Smith v. Vencare, Inc.

• Decision Date: 23 June 1999
• Docket Number: No. A99A0414.,A99A0414.
• Citation: 519 S.E.2d 735,238 Ga. App. 621
• Parties: SMITH v. VENCARE, INC.
• Court: Georgia Court of Appeals

519 S.E.2d 735

238 Ga. App. 621

SMITH v. VENCARE, INC.

No. A99A0414.

Court of Appeals of Georgia.

June 23, 1999.

Melanie A. Brubaker, Atlanta, Joan R. Turbyfield, Lithonia, for appellant.

Alston & Bird, Judson Graves, Atlanta, for appellee. ELDRIDGE, Judge.

Portia Gardner Smith, wife of plaintiff-appellant Delarett Smith, suffered from a progressive neurological disease and had to have a tracheotomy that left her unable to speak, because she was on a ventilator. Communications were made by eye movement; however, on April 20, 1995, Glenda Ward, a respiratory therapist, placed a Passey-Muir valve into Mrs. Smith's tracheotomy tube, allowing her to speak after a fashion when the respirator was not in use. Thereafter, communication was by verbal "yes" or "no" responses to leading questions by counting one to four for "no" and five to eight for "yes", or by eye movement.

In January 1995, Mrs. Smith was admitted to Vencor Hospital Atlanta. Vencor Hospital was owned and operated by Vencor, Inc. Vencare, Inc. is a separate and distinct legal entity from Vencor, Inc. No employees or agents of Vencare, Inc. were involved with Mrs. Smith or the plaintiff. On April 20, 1995, and until May 31, 1995, Vencor Hospital refused to allow plaintiff to see his wife.

Ms. Ward testified that, when Mrs. Smith could speak for the first time, Mrs. Smith told her that plaintiff had hurt her in the past, he was trying to kill her, and she was afraid of him and did not want him to visit her. Mrs. Smith asked for Hank Selinger, the hospital social worker, and told him the same things about plaintiff in Ms. Ward's presence. Selinger, in Ms. Ward's and Hospital Security/Safety Manager Ernest Carter's presence, heard Mrs. Smith respond "no" to the question did she want the plaintiff to visit her and "yes" to the questions was she afraid of plaintiff and did she want Adult Protective Services contacted regarding plaintiff. On April 20, 1995, Dr. David N. DeRuyter, Mrs. Smith's attending pulmonary therapist, who had a problem with the plaintiff regarding the manipulation of his wife's shoulder, learned through communication with Mrs. Smith that she was afraid of the plaintiff and that she did not want to be alone with him.

The psychologist evaluating Mrs. Smith for the Probate Court of Fulton County found that she had an undeterminable, residual mental status and that she was "unable to formulate and communicate rational, informed decisions concerning her person or property." On April 20, 1995, when Mrs. Smith was evaluated as to mental status, she responded that her name was Portia Smith; that the year was 1991, but with prompting 1994; and that her location was the hospital. On April 21, 1995, Selinger talked to Mrs. Smith again, and she told him the names of her brother, Harvey Gardner, who lived in East St. Louis, Illinois and her sister, Harriet Lacy. On the same day, Selinger contacted Gardner and Lacy and told them what Mrs. Smith told him about plaintiff. Selinger claimed that Gardner and Lacy told him that they did not trust the plaintiff and that plaintiff may have poisoned their sister.

Selinger reported Mrs. Smith's statements and fears to Skip Wright, the hospital administrator. To protect Mrs. Smith and at her specific request, plaintiff's visiting rights were suspended. Selinger also told others who cared for and protected Mrs. Smith of the concerns raised by Mrs. Smith and Mrs. Smith's siblings.

Mercedes Murrell, the court-appointed guardian, testified that "Vencor Hospital employees who were present in the room when I went to visit Portia Smith told me that they believed Delarett Smith [ plaintiff] was abusing his wife and that he had attempted to kill her by putting rat poison in her feeding tube. However, when I asked them if they had performed any tests to determine if Portia Smith had in fact been poisoned, they responded `No.'"

On April 19, 1996, plaintiff sued Vencare, Inc. doing business as Vencor Hospital, Selinger, and two "John Doe" defendants in the State Court of Fulton County for slander and for loss of consortium. On September 16, 1997, Vencare, Inc. and Selinger moved for summary judgment. Vencare, Inc. raised the defense that it was not a proper party to the suit. On October 20, 1997, plaintiff filed a motion to amend his complaint, add additional defendants, Vencor, Inc., Ward, and Wright, drop Vencare, Inc., and to strike Selinger's affidavit. On April 15, 1998, after oral argument, the trial court denied plaintiff's motions and granted summary judgment to the defendants. On May 14, 1998, plaintiff filed his notice of appeal.

1. Plaintiff contends that the trial court erred in failing to strike the portions of Selinger's testimony which conflicted with his earlier testimony. We do not agree.

Plaintiff contends that Selinger's second affidavit conflicts with the first affidavit, his interrogatory answers, and his notes attached to the affidavit, because such earlier testimony failed to state that Mrs. Smith's siblings or family told Selinger that plaintiff may have poisoned his wife.

The rule in Georgia is that the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Where the favorable portion of a party's self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict.

(Citations and punctuation omitted.) Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28(1), 343 S.E.2d 680 (1986).

In each case, whether on motion for summary judgment or at trial, it must be decided if the testimony of a party-witness is contradictory. On summary judgment this is a question for the judge to decide. It is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony.

Id. at 30(2), 343 S.E.2d 680.

Prophecy Corp. rests on the principle that a party knows what he has sworn and may not swear in contradiction to that which he has sworn to be true without explanation. The rule was not intended to apply to an unsworn statement of a party-witness, and we decline to so extend it.

(Citations omitted.) Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169-170, 496 S.E.2d 903 (1998). Thus, the rule under Prophecy Corp. is narrower than for impeachment by prior inconsistent or conflicting statements.

"As the absence of the additional facts in a prior statement given by the State's witness fails to amount to a contradiction of her trial testimony, there could be no impeachment under OCGA § 24-9-83[.]" (Citations and punctuation omitted.) Weathers v. State, 198 Ga.App. 871(2), 403 S.E.2d 449 (1991); accord Shearer v. State, 259 Ga. 51, 52(5), 376 S.E.2d 194 (1989); England v. Ga.-Fla. Co., 198 Ga.App. 704, 707(5), 402 S.E.2d 783 (1991).

To constitute a self-contradiction it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required. As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done.

(Citations and punctuation omitted; emphasis supplied and omitted in part.) Hightower v. State, 227 Ga.App. 74, 77, 487 S.E.2d 646 (1997).

Therefore, if the more expansive definition of contradictory or inconsistent statement for purposes of impeachment does not include omissions from earlier statements as constituting a "contradiction," then, for purposes of the more restrictive Prophecy Corp.'s "contradictory, vague and equivocal" standard, the same criteria should apply. Further, the facts omitted from the earlier statements and testimony do not cause a conflict with the latter testimony; such testimony is merely fuller, more expansive, and complete. Therefore, the trial court did not err in denying the motion to strike Selinger's affidavit.

2. Plaintiff contends that the trial court erred in granting Selinger's motion for summary judgment based on the defense of privilege. We agree.

Harriet Lacy testified that she did not tell Selinger that she did not trust the plaintiff or that she or the family believed that the plaintiff had poisoned her sister. Norma Frye testified that, on either April 21 or 22, 1995, she went to see Mrs. Smith and asked her if she was afraid of the plaintiff and if he had hurt her, to which questions Mrs. Smith indicated no. Howard Smith, plaintiff's brother, testified that, on either April 21 or 22, 1995, he visited Mrs. Smith and asked her if she wanted to see the plaintiff, to which she indicated yes. She also indicated that the plaintiff had never hurt her and that someone in the hospital was trying to hurt her. Such evidence conflicts with defendants' evidence, creating a jury question as to whether Mrs. Smith made the statements, and if she made the statements, whether she was competent and credible, because her alleged statements were in direct conflict.

Plaintiff testified that Harvey Gardner had not seen Mrs. Smith since the fall of 1993. Thus, Gardner was not in a position to render any reasonable opinion as to the care and treatment of his sister or her possible poisoning by plaintiff.

(a) Such testimony of the plaintiff's witnesses and defense witnesses are in direct contradiction to what Mrs. Smith indicated in communication to each of them. Since the questions were in each case leading, requiring either a yes or no answer, and Mrs. Smith had, at a minimum, a confused mental status, then all of her statements were questionable as to truth, accuracy, or reliability. Mrs. Smith's mental status was that of a frightened, suffering, terminally ill person with poor oxygen supply to the brain, as indicated by the necessity of the respirator. The conflicts in her statements created a...