author: Pope, Presiding Judge. Andrews, Judge,

text:
    A96A1181.
    SOUTH FULTON MEDICAL CENTER, INC. v. POE et al.
    (480 SE2d 40)
   Pope, Presiding Judge.

Ernest and Jacqueline Poe, parents of the deceased infant Ernest Poe, Jr., brought this medical malpractice action against South Fulton Medical Center and Dr. M. O. Tomeh for their son’s death. The matter was tried to a jury, which returned a verdict in favor of Tomeh, and against South Fulton for 1.85 million dollars. South Fulton appeals and, for the following reasons, we affirm.

Evidence at trial was that Ernest Poe, Jr. was born at South Fulton on April 29, 1991. The infant was kept at the hospital until May 6, 1991, where he was treated in the intensive care unit by his pediatrician, Dr. Tomeh, for hypoglycemia, jaundice and possible sepsis. The baby was discharged and the Poes were given specific instructions to call a physician if the baby’s temperature was greater than 100 degrees; if there was a change in the baby’s color; or if there was a change in the baby’s eating habits.

The day after Ernest Jr.’s discharge, the Poes brought him to the South Fulton emergency room, where they were attended to by the triage nurse on duty, Merry Gunnin. The Poes complained that the baby had turned blue at home. They also reported that the baby had not had a bowel movement all day, appeared limp and that his eyes had rolled back in his head.

Gunnin assessed the baby at 10:45 p.m.; she took his pulse, and checked his respiration and temperature. The infant’s vital signs were not completely normal, but they were not alarming. The baby had a low grade fever and slept through the examination. While the Poes were at the hospital, the baby had a bowel movement.

According to both Gunnin and the Poes, the exchange between the adults during the baby’s assessment was tense. Gunnin testified that she instructed the Poes to fill out certain forms and that Mr. Poe, who appeared agitated, kept “screaming” and demanding that his baby see a doctor immediately. Gunnin admitted that she also raised her voice. Mr. Poe testified that he and Gunnin were “barking like dogs” at each other. The Poes both testified that Gunnin had a “nasty attitude” and would not listen to Mrs. Poe’s complaints.

After completing the examination of the baby, Gunnin admitted that she told the Poes that “the baby was fine right now.” Gunnin stated that she told the Poes that “the baby was doing okay” a couple of times in an effort to calm them. She also told them that the baby was breathing properly at that time. According to Mrs. Poe,. Gunnin told her that she was overreacting. Gunnin then classified the baby according to South Fulton’s internal procedure as “Priority 3” — which denoted that semi-urgent medical intervention would be required within approximately eight hours, but that the problem was not immediately life threatening or severe.

Gunnin instructed the Poes to sit in the waiting room and told them a doctor would be with their baby shortly. The Poes, who felt they had been overreacting to the baby’s problems and believed that the infant would be alright until the next morning when he could see a doctor, left the emergency room within eight minutes after the examination. The admissions clerk recalled that Mr. Poe did not complete the documents he was filling out — specifically, he did not sign the “consent to treatment” form. Although Gunnin was unaware that the Poes were leaving, the emergency room admissions clerk told Mr. Poe that the decision to leave was his. The baby died several hours after the Poes left South Fulton.

The Poes filed this medical malpractice action, based in part, upon South Fulton’s: failure to accurately diagnose and triage the infant; failure to insist that the family remain until seen by a physician; failure to admit the infant for adequate assessment; and failure to have the baby immediately seen by a physician. Experts testified at trial that Gunnin’s actions fell below the applicable standard of care in several ways — particularly in her failure to take the baby to a physician immediately and in her failure to classify the baby’s condition as life threatening.

1. South Fulton contends that, as a matter of law, the infant was not its patient and that the trial court erred in denying its motions for summary judgment, directed verdict and j.n.o.v. We first note that to the extent that South Fulton argues that its motion for summary judgment was improperly denied, the issue is moot. See Dept. of Transp. v. Brown, 218 Ga. App. 178, 179 (1) (460 SE2d 812) (1995). Therefore we review the denial of the directed verdict motion and the denial of the motion for j.n.o.v. “The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” (Citations and punctuation omitted.) Truck Parts & Svc. v. Rutledge, 211 Ga. App. 166 (2) (438 SE2d 404) (1993).

Citing Clough v. Lively, 193 Ga. App. 286 (387 SE2d 573) (1989), and Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858 (440 SE2d 743) (1994), South Fulton argues that a mere assessment of a person’s condition does not create a patient-health care provider relationship, and that the relationship between the Poes and South Fulton was not the requisite consensual one. “It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of [the health care provider]-patient relationship. There are three essential elements imposing liability upon which recovery is bottomed: (1) The duty inherent in the [health care providerjpatient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. [Cit.] See also OCGA § 51-1-27. In such cases, . . . [health care providerj-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. [Cits.] The relationship is considered consensual where the patient knowingly seeks the assistance of the [health care provider] and the [health care provider] knowingly accepts him as a patient.” (Citations and punctuation omitted.) Peace v. Weisman, 186 Ga. App. 697, 698 (1) (368 SE2d 319) (1988).

In Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858, Mrs. Matthews came to the DeKalb General emergency room complaining of a pain in her chest. The triage nurse recorded her history, obtained her vital signs and made an assessment. Matthews indicated that she was not in pain, and the triage nurse classified her condition as non-life threatening and told her that it would be a long wait. After four and a half hours of waiting, a social services representative told Matthews that the doctor would see her next. Matthews stated that she had waited too long and was leaving. The social services representative pleaded with Matthews to stay, but she left nonetheless, and died two days later. This court affirmed the superior court’s grant of DeKalb General’s motion for summary judgment, finding that Matthews’ voluntary termination of her relationship with the hospital severed any causal relationship with DeKalb General’s actions.

In Clough v. Lively, 193 Ga. App. 286, a police officer responded to an accident call and found Lively semiconscious in an automobile that had left the road. Believing that Lively was intoxicated and not seriously injured, the officer took him to Shallowford Hospital so that a blood sample could be taken. Nurse Clough at Shallowford took a blood sample, checked Lively’s vital signs, learned that he might have taken medication, and made a diagnosis of his condition. Clough was not asked to make, nor did she undertake to perform, any examination or render any medical treatment to Lively. In fact, when Clough asked Lively if he either needed or desired medical treatment, he stated that he did not. Clough stated that her involvement on behalf of Shallowford Hospital was solely to comply with the officer’s written request that a blood sample be taken from Lively. Lively was released to the officer, who took him to jail for processing. Shortly after arriving at jail, Lively lapsed into a coma and died. In reversing the superior court’s denial of defendants’ motion for summary judgment, this Court found that there was a limited relationship created, because neither the nurse and hospital, nor Lively consented to a patient-health care provider relationship. See also Payne v. Sherrer, 217 Ga. App. 761 (458 SE2d 916) (1995); Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 49 (3) (424 SE2d 338) (1992); Minster v. Pohl, 206 Ga. App. 617 (426 SE2d 204) (1992); Peace v. Weisman, 186 Ga. App. 697 (1); Brumbalow v. Fritz, 183 Ga. App. 231 (1) (358 SE2d 872) (1987); Clanton v. Von Haam, 177 Ga. App. 694 (340 SE2d 627) (1986).

In this case, we find that the requisite consensual relationship was established between South Fulton and the Poes, and that the denials of the motions for directed verdict and j.n.o.v. were proper. Unlike Clough, Clanton, and the cases cited above, the Poes did not limit the relationship with South Fulton in any manner — they desired and sought out any medical assistance they needed for their baby. There was evidence that the Poes received reassurances that their baby was fine, and on the strength of these reassurances, left the hospital. Regardless of Gunnin’s good intentions in reassuring the Poes, there was evidence from which a jury could conclude that these reassurances motivated the Poes to leave the hospital. Compare Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 66 (2) (d) (397 SE2d 576) (1990).

Moreover, although the dissent finds Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 858, indistinguishable from the instant matter, several important factors differentiate the cases. First, in Matthews, there was no evidence of medical error at the time of Matthews’ medical examination. In contrast, here there was evidence that Gunnin’s actions fell below the standard of care because she failed to take the baby to a physician immediately and failed to classify the baby’s condition as life threatening. In fact, Gunnin classified the baby as a “Priority 3,” denoting that medical care would be required within eight hours, and the baby actually died during that time. Secondly, in Matthews, the medical personnel pleaded with Mrs. Matthews to stay at the hospital. In this case, the Poes initially considered the baby’s condition life threatening, but were persuaded otherwise by Gunnin. Moreover, here the patient was a totally dependent infant who necessarily relied on others to discover his condition, unlike the adult patient in Matthews, who could describe her own symptoms and respond to questions.

2. In related enumerations of error, South Fulton claims that by taking the infant from the emergency room before he could be examined by a physician, the Poes severed any causal relationship between the nurse’s triage assessment and the infant’s death. South Fulton also argues that the Poes failed to exercise ordinary care to avoid the consequences of the hospital’s actions. For the reasons outlined above, we also find these arguments without merit.

3. South Fulton argues that the trial court erred by failing to declare a mistrial or take other curative steps during closing argument when the Poes “enlarged and commented” on an exhibit which had not been admitted into evidence. The exhibit at issue was South Fulton’s internal performance evaluation on Gunnin, which stated that she needed to “use assertive techniques when in charge rather than confronting staff members.”

During the trial there was testimony, to which South Fulton did not object, regarding the contents of the evaluation form. Later, the court ruled that the evaluation itself was inadmissible because it contained hearsay statements. After this ruling, Gunnin was questioned without objection regarding the evaluation’s assessment that she “had room for improvement in interpersonal confrontations.” Although it is unclear from the record whether, or how, the Poes’ counsel referred to this exhibit during closing argument, South Fulton moved for a mistrial. The court denied South Fulton’s motion, but cautioned the Poes’ counsel not to refer to Gunnin’s “problems with people.” Poes’ counsel resumed closing argument and did not refer to the evaluation again. We find no error in the court’s handling of this matter. Even assuming that a reference to the exhibit was made, we find no manifest abuse of the court’s broad discretion in denying the motion for mistrial, see Walker v. Bishop, 169 Ga. App. 236 (8) (312 SE2d 349) (1983), nor do we find that other curative actions were required. Compare Williams v. Piggly Wiggly Southern, 209 Ga. App. 490 (433 SE2d 676) (1993).

4. Citing Dept. of Transp. v. Benton, 214 Ga. App. 221, 223 (2) (447 SE2d 159) (1994), South Fulton argues that it is entitled to a new trial because during closing argument the Poes’ counsel read portions of witness testimony contained in deposition and trial transcripts, thus violating the rule against “continuing witness” testimony. We find these arguments without merit. The complained of testimony did not go out with the jury during their deliberations and the “continuing witness” theory is inapplicable. See generally Buckner v. State, 219 Ga. App. 71, 73 (5) (464 SE2d 11) (1995).

5. South Fulton failed to object to the court’s failure to disclose the contents of notes from the jury and waived this argument. See generally Provost v. Gwinnett County, 199 Ga. App. 713 (4) (405 SE2d 754) (1991).

6. Finally, South Fulton argues that the trial court improperly charged the jury that the Poes could recover damages based on their own losses rather than on the value of their son’s life. Specifically, South Fulton argues that the charge impermissibly allowed the Poes to recover for their loss of the child’s services.

OCGA § 19-7-1 (c) (1) provides that parents of a deceased child shall be entitled to recover the full value of the life of the child. See OCGA § 51-4-4. OCGA § 51-4-1 (1) states that the “ ‘[f]ull value of the life of the decedent, as shown by the evidence’ means the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived.”

OCGA § 19-7-1 (a) specifically provides that until the age of majority, the child shall be under the control of the parents, “who are entitled to his services and the proceeds of his labor.” It is established that loss of services may be awarded in a wrongful death action as part of the full value of the deceased’s life. Consolidated Freightways &c. v. Futrell, 201 Ga. App. 233 (1) (410 SE2d 751) (1991). Moreover, the full value of the life of the decedent includes both the economic value of the deceased’s normal life expectancy and the intangible element incapable of exact proof, such as “a parent’s society, advice, example and counsel.” (Citations and punctuation omitted.) Consolidated Freightways, 201 Ga. App. at 233 (1); Miller v. Jenkins, 201 Ga. App. 825 (1) (412 SE2d 555) (1991). Here, contrary to South Fulton’s contentions, the court did not charge the jury as to the Poes’ losses, but properly charged the jury regarding the full value of the infant’s life.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Johnson and Blackburn, JJ., concur. Birdsong, P. J., Andrews, Smith and Ruffin, JJ., dissent.

Andrews, Judge,

dissenting.

Because I believe Matthews v. DeKalb County Hosp. Auth., 211 Ga. App. 166 (438 SE2d 404) (1993) is indistinguishable from the Poes’ situation, I respectfully dissent. I do not believe that the patient-health care provider relationship had been established and, even if the required consensual relationship is assumed, the failure, if any, to comply with the requisite standard regarding assessment of the baby was not the proximate cause of baby Poe’s death.

In addition to the facts contained in the majority opinion, viewing the record under the standard for consideration of a motion for j.n.o.v., the following evidence also was adduced. Dr. Tilelli, one of the Poes’ expert witnesses, stated that the baby was not in shock when the triage was performed. In his experience, with the baby’s symptoms, a “septic workup would have to be done as part of routine care of the baby” once treatment began. He stated that, for Gunnin to tell the Poes that the “baby is okay now” was “an appropriate remark” because one aspect of triage nursing is to be reassuring and to calm people down. He also stated that “[i]f they had stayed, they would [have seen] a doctor.”

Also, Dr. Cullen, another of the Poes’ experts, opined that, had the baby been seen 15 to 30 minutes after arriving at the hospital, which would have occurred if the Poes had not left, that would have been appropriate treatment.

Both Mr. and Mrs. Poe stated that Gunnin kept assuring them that the baby was all right. However, as Dr. Cullen stated, that was appropriate for Gunnin to do. Mrs. Poe acknowledged that she was given the clip board with forms to complete and that she knew that Gunnin did not mean that she was to leave without seeing a doctor. “I know that she did not mean that, but she ... I was convinced that . . . maybe I was overreacting.” Mrs. Poe knew that, had they remained, they would have seen a doctor. Similarly, Mr. Poe acknowledged that Gunnin gave them the forms to fill out, that they waited in the waiting room for a while, and that, despite Gunnin’s .attitude toward him, they would have seen a doctor had they remained. He and Mrs. Poe discussed leaving because they thought, based on what Gunnin had said, they were overreacting. They left without telling anyone they were leaving. It is not disputed that the consent to treat form was never signed.

1. In Matthews, supra, Mrs. Matthews went to the emergency room at 11:25 p.m., complaining of pain in her chest radiating down her arm. While her vital signs, like baby Poe’s, were slightly elevated, she was not in pain at that time. She was classified as a category 2 non-life threatening condition and told it would be a long wait. After a four and a half hour wait, Mrs. Matthews was told she would be seen next, but because she felt she had not been seen quickly enough, she left. Similarly, here, the Poes, although about to be seen by a doctor, chose to leave the facility without signing the consent form or advising anyone that they were leaving without treatment. In such a situation, the patient-health care provider relationship was not established, as a matter of law. Id.; Minster v. Pohl, 206 Ga. App. 617 (426 SE2d 204) (1992); Clough v. Lively, 193 Ga. App. 286 (387 SE2d 573) (1989); compare Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 112 (2) (372 SE2d 265) (1988), aff’d 259 Ga. 376 (382 SE2d 597) (1989).

This conclusion is also supported by the counterbalancing legal principle that a person is allowed the choice of foregoing needed medical care, and giving treatment without the required consent could have resulted in a claim of battery. OCGA § 31-9-6; In re L. H. R., 253 Ga. 439, 446 (321 SE2d 716) (1984); see Smith v. Wilfong, 218 Ga. App. 503, 507 (2) (462 SE2d 163) (1995).

2. Even assuming that such a relationship was established, however, the improper classification of baby Poe was not the proximate cause of his death, nor was the reassurance given by Gunnin, which plaintiffs’ own experts acknowledge was appropriate.

Decided November 21, 1996

Reconsideration denied December 19, 1996

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Rush S. Smith, Jr., Phillip E. Friduss, Dan S. McDevitt, for appellant.

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, La’Sean M. Zilton, Love & Willingham, Traci G. Courville, H & M Johnson, E. Duane Jones, for appellees.

OCGA § 51-12-9 provides that “[djamages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.”

“To recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury. The requirement of proximate cause constitutes a limit on legal liability; it is a ‘policy decision . . . that, for a variety of reasons, e.g., intervening act, the defendant’s act and the plaintiff’s injury are too remote for the law to countenance recovery.’ McAuley [v. Wills, 251 Ga. 3, 7 (303 SE2d 258) (1983)].” Atlanta Ob. & Gyn. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990).

The decision of the Poes based on their conclusion that they were “overreacting” was an intervening act not reasonably foreseeable at the time it occurred. The Poes, when last seen by Gunnin, were in the process of completing the necessary paperwork for treatment of their child. I find it impossible to conclude that it was foreseeable to the hospital personnel that the parents would walk out of the emergency room without notifying anyone of their intentions to do so, particularly in light of the intensity with which they had insisted on immediate treatment. Therefore, I do not believe that, even assuming a provider-patient relationship, the Poes were entitled to recover because the alleged breach of the duty owed, i.e., the misclassification of the baby’s condition, while perhaps a “cause in fact,” cannot be said to have been the proximate cause of the baby’s tragic death. E.g., Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996); Wanless v. Winner’s Corp., 177 Ga. App. 783, 785 (3) (341 SE2d 250) (1986).

I am authorized to state that Presiding Judge Birdsong, Judge Smith and Judge Ruffin join in this dissent.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A96A1672.
    HUFF v. THE STATE.
    (479 SE2d 476)
   Ruffin, Judge.

Ruther Huff was indicted for aggravated assault and possession of a firearm by a convicted felon. The firearm charge was severed from the assault charge, and in a bifurcated trial the jury found Huff guilty of aggravated assault and not guilty of possession of a firearm by a convicted felon. Huff appeals from the denial of his motion for new trial which was based on his claim of ineffective assistance of trial counsel. We affirm.

At trial, Huff testified that the aggravated assault, which was based on his shooting the victim, was an accident. In an attempt to bolster Huff’s credibility, trial counsel and Huff decided to present evidence of Huff’s good character. Accordingly, during his direct examination of Huff, trial counsel attempted to establish that Huff’s only prior brush with the law concerned an incident where Huff was fined $100 for cutting some trees. During his examination, trial counsel asked Huff whether, aside from the tree cutting incident, he had “ever been charged with any other felony or any other misdemeanor,” and Huff answered that he had not. During cross-examination, however, the Assistant District Attorney showed that Huff was previously arrested for making terroristic threats and for carrying a pistol without a license.

Huff, who is represented by new counsel on appeal, contends trial counsel was ineffective in his investigation of character evidence because counsel did not obtain a copy of Huff’s arrest record. Huff further contends that if trial counsel knew of his prior arrests, he could have avoided the circumstances which led to the State’s impeaching cross-examination. During the new trial hearing, however, trial counsel testified that when he was preparing for trial, Huff told him “he had not ever been arrested prior to the arrest in this particular case.” However, in our view, the greater burden was on Huff to inform his counsel of any prior arrest, and most assuredly to be totally honest with counsel. A self-induced error is too close to premeditated error, hence beyond further appellate scrutiny.

Under these circumstances we conclude that Huff was not denied effective assistance of trial counsel. “ ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.’ Strickland v. Washington, 466 U. S. 668, 691 (III) (A) (104 SC 2052, 80 LE2d 674) (1984).” Nicholson v. State, 265 Ga. 711, 714-715 (4) (462 SE2d 144) (1995).

Decided December 19, 1996.

Jeffrey P. Manciagli, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

Trial counsel in this case was not required to anticipate that Huff was untruthful about his arrest history or that the State would produce impeaching evidence showing prior arrests. Id. Furthermore, because trial counsel’s questions on direct examination were based on information presented by Huff, any resulting prejudice to Huff’s character and his accident defense was attributable to Huff and not to the ineffectiveness of his trial counsel. Id. Accordingly, the trial court did not err in denying Huff’s motion for new trial.

Judgment affirmed.

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge. Andrews, Judge,

text:
    A96A0951.
    CARTERSVILLE READY MIX COMPANY et al. v. HAMBY.
    (479 SE2d 767)
   Smith, Judge.

Terry Hamby filed a claim for workers’ compensation, contending he sustained a back injury at work. Although his employer, Cartersville Ready Mix Company, knew or suspected within a short time after Hamby’s injury that it was not job-related, the employer did not controvert the claim within 21 days after learning of the injury. Instead, after a number of weeks it voluntarily commenced payment of workers’ compensation benefits, paying a lump sum for five weeks but paying no penalty. Subsequently, although it had filed no penalty, the employer filed a notice to controvert payment pursuant to OCGA § 34-9-221 (h) within 60 days of the date first payment of compensation was due. In conjunction with the notice to controvert, the employer also suspended payments on the basis that the injury did not arise out of and in the course of employment. At the hearing before the trial division of the State Board of Workers’ Compensation, Hamby sought payment of the suspended benefits through the date he returned to work, along with benefits for a ten percent permanent partial disability resulting from the back injury. He argued that these benefits were due because the employer had not paid an increased benefit in the amount of $160 pursuant to OCGA § 34-9-221 (e), and that under Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648 (324 SE2d 194) (1984), the employer was not entitled to file a notice to controvert payments under OCGA § 34-9-221 (h) before paying the increased benefit. He also contended the back injury arose out of and in the course of his employment.

The administrative law judge (ALJ) denied Hamby’s claim, concluding that: (1) the employer’s failure to pay the penalty due under OCGA § 34-9-221 (e) did not prevent the employer from controverting payment, but subjected the employer to imposition of further attorney fee sanctions under OCGA § 34-9-108 (b) (2); and (2) the credible evidence showed the injury at issue did not arise out of and in the course of Hamby’s employment. The appellate division of the Board adopted the ALJ’s decision.

On further appeal, the superior court reversed the appellate division. The superior court reasoned that because the employer failed to pay the increased amount due under OCGA § 34-9-221 (e) prior to filing the notice to controvert pursuant to OCGA § 34-9-221 (h), the notice to controvert was invalid under Rayburn, supra, and the employer had no right to controvert payment. The superior court therefore concluded that because the claim was not validly controverted, Hamby was entitled to the compensation he sought regardless of whether the injury arose out of and in the course of his employment. We granted the application for a discretionary appeal filed by the employer. Upon further review, we conclude that the decision of the superior court was correct, and we affirm.

1. The contention of the employer, Cartersville Ready Mix Company, that no evidence was presented showing that the penalty owed was not paid, is belied by the record.

2. Cartersville Ready Mix contends the superior court erred in finding that the notice to controvert was invalid and in determining its effect. Under normal circumstances, if an employer wishes to controvert a claim for workers’ compensation without paying benefits, a notice to controvert must be filed within 21 days after learning of the alleged compensable injury. OCGA § 34-9-221 (d). If no change of condition or new evidence is involved, however, and if the employer voluntarily pays benefits without an award, the claim may be controverted within 60 days of the due date of the first payment of benefits. OCGA § 34-9-221 (h). This provision affords an employer another opportunity to controvert a claim if the employer changes its mind about controverting a claim, provided that the employer also voluntarily pays compensation to the employee without an award. Clearly, the provisions of OCGA § 34-9-221 require that unless an employer quickly controverts payment pursuant to subsection (d), it must commenee compensation payments without an award and continue to make all payments due under the statute until the employer controverts and suspends payments under subsection (h).

In Rayburn, supra, we found that “the legislative intent behind OCGA § 34-9-221 was to minimize the hardship on the injured worker by requiring the employer either to act quickly when it knows a claim is controvertible, so as to expedite final resolution of the matter, or to pay compensation while investigating the matter more closely.” Id. at 649 (1). Consistent with this view, we have also stated that subsection (h) of the statute “is clearly intended to provide some form of protection to the employee’s right to continued receipt of the compensation.” (Emphasis in original.) Carpet Transport v. Pittman, 187 Ga. App. 463, 467 (370 SE2d 651) (1988).

This case turns on the question of what is included in the term “compensation.” We held in Rayburn that the term “compensation” encompasses “all of the accrued income benefits . . ., including penalties provided for any late payment.” (Emphasis supplied.) Id. at 649 (1). The amendment of the Workers’ Compensation Act in 1994 offers no reason for modifying that holding. OCGA § 34-9-23 was added to the Act in 1994. It provides that the Act should “be liberally construed only for the purpose of bringing employers and employees within [its] provisions” and providing protection for both, and that its “provisions . . . shall be construed and applied impartially to both employers and employees.” OCGA § 34-9-23. Given the legislative purpose set forth in Rayburn, it is apparent that the legislature sought to minimize the hardship on the claiming employee and to require swift decisions from the employer regarding whether the claim will be controverted. Requiring both parties to comply with the procedure set forth in the Act satisfies the need for impartiality demanded in OCGA § 34-9-23 without sacrificing the legislative purpose set forth in Rayburn.

The solution proposed by the dissent, requiring resolution of the issue of whether a penalty is due, is unnecessary. Such a procedure would add a layer of litigation and delay to the proceedings, in order to determine an issue over which no dispute usually exists. In this case, for example, no question exists that Cartersville Ready Mix was late in beginning to pay benefits; under the clear language of OCGA § 34-9-221 (e) an increased amount is therefore due the claimant. This issue needs no “resolution.” The employer had only to comply with the statute by commencing voluntary payment of benefits on time or to pay the penalty — the increased benefit — to ensure that its notice to controvert would be valid. Moreover, the solution proposed by the dissent frustrates, rather than promotes, the legislative intent. It ensures that employers will routinely delay paying penalties, having no incentive to pay them promptly.

Relying upon Raines & Milam v. Milam, 161 Ga. App. 860, 862 (289 SE2d 785) (1982), Cartersville Ready Mix also argues that it should not be barred from defending the claim simply because it failed to pay the penalty due because other sanctions exist for its failure to comply with the statutory procedure, in the form of attorney fee sanctions under OCGA § 34-9-108 (b). This argument is similarly without merit. As relevant to this case, Milam stands only for the proposition, unchanged by Rayburn, that failure to controvert within 21 days under OCGA § 34-9-221 (d) is not an absolute bar for the employer; it has no bearing on the issue before us in this appeal. Milam is distinguished on its facts; it involved death benefits and is not analogous to this case. Moreover, in Milam, the employer did not controvert the claim until more than five months after the deaths, no compensation was paid without an award, and OCGA § 34-9-221 (h) did not enter into the analysis.

OCGA § 34-9-23 requires even-handed treatment of both employer and claimant. We act even-handedly when we apply the Act as it is written. Just as the claimant must meet the statute’s requirements in order to qualify for benefits, so must the employer adhere to the procedural requirements in order to controvert the claim. The clear language of the statute provides that employers who decide to controvert a claim after the first 21-day period must pay compensation without an award and controvert within 60 days of the date the first payment of benefits is due. The “penalty” at issue here is not a separate amount required of the employer; it is an increase in benefits to the claimant; it is “compensation.” OCGA § 34-9-221 (e); Rayburn, supra. Cartersville Ready Mix did not pay the required increased amount to this claimant even though it knew it had been late in paying benefits.

The language of OCGA § 34-9-221 (h) is clear. Our interpretation of it was implicitly approved by the legislature; it did not change the wording of that subsection when enacting a comprehensive revision of the Act in 1994, after this Court’s construction of the subsection was set forth in Rayburn. Because the employer did not follow the statute’s clear mandate, its notice to controvert is invalid.

We note, finally, that we are constrained to ignore as irrelevant the indications in the record that Hamby did not in fact suffer a compensable injury. Had Cartersville Ready Mix followed the procedural requirements and paid all compensation due when it belatedly controverted Hamby’s claim, that issue might properly have been decided in its favor. It did not do so, however, and we must apply the clear dictates of the law in even-handed fashion. “We must interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky. [Cit.]” Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2) (e) (427 SE2d 67) (1993).

The superior court recognized and noted this constraint and correctly concluded that Cartersville Ready Mix’s notice to controvert was invalid. We affirm the judgment of the superior court.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ, concur. Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

I dissent because I believe we should modify the rule set forth in Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648 (324 SE2d 194) (1984), and adopt a more balanced construction of OCGA § 34-9-221.

In Rayburn, supra, as in the present case, the employer did not file a notice to controvert under OCGA § 34-9-221 (d) within 21 days after learning of the alleged compensable injury. Instead, the employer paid benefits accrued pursuant to OCGA § 34-9-221 (b), then subsequently filed a notice to controvert under § 34-9-221 (h). Rayburn, supra at 648-649. The evidence in Rayburn, supra, also showed, just as Hamby contends in the present case, that the employer failed to pay a late payment penalty which was due pursuant to OCGA § 34-9-221 (e) along with the accrued benefits. We held that “if an employer has paid all of the accrued income benefits without an award, including penalties provided for any late payment, and continues to make the periodic benefit payments pursuant to OCGA § 34-9-221 (e), the employer is entitled to controvert the worker’s right to compensation under § 34-9-221 (h).” Id. at 649 (1). We concluded that, since the employer in that case had failed to pay the penalty, the notice to controvert was invalid. Id. at 650.

In so holding in Rayburn, supra, we recognized that OCGA § 34-9-221 provides for two distinct situations in which an employer may controvert payment of benefits after an employee claims a compensable injury. Id. at 649. In the first situation, an employer which quickly determines it has grounds to controvert payment may do so under subsection (d) of the statute by filing a notice to controvert within 21 days after knowledge of the alleged compensable injury. In the second situation, where compensation is not initially controverted under subsection (d) and payments are due without an award, the employer may later controvert and suspend payments under subsection (h) of the statute, which provides that: “Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.” In considering these provisions in Rayburn, supra, we found that “the legislative intent behind OCGA § 34-9-221 was to minimize the hardship on the injured worker by requiring the employer either to act quickly when it knows a claim is controvertible, so as to expedite final resolution of the matter, or to pay compensation while investigating the matter more closely.” Id. at 649 (1). In Carpet Transport v. Pittman, 187 Ga. App. 463, 467 (370 SE2d 651) (1988), we further stated that subsection (h) of the statute “is clearly intended to provide some form of protection to the employee’s right to continued receipt of the compensation. . . .” (Emphasis in original.)

Accordingly, under OCGA § 34-9-221 an employer which does not quickly controvert payment pursuant to subsection (d) must commence compensation payments without an award and continue to make all payments due under the statute until the employer controverts and suspends payments under subsection (h). In Rayburn, supra, we construed OCGA § 34-9-221 as not only requiring such payments be made by the employer but that all such payments be made as a precondition to the valid filing of any notice to controvert under subsection (h). This requirement, however, can have the effect of permanently foreclosing an employer’s right to controvert on the grounds originally asserted in the notice to controvert.

Employers who file a notice to controvert under OCGA § 34-9-221 (h), where compensation is paid without an award, cannot know in advance of filing in every case whether a claim may subsequently be made that all of the compensation requirements of OCGA § 34-9-221 have not been satisfied. Even where an employer attempts in good faith to comply with the payment provisions of OCGA § 34-9-221 prior to filing the notice to controvert, the notice is subject to subsequent attack in defenses raised by the employee during the hearing process that the employer failed to pay the full amount of all income benefits or penalties due under OCGA § 34-9-221 (b) and (e) prior to filing the notice to controvert. This issue can arise if the employee, for example, later disputes whether the employer accurately computed the average weekly wage due to be paid, or disputes whether a weekly installment was timely made under the mailing provisions of OCGA § 34-9-221 (b), or disputes whether payment was made in the proper form required under OCGA § 34-9-221 (a). An employer may not become aware of these claims until they are revealed in prehearing discovery or raised later at the hearing before the ALJ. At that point, months may have elapsed from the time the notice to controvert was filed. Under the rule established in Rayburn, supra, if it is subsequently determined that the employer did not fully comply with all the requirements of OCGA § 34-9-221 prior to filing the. notice to controvert, then the notice is considered invalid and the employer has no right to controvert until all the requirements are satisfied and the employer files another notice to controvert. If the original notice to controvert was filed under OCGA § 34-9-221 (h) more than 60 days after the due date of first payment of compensation, then the right to compensation can be controverted only on the grounds of a change in condition or newly discovered evidence. In that case, the effect of invalidating the original notice under Rayburn, supra, would be to require the employer to pay any unpaid compensation or penalties found due and then file another notice to controvert, which could once again be brought on the same grounds asserted in the original notice. However, if the original notice to controvert was filed under OCGA § 34-9-221 (h) within 60 days of the due date of first payment of compensation, the employer’s right to controvert is not limited to a change in condition or newly discovered evidence, but may be asserted on any available ground. In that case, if the original notice to controvert asserts a ground not available to the employer after the expiration of the 60-day period, the effect of invalidating the original notice under Rayburn, supra, which in practice would virtually always occur after the expiration of the 60-day period, is to permanently foreclose the employer’s right to controvert on the ground originally asserted. The present case is a good example.

In the present case, the employer controverted payment under OCGA § 34-9-221 (h) prior to the expiration of the 60-day period on the basis of evidence that the injury suffered by the employee occurred at home and did not arise out of or in the course of employment. Relying on Rayburn, supra, the superior court eventually held that the notice to controvert on this basis was invalid because the employer had not paid a penalty due under OCGA § 34-9-221 (e) prior to filing the notice. This ruling came after the issue was raised before the ALJ and long after the expiration of the 60-day period set forth in OCGA § 34-9-221 (h). Since the 60-day period has expired, and the original ground for controversion asserted by the employer is not a change of condition and does not qualify as evidence newly discovered after the expiration of the 60-day period, applying Rayburn, supra, effectively prohibits the employer from pursuing a potentially valid basis to controvert even after paying the penalty.

Section 34-9-221 does not explicitly require the construction we gave it in Rayburn, supra. The employer’s right to controvert under subsection (h) of § 34-9-221 is granted “[wjhere compensation is being paid without an award. . . .” Although this language makes clear that an employer cannot proceed on the merits of a controversion claim without paying all compensation due, including penalties, it does not demand a conclusion that the notice to controvert be considered invalid when filed if all the compensation requirements of OCGA § 34-9-221 have not been fully satisfied at that time. The construction we gave the statute in Rayburn, supra, was consistent with the then existing rule that the Workers’ Compensation Act be construed liberally in favor of the rights of the claimant except where such a construction was strictly prohibited by the terms of the statute. Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 704-705 (409 SE2d 254) (1991). However, the Workers’ Compensation Act was amended in 1994 to provide that it “shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. . . . The provisions of this chapter shall be construed and applied impartially to both employers and employees.” OCGA § 34-9-23.

In light of the new balanced construction of the Workers’ Compensation Act required by OCGA § 34-9-23, it is appropriate to reexamine Rayburn, supra, and apply OCGA § 34-9-221 in a manner that balances the interests of the employee and the employer. Accordingly, we should conclude that a notice to controvert filed pursuant to OCGA § 34-9-221 (h) is valid even if an issue exists at the time of filing as to whether the employer has paid all benefits and penalties due under OCGA § 34-9-221. If such an issue arises upon the filing of the notice to controvert, it should be addressed and resolved and payment, if any is determined due, should be immediately tendered prior to a ruling on the merits of the employer’s notice to controvert. On one hand, this construction of OCGA § 34-9-221 gives effect to the legislative intention that the employee’s right to continued receipt of compensation without unwarranted delay be protected while an employer investigates the alleged injury and then controverts payment of compensation under subsection (h). Pittman, supra at 466-467. On the other hand, under this construction of OCGA § 34-9-221, an employer which determines grounds for controverting payment after expiration of the 21-day period of subsection (d) is better protected in its right to contest payment of compensation by filing a notice to controvert pursuant to subsection (h) and suspending further payments. To the extent Rayburn, supra, conflicts with this balanced application, it should be overruled.

I do not believe that the majority’s concern that this construction of the statute will encourage employers to delay paying compensation is justified. An employer which has not discovered any ground to controvert during the 21-day period of OCGA § 34-9-221. (d) has no incentive to withhold compensation due and incur mounting penalties on the chance that it may later discover a ground to controvert under OCGA § 34-9-221 (h). Moreover, as we noted in Raines & Milam v. Milam, 161 Ga. App. 860, 862 (289 SE2d 785) (1982), the Workers’ Compensation Act provides additional incentive for employers to make timely payments of all compensation due to the employee by imposing attorney fee sanctions under OCGA § 34-9-108 (b) (2) against employers which fail to comply with the compensation provisions of OCGA § 34-9-221.

Decided December 5, 1996

Reconsideration denied December 20, 1996

Saveli & Williams, Task J. Van Dora, Grant G. Morain, Steven R. Thornton, for appellants.

James E. Greene, for appellee.

Accordingly, I would retroactively apply this new construction of OCGA § 34-9-221 (see Gen. Motors Corp. v. Rasmussen, 255 Ga. 544, 545-546 (340 SE2d 586) (1986); Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983)), reverse the judgment of the superior court, and remand the case with directions that it be recommitted to the Board for review and taking of additional evidence, if necessary, in accordance with the revised construction of the statute. If it was determined that the employer owed a penalty under OCGA § 34-9-221 (e) when the notice to controvert was filed, then upon tender of payment the merits of the employer’s notice to controvert would become ripe for consideration, along with a determination as to the employer’s liability for further compensation and whether there was any overpayment of benefits.

I am authorized to state that Presiding Judge Birdsong joins in this dissent.


author: Blackburn, Judge. Birdsong, Presiding Judge,

text:
    A96A1224.
    In the Interest of B. G. D., a child.
    (479 SE2d 439)
   Blackburn, Judge.

This case deals with the jurisdiction of the juvenile court under OCGA § 15-11-5 (a) (2) (C) and the right of a surrendering parent to withdraw a voluntarily given consent to the adoption of a child and the surrender of such person’s parental rights. Under the current version of the adoption statutes, enacted in 1990, a parent who surrenders his or her parental rights in a child has ten days in which to withdraw that surrender. Thereafter, the surrender may not be withdrawn. OCGA § 19-8-9 (b).

Appellant, a birth mother who gave her newborn daughter up for adoption, appeals the juvenile court’s entry of summary judgment terminating her parental rights.

The termination petition in this case was filed in the Cobb County Juvenile Court by HOPE for Children, Inc. (HOPE), a licensed child placement agency, to terminate the rights of the child’s putative father so the child could be placed for adoption. The name or location of the biological father was unknown to the mother. The record shows HOPE had provided Dowdell food and housing during her pregnancy and had helped her arrange for medical care. With HOPE’S assistance, Dowdell found a couple in Boston to adopt the child, and this couple attended the child’s birth. When her child was born, Dowdell signed a surrender of parental rights pursuant to OCGA § 19-8-9 (b) so the child could be adopted. After HOPE filed the petition to terminate the putative father’s parental rights, Dow-dell notified HOPE she desired to revoke her surrender, claiming she lacked capacity to consent to the surrender of her rights. On summary judgment, the trial court rejected her claim of incapacity.

1. We first address the question of the juvenile court’s jurisdiction to render the subject judgment. “Jurisdiction over the subject matter of a case cannot be conferred by agreement or consent. [Cits.] A judgment rendered by a court without jurisdiction of the subject matter is a nullity and is subject to reversal by the appellate courts on their own motion. [Cit.]” Barland Co. v. Bartow County Bd. of Tax Assessors, 172 Ga. App. 61, 62 (322 SE2d 316) (1984).

The jurisdictional statute at issue in this case is OCGA § 15-11-5 (a) (2) (C), which grants the juvenile court exclusive jurisdiction “[f]or the termination of the legal parent-child relationship, other than that in connection with adoption proceedings under Chapter 8 of Title 19, in which the superior courts shall have exclusive jurisdiction to terminate the legal parent-child relationship and the rights of the biological father who is not the legal father of the child.” (Emphasis supplied.)

This case is controlled by the Georgia Supreme Court’s decision in H. C. S. v. Grebel, 253 Ga. 404 (321 SE2d 321) (1984). In Grebel, a couple who wished to adopt a child obtained a surrender from the child’s mother and petitioned to terminate the rights of a putative father. Although no adoption proceedings were actually pending, the Supreme Court found the termination to be “in connection with” an adoption because the petition itself stated the termination was in pursuance of the couple’s plans to adopt the child. Id. at 406. The purpose of the termination action here is to facilitate the adoption of B. G. D. Grebel establishes that this type of termination proceeding is “in connection with” an adoption, and therefore, exclusive jurisdiction over such matter is in the superior court.

We are therefore constrained to find the juvenile court lacked jurisdiction to consider this petition for termination of parental rights because that termination was sought “in connection with” an adoption proceeding. Thus, the judgment of the juvenile court must be vacated, and the case remanded to the juvenile court with direction that it be transferred to the superior court. See Duval v. Dept. of Human Resources, 183 Ga. App. 726, 727 (359 SE2d 756) (1987) (ordering remand and transfer to court of appropriate jurisdiction); Ga. Const. 1983, Art. VI, Sec. I, Par. VIII.

2. Language from older cases decided under a former version of OCGA § 19-8-9, which did not contain a ten-day limitation of the right to withdraw a voluntary surrender of parental rights, has been included in cases decided after 1977, when the limitation was first imposed. As the interpretation of this statute will arise upon remand, we clarify both the statute and the case law.

Pursuant to the present statute, OCGA § 19-8-9 (b), a parent who signs a valid voluntary surrender of parental rights has ten days within which to revoke that surrender as a matter of right; after the ten-day period, a surrender may not be revoked. Dowdell contends that even if her claims of incapacity and duress fail, the surrender of parental rights may be withdrawn at any time prior to the final adoption for good and sufficient cause. Dowdell relies upon the “good and sufficient cause” language contained in Ridgley v. Helms, 168 Ga. App. 435, 438 (309 SE2d 375) (1983).

A review of the history of the parental consent requirement in Georgia’s adoption law demonstrates the source of the “good and sufficient cause” analysis and the existence of case law which holds that the surrender of parental rights may be withdrawn after the ten-day limitation period for good and sufficient cause, even when such surrender has been given freely and voluntarily, and illustrates how it has been statutorily abrogated. Georgia has long required, in one form or another, parental consent as a prerequisite for adoption. In 1941, the relevant provision of the adoption statute provided that, except as otherwise specified, “no adoption shall be permitted except with the written consent of the living parents of a child.” Ga. L. 1941, p. 301. As this provision was interpreted in Wheeler v. Howard, 211 Ga. 596, 598 (87 SE2d 377) (1955), a parent could “arbitrarily” withdraw his or her consent to an adoption as a matter of right at “any time before final adoption.”

In 1957, the legislature amended the statute to provide: “ ‘Said consent when given freely, voluntarily, may not be revoked by the parents as a matter of right.’ ” Ga. L. 1957, p. 367. In Hendrix v. Hunter, 99 Ga. App. 785, 789 (3) (110 SE2d 35) (1959), this Court interpreted the 1957 amendment and held that the evidence presented by the parent for the revocation of her consent did not supply “sufficient reason and justifiable cause for the withdrawal of consent by the natural mother.” Id. at 789. In 1961, this Court quoted Hendrix for the proposition that “consent to the adoption, even when freely and voluntarily given, may be withdrawn by the natural parent or parents prior to the final order of adoption for good and suffi dent cause” (Emphasis supplied.) Ritchie v. Dillon, 103 Ga. App. 7, 11 (3) (118 SE2d 115) (1961). After Ritchie, “good and sufficient cause” became the benchmark upon which revocations of parental consent were evaluated.

In 1966, the adoption statute was amended again to institute certain procedural changes. Ga. L. 1966, pp. 212-215. Under this version of the statute, courts continued to apply the “good and sufficient cause” analysis to those cases where parents attempted to revoke their consent. See Duncan v. Harden, 234 Ga. 204, 206 (214 SE2d 890) (1975) (citing Ritchie for the proposition that parents may not revoke consent as a matter of right, but only for good and sufficient cause); see also Wellfort v. Bowick, 147 Ga. App. 565 (1) (249 SE2d 363) (1978) (revocation of consent may be sustained for good and sufficient cause).

The Adoption Act of 1977 comprehensively revised the adoption law in Georgia and, for the first time, imposed a ten-day limitation on the right of a parent to withdraw a valid, voluntary surrender of parental rights. Ga. L. 1977, pp. 201-223. It introduced the requirement of a parent’s “written surrender,” which replaced the previously required “written consent.” With regard to the issue of revocation, the statute provided: “A parent or guardian signing a surrender shall have the right to withdraw the surrender by written notice within 10 days after signing and the surrender document shall not be valid unless it so states. Thereafter a surrender may not be withdrawn” (Emphasis supplied.) Ga. Code Ann. § 74-404 (b). Ga. L. 1977, p. 204. This ten-day limitation period did not preclude a surrendering parent from challenging the validity of the surrender based on duress, fraud, incapacity or other grounds which address the voluntariness of the consent, as the statute clearly contemplates a valid, voluntary consent.

Thereafter, this statute was addressed in Ridgley, supra, where a birth mother attempted to revoke her consent outside the ten-day window. The opinion expressly recognized the ten-day withdrawal period implemented in the 1977 statute but implicitly found its requirements for revocation to be no different than prior versions of the adoption statute. “[Consent] when given freely and voluntarily may be revoked as a matter of right within ten days after signing the document. OCGA § 19-8-4 (b) (Code Ann. § 74-404). After ten days, although consent may not be withdrawn as a matter of right ‘it does not preclude such revocation prior to final adoption for good and sufficient cause.’ Duncan v. Harden, [supra]; accord: Wellfort[, supra].” Ridgley, supra at 438. Ridgley borrowed the analysis found in Duncan, a 1975 case which had been decided prior to the 1977 amendment, and Wellfort, a 1978 case which did not address the 1977 amendment to the statute. Ridgley did not address the 1977 amendment that specifically prohibited the withdrawal of a surrender after the ten-day period had ended. This Court also used the Duncan analysis in Boatman v. Chapman, 174 Ga. App. 77 (329 SE2d 185) (1985), citing Duncan for the proposition that revocation may be permitted prior to final adoption for good and sufficient cause.

Another significant revision of Georgia’s adoption law occurred in 1990. Ga. L. 1990, pp. 1579-1641. The statute enacted at that time is controlling in this case. It also contained the requirement of a written surrender established in 1977, OCGA §§ 19-8-4 through 19-8-7; the requirement that a parent may withdraw his or her surrender as a matter of right within ten days, OCGA § 19-8-9 (b); and the provision that “[a]fter ten days, a surrender may not be withdrawn” (Emphasis supplied.) OCGA § 19-8-9 (b).

The 1990 amendment, like the 1977 amendment, contemplates a valid voluntary consent. After all, if there was no valid consent, there could be no voluntary surrender and there would therefore be nothing to withdraw. The purpose of the limitation amendments was to limit the right of a surrendering parent to withdraw a surrender after the ten-day limitation period to those cases in which there was no voluntary consent given initially. We have, however, continued to sometimes apply the “good and sufficient cause” analysis language from the pre-1977 statute cases when reviewing post-1977 revocation cases. Schumacher v. Sexton, 216 Ga. App. 628, 630 (455 SE2d 348) (1995) (citing Ridgley for the proposition that consent can be revoked prior to final adoption for good and sufficient cause); Messer v. Marchman, 205 Ga. App. 364, 365 (422 SE2d 250) (1992) (affirming the trial court’s finding that no good and sufficient cause existed to support revocation of natural mother’s consent); see also Lee v. Stringer, 212 Ga. App. 401, 403 (441 SE2d 861) (1994) (citing Ridgley and Messer).

According to the plain language of the current statute, a parent may not revoke his or her valid surrender after ten days. We hold that such limitation does not limit the right of a surrendering parent to establish that there was no valid, voluntary consent given by such parent initially. Consequently, we must disapprove of any language in Messer, Lee, Schumacher, and other cases which might suggest that under the version of OCGA § 19-8-9 (b) adopted in 1990, a surrendering parent has the right to withdraw a properly executed surrender outside the ten-day withdrawal period for “good and sufficient cause,” except as outlined herein.

Appellant argues that such an interpretation of OCGA § 19-8-9 (b) would lead to absurd results because a surrendering parent could not revoke a surrender even if it had been signed because of duress, fraud or incapacity. This argument is without merit, as such facts would invalidate the consent and make the surrender voidable, in the same manner that such can be raised as a defense in a contract action involving the formation thereof. See Families First v. Gooden, 211 Ga. App. 272, 277 (5) (439 SE2d 34) (1993) (a surrender executed by an incapacitated party may be revoked).

Decided December 5, 1996

Reconsideration denied December 20, 1996

Joseph T. Justice, for appellant.

Huff & Woods, Jeanne D. Woods, Cauthorn & Phillips, Bruce W. Phillips, Garcia & Powell, Tony D. Coy, Dorothy L. Bjork, for appellee.

Judgment vacated and remanded with direction.

Beasley, C. J., Pope, P. J, Andrews, Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J., concurs and concurs specially. Birdsong, P. J., concurs specially.

Birdsong, Presiding Judge,

concurring specially.

Although I concur fully with all that is stated in the majority opinion, I write separately to urge the General Assembly to reconsider the extraordinary hardship it has placed on the natural parents of these adoptive children, and particularly upon these natural mothers, who are frequently poor and isolated from their families. As a juvenile judge I saw first-hand the extreme stress placed upon these mothers, who in many cases gave their children for adoption not because they wanted to or because they did not love the children, but because they felt that adoption was the best, if not the only, recourse available for the successful upbringing of their children.

Therefore, considering the extraordinary pressures bearing on these parents at the time these decisions must be made, ten days is entirely too short a period in which to revoke their surrender of their parental rights or irrevocably lose their right to do so. Consequently, I suggest the General Assembly revisit this issue. In this regard, I note that this Court received the benefit of an amicus brief from counsel who played a significant role in successfully including the ten-day period in our law, but I also note that his interest in this matter is as an adoptive parent and as an advocate for adoptive parents. While this continuing interest is laudable, the interests of natural parents should be considered by the General Assembly on this issue. Finality is an important end in these cases, but it is not the only end, and I do not believe the rights of the natural parents should be terminated so swiftly.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.

James B. Outman, amicus curiae.


text:
    A96A1237.
    G & MSS TRUCKING, INC. v. RICH.
    (479 SE2d 761)
   Blackburn, Judge.

In this case involving the Georgia Insurers Insolvency Pool (GIIP), we granted discretionary appeal to defendant G & MSS Trucking, Inc. to review the denial of its motion to reduce plaintiff William Rich’s personal injury and property damage judgment for $8,852.24 to $0. G & MSS’s insurer was declared insolvent after the two-year personal injury statute of limitation had expired, but prior to the running of the four-year statute of limitation for property damage. G & MSS contended that Rich’s failure to first obtain benefits from his own uninsured motorist coverage bars him from claiming against the GIIP. The trial court denied G & MSS’s motion, holding that because the statute of limitation expired before Rich served his uninsured motorist carrier, he had no insurance “available” when the defendant’s insurer became insolvent. G & MSS also claimed the verdict should be reduced by the amount of medical expenses ($1,171.25) Rich’s insurer paid. The trial court held G & MSS was not entitled to such deduction because Rich’s insurer had a subrogation claim to it. We review both rulings.

1. G & MSS argues that the Georgia Insurers Insolvency Pool Act, particularly OCGA § 33-36-14 (a), required Rich to “exhaust” his claims against his own uninsured motorist insurance carrier before proceeding against the GIIP: “Any person . . . having a claim against a policy . . . issued by an insolvent insurer, which . . . is . . .a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his rights under such policy issued by the solvent insurer. The policy of the solvent insurer shall be treated as primary coverage and the policy of the insolvent insurer shall be treated as secondary coverage and his rights to recover such claim under this chapter shall be reduced by any amounts received from the solvent insurers.” It is true that Rich was entitled to make an uninsured motorist claim for property damage at the time G & MSS became an “uninsured motorist,” because such a claim would have been within the applicable four-year statute of limitation. At that time, however, Rich had no personal injury benefit rights to “exhaust” under his uninsured motorist coverage because his claim thereto was barred by the two-year personal injury statute of limitation at the time it ripened. Under the facts of this case, plaintiff was not entitled to file an uninsured motorist claim under his own policy pursuant to the provisions of OCGA § 33-7-11 (b) (1) (D) (iv) until the defendant’s liability carrier became insolvent.

The subject automobile collision occurred on February 16, 1993, at which time Rich had $15,000 in uninsured motorist coverage for personal injury, $10,000 in uninsured motorist coverage on property, and $25,000 in medical payments coverage with Southern Trust Insurance Company. Rich filed the underlying suit on February 18, 1994, approximately one year after the collision. Commonwealth General Insurance Company, G & MSS’s liability carrier, was adjudicated insolvent on September 1, 1995, more than two years, six months after the collision.

Uninsured motorist coverage is designed to provide payment for all sums which the insured is legally entitled to recover as damages from the uninsured motorist. OCGA § 33-7-11; see St. Paul Fire &c. Ins. Co. v. Goza, 137 Ga. App. 581 (224 SE2d 429) (1976); State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 713 (177 SE2d 257) (1970). Here, the defendant did not become an uninsured motorist until September 1, 1995, the date of his insurance carrier’s insolvency, two and one-half years after the subject incident. OCGA § 33-7-11 (b) (1) (D) (iv). Had plaintiff served his uninsured motorist carrier within the two-year personal injury statute of limitation for service upon the defendant, such carrier would have been entitled to summary judgment as defendant was not an uninsured motorist at that time. OCGA § 9-11-56; Rabun v. Williams, 168 Ga. App. 467, 470 (3) (309 SE2d 624) (1983). At no time during the personal injury limitation period did the elements of a valid uninsured motorist claim exist.

By September 1, 1995, the date on which Rich was first entitled to file an uninsured motorist claim, the two-year statute of limitation for personal injury had already passed. In Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989), our Supreme Court stated “we have previously held that the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). It would be possible to formulate an exception for cases where . . . it is later determined that [liability] coverage does not apply. Such a rule might allow a plaintiff to serve process within a reasonable time after it is legally determined that the negligent motorist is uninsured. But, fashioning such a rule is a task that is better left to the legislature.”

Neither the legislature nor the Georgia Supreme Court has remedied the dilemma of Bohannon, and it is inappropriate for this Court to do so in this GIIP case. Contrary to G & MSS’ assertions, Bohannon is not dispositive of this case. Bohannon addressed only the narrow issue of the application of the statute of limitation to uninsured motorist coverage under OCGA § 33-7-11 (b) (1) (D) (iii), which is not at issue here. While we are bound to follow Bohannon, and do so here, it does not address the issue in the present case.

The issue here is whether or not plaintiff’s uninsured motorist •coverage constitutes such “coverage of any policy issued by a solvent insurer, [that plaintiff] shall be required to exhaust first his rights [thereunder],’’ under the GIIP, OCGA § 33-36-14 (a), where the uninsured motorist claim did not ripen until after the statute of limitation for its filing had run under Bohannon.

The four-year statute of limitation for Rich’s uninsured motorist property damage claim had not expired at the time G & MSS’ insurer became insolvent. See Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995) (noting that four-year statute of limitation covers uninsured motorist property damage claims). Because the four-year statute of limitation for property damage claims had not expired when G & MSS’ liability insurer became insolvent, Rich could have claimed uninsured motorist property damage benefits from his own carrier at that time. His failure to exhaust such rights prevents his recovering from the GIIP amounts for property damage available under his uninsured motorist coverage.

As to personal injury claims, however, it would be unreasonable to find that plaintiff should be charged with having a right to recover uninsured motorist benefits for personal injury where the statute of limitation barred his claim before it had ripened. This is not a case where an insured has sat upon his rights and must now suffer the consequences of such inaction. At no time was there a right to file the personal injury uninsured motorist claim within the statute of limitation imposed by Bohannon. Therefore, he had no rights to exhaust. To hold otherwise would be to penalize the responsible citizen who has obtained uninsured motorist coverage, by limiting his right to recover under the GIIP, while rewarding the less responsible citizen who never obtained the coverage in the first place and would thus never face the limitation of his recovery rights under the GIIP. Therefore, the trial court properly found that Rich’s failure to obtain uninsured motorist personal injury benefits does not bar his claim to GIIP funds. However, the trial court did err in failing to reduce the verdict by $2,200, the amount of property damage awarded by the jury.

2. The trial court also erred by failing to reduce the amount of Rich’s judgment by the amount of medical expenses he had already received from his own carrier. OCGA § 33-36-14 (a) states that the injured party’s rights to GIIP funds “shall be reduced by any amounts received from the solvent insurers,” which have the primary duty to pay. Therefore, the trial court should have reduced the amount of medical payment benefits actually received from the final judgment. That his insurer might have a subrogation claim against G & MSS does not give plaintiff a right to collect this money from the GIIP, or from the defendant whom the GIIP protects.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Beasley, C. J., Birdsong, P. J., and Andrews, J., concur in part and dissent in part.

Birdsong, Presiding Judge,

dissenting.

I cannot agree with the majority’s main holding.

The case relied on by the majority, Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162 (377 SE2d 853), has nothing to do with the Georgia Insurers Insolvency Pool, and nothing said in Bohannon applies to a case involving an insurer who “has become insolvent” OCGA § 33-36-2. The GIIP ensures that insurance is available when an insurer “has become insolvent” Id. It exacts an assessment against solvent insurers, and its availability to a plaintiff depends on that plaintiff’s diligence in exhausting first his rights against his own solvent insurer. OCGA § 33-36-14.

The purpose of the GIIP is to provide a remedy for covered claims “when the insurer has become insolvent” (Emphasis supplied.) OCGA § 33-36-2. This defendant’s insurer “has become insolvent” The majority concedes an uninsured motorist carrier must be served within the time allowed for service on the uninsured defendant in a tort action (Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416); Bohannon, supra) and this plaintiff did not serve his uninsured motorist carrier with a copy of his suit so that he could avail himself of his uninsured motorist coverage, but the majority would nevertheless force the GIIP to pay the plaintiff based on a nonsensical ideas that the plaintiff had no “right” to notify his uninsured motorist coverage of a claim until the defendant’s insurer was declared insolvent, and that the plaintiff had no “right” to avail himself of his uninsured motorist coverage after the defendant’s insurer was declared insolvent because the statute of limitation expired without any notice being given to his uninsured motorist carrier. This result violates the explicit terms of the GIIP Act.

OCGA § 33-36-14 (a) provides: “Any person . . . having a claim against a policy . . . issued by an insolvent insurer, which [is] a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his rights under such policy issued by the solvent insurer.”

Bohannon, supra, relied on by the majority, merely held that where an insured defendant is held not liable, if plaintiffs did not serve their own uninsured motorist carrier within the statute of limitation they cannot recover against it. That fact situation does not involve an insurer who “has become insolvent” (OCGA § 33-36-2), and | Bohannon is thus inapplicable to this case.

The GIIP Act specifically anticipates that an insurer who is solvent when the claim ripens may become insolvent. Bohannon’s remark that we cannot formulate a rule allowing the statute of limitation to run from the date that it is determined that coverage does not apply is not an issue in this case.

The issue is simply whether plaintiff has “exhausted] first his rights” under his own policy of insurance. According to his policy and the law, he did not give his insurer timely notice of his suit against the defendant. Had he done so, and even if his insurer had — as in Rabun v. Williams, 168 Ga. App. 467 (309 SE2d 624) — obtained a judgment establishing its non-liability while defendant’s insurer was solvent, plaintiff would be in compliance with the GIIP Act at OCGA § 33-36-14. At least he would not be barred from recovery from the GIIP because of failure to “exhaust first his rights” under his own policy. The fact that those rights were not “ripe” until defendant’s insurer became insolvent does not mean they did not exist; they were alive but quiescent until defendant’s insurer became insolvent. To say the plaintiff has no “right” to anticipate that a defendant’s insurer might become insolvent or might be found not liable, or to require him to wait until the defendant’s insurer has become insolvent and the statute of limitation has passed before complying with the usual rule in uninsured motorist cases to serve his insurer with a copy of the suit (Bohannon, supra at 163) is wrong, and it deprives him of his rights under the GIIP Act.

Plaintiff may avail himself of the GIIP — which is intended to provide coverage when the liable defendant’s insurer “has become insolvent” — even though the insolvency occurred after the statute of limitation on the plaintiff’s claim expired. I cannot conceive that the legislature failed to consider the possibility that a defendant’s insurer might become insolvent during litigation and after the statute of limitation expired on the claim, or that in the GUP’s requirement that plaintiff “exhaust first his claims” against his own insurer (OCGA § 33-36-14) it makes any difference whether the insurer became insolvent before or after the plaintiff’s suit was filed.

I do not see how it can be said that the plaintiff has no “right” to notify his uninsured motorist carrier of his suit against others who may later become insolvent, when he has a right to coverage under his policy in the event of such insolvency by a defendant’s insurer. The plaintiff’s service on his uninsured motorist carrier of his lawsuit against the defendant is a natural precaution; the legislature certainly considered the distinct possibility that the defendant’s insurer may “become insolvent” during the course of litigation, and so may the wise plaintiff. The plaintiff has a right, if not a duty, under OCGA § 33-36-14 to notify his solvent insurer of his suit against a defendant who may become uninsured, for if he does not do so, he can never “exhaust first his rights” under his own insurance and can never avail himself of his rights under the GIIP and under his own policy.

Nevertheless, the majority perceives plaintiff had no “right” to serve a copy of his lawsuit on his own uninsured motorist carrier until defendant’s insurer became insolvent, because if plaintiff had served his uninsured carrier with the suit he filed against the defendant before that time, plaintiff’s insurer would then and there be entitled to summary judgment. I do not doubt that to be true. In the case cited by the majority, the plaintiff did not file suit against his uninsured motorist carrier (Aetna) as a defendant; he only served it with a copy of his suit against others as an advisory precaution. Rabun v. Williams, supra at 469. Taking no chances, Aetna won a judgment on grounds it could not be a defendant since the defendants’ insurers were not insolvent. Id. at 470 (3). This ruling adjudicated Aetna’s non-liability as a defendant at that time, but it did not adjudicate Aetna’s liability in the event defendants’ insurers later became insolvent. If they became insolvent, the plaintiff would not be barred from a later claim against his insurer Aetna; by serving the suit on his insurer he did all he could do, before the statute of limitation expired on his claim, to “exhaust first his rights” under his policy.

The majority further asserts plaintiff had no “rights” to file a claim against his uninsured motorist carrier because “under the facts of this case” pursuant to OCGA § 33-7-11 he was not entitled to file an uninsured motorist claim under his own policy until the defendant’s insurer became insolvent. But that statute does not say a plaintiff has no “right” to give his uninsured motorist carrier notice of his claim against others. According to Bohannon, on which the majority relies, in cases not involving a claim against the GIIP an uninsured motorist carrier must be served within the time allowed for service on the defendant in the tort action. There is no reason to say the plaintiff cannot send his uninsured motorist carrier a copy of his suit against other insured defendants; the plaintiff has this right whenever he perceives a possibility that his uninsured motorist coverage may be called into play. Obviously a plaintiff could not file a claim against his uninsured motorist carrier until the defendant became uninsured, but giving notice to his uninsured motorist carrier of his lawsuit against a defendant who may become uninsured is entirely reasonable, and necessary under OCGA § 33-36-14. And since some such notice is required to exhaust his rights to coverage by his uninsured motorist carrier in the event the defendant’s insurer “has become insolvent” (OCGA § 33-36-14), then it must be given if the plaintiff later intends to seek the benefits of the GIIP. This is not a new rule, but is simply a common sense reading of the Act.

The thrusting point is that whenever an insurer becomes insolvent and the claim is covered by a solvent insurer, the plaintiff cannot recover from the GIIP unless the plaintiff “exhaustfs] first his rights” under his insurer’s policy. (Emphasis supplied.) The word “exhaust” in OCGA § 33-36-14 necessarily includes a requirement that plaintiff serve a copy of his suit on his own insurer within the statute of limitation of his claim and within the terms of his policy. The legislature has given the plaintiff the means by which to do this in ordinary cases, so that his solvent insurer may protect itself and may provide coverage for the claim as the GIIP Act intends. Peoples v. State Farm &c. Ins. Co., 211 Ga. App. 55, 56 (438 SE2d 167). The fact that the legislature did not specify exactly how the plaintiff can “exhaust first his rights” (OCGA § 33-36-14) in cases where the defendant’s insurer “has become insolvent” (id.) does not allow the plaintiff to recover against the GIIP without having done so.

Where the plaintiff knows he is proceeding against an uninsured motorist, he may list his carrier as a party defendant or not, but he has no option regarding service, for the law requires the insurer be served so it can assess its potential liability from the time litigation commences against the tortfeasor. USF&G Ins. Co. v. Myers, 214 Ga. App. 851, 852 (449 SE2d 359). The insured cannot avoid the mandate of OCGA § 33-7-11 (d) and the consequences of not complying with it when and if he perceives a need to pursue uninsured motorist coverage for payment of the potential judgment. The legislature has given to the insurer the opportunity to anticipate underinsured motorist claim liability and to prepare for it. Peoples, 211 Ga. App. at 56. The concept underlying the GIIP Act even more strongly requires such precautionary action on the part of the plaintiff; otherwise, he has done nothing to exhaust first his rights against his own carrier, and what rights he had to claim coverage from his own insurer die on the vine. The GIIP presumes any insurer may potentially become insolvent, and so should the careful plaintiff. The solvent insurer’s potential liability as primary insurer is what the legislature intended to capture by making it the plaintiff’s obligation to “exhaust first his rights” under his solvent insurer’s policy — whatever that means. And he cannot, at least in this case, “exhaust” his rights under his policy unless he serves his insurer in a timely manner as required by the policy and by law.

Accordingly, I disagree with the majority’s ruling which, contrary-to law, allows a plaintiff to avail himself of the GIIP without having exhausted his rights against his own solvent insurer.

I am authorized to state that Chief Judge Beasley and Judge Andrews join in this dissent.

Decided December 5, 1996

Reconsideration denied December 20, 1996

Saveli & Williams, Charles M. Dalziel, Jr., Laura A. Gaughan, for appellant.

W. Benjamin Ballenger, for appellee.


author: Andrews, Judge.

text:
    A96A1287.
    GORING v. MARTINEZ et al.
    (479 SE2d 432)
   Andrews, Judge.

Goring appeals from the grant of summary judgment to Martinez, a physical therapist, and his employer, DeKalb Medical Center (DMC), on her claims alleging malpractice in the planning and conduct of her physical therapy. It was also alleged that DeKalb Medical Center was responsible under respondeat superior and failed to adequately supervise Martinez, but these claims hinge on the malpractice claim against Martinez.

Goring worked for DeKalb Medical Center as an aide-transporter and injured her shoulders on July 20, 1991 while helping a patient. She underwent surgical rotator cuff repair on her right shoulder in April 1992 and was thereafter referred to Workswell Rehabilitation Center, part of Rehabilitation Services at DMC. There, she worked with Martinez, an occupational therapist licensed in Georgia and coordinator of the Center. The Center provides work conditioning and hardening services which include occupational and physical therapy services, designed as a continuum of care to improve patients’ physical and functional capacities for the return to work. On August 25, 1992, Goring was evaluated by Martinez and a modified work hardening program was designed for her. She began treatment on September 1, 1992 and continued until October 23, 1992, when she contends that she, “while performing physical therapy exercises as directed under Defendant’s supervision, felt severe pain in her right shoulder [which] soon spread over her right leg, back, and neck.”

After conducting some discovery, DMC and Martinez filed their motion for summary judgment on the ground that the “care, occupational therapy, and physical therapy, designed and provided by . . . Martinez . . . and the other staff . . . was in compliance with that degree of care and skill employed by occupational therapists and physical therapists generally under similar conditions and like surrounding circumstances” based on the affidavit of Martinez.

1. With the complaint, Goring filed an affidavit of Dr. Bullard, a medical doctor specializing in family medicine and personal injury, disability and impairment evaluation and treatment.

We need not consider whether the affidavit, standing alone, was sufficient for purposes of OCGA § 9-11-9.1, since the trial court, in the order appealed, concluded it was sufficient for that purpose, but insufficient to defeat summary judgment.

2. The trial court ruled that none of the affidavits submitted by Goring, Dr. Bullard’s initial one and the addendum, and one by Dr. James, an orthopedic surgeon, “show how the Plaintiff’s experts, a family practitioner and an orthopedic surgeon, are competent to testify against an occupational therapist.”

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

(a) We conclude, as did the trial court, that the design and execution of a program of occupational and physical therapy is not one of those matters, as contended by Goring, where the asserted actionable negligence would appear to be so clear that expert testimony is unnecessary to determine the issue. McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 416 (1) (336 SE2d 268) (1985); see Drury, supra at 541.

(b) The affidavit of Dr. Bullard, as supplemented, stated his medical credentials, his area of practice, and that “[i]n my experience, computerized assessments of patient’s abilities such as the ERGOS reports utilized by the Workswell therapist in this case are accurate. The general practice is to comply with the computerized-set limits or use them as an upper boundary in prescribing treatment. In my opinion, it was a breach of due care, skill and diligence for the therapist to ignore the information the computer program gave him on Ms. Goring’s physical limitations. The printout listed that her limits were 20 lbs, and the therapist directed Ms. Goring to lift 30 lbs.”

Dr. James’ affidavit set out her medical educational credentials, and stated that “I have often worked with the rehabilitation of patients from shoulder injuries, often coordinating such treatment through my office. [I or the therapists that I supervise utilize computers in the assessment of the propriety of various physical exercises that the patients will undertake.] Therefore, I am familiar with the degree of case [sic] and skill employed by medical care providers who rehabilitate and supervise the rehabilitation of patients from debilitating injuries generally with regard to the circumstances involving the treatment of Carla Goring.”

(i) With regard to Dr. Bullard, we agree with the trial court that there was an insufficient showing of his competence to testify as an expert with regard to the practice of occupational and physical therapy. Hewett v. Kalish, 264 Ga. 183, 185 (1) (442 SE2d 233) (1994); Seely v. Loyd H. Johnson Constr. Co., 220 Ga. App. 719, 722 (1) (470 SE2d 283) (1996); Riggins v. Wyatt, 215 Ga. App. 854, 855 (452 SE2d 577) (1994); Bethea v. Smith, 176 Ga. App. 467, 468 (2) (336 SE2d 295) (1985).

(ii) Pretermitting the issue of Dr. James’ competency, see Rig-gins, supra and Bethea, supra (familiarity with standard of care and treatment of another profession not enough), we conclude that the grant of summary judgment to Martinez and DMC was appropriate for other reasons.

Dr. James’ affidavit stated that she examined Goring on June 1, 1995 and took x-rays of her spine. She also reviewed a “letter of 6/1/95, . . . the MRI report of 3/10/93 [and] the following medical records: Medical report affidavit Aug 4, 1994 — Dr. Lester Bullard, Workswell letter to Dr. Arthur Tracht on 11/3/92 and Dr. Tracht’s office notes 9/17/91-7/12/93.” None of these documents is properly certified or attached to Dr. James’ affidavit as required by OCGA § 9-11-56 (e). While material need not be attached if the affidavit is based upon material that is part of the record and before the court, the affidavit still must specifically identify those documents and failure to do so results in summary judgment. Williams v. Hajosy, 210 Ga. App. 637, 638 (2) (436 SE2d 716) (1993); Augustine v. Frame, 206 Ga. App. 348, 349 (1) (425 SE2d 296) (1992); McClure, supra at 417 (2). These records are not adequately identified in the affidavit, nor does Goring’s brief point them out in the record before us. We will not “cull the record in search of error on behalf of one of the parties. [Cits.]” Saffar v. Chrysler First &c., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994).

Decided December 5, 1996

Reconsideration denied December 20,1996.

Patricia D. Bernard, for appellant.

Sullivan, Hall, Booth & Smith, Timothy H. Bendin, Earnest Redwine, for appellees.

To the extent that Dr. James’ opinion is premised on statements made to her by Goring and others, including Dr. Bullard, it is improperly premised on hearsay and facts not otherwise in the record. Doctors Hosp. v. Bonner, 195 Ga. App. 152, 159 (3) (392 SE2d 897) (1990). That Dr. James personally examined Goring two and one-half years after the incident at issue does not save Goring from summary judgment. While an expert’s opinion may be premised upon personal knowledge, it must be personal knowledge of the facts of the case, of which Dr. James does not claim knowledge other than through hearsay. Hayes v. Murray, 252 Ga. 529, 530 (314 SE2d 885) (1984); Crawford v. Phillips, 173 Ga. App. 517 (1) (326 SE2d 593) (1985).

3. A grant of summary judgment will be affirmed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (403 SE2d 47) (1991); Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       No question has been raised regarding Martinez’ status as a fellow servant and the issue of immunity under OCGA § 34-9-11, and we will not address it further. See Weller v. Brown, 266 Ga. 130 (464 SE2d 805) (1996); Clark v. Williamson, 206 Ga. App. 329 (1) (425 SE2d 311) (1992); Drury v. VPS Case Mgmt. Svcs., 200 Ga. App. 540 (408 SE2d 809) (1991).

       This is also not a situation where, by deposition or otherwise, the opposing party has acknowledged the accuracy of uncertified medical records. Compare Paulin v. Okehi, 264 Ga. 604, 605 (449 SE2d 291) (1994).