Strickland v. DeKalb Hosp. Authority

• Decision Date: 12 September 1990
• Docket Number: Nos. A90A1521-A90A1523,s. A90A1521-A90A1523
• Parties: STRICKLAND v. DeKALB HOSPITAL AUTHORITY. DeKALB HOSPITAL AUTHORITY v. STRICKLAND. DeKALB EMERGENCY GROUP, P.C. v. STRICKLAND.
• Court: Georgia Court of Appeals

Page 576

397 S.E.2d 576

197 Ga.App. 63

STRICKLAND v. DeKALB HOSPITAL AUTHORITY.

DeKALB HOSPITAL AUTHORITY v. STRICKLAND.

DeKALB EMERGENCY GROUP, P.C. v. STRICKLAND.

Nos. A90A1521-A90A1523.

Court of Appeals of Georgia.

Sept. 12, 1990.

Rehearing Denied Sept. 25, 1990.

Robert Strickland, Jr., pro se.

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Timothy H. Bendin, Atlanta, for Hosp. Authority.

Long, Weinberg, Ansley & Wheeler, Arnold E. Gardner, Atlanta, for Emergency Group.

BIRDSONG, Judge.

Appellant, Robert Strickland, Jr., appeals the order of the superior court, filed March 22, 1990, granting summary judgment to defendants Dr. Brenda Garland and DeKalb Hospital Authority d/b/a DeKalb General Hospital ("DHA" or "DGH"), and holding moot the motion for summary judgment of defendant DeKalb Emergency Group ("DEG"). Cross-appellant DHA appeals the order of the superior court, filed July 28, 1989, granting partial summary judgment to plaintiff on the issue of collateral estoppel against DHA and denying defendant's cross-motion for summary judgment. Cross-appellant DEG appeals the order of the superior court, filed July 28, 1989, granting partial summary judgment to plaintiff on the issue of collateral estoppel against DEG.

Appellant Strickland received medical treatment for a dislocated shoulder. He was first seen at the DGH emergency room and then referred to Dr. Brenda Garland for treatment. Dr. Garland had entered a contract with DEG to render necessary medical services as the emergency department physician in attendance at DeKalb General Hospital. DEG had contracted with DHA to provide certain emergency department physician services at DGH.

During the course of treatment, appellant was administered Valium and Demerol. Following treatment appellant apparently was left unattended. He left the hospital grounds and subsequently, on the same day, shot and killed his wife.

Appellant was tried and convicted of the murder. His judgment of conviction was reversed on appeal. Strickland v. State, 257 Ga. 230, 357 S.E.2d 85 (1987). Appellant was retried and again convicted of murder. This judgment of conviction was affirmed. Strickland v. State, 260 Ga. 28, 389 S.E.2d 230.

Appellant initiated a civil action for medical malpractice against the defendants in summary asserting that he was negligently left unattended while under the influence of drugs administered during treatment, that he was negligently allowed to depart the premises, that it was foreseeable that he would pose a threat to himself and others while in such condition, and that, as a result, he killed his wife while incapacitated by the administered drugs and unable to form intent. Appellant also asserted that his shoulder injury was not properly treated by defendant Garland, and that DHA was negligent in allowing defendants Garland and DEG to practice medicine in their facility and to treat appellant. Held:

I. Case No. A90A1521

1. Appellant asserts that the trial court erred in failing to consider the second affidavit of his medical expert witness. Hearing on the summary judgment motions was held on December 7, 1989; summary judgment order was filed March 22, 1990. The affidavit in question was served on opposing counsel on December 28, 1989, but not filed until January 5, 1990. The trial court subsequently considered "all brief and brief-like materials filed to the date of [the order on motions for summary judgments for various defendants]," but declined to consider evidentiary materials not timely filed. " 'An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.' " Brown v. Williams, 259 Ga. 6(4), 375 S.E.2d 835; see generally OCGA §§ 9-11-6(d) and 9-11-56(c). The court is vested with discretion whether to consider affidavits untimely served. Liberty Nat. etc., Ins. Co. v. Houk, 248 Ga. 111(1), 281 S.E.2d 583; Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga.App. 589, 595(6), 307 S.E.2d 107. However, appellant asserts the trial court abused its discretion, because discovery was not completed, because the delay between the date of the hearing and the court's ruling precluded any claim of surprise, prejudice, or lack of opportunity to respond by opposing counsel, and because the trial court relied in part on appellant's failure to get court approval prior to filing the second untimely affidavit.

Assuming without deciding that discovery had not been completed by the date of the hearing, appellant has failed to establish the existence of any evidence subsequently obtained by discovery to which he did not have access before the date of the hearing and which would have been significant as to the disposition of the motions for summary judgment. Nor did appellant assert the existence of any such evidence to the trial court, although the court considered brief and brief-like materials filed up until the date of its order. Further, Liberty Nat., etc., Ins. Co. v. Houk, 157 Ga.App. 540, 278 S.E.2d 120, aff'd 248 Ga. 111, 281 S.E.2d 583, supra, is distinguishable. The trial court's order on its face reflects that it exercised its discretion in this matter. The record fails to disclose that the trial court abused its discretion in refusing to consider the untimely affidavit in question.

2. Appellant asserts the trial court erred in granting summary judgment motions of appellees Dr. Garland and DHA.

a. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. When, as in the instant case, movant is the defendant, he has the additional burden of piercing the plaintiff's pleadings and affirmatively negating one or more essential elements of the complaint. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 595-596, 370 S.E.2d 843. In this regard, " '[e]videntiary rules regarding the admissibility ... of evidence are applicable in a summary judgment proceeding.' ... [H]earsay evidence is without probative value and [cannot be] considered ... unless it is part of the res gestae." Skinner v. Humble Oil etc. Co., 145 Ga.App. 372, 374, 243 S.E.2d 732. Yet, once the party moving for summary judgment has made out a prima facie case, as was done by movants in this case, the burden of proof shifts to the opposing party who must come forward with rebuttal evidence or suffer judgment against it. Leah Enterprises v. Chouinard, 189 Ga.App. 744, 745-746, 377 S.E.2d 514. Further, factual assertions in briefs not supported by evidence of record cannot be considered on appellate review (Behar v. Aero Med Intl., 185 Ga.App. 845, 847, 366 S.E.2d 223); and, pleadings unsupported by evidence at the hearing on a motion for summary judgment do not raise factual issues that prevent granting of a motion for summary judgment. ARA Transp. v. Barnes, 183 Ga.App. 424, 427, 359 S.E.2d 157.

b. Appellees assert that the original timely affidavit of appellant's expert, a medical doctor and board certified psychiatrist, was not sufficient in rebuttal to establish the existence of a genuine issue as to any material fact, within the meaning of OCGA § 9-11-56(c), which would preclude the grant of summary judgment.

In this case, appellees/defendants pierced appellant's pleadings. For reasons hereinafter discussed, appellant could not thereafter prevail against the motion for summary judgment based upon the matters contained in the original timely affidavit of his expert. See generally Brumbalow v. Fritz, 183 Ga.App. 231(1), 358 S.E.2d 872. The expert's affidavit must state the particulars; it must establish the minimum requirements of professional conduct applicable to the various professional categories of defendants involved, and set forth how or in what way the various defendants deviated therefrom. See Hall v. Okehi, 194 Ga.App. 721(2), 391 S.E.2d 787; Minchey v. Zane, 188 Ga.App. 733, 374 S.E.2d 225; compare Hooker v. Headley, 192 Ga.App. 629, 385 S.E.2d 732; Beauchamp v. Wallace, 180 Ga.App. 554, 349 S.E.2d 791; and Piedmont Hosp. v. Milton, 189 Ga.App. 563, 377 S.E.2d 198. The standards of professional conduct imposed upon emergency room doctors could vary significantly from that imposed upon nurses in a particular situation. See Piedmont Hosp., supra at 564, 377 S.E.2d 198 (affidavit of medical doctor, who performed surgery, insufficient as it fails to show affiant is an expert competent to testify in the field of nursing). The original affidavit of appellant's medical expert fails to state adequately the particulars. In view of our holding in Division 1, we need not determine if the expert's subsequent untimely affidavit also was inadequate.

c. Appellant makes a bare assertion, apparently based on a subsequent conversation with an unidentified physician at the emergency room at Grady Hospital, that Dr. Garland had not completely manipulated his shoulder into place and that is the reason it subsequently dislocated by itself. The hearsay statement of the physician, which was not part of the res gestae, is not admissible in a summary judgment proceeding. Skinner, supra. Moreover, " 'the fact that the treatment has resulted unfavorably does not raise even a presumption of want of proper care, skill or diligence.' " Cherokee County Hosp. Auth. v. Beaver, 179 Ga.App. 200, 202(1), 345 S.E.2d 904.

d. Appellant asserts that the sole proximate cause of the injury sustained when he subsequently shot his wife "was the incapacitating effect of the drugs which...