Poss v. Department of Human Resources, s. A92A0793

• Decision Date: 03 December 1992
• Docket Number: A92A0794,Nos. A92A0793,s. A92A0793
• Citation: 426 S.E.2d 635,206 Ga.App. 890
• Parties: POSS et al. v. DEPARTMENT OF HUMAN RESOURCES. DEPARTMENT OF HUMAN RESOURCES v. POSS et al.
• Court: Georgia Court of Appeals

Page 635

426 S.E.2d 635

206 Ga.App. 890

POSS et al. v. DEPARTMENT OF HUMAN RESOURCES.

DEPARTMENT OF HUMAN RESOURCES v. POSS et al.

Nos. A92A0793, A92A0794.

Court of Appeals of Georgia.

Dec. 3, 1992.

Reconsideration Denied Dec. 18, 1992.

Robert H. Benfield, Jr., Decatur, for appellants.

Michael J. Bowers, Atty. Gen., William C. Joy, Sr. Asst. Atty. Gen., William M. Droze, Asst. Atty. Gen., for appellee.

BEASLEY, Judge.

Dexter C. Poss, Sr., individually and as representative of the estate of his deceased son, Dexter C. Poss, Jr., and Mary Jo Poss, individually, instituted this action against the Georgia Department of Human Resources, seeking to recover for their son's wrongful death. Under authority of OCGA § 9-2-1, plaintiffs commenced this action as a renewal of an action prosecuted by them in federal court. Poss v. Ga. Regional Hosp. of Augusta, 676 F.Supp. 258 (S.D.Ga.1987), aff'd without opinion sub nom. Poss v. Azar, 874 F.2d 820 (11th Cir.1989).

On October 15, 1984, the son was admitted to Georgia Regional Hospital of Augusta after he tried to commit suicide by taking an overdose of sleeping pills. Dr. Kenneth Azar, his primary physician, released him to return to his residence the following morning. Later that day, the son obtained a pistol and killed himself.

Plaintiffs sued Georgia Regional Hospital and Dr. Azar in federal district court, asserting a 42 U.S.C. § 1983 claim and a pendent state tort claim for medical negligence. The Department of Human Resources, of which Georgia Regional is a branch, was later substituted for the hospital as a party defendant.

The hospital moved for summary judgment, arguing that the doctrine of sovereign immunity barred the claims against it. The district court denied this motion on the following grounds: Art. I, Sec. II, Par. IX(a) of the 1983 Georgia Constitution waived sovereign immunity "as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided"; Dr. Azar's official immunity had been waived because of the existence of a liability insurance policy covering any negligent act arising out of the performance of or failure to perform his official duties; and, as Georgia Regional is vicariously liable for the acts of its employees, the waiver of Dr. Azar's official immunity acted as a waiver of Georgia Regional's sovereign immunity. 676 F.Supp. at 260-261.

On the other hand, Dr. Azar's motion for summary judgment was granted on the ground that his actions in discharging the decedent are immunized from liability by OCGA § 37-3-4, which provides: "Any physician, psychologist, peace officer, attorney, or health official, or any hospital official, agent, or other person employed by a private hospital or at a facility operated by the state, by a political subdivision of the state, or by a hospital authority created pursuant to Article 4 of Chapter 7 of Title 31, who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility."

The federal court later dismissed the action against the department as barred by the Eleventh Amendment's proscription against citizens of a state suing their state in federal court. The court also dismissed the action against Dr. Azar, ruling that he had qualified immunity from plaintiffs' Section 1983 claim (for essentially the same reasons that he has state statutory immunity). Pendent jurisdiction over the state tort claim was thus removed.

In this action in state court, plaintiffs found tort liability of the department on two grounds: First, Dr. Azar was negligent in releasing the son "without having conducted such medical examination, testing, or observation as, in the exercise of appropriate medical care should have been performed"; second, the hospital "failed to train and supervise its staff, failed to establish and follow rules, regulations and guidelines and procedures reasonably designed to protect seriously ill patients such as plaintiffs' decedent from injury and death, and failed to provide adequate facilities to carry out such care...."

The department filed a motion to dismiss, or in the alternative for summary judgment, on grounds of res judicata, collateral estoppel, and sovereign immunity. In its supporting brief, the department argued that the determination in the federal action that Dr. Azar is immune from liability precludes the present action against the department. The department also argued that under Price v. Dept. of Transp., 257 Ga. 535, 361 S.E.2d 146 (1987), as well as Mayor, etc., of Flemington v. Boatwright, 259 Ga. 175, 377 S.E.2d 843 (1989), a waiver of sovereign immunity depends upon the presence of a governmental employee for whom liability insurance protection has been provided; in this case the only defendant is the department itself. The department also filed a counterclaim under Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), and OCGA § 9-15-14 for frivolous litigation in view of the disposition of the federal suit.

The trial court granted the department's motion for summary judgment but refused to entertain the counterclaim. In Case No. A92A0793, plaintiffs appeal. In Case No. A92A0794, the department cross-appeals.

1. The federal court's decision that Dr. Azar's conduct is immunized by state statute bars a derivative claim against Dr. Azar's employer based on its vicarious liability for his conduct under the doctrine of respondeat superior.

Commencing with Southern R. Co. v. Harbin, 135 Ga. 122, 68 S.E. 1103 (1910), it has been the rule that "where the liability of the master to an injured third person is purely derivative and dependent entirely upon the doctrine of respondeat superior, a judgment on the merits in favor of the servant and against the third person is res judicata in favor of the master in a suit by such third person, though the master was not a party to the action against his servant. [Cits.]" Gilmer v. Porterfield, 233 Ga. 671, 673(1), 212 S.E.2d 842 (1975). Lack of mutuality as a bar to the plea of res judicata was rejected.

Plaintiffs argue that: the federal court's grant of Dr. Azar's motion for summary judgment was not "on the merits" since it was based on his statutory immunity, which protects him but not his employer, and, although there was an adjudication in the federal action that he was not "liable" to the plaintiffs, there was no adjudication as to whether or not he was "negligent," the issue here.

To the contrary, the case law is that an employer cannot be held "liable" for the employee's negligence where there has been an adjudication that the employee is not "liable." See Spencer v. McCarley Moving, etc., Co., 174 Ga.App. 525, 530(2), 330 S.E.2d 753 (1985); Redd v. Peters, 100 Ga.App. 316, 321(3), 111 S.E.2d 132 (1959). "In a case where the employer's liability depends solely upon the doctrine of respondeat superior, recovery cannot be had against an employer for damages resulting from the alleged wrongful or negligent act of his employee, after the employee has been discharged from personal liability." 53 AmJur2d, Master & Servant, § 406, p. 413 (1970).

Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga.App. 517(1, 3), 385 S.E.2d 436 (1989), does not aid plaintiffs. It holds that although, under the doctrine of charitable immunity, a charitable hospital generally is not liable for the negligence of its employees, this does not insulate physicians employed by the hospital from liability to a patient for breach of duty. The rationale is that "[t]o extend the doctrine of charitable immunity to physicians who are employed by charitable hospitals would only serve to insulate the resources of those physicians from the claims of patients who were injured as a result of alleged medical malpractice." Id. at 519, 385 S.E.2d 436.

It would be anomalous and in frustration of the purpose of OCGA § 37-3-4 to apply the same rationale and hold that while this Code section immunizes the physician from liability for acts in good faith compliance with statutory discharge provisions, the physician's employer may be held derivatively liable based on a finding that such acts were negligent. The converse of the Cutts holding does not apply here.

OCGA § 37-3-4 does not expressly state that the hospital or facility shall be immune from liability, and we have neither found nor been cited to any case seeking to hold an employer derivatively liable for the conduct of an employee who has statutory immunity from liability.

2. However, unlike cases such as Harbin and Gilmer, the liability charged by the complaint against the department is not purely derivative of Dr. Azar's conduct. Plaintiffs charge the department with negligence in failing to: (1) train and supervise its staff; and (2) establish and follow rules, regulations, guidelines, and procedures. As previously stated, the federal court denied the hospital's motion for summary judgment and granted Azar's.

3. In Price, relied upon by the department, employees of the Department of Transportation (DOT) were sued, as was the DOT under the doctrine of respondeat superior. The plaintiff alleged that employees of the DOT were negligent in their design and maintenance of a state highway. Plaintiff sought to add these employees as party defendants by amendment to her complaint after their identities had been ascertained through discovery. The Supreme Court held that the claim against the DOT employees was in reality a claim against the DOT as to which sovereign immunity had been waived because of a liability insurance policy naming the employees as insureds and covering the claim. Compare Rogers v. Rockdale County, 187 Ga.App. 658, 660(2), 371...