kelly, 255 Ga. 652, 340 S.E.2d 589 (1986).

There is a line of cases which distinguishes tortfeasors who act in concert to produce a single indivisible injury from successive tortfeasors who do not act in concert and who produce more or less (the cases are not precise) divisible injuries. In these cases the former tortfeasors are considered joint tortfeasors to whom the rule of general release applies while the latter are termed successive tortfeasors and are excepted from the rule. Knight v. Lowery, 228 Ga. 452, 185 S.E.2d 915 (1971). Lowery has lived a troubled life but is the rule today. Mitchell v. Gilson, 233 Ga. 453, 211 S.E.2d 744 (1975); Maxey v. Hospital Authority, 245 Ga. 480, 265 S.E.2d 779 (1980); Williams v. Physicians and Surgeons Community Hospital, Inc., 249 Ga. 588, 292 S.E.2d 705 (1982). Our purpose is to go behind all these and other joint tortfeasor general release cases to look at the rationale involved and adopt a new rule.

We envision several likely factual circumstances: (1) First, is that in which tortfeasors A and B act in concert to produce a single indivisible injury we call X, to plaintiff C. An example is where A and B agree to race in their automobiles. In the course of the race they collide with and injure C. (2) Second, A and B act in concert to injure C but A produces injury Y and B produces injury Z which injuries are separate and distinct. An example of this is where A and B agree to attack C. A grabs C and holds him, injuring him in the process. B takes C's wallet. (3) Third, A's independent act combines with B's independent act to produce a single indivisible injury, X, to C. Here an example is where A and B are driving their respective automobiles negligently. A runs into C from one direction while B collides with him from another direction, the proximate result being C's death. (4) Fourth, A and B act independently. The actions do not combine, but nonetheless produce a single injury, X, to C. Example: A is the driver of a car who negligently injures C. B is a physician who negligently treats C's injury. C dies as a proximate result of both actions. (5) Fifth, A and B act independently, their acts do not combine, and A's act produces separate and distinct injury Y while the act of B produces separate and distinct injury Z to C. Example: A negligently injures C while in an entirely separate situation B steals his money.

The early common law considered concert of action essential to a joint tort. ¹ Only the first and second circumstances above meet this requirement. ² W. Prosser, Torts 322, § 46 (5th ed. 1984); 3 F. Harper, F. James, O. Gray; The Law of Torts 1 § 10.1 (2d ed. 1986). The example often given fits our second circumstance. It comes from the early case of Smithson v. Garth and Others, 3 Lev. 324, 83 Eng.Rep. 711 (1691). The action was trespass. Five persons attacked Smithson during the course of which he was imprisoned, battered, and two silver buttons were stolen. Various defendants admitted causing some but not all these several injuries to Smithson. The court resolved: "... the plaintiff having charged them jointly with the whole entire matter, if one of them committed the battery, another the imprisonment, another took the buttons, yet being all done at one time, they are all guilty of the whole, and shall be all charged with the whole damages...." The English courts would not consider our third, fourth and fifth circumstances to represent joint tortfeasors due to the lack of concert of action.

It was the procedural device which came into our law allowing anyone who claims an interest contrary to plaintiff's interest to be named a defendant which has clouded the matter considerably. Prosser, supra, p. 325. Defendants illustrated in our third and fourth circumstances above are called joint tortfeasors because the procedure...