author: Blackburn, Judge.

text:
    A94A2436.
    WALKER v. THE STATE.
    (452 SE2d 580)
   Blackburn, Judge.

In a three-count indictment, the appellant, Robert Walker (Walker), and his brother, John Henry Walker, were each charged with child molestation, enticing a child for indecent purposes, and statutory rape. Following a joint trial by jury, Walker was found guilty of child molestation and was acquitted of the other offenses. John Henry Walker was convicted of all three offenses and on appeal, his convictions were affirmed by this court. Walker v. State, 214 Ga. App. 777 (449 SE2d 322) (1994). The present appeal follows the trial court’s denial of Walker’s motion for new trial.

1. Contrary to Walker’s assertions, the evidence of Walker’s guilt of child molestation is amply supported by the record before us. The victim, who was 12 years old at the time of trial, is the daughter of John Henry Walker’s former live-in girl friend. She positively identified Walker at trial as an individual who sexually abused her from the age of six until she was ten years old. The victim specifically recalled an incident in which Walker took her into a bedroom in his girl friend’s home and had sexual intercourse with her. She also recounted another incident in which Walker led her up to her mother’s bedroom and had sexual intercourse with her. Walker often stayed in the victim’s home and had ample opportunity to sexually abuse her since the victim’s mother frequently left her home alone.

The victim informed her grandmother, investigating officers, and social workers of Walker’s specific acts of sexual abuse. Dr. Karen Stuart, an obstetrician/gynecologist with training and experience in examining molestation victims, testified that her medical findings following an examination of the victim’s hymen were consistent with repeated penile penetration.

This evidence was more than sufficient to authorize a rational trier of fact to find Walker’s guilt of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Johnson v. State, 214 Ga. App. 531 (448 SE2d 274) (1994).

We reject Walker’s contention that his conviction is inconsistent with his acquittal of statutory rape and enticing a child for indecent purposes. As the Supreme Court held in Dennis v. State, 263 Ga. 257, 259 (3) (430 SE2d 742) (1993), “[consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.” (Citations and punctuation omitted.) The Supreme Court abolished the inconsistent verdict rule in criminal cases in Milam v. State, 255 Ga. 560 (2) (341 SE2d 216) (1986). See also Smashum v. State, 261 Ga. 248 (2) (403 SE2d 797) (1991). In addition, the acquittals on the statutory rape and enticing a child for indecent purposes charges do not preclude the findings of fact necessary to support a conviction for child molestation as a trier of fact could believe a part of a witness’ testimony and discredit other parts. See Allen v. State, 203 Ga. App. 359 (1) (416 SE2d 869) (1992).

2. Next, Walker argues he was denied due process and his statutory right to a thorough and sifting cross-examination when the trial court limited his questioning of the victim. Walker’s trial counsel asked the victim “[y]our mother used to see a lot of men, didn’t she? The victim responded “[y]es.” In response to the question that “[s]he had a lot of men around the house, didn’t she?” the victim stated that her mother ran away from her grandmother. When Walker’s trial counsel asked “[s]he did? [w]hy did she do that?” the prosecutor objected to this line of questioning on the ground that the testimony was not relevant to the issues presented. The trial court, by implication, sustained the objection, and instructed counsel to limit his questioning to the time period in which the alleged acts of sexual abuse occurred.

“The trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.” (Citation and punctuation omitted.) Wheeler v. State, 212 Ga. App. 638, 639 (442 SE2d 906) (1994). Under the circumstances, we find no abuse of discretion. Id. Consequently, Walker was not denied effective assistance of counsel based upon the limitations placed upon counsel’s cross-examination of the victim.

3. Walker additionally argues that he was denied effective assistance of counsel because trial counsel failed to fully investigate the case, and failed to file Brady and other pre-trial motions. Walker raised this contention below in his amended motion for new trial. The transcript of the February 9, 1994, hearing shows that the trial court held an evidentiary hearing on Walker’s motion and the denial of the motion was based upon all of the evidence and the record. The appellate record does not contain a copy of the transcript of that hearing. “[W]e are unable to address this enumeration. . . . Absent a transcript, we must assume the ruling of the trial court is supported by the evidence.” (Citation and punctuation omitted.) Jackson v. State, 205 Ga. App. 827, 829 (3) (424 SE2d 6) (1992).

4. Lastly, Walker, an African-American, maintains that the trial court committed reversible error when the court refused to allow Walker’s trial counsel to inquire of any racial bias of the members of the venire against him. The trial court allegedly refused to allow the following question to be asked by John Henry Walker’s defense counsel during individual questioning of the venire: “Are you racially biased towards blacks in any way? The juror responded: “No.” As the State attempted to comment on the question, John Henry Walker’s counsel stated that the question was proper. The trial court instructed counsel to show him authority supporting such questioning as the trial judge did not believe that the question was proper. The appellate record does not show that Walker’s trial counsel posed this or any similar question to any juror.

Under OCGA § 15-12-133, counsel for either party has the right to inquire of individual jurors concerning matters which would illustrate any interest of the juror in the case, including any fact indicating any inclination, leaning, or bias respecting any party. Pretermitting whether this issue was properly preserved by Walker for appellate review, the question should have been allowed. Walker, supra. See also Legare v. State, 256 Ga. 302 (1) (348 SE2d 881) (1986). However, as we held in Walker, supra, Walker had a fair and adequate opportunity during voir dire to explore the potential juror’s racial bias, and counsel had an opportunity to obtain information on any potential juror’s racial bias from the questions posed by co-defendant’s counsel during individual voir dire. Id. As we noted in Walker, the jurors were asked the following as a part of the statutory questioning without an affirmative response: “Have you any prejudice or bias resting on your mind either for or against the accused?” In addition, John Henry Walker’s counsel specifically asked members of the venire if they socialized with blacks, if they employed blacks in their home, if they worked with blacks, and if they supervised blacks or worked with them as peers. Id. John Henry Walker’s counsel also asked the members of the venire if they or their spouses belonged to any discriminatory fraternal, religious, or social organizations and what type of bumper stickers or flags they displayed on their cars. “The broad leeway allowed by the trial court distinguishes this case from Legare, supra, and Craig v. State, 165 Ga. App. 156 (299 SE2d 745) (1983).” Walker, supra at 779.

Control of individual voir dire is within the sound discretion of the trial court. Id. Under the facts of this case, any error of the trial court in putting a chill upon defendant’s right to ask the specific question in issue was harmless. Id.

Decided December 19, 1994.

David J. Grindle, for appellant.

Douglas C. Pullen, District Attorney, Martha M. Dicus, Mark C. Post, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Beasley, Presiding Judge.

license: Public Domain

text:
    A94A2603.
    RICKER v. FIRST FEDERAL OF LACROSSE-MADISON.
    (452 SE2d 583)
   Beasley, Presiding Judge.

Ricker and Herren executed a promissory note in favor of Cobb Federal Savings Bank in the principal sum of $1,650,000, payable in monthly installments. With these funds, the borrowers purchased a tract of land on which they constructed an apartment complex. To secure the indebtedness, they conveyed to the bank an instrument entitled a “MultiFamily Deed to Secure Debt, Assignment of Rents and Security Agreement.” The subject matter of the deed to secure debt was the tract of land and all buildings and improvements. The assignment of rents gave the bank a security interest in the tenants’ rental payments. Under the security agreement, the bank was given a security interest in various items of personal property in the apartment complex. To secure the note, the borrowers also executed to the bank an assignment of a $100,000 certificate of deposit.

Approximately two years after the initial monthly installment was due, the borrowers ceased making payments. Cobb Federal notified them that it was accelerating the indebtedness as a result of the default and that if payment was not made within ten days it would proceed with the collection of the note by all legal means, including foreclosure of the security deed. Herren filed for protection under federal bankruptcy laws, which resulted in a stay of foreclosure proceedings. After the stay was lifted, Cobb Federal foreclosed the security deed, sold the property to itself as the highest bidder for $1,725,000, and obtained judicial confirmation of the foreclosure sale.

Prior to the lifting of the stay, Cobb Federal had begun receiving the rent payments being made by apartment residents, in accordance with the assignment of rents. It had also commenced an action against Ricker in state court for damages arising from his failure to make monthly payments on the note. That action was removed to federal court after the Resolution Trust Corporation was appointed conservator for Cobb Federal. However, the conservator assigned the note, security deed, and cause of action against Ricker to First Federal, and the federal court action was dismissed.

First Federal then instituted this action against Ricker, seeking a deficiency judgment in the principal amount of $433,306.46. In opposition to a motion for summary judgment by First Federal, Ricker filed an affidavit stating that Cobb Federal’s notice of intent to foreclose on the apartment complex did not state that any personalty would be foreclosed upon or sold; that following foreclosure Cobb Federal nonetheless took possession of substantial items of valuable personal property subject to the security deed; and that Cobb Federal has never given Ricker any notice or advice as to what became of the personalty or certificate of deposit which also secured the indebtedness. Alternatively, Ricker argued that if First Federal established that he is indebted to it, there nonetheless remains a question of fact with respect to the amount of that liability, in that First Federal made no accounting of the personalty and certificate of deposit. In response, First Federal filed affidavits showing that following foreclosure, $56,567.53 in rents was received pursuant to the assignment of rents; that this amount was applied to delinquent 1990 taxes; and that the $100,000 certificate of deposit was released subsequent to loan origination and prior to default. Ricker continued to oppose First Federal’s motion for summary judgment, in that First Federal had still failed to account for the seized personalty.

The court granted summary judgment to First Federal on the issue of Ricker’s liability on the note but denied it summary judgment on the issue of the amount owed.

In his appeal, Ricker argues that OCGA §§ 11-9-504 and 11-9-505 require a creditor, upon seizing personal property, to either give notice to the debtor and sell the seized property in a “commercially reasonable manner” or retain the collateral; that if the creditor chooses the former, he may seek confirmation and thereafter pursue a deficiency; that if he chooses the latter, he does so in full satisfaction of the underlying debt; that Cobb Federal chose the latter so that any remaining indebtedness by him on the note has been discharged as a matter of law.

Such argument has been squarely rejected in McCullough v. Mobiland, 139 Ga. App. 260, 262 (2) (228 SE2d 146) (1976), as well as ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 712 (2) (320 SE2d 784) (1984). See also Emmons v. Burkett, 256 Ga. 855, 856 (2) (353 SE2d 908) (1987) (holding that a creditor’s failure to give notice of a sale or conduct a commercially reasonable sale, as required by OCGA § 11-9-504 (3), is not an absolute bar to the creditor’s obtaining a money judgment on the underlying debt but rather creates a rebuttable presumption that the sale price of the collateral was adequate); Wade v. Sport Concession Enterprises, 138 Ga. App. 17 (225 SE2d 488) (1976) (affirming a jury verdict for the creditor in a suit to recover a balance due on a promissory note, where the evidence showed that it had retaken possession of collateral for the purpose of preserving it from imminent destruction or loss and there was no resale market for it); compare Bradford v. Lindsey Chevrolet Co., 117 Ga. App. 781 (161 SE2d 904) (1968) (reversing the grant of an automobile dealer’s motion for j.n.o.v., where the evidence showed that after the automobile was repossessed, the creditor had retained rather than sold it and it was worth approximately the amount sued for at the time suit was filed).

Decided December 19, 1994.

Garvis L. Sams, Jr., for appellant.

As recognized in McCullough, under OCGA § 11-9-505 (2) a creditor may propose to keep seized collateral in satisfaction of the debt so long as he gives required notice and no one objects, but this is a permissive and not mandatory remedy. 139 Ga. App. at 263. Where, as in McCullough, Terryphone, and the case at bar, there is nothing in the record that suggests that such a proposal was ever made or intended, the creditor’s retention of seized collateral does not bar suit on the underlying debt as a matter of law.

This does not mean that the creditor owes no duties to the debtor with respect to the collateral. Terryphone, 171 Ga. App. at 712 (3). Once a creditor has possession of the collateral he must act in a commercially reasonable manner and is liable for any damage sustained by the debtor as a result of breach of that duty. Id. Thus, the personalty seized by Cobb Federal must be applied toward liquidation of Ricker’s debt, and he is entitled to any damage sustained by him as a result of any failure by Cobb Federal to act in a . commercially reasonable manner with respect to the seized personalty. Id.

Ricker also suggests that the facts of this case create a jury question as to whether Cobb Federal’s retention of the personalty constituted an accord and satisfaction. In this case, as in McCullough, 139 Ga. App. at 260 (1), there is no evidence of any accord and satisfaction. Of course, a satisfaction of the debt would result if the value of the seized personalty equaled the amount of the unpaid indebtedness, as in Bradford, supra. There has been no showing that First Federal or its predecessor in interest Cobb Federal entered into any agreement or engaged in any conduct which would discharge Ricker’s liability as a matter of law.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

Moore & Rogers, Eldon L. Basham, for appellee.


text:
    A94A2723.
    LEWIS v. THE STATE.
    (452 SE2d 228)
   Beasley, Presiding Judge.

Following a bench trial, Lewis was convicted of driving under the influence of alcohol with an alcohol concentration of 0.10 grams or more (OCGA § 40-6-391 (a) (4)). The trial court considered the results of a pre-arrest blood-alcohol test administered to Lewis at the hospital where he was taken and treated. He had driven his vehicle head-on into a utility pole and had to be cut out of the vehicle by emergency personnel. Lewis’ blood tested positive for 0.15 grams percent ethyl alcohol. A motion for new trial, as amended, was denied and he appeals.

The sole contention is that the trial court erred in denying Lewis’ motion to suppress the result of the test. He argues that there was insufficient evidence of “serious” injury so as to invoke his implied consent to the blood-alcohol test under OCGA § 40-5-55 (a).

OCGA § 40-5-55 (c) defines “ ‘traffic accident resulting in serious injuries or fatalities’ ” as used in subsection (a) to mean “any motor vehicle accident in which a person was killed or in which one or more persons suffered a fractured bone, severe burns, disfigurement, dismemberment, partial or total loss of sight or hearing, or loss of consciousness.”

First, the responding officers believed that Lewis’ crash did result in serious injuries as defined under the implied consent statute. As one officer approached the accident scene he observed that there was a lot of blood and that Lewis and his passenger Adair were screaming as if in pain. The officer saw blood about Adair’s facial area and that “there was a great bit of disfigurement to [Adair’s] right leg and the upper part of the leg,” “the top side of the leg was turned completely to the outside while the inside part of the leg was still straight, straight up, the way it would normally be.” Another officer testified at trial that Adair’s leg appeared “kind of deformed. There was a big . . . huge knot . . . between the [kneecap] and the hip.” The knot was “somewhere from 12 inches” and “about clear across his thigh” and the officer believed that Adair’s leg was broken. This same officer also observed that Lewis had “a lot of blood on him” with “[s]ome to the head” and that one of his ankles was swollen to “[a]bout the size of a softball.”

Second, the injuries as reported by the officers did in fact constitute serious injuries as defined under the implied consent statute. In the context of aggravated battery (OCGA § 16-5-24), this court has utilized a definition of “disfigurement” from Black’s Law Dictionary: “ ‘that which impairs or injures . . . the appearance of a person.’ ” In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991), citing Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980). There is no requirement that the disfigurement be permanent. Id. The application of the definition compels the conclusion that as a result of the collision both Lewis and Adair sustained the serious injury of “disfigurement” so as to invoke implied consent under OCGA § 40-5-55 (a).

Decided December 19, 1994.

Michael S. Waldrop, for appellant.

Cheryl F. Custer, District Attorney, S. Dabney Yarbrough, Assistant District Attorney, for appellee.

The trial court correctly denied the motion to suppress on the basis urged.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1166.
    TANTE v. HERRING et al.
    (451 SE2d 130)
    Decided December 7, 1994
    Reconsideration denied December 20, 1994.

      Denney, Pease, Allison, Kirk & Lomax, John W. Denney, for appellant.

      Beltran & Associates, Frank J. ' Beltran, Simone R. Siex, for appellees.
   Birdsong, Presiding Judge.

In Tante v. Herring, 264 Ga. 694 (453 SE2d 686) (1994), the Supreme Court affirmed in part and reversed in part the judgment of this court in Tante v. Herring, 211 Ga. App. 322 (439 SE2d 5). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this court. Accordingly, that part of the trial court’s judgment granting summary judgment on the Herrings’ claims for legal malpractice and breach of contract is reversed, but that part of the judgment of the trial court granting summary judgment to the Herrings on their claim for breach of fiduciary duty is affirmed, and the case is remanded to the trial court so that the Herrings may pursue their claim for damages resulting from Tante’s breach of his fiduciary duty.

Judgment affirmed in part and reversed in part.

Pope, C. J., and Andrews, J., concur.


author: Smith, Judge. McMurray, Presiding Judge,

text:
    A94A0942.
    McCURLEY et al. v. LUDWIG et al.
    (452 SE2d 554)
   Smith, Judge.

Deborah and Jerry McCurley brought suit against Carole Ludwig and her son, John Pritchard, for injuries resulting when the framework of an unfinished roof over a riding arena on Ludwig’s farm collapsed and fell on both Deborah McCurley and her horse. See generally OCGA § 51-3-1. The case went to trial before a jury. At the close of evidence, the court granted Ludwig’s motion for directed verdict with respect to her potential liability as the owner of the premises. The remaining case against the defendants ended with a jury verdict in their favor. The McCurleys filed a motion for new trial, which was denied. This appeal followed.

The facts are not in material dispute. Ludwig is a veterinarian who owns and lives on a farm in Oconee County, Georgia, where she gives riding lessons. The lessons are given at a specially prepared 69 x 180 foot riding arena. In late May or early June 1990, Ludwig decided to cover the arena with a roof. The roof was designed to use preconstructed trusses supported by posts and beams set in the ground outside the concrete curb of the arena, allowing unobstructed riding within. Ludwig continued to give riding lessons during construction.

At the time of the accident, Deborah McCurley was a dressage rider who had taken both private and group lessons from Ludwig at Ludwig’s farm. McCurley was preparing for a dressage competition and called Ludwig to schedule a lesson. McCurley first became aware of the construction in progress when she arrived at the Ludwig farm for her scheduled lesson. Earlier that very day, appellee Pritchard had completed the placement of the roof trusses on their supporting poles and beams. Even though the trusses were only “temporarily” braced, the arena was in use when McCurley arrived. Upon completion of the riding lessons already in progress, Ludwig invited Mc-Curley and her horse into the arena.

At the end of the lesson, Ludwig exited the arena while McCurley remained to cool down her horse. At that time, a summer rainstorm began to form on the horizon, and a high wind developed. As the wind continued to blow against the roof structure, a crack was heard. The roof trusses collapsed, falling on McCurley and her horse and injuring McCurley.

1. The McCurleys contend the trial court erred in directing a verdict in favor of Ludwig at the close of evidence. We disagree. “The basis of the owner or occupier’s liability is [her] superior knowledge of the existence of the defect or hazard that may subject an invitee to an unreasonable risk of harm.” Amear v. Hall, 164 Ga. App. 163, 167 (2) (296 SE2d 611) (1982). The McCurleys failed to establish at trial that Ludwig possessed a superior knowledge of a hazardous condition or defect with respect to the roof structure, or even that such a defect existed. As to the latter point, see, e.g., Brooks v. Oil-Dri Corp., 205 Ga. App. 214, 215 (422 SE2d 22) (1992).

The McCurleys urge that this case is governed by the holding in Towles v. Cox, 181 Ga. App. 194, 197 (1) (351 SE2d 718) (1986). We disagree. Towles dealt with a plaintiff whose injuries could be directly attributed to the landowners’ failure to maintain a constant patrol during periods of dangerous construction activity that would cause a “ ‘reasonable apprehension of danger to other customers or invitees. . . .’” Id. Construction “activity” clearly did not cause Deborah McCurley’s injuries in this case; they were caused by the failure of a free-standing structure to remain standing, for whatever reason.

The only person who testified at trial regarding the state of the roof structure at the time it failed was the person in charge of its construction, appellee Pritchard. Pritchard confirmed that he told no one the structure as it existed just prior to its collapse might be vulnerable. He also testified he would not have braced the structure differently even if he had planned to delay its completion for a week. Finally, he confirmed that in his opinion there was no problem with the structural integrity of the bracing as it existed on the day the framing collapsed.

Even if it is conceded that Ludwig had a duty to inspect the roof structure before allowing riders inside the arena, there was no evidence presented at trial that she would have discovered any defect of which McCurley would have been unaware. We find no error in the trial court’s directed verdict in favor of Ludwig on this limited issue.

2. The McCurleys argue the evidence did not authorize a charge on act of God. However, Ludwig testified that the wind caused the tops of her sycamore trees to wave; that the weather event was “real strange”; and that it occurred during a time when the weather had been generally dry, stagnant, and “oppressively hot.” Deborah Mc-Curley confirmed that “some wind came up” during the lesson and blew trash across the arena.

“Even slight evidence is enough to authorize a trial court to charge the law on an issue if there is some evidence from which a legitimate process of reasoning can be carried.” (Citations omitted.) Mann v. Anderson, 206 Ga. App. 760, 762 (1) (426 SE2d 583) (1992).

In Sampson v. Gen. Elec. Supply Corp., 78 Ga. App. 2, 8 (3) (50 SE2d 169) (1948) and Goble v. Louisville &c. R. Co., 187 Ga. 243, 250-251 (200 SE 259) (1938), the trial court’s refusal to charge on act of God was upheld since “ ‘an ordinary freshet is not the act of God in the legal sense. . . .’” Goble, supra. However, the rationale in both cases was that such an act “excludes all idea of human agency.” Id. In neither case could it be said that the “freshet” was the sole cause of plaintiff’s injury, unmixed with defendant’s failure to reasonably anticipate it, whether the downpour was extraordinary or totally unremarkable. It therefore could not be argued in Sampson or Goble, supra, that a charge on act of God was appropriate as a matter of law.

In the present case, the McCurleys did not produce evidence establishing the existence of any specific defect in the structure which caused it to fail, or that the structure was inherently unsafe. It would appear that the McCurleys merely presumed that the result speaks for itself. Although the issue was never discussed in any way at trial, it appears in hindsight that the circumstances of Deborah McCurley’s injuries may have been such that an inference of Pritchard’s negligence would have been permitted under the doctrine of res ipsa loquitur. However, that rule of evidence does no more than to allow the jury to decide the case and to make or reject the inference authorized as it sees fit — it does not create a presumption to that effect for the defendant to overcome. See, e.g., Evans v. Heard, 264 Ga. 239, 240 (442 SE2d 753) (1994).

In the unsettling absence of testimony affirmatively indicating that the roof structure would have remained standing but for Pritchard’s negligence, the jury was likewise authorized to infer that the summer storm alone was to blame for Deborah McCurley’s injuries, no matter how improbable that result might otherwise appear. In short, the absence of evidence other than the mere fact that the roof collapsed “legitimates” a “process of reasoning” from which the jury could infer that no act or omission on Pritchard’s part caused the roof structure to fall. Mann v. Anderson, supra. Neither Sampson nor Goble, supra, stands for the proposition that the court may. not leave to the jury the question whether some natural event was the sole cause of plaintiff’s injury when the evidence presented raises and does not preclude that possibility.

Since some evidence was presented from which the jury could reasonably conclude that the incident was caused by unusually strong winds rather than the negligence of either appellee, we find no error.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent, as it is my view, that the majority incorrectly applies the “superior knowledge” doctrine in holding that the absence of proof regarding Ludwig’s knowledge of a hazardous condition or defect in the temporarily braced structure demands a finding that she is not responsible for her riding student’s injuries. On the contrary, it is my view that the circumstances of this case authorize a finding that Ludwig failed to exercise ordinary care in inspecting or otherwise making sure the hastily braced shelter over her riding arena was safe for her students. In fact, it is my view that the very lack of evidence cited by the majority regarding the defect which caused the roof structure to collapse (which is not surprising since the defect may well have been impossible to detect after the structure collapsed) authorized a charge on res ipsa loquitur, thereby allowing the jury to draw an inference that Ludwig’s negligence in failing to inspect or properly maintain her temporarily braced riding structure was the cause of the roof’s collapse. Finally, I cannot agree that a summer rainstorm is an occurrence which authorizes a charge on “act of God.”

1. The “superior knowledge” defense is available in cases where the danger is open and obvious and the invitee closes her eyes to the danger, assuming the dangers and risks incident to the known condition. See White v. Fred F. French Mgmt. Co., 177 Ga. App. 661 (340 SE2d 276). “A finding that the plaintiff is precluded from recovering . . . because of her own equal or superior knowledge of the hazard is, in essence, a finding that plaintiff’s own negligence preponderated in causing the injury. Cf. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).” Flood v. Camp Oil Co., 201 Ga. App. 451, 452 (411 SE2d 348). In the case sub judice, there is no evidence that the defect or frailty which caused the temporarily braced riding structure to collapse (under the stress of a summer storm) was open and obvious. It therefore cannot be said that Deborah McCurley’s own negligence preponderated in causing her injury. On the other hand, Ludwig had a duty to exercise ordinary care in keeping her premises safe to invitees. OCGA § 51-3-1. To this extent, Ludwig knew that the riding shelter was still under construction and that it had been temporarily braced earlier in the day before McCurley arrived for her riding lesson. However, the evidence indicates that Ludwig did nothing to make sure that the structure was safe. She did not inspect the structure and she (apparently) only relied on her son’s word that it was safe to carry on business as usual. It is my view, that these circumstances would authorize a finding that Carole Ludwig was negligent in carrying on her business under a large and temporarily braced structure without at least some inspection for the structure’s integrity. Moreover, it is my view that (at the very least) the absence of evidence regarding the reasons for the failed structure would have authorized a charge on res ipsa loquitur so as to allow the jury to resolve the issue of Ludwig’s negligence.

“The doctrine of res ipsa loquitur ... is a doctrine of necessity to be applied, where otherwise appropriate, in cases where there is no evidence of consequence showing negligence on the part of the defendant. See Harrison v. Southeastern Fair Assn., 104 Ga. App. 596 (3), 605-608 (122 SE2d 330) (1961); Parker v. Dailey, 226 Ga. 643, 645 (177 SE2d 44) (1970).” Southern Bell Tel. &c. Co. v. LaRoche, 173 Ga. App. 298, 299 (1) (325 SE2d 908). “The first effect of res ipsa loquitur is to carry the case to the jury. If the requirements of the maxim are met, the trial judge may not direct a verdict for the defendant, nor grant summary judgment. The second effect is to allow the jury to draw an inference of the negligence alleged if they see fit to do so.” Green, Ga. Law of Evidence (3d ed.), § 39 at 84. The following elements are sufficient to support such an inference under res ipsa loquitur: “A showing (1) that an injury occurred, (2) that the offending instrument was owned or wholly controlled by the defendant, (3) that the occurrence was such as ordinarily would not happen without negligence, and (4) that neither the plaintiff nor anyone else had tampered with the instrumentality causing the injury. ...” Id. The circumstances of the case sub judice reveal these four elements are present so as to authorize a charge on res ipsa loquitur. See Smith v. Telecable of Columbus, 142 Ga. App. 535, 536 (236 SE2d 523).

2. It is my view, that the evidence did not authorize a charge on “act of God” and that McCurley should also be afforded a new trial against Ludwig’s son, John Pritchard.

“ ‘While every shower of rain that falls upon the earth is the act of God, in contradistinction to the act of man, yet an ordinary freshet is not the act of God in the legal sense which protects a [person] against responsibility for the non-performance of a [legal duty].’ ” Goble v. Louisville &c. R. Co., 187 Ga. 243, 249 (4), 250 (200 SE 259). Contrary to the majority’s view, I do not think swaying sycamore trees and a sudden summer storm are such strange and extraordinary events so as to allow Pritchard to raise the defense of “act of God.” Any person who has enjoyed hot summer days in Georgia knows that sudden strong winds, swaying pines and late afternoon showers are common.

Decided December 5, 1994

Reconsideration denied December 20, 1994

McDonald, Haggard & Carney, James E. McDonald, Jr., H. Patrick Haggard, for appellants.

Robert J. Huff, Gorby & Reeves, Michael J. Gorby, Blake H. Frye, for appellees.

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

       The court left open the possibility that Ludwig could he held liable on other bases, but determined there was no evidence that Ludwig possessed superior knowledge of any hazard associated with the failed structure.

       The dissent points out that a jury charge was “authorized” on the doctrine of res ipsa loquitur and is apparently untroubled by the fact that the McCurleys did not request a charge to that effect or otherwise even suggest, either in the trial court or on appeal, that the doctrine might apply. However, “[e]xcept as otherwise provided ... , in all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” OCGA § 5-5-24 (a). No such request was made in this case. We may not overrule this statutory mandate, and therefore whether the trial court could have given a charge on the doctrine of res ipsa loquitur is totally irrelevant to the issues the McCurleys enumerate.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A0978.
    HORTON et al. v. EATON.
    (452 SE2d 541)
   McMurray, Presiding Judge.

Loyd E. and Betty C. Horton brought a medical malpractice action against Dr. S. Boyd Eaton, Jr., a radiologist, essentially alleging that Eaton’s negligent failure to diagnose a neck fracture in Loyd Horton’s X-ray films resulted in inappropriate and injurious treatment by other physicians. The Hortons appeal from the judgment entered on a jury verdict in Eaton’s favor.

The original injury resulted from a 20-foot fall that occurred when Loyd Horton (“Horton”) lost his balance while attempting to cut down a tree in his yard. Horton landed on his shoulders and the back of his head, causing tingling in his hands. Horton was first examined by the family’s osteopathic physician (hereinafter “osteopath”). Horton reported he could feel grinding in his head when he turned it. Since the osteopath did not have a technician available at that time, he sent Horton to the emergency room at West Paces Ferry Hospital to obtain X-rays. There Horton was examined by a medical doctor who ordered X-rays of Horton’s spine and left knee. The examining physician told Horton that he had torn muscles and ligaments, and also that he had arthritis in his neck. Horton was given a prescription for a muscle relaxer and for pain, and was instructed to return to the osteopath for follow-up.

Sometime after Horton was discharged, Dr. Eaton received the X-ray films of Horton’s cervical spine along with a radiology request form. He issued a report stating that he did not see any fractures. Dr. Eaton had no contact with Horton nor with any other physician before issuing his report.

Two days later Horton returned to the osteopath’s office for a follow-up visit as instructed. At that time Horton still experienced a grinding sensation as his head moved, but other symptoms had not yet manifested themselves. Within a week to ten days, however, the right side of Horton’s face became numb, and there was a lump in his throat that made it very difficult to swallow. At the same time he began experiencing a “constant” ache on the right side of his head. He also began having trouble achieving a full erection.

Horton returned to the osteopath soon after the onset of these symptoms. Having been told of Horton’s symptoms, the osteopath “manipulated” Horton’s neck by turning his head up and down and side to side, causing Horton to roll his body to prevent more extensive manipulation. No further X-rays were taken at that time. During a subsequent visit, however, the osteopath did have follow-up X-rays done using his own technician. Concluding that Horton had a vertebra out of place, the osteopath referred him to Dr. Tarek Nessouli, an orthopedic surgeon. Upon viewing these latest X-rays, Dr. Nessouli instructed Horton not to move, informing him that his neck was broken. Specifically, the fracture was located in the area where the first cervical vertebra, which holds the skull, fuses to the body of the second cervical vertebra, forming an area referred to as the “odontoid process.” Horton eventually underwent neurosurgery. Horton complained at trial of continuing numbness, headaches, a “lump” in his throat, total impotence, depression, and a general weakness in his right side.

The Hortons initially brought suit against Dr. Eaton, later adding the osteopath and the doctor who originally examined Horton at the hospital. The added parties eventually settled with the Hortons and were dropped from the case, leaving Dr. Eaton as the sole defendant. Dr. Eaton testified at trial that the original X-ray films presented, and his interpretation reflected, a “false negative,” and that X-rays taken after manipulations by the osteopath showed an obvious fracture. Dr. Eaton further testified that in his opinion the odontoid fracture would have held its position and there would have been fewer medical problems but for the neck manipulations applied by the osteopath. Dr. Eaton maintained that his original interpretation of Mr. Horton’s X-rays was within the applicable standard of care under the circumstances. His own expert corroborated this conclusion, but affirmed on cross-examination that Dr. Eaton would have been held to a higher standard of care (i.e., required to perform additional testing) had the X-ray requisition form directed to Dr. Eaton from the emergency room (but lost from the hospital’s medical records) advised that' the patient was experiencing neck pain. Held:

1. The Hortons contend that Dr. Eaton was erroneously allowed to testify as to the appropriate standard of care for an osteopathic physician, a matter on which Dr. Eaton openly conceded he was not qualified to testify. This enumeration is without merit.

Even assuming that the matter was properly preserved for appellate review, we do not interpret Dr. Eaton’s testimony in the manner urged by the Hortons. Dr. Eaton testified that “everybody knows we ought not to mess around the neck where there’s been an injury,” and that it would not be sufficient for someone in the osteopath’s position to rely on a radiologist’s original findings alone before manipulating Horton’s neck given that “there’s a false negative rate [for fractures] from 20 to 40 %” with respect to initial X-ray films. Dr. Eaton was certainly authorized to testify in absolute terms regarding the extent to which his own findings should (and should not) be relied upon by other health care professionals in charting a course of treatment. We note that while Dr. Eaton did not hesitate to suggest that all medical doctors should be aware of the shortcomings inherent in a radiologist’s initial findings, he expressly refrained from testifying that osteopathic physicians should likewise be aware of such limitations. Taken as a whole and viewed in its proper context, we find nothing improper in the challenged testimony.

2. In their second enumeration, the Hortons challenge the propriety of allowing Dr. Eaton to testify as to the likely contents of an emergency room requisition for an examination and diagnosis of Mr. Horton’s X-rays. The record indicates that such requisition orders may include a general description of the type of X-rays needed, the nature of injury giving rise to the need for X-ray evaluation, the incident which purportedly caused a patient’s injuries and symptoms displayed or reported by the patient upon presentation in the emergency room. In this vein, Dr. Eaton’s own expert affirmed on cross-examination that if the requisition form had contained information regarding pain in the patient’s neck, the requisite standard of care would have required more studies than Dr. Eaton performed. It thus becomes apparent that the remarks on Mr. Horton’s emergency room X-ray requisition order are key to framing the standard of care upon which to measure Dr. Eaton’s diagnosis of Mr. Horton’s X-rays.

The emergency room requisition form was not available to the Hortons because it mysteriously disappeared from the medical records of Dr. Eaton’s place of employment. While this omission left a gap in the Hortons’ case against Dr. Eaton, it was not fatal to their cause. OCGA § 24-4-22; J. B. Hunt Transport v. Bentley, 207 Ga. App. 250, 256 (3) (427 SE2d 499). On the other hand, Dr. Eaton’s failure to produce the emergency room requisition form and testimony that he does not recall the remarks on the requisition order (regarding circumstances of the need for X-ray examination and evaluation) left Dr. Eaton with no evidence to support his defense that he exercised the requisite standard of care in diagnosing Mr. Horton. However, the trial court permitted Dr. Eaton to dodge this omission by allowing him to speculate as to the likely contents of the X-ray requisition form, i.e., the form probably stated no more than the patient “fell out of a tree.” The foundation for admission of this testimony was Dr. Eaton’s alleged familiarity with the general habits and customs of unnamed emergency room personnel. It is our view that this foundation provides no credibility to the testimony upon which it is based.

“A witness may testify as to his fixed and uniform habit in such cases but not as to the habit and customs of another. See Leonard v. Mixon, 96 Ga. 239 (23 SE 80). Compare Farmers Ginnery & Mfg. Co. v. Thrasher, 144 Ga. 598, 599 (3a) (87 SE 804); Gulf Refining Co. v. Smith, 164 Ga. 811, 812 (7) (139 SE 716); Burch v. Americus Grocery Co., 125 Ga. 153 (3) (53 SE 1008); Russell v. Pitts, 105 Ga. App. 147, 149 (123 SE2d 708); Interstate Life & Acc. Ins. Co. v. Whitlock, 112 Ga. App. 212, 219 (144 SE2d 532).” Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 782 (7), 783 (278 SE2d 653). In the case sub judice, Dr. Eaton’s testimony regarding the likely contents of the requisition order for evaluation of Mr. Horton’s X-rays was nothing more than speculation, based on his perception of the general habits and customs of others. By allowing such guess-work testimony, the trial court permitted Dr. Eaton to benefit from his omission of record and memory by blocking the Hortons’ efforts to get at the true contents of the X-ray requisition form while giving him the benefit of an unimpeachable version of the contents of the X-ray requisition order, i.e., a version which happens to favor Dr. Eaton’s claim that he employed the requisite standard of care in diagnosing Mr. Horton’s X-rays. Consequently, since there is no question that the remarks on the emergency room X-ray requisition form are key to framing the standard of care upon which to measure Dr. Eaton’s diagnosis of Mr. Horton’s X-rays, admission of Dr. Eaton’s testimony regarding the likely contents of this document was error.

3. In their third enumeration, the Hortons contend the trial court erred in allowing Dr. Eaton’s expert to answer a hypothetical question which assumed an essential fact not in evidence.

“[A]n expert witness is not permitted to give his opinion, in answer to a hypothetical question, based on facts not placed in evidence by other witnesses. See Code § 38-1710[, now OCGA § 24-9-67]; Ellis v. Southern R. Co., 89 Ga. App. 407 (1) (79 SE2d 541); Norman v. Allen, 118 Ga. App. 394 (2) (163 SE2d 859).” Braswell v. Owen of Ga., 128 Ga. App. 528, 529 (1) (197 SE2d 463). In the case sub judice, the trial court allowed Dr. Eaton’s expert to answer a hypothetical question (regarding the standard of care exercised by Dr. Eaton) based on the assumption that the X-ray requisition form provided to Dr. Eaton at the time he evaluated Mr. Horton’s X-rays advised only that the patient “fell from tree.” Admissible evidence of this assumed fact was never admitted into evidence at trial. Consequently, the trial court improperly allowed the response to the above hypothetical question. The case sub judice must be sent back for a new trial. Both sides must then deal with the lack of evidence regarding the framework upon which to measure the Hortons’ claim that Dr. Eaton failed to exercise the requisite standard of care in evaluating Mr. Horton’s X-rays and diagnosing the patient’s broken neck.

4. Next, the Hortons contend the trial court erred in giving a charge on hindsight. The hindsight charge “becomes appropriate in a medical malpractice case where the evidence raises an issue as to whether the negligence claim is based on later acquired knowledge or information not known or reasonably available to the defendant physician at the time the medical care was rendered. [Cit.]” Barnes v. Wall, 201 Ga. App. 228, 232 (4) (411 SE2d 270). The evidence presented in this case raises such an issue, and the trial court therefore did not err in giving a charge on hindsight.

McCoy v. Alvista Care Home, 194 Ga. App. 599 (391 SE2d 419), is distinguishable in that the uncontested facts in McCoy showed that plaintiff’s case was based on facts known to the defendant at the time of the incident in question. In the case sub judice, what Dr. Eaton knew or should have known at the time he examined Horton’s X-rays was hotly disputed. The evidence authorized a finding that Dr. Eaton became aware of Horton’s precise complaints only after he evaluated Horton’s X-rays. We therefore find no error. See Haynes v. Hoffman, 164 Ga. App. 236, 238 (3) (296 SE2d 216).

5. Since the trial court deleted the only language to which the Hortons objected in Dr. Eaton’s requested charge with respect to a patient’s duty to mitigate damages by following the advice of his physician, the Hortons’ remaining enumeration presents nothing for review. OCGA § 5-5-24.

Judgment reversed.

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

Smith, Judge,

dissenting.

I must dissent. In Division 2, the majority states that “the remarks on Mr. Horton’s emergency room X-ray requisition order are key to framing the standard of care upon which to measure Dr. Eaton’s diagnosis of Mr. Horton’s X-rays.” This is correct, but insufficient to state with accuracy the issue before us. I observe that it was absolutely crucial to the Hortons’ case that they be allowed to suggest without contradiction that the nonexistent requisition form would have indicated in detail Mr. Horton’s symptoms. This unsupported position was contradicted, however, and all of the evidence indicates that the scenario put forth by the Hortons is unlikely.

The majority cites OCGA § 24-4-22, which provides: “If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.” (Emphasis supplied.) Even if it is assumed that Dr. Eaton should not have testified as to what he typically sees on requisition forms because it might implicate the habit or custom of others, such error was manifestly harmless and merely cumulative of other evidence presented. The Hortons’ own expert testified that “fell from tree,” or a similar statement, “is as much information as [radiologists] frequently get.”

The evidence is uncontradicted that Dr. Eaton never examined Mr. Horton; that with respect to the information he receives on a patient, he essentially was at the mercy of the treating physician (who was not called as a witness); and that typically radiologists do not get the information they should be given. Moreover, Dr. Eaton testified that he has made efforts to improve the quality of information typically found on x-ray requisition forms, but to no avail. Finally, I note that there is no evidence that Dr. Eaton is responsible for the “mysterious disappearance” of the x-ray requisition form. Mr. Horton was not in any sense Dr. Eaton’s patient, and it is just as plausible to speculate that Horton’s treating physician had reason to remove the form from Horton’s medical file.

The majority twists the case before us by suggesting that Dr. Eaton had no evidence to support his “defense” that he exercised the proper standard of care. On the contrary, the Hortons could present no evidence indicating that Dr. Eaton failed to exercise that standard, and there is no evidence to support an inference against Dr. Eaton under OCGA § 24-4-22.

I also must dissent as to Division 3, because, as the majority neglects to disclose, testimony was also given as to the proper standard of care assuming that the requisition form gave detailed information. Since the defense expert testified as to a range of hypothetical facts that would be both favorable and unfavorable in evaluating Dr. Eaton’s conduct, I see no danger that the jury assumed facts not in evidence in reaching its verdict.

No harmful error has in any way tainted the verdict reached in this case. I would affirm.

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

Decided December 5, 1994

Reconsideration denied December 20, 1994

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Charles R. Carson, for appellants.

Alston & Bird, Judson Graves, Holly B. Barnett, for appellee.

       The names of the latter two physicians have been intentionally omitted since neither testified at trial, and therefore neither was heard with respect to the actions that have been imputed to them.


author: Johnson, Judge. Beasley, Presiding Judge,

text:
    A94A1244, A94A1245.
    BUTLER v. SOUTH FULTON MEDICAL CENTER, INC. (two cases). SOUTH FULTON MEDICAL CENTER, INC. v. BUTLER.
    A94A1246.
    (452 SE2d 768)
   Johnson, Judge.

In 1988, Charlotte Butler sought treatment for relief of chronic pain she had begun to experience in her left chest and rib-cage area after undergoing surgery, radiation and chemotherapy treatments for breast cancer during 1986. She was referred by her oncologist to Dr. Jong-In Kim, a member of South Fulton Anesthesia Associates and an anesthesiologist working as an independent contractor at South Fulton Medical Center, Inc. (“South Fulton”). Dr. Kim administered epidural steroid injections to Butler on January 20, 1988 and February 17, 1989. In September 1989, when the steroid injections failed to give long-term relief, Dr. Kim gave Butler a thoracic sympathetic block or neurolytic block, which, unlike the two previous steroid injections, was an injection of the nerve-destroying agent phenol. In January 1990, Kim performed a second neurolytic block on Butler, following this procedure almost immediately, in February 1990, with a third neurolytic block.

In August 1990, Butler called Dr. Kim requesting additional treatment for her pain. Although the consent form filled out by the hospital nursing staff and signed by Butler identified this last procedure as an “epidural steroid injection,” Dr. Kim actually administered a fourth neurolytic block using the agent phenol. The injection was administered too close to Butler’s spinal cord. The phenol penetrated into the spinal cord where it did massive damage which rendered Butler a ventilator-supported C-l quadriplegic.

Butler settled her claim against Dr. Kim, and subsequently filed this action against South Fulton alleging the hospital was negligent in two ways: 1) the hospital’s nursing staff did not fulfill their duties and obligations with regard to the obtaining of consent forms from Butler; and 2) the hospital failed to adequately supervise Dr. Kim in that it allowed him to perform sympathetic neurolytic blocks without the requisite credentials. The trial court granted South Fulton’s motion for summary judgment as to Butler’s claim that it negligently hired and supervised Dr. Kim. The court denied the parties’ cross-motions for summary judgment on Butler’s contentions that South Fulton was negligent in failing to obtain a consent form for the neurolytic block procedure performed and in obtaining a consent form for the wrong procedure.

Because a history showing the procedures performed by Kim upon Butler in chronological order is helpful in understanding the course of Butler’s treatment for chronic pain, the chart below identifies the procedures performed on particular dates as well as how the procedures were identified on the consent forms:

Procedure Identified
Date of Procedure on Consent Form Procedure Performed
January 20, 1988 “epidural block” steroid injection
February 17, 1989 “epidural block and subcutaneous epidural catheter implant” steroid injection
September 12, 1989 January 5, 1990 February 6, 1990 “thoracic phenol block” no consent form signed “nerve block” neurolytic block neurolytic block neurolytic block
August 22, 1990 “epidural steroid injection” neurolytic block

It is significant that in her deposition taken on October 6, 1993, Butler testified that she never read any of these consent forms before she signed them. It is also clear from her deposition testimony that Dr. Kim never told her anything specific about any of the procedures he performed in his effort to relieve her chronic pain. For example, the only thing he told her when he changed the course of treatment from steroid injection to phenol block was that he was going to change the medicine he was injecting to give her longer relief. Butler candidly acknowledged that she did not know the difference in the various procedures Dr. Kim performed on her, and that she was relying upon him to select the procedure that was right for her.

Case No. A94A1244

1. Butler asserts the trial court erred in granting South Fulton’s motion for summary judgment as to its liability for negligent hiring and/or supervision of the doctor who administered the neurolytic block procedure.

South Fulton introduced evidence establishing there were no preexisting circumstances in Dr. Kim’s work history which should have put it on notice as to any incompetency with regard to administration of a neurolytic block and that he had the requisite training and credentials to perform the procedure. This evidence shifted the burden of proof to Butler. See Perryman v. DeKalb County Hosp. Auth., 197 Ga. App. 505, 506 (1) (398 SE2d 745) (1990). Butler introduced the affidavit of Dr. Bettinger, who gave his opinion that, based on Butler’s condition, Dr. Kim lacked the requisite credentials to perform neurolytic blocks.

Candler Gen. Hosp. v. Persaud, 212 Ga. App. 762, 766 (2) (442 SE2d 775) (1994), upon which Butler relies, acknowledges that a hospital owes a duty to patients to act in good faith and with reasonable care to ensure that a doctor is qualified to practice the procedure he was granted privileges to perform. In Candler, the plaintiffs alleged that the hospital had no credentialing process to assure the doctor was qualified to perform the particular procedure. (They did not allege negligent hiring or supervision, as in this case.) The court applied the principle stated by the Supreme Court in Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140 (189 SE2d 412) (1972), that a hospital has authority to examine the qualifications of a physician seeking staff privileges and to limit the privileges to areas it deems the physician qualified for. The surgeon in Candler had applied for temporary privileges to perform a certain procedure and had been granted the same by the hospital’s president the same day. There was a question of fact as to whether this was done negligently. In this case, however, there is absolutely no evidence that the hospital should have required Dr. Kim, an anesthesiologist, to obtain specific privileges to perform neurolytic blocks. Furthermore, Candler neither rejects Perryman, supra, nor overrules Sheffield v. Zilis, 170 Ga. App. 62 (316 SE2d 493) (1984), in which summary judgment for the hospital was affirmed once it had been established that the hospital had a procedure in place, approved by the Joint Commission for the Accreditation of Hospitals, for evaluating the credentials of staff physicians and that the hospital did not undertake to direct the doctor in the way or manner in which he treated the patient. Those factors are present in this case as well. South Fulton had, and followed with respect to Dr. Kim, a procedure approved by the Joint Commission for evaluating the credentials of staff physicians. It did not undertake to direct Dr. Kim in the way or manner in which he treated Butler or other patients. We conclude the trial court did not err in granting South Fulton’s motion for summary judgment on the negligent hiring or negligent supervision issue.

2. Butler asserts the trial court erred in denying her motion for summary judgment as to her negligence claim against South Fulton for failing to obtain a valid consent form. Pretermitting whether a hospital has a statutory duty to obtain a consent form under either OCGA § 31-9-6.1 or the more general terms of OCGA § 31-9-6, it is clear that South Fulton was obligated to ensure that an executed consent form for medical procedures in operating rooms was in the patient’s records pursuant to its own Policy & Procedure Manual as well as under the Federal Regulatory Standards promulgated by the Joint Commission, which had been adopted by South Fulton.

In obtaining a consent form, a nurse is not acting as a “borrowed servant” of the doctor, but as an employee of the hospital because the task of obtaining a properly executed form is administrative and does not involve professional medical skill or judgment. See Hoffman v. Wells, 260 Ga. 588, 590 (2) (397 SE2d 696) (1990); Ross v. Chatham County Hosp. Auth., 258 Ga. 234 (367 SE2d 793) (1988). “A hospital has a responsibility for the exercise of due care by a nurse as well as by other hospital employees while she is performing acts of a character which, though constituting a part of the patient’s treatment as prescribed by the attending physician, do not require either the application or the understanding of the specialized technique possessed by a skilled physician or surgeon.” (Citation and punctuation omitted.) Richmond County Hosp. Auth. &c. v. Dickerson, 182 Ga. App. 601, 604 (3) (356 SE2d 548) (1987). The verification that a consent form has been properly executed and is part of the patient’s records does not require application of medical judgment and the hospital may be liable under some circumstances for the nurses’ failure to obtain the form in violation of its internal procedure.

This court recently reversed a trial court’s summary adjudication that a hospital had no duty to a patient to ensure that a consent form accurately reflected the procedure to be performed. Marsh v. Crawford Long Hosp. &c., 213 Ga. App. 262, 263-264 (1) (444 SE2d 357) (1994). However, unlike the situation in Marsh v. Crawford Long, supra, where the nurses assisting in the operating room knew that the doctor was performing a different and more radical procedure than the one listed on the consent form yet raised no question about whether the doctor was performing the correct procedure, the nurse who had Butler sign the consent form was not present during the procedure, and the nurses assisting Dr. Kim did not know that the procedure being performed was not the same as the procedure listed on the consent form.

Even were we to decide, as a matter of law, that South Fulton’s rules created a duty to Butler, the failure of the nurses to comply with a rule of the hospital does not give rise to negligence per se. See Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (1) (325 SE2d 844) (1984). Nor does a violation of a hospital policy, even if negligent, authorize a conclusion that the breach of that duty was the proximate cause or a contributing proximate cause of Butler’s injury as a matter of law. Butler candidly acknowledges that she signed each and every one of the consent forms, those which correctly described the procedure as well as those which incorrectly or incompletely described the procedure, without reading even one. She also acknowledges that she did not know and did not ask the difference between an epidural steroid injection and a neurolytic block, and that, to her, they were all simply nerve blocks designed to relieve her pain. Therefore, we conclude the trial court properly denied Butler’s motion for summary judgment with regard to this issue. Butler’s testimony as to these issues will be further explored with regard to the trial court’s denial of the hospital’s motion for summary judgment.

Case No. A94A1245

3. In the cross-appeal, South Fulton asserts the trial court erred in finding that genuine issues of material fact remain regarding the proximate cause of Butler’s injuries because Butler admitted she did not read the consent form for the procedure.

At the outset, we agree with the trial court that OCGA § 31-9-6.1 does not apply under the undisputed facts in this case. That section applies only when a patient (a) undergoes “any surgical procedure under general anesthesia, spinal anesthesia, or major regional anesthesia,” or (b) undergoes “an amniocentesis diagnostic procedure or a diagnostic procedure which involves the intravenous or intraductal injection of contrast material.” The thoracic sympathetic neurolytic block to relieve pain does not fall 'under OCGA § 31-9-6.1. Thus the hospital’s argument that the nurse acts only for the doctor in obtaining consent and advising the patient about risks of a procedure fails, and OCGA § 31-9-6 is the applicable Code section. Nevertheless, the hospital is entitled to summary judgment for the reasons set forth below.

In its order denying summary judgment, the trial court found a “jury issue exists regarding proximate cause because Butler testified, among other things, that she never would have consented to this neurolytic block procedure.” Our review of Butler’s deposition, however, reveals that she stated she did not read any of the consent forms which she signed. She testified she did not appreciate the difference between a thoracic phenol block and an epidural block and that if the consent form presented to her on that day had stated she was to receive a phenol block she would not have understood what it meant. When asked if she would have signed the consent form if it had said she was to receive a phenol block, she stated: “If I had known what it would do, I wouldn’t.” This statement clearly goes to whether Butler had been informed by her physician of the risks associated with the procedure. To the extent there is a duty in Georgia pursuant to OCGA §§ 31-9-6 or 31-9-6.1 to disclose risks associated with a procedure performed by a doctor, that duty rests squarely upon the doctor. See Parr v. Palmyra Park Hosp., 139 Ga. App. 457 (228 SE2d 596) (1976). Although Butler states she would have asked the doctor the difference between the two procedures if it had been on the consent form, in light of her admission that she did not read any of the forms, this testimony is irrelevant. We must also point out that she in fact had been presented with a form which correctly identified the procedure when she underwent a thoracic phenol block performed by Dr. Kim in September 1989, and did not read it or ask the doctor about it.

“If an injury would have occurred notwithstanding alleged acts of negligence of the defendant, there could be no recovery in an action for negligence.” (Citations and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga. App. 806, 807 (386 SE2d 386) (1989). Given the undisputed facts of this tragic case, it is clear the sole proximate cause of Butler’s injury was that Dr. Kim unsuccessfully performed a procedure he had previously performed successfully upon her. In view of the fact that she admits she did not read any of the consent forms, including the one involved here, it is clear that she would have been injured even if the correct procedure had been listed. We also note that only if the nurse, through negligence, puts the wrong procedure on the form and the physician follows the form, thereby committing malpractice, would the nurse’s/hospital’s negligence be the proximate cause of the malpractice. Here the form had nothing to do with what the physician did. Any negligence of the hospital’s employees regarding the consent form was therefore eliminated as a proximate cause of Butler’s injuries. It is clear, as the trial court noted, that she would never have agreed to the procedure had she known that it carried the risk of quadriplegia. Sadly, however, she would have known had her treating physician explained to her what he was doing and the risks involved. Fortunately, she has been able to recover from her physician.

If liability was triggered by tragic circumstances alone this would be an easy case. As it is, we must find that the trial court’s denial of South Fulton’s motion for summary judgment was error and is hereby reversed.

4. Case No. A94A1246, being identical to A94A1245, is hereby dismissed.

Judgment affirmed in Case No. A94A1244; reversed in Case No. A94A1245. Appeal dismissed in Case No. A94A1246.

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

Beasley, Presiding Judge,

dissenting in part.

I respectfully dissent. There was expert opinion evidence that the hospital was negligent in permitting an anesthesiologist with Dr. Kim’s experience and training to perform neurolytic blocks. Dr. Kahn, a physician (board certified in internal medicine) who is senior vice-president for medical affairs and medical director of a hospital, testified that a hospital’s credentialing procedure would list the medical procedures which the anesthesiologist was qualified by training and experience to do and was thus credentialed to perform in the hospital. Dr. Bettinger (board certified in anesthesiology) stated in affidavit that Dr. Kim’s personnel record did not show that he possessed the requisite specialized training or experience to perform the very risky thoracic sympathetic neurolytic blocks to which he subjected Ms. Butler and that the hospital therefore should have limited his privileges to exclude this procedure. This was not overcome by conclusive evidence that he was in fact qualified and authorized to perform such procedures at the hospital. However, plaintiff does not allege in her complaint that this was a negligent act or proximately caused her injuries. Compare Candler Gen. Hosp. v. Persaud, 212 Ga. App. 762 (442 SE2d 775) (1994), where it was properly pled (nonprecedential). As recognized and applied in that case, id. at 765, the Georgia Supreme Court established “the doctrine of independent negligence” in Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140, 142 (189 SE2d 412) (1972). It is that the hospital has both the authority and the commensurate responsibility to examine the qualifications of any physician seeking staff privileges and to limit the physician’s practice to those areas in which he or she is deemed qualified to practice.

As to the hospital’s duty, through its nurses, to assure that the procedure to be performed is the one consented to by the patient, Dr. Kahn in affidavit stated that the hospital deviated from the requisite standard of care. He stated that the nurses failed “to notify the hospital administration, hospital staff officer, head nurse, or other appropriate supervisory authority that Dr . . . Kim intended to perform a different procedure than the one for which the patient gave permission,” in that the consent form was for an “epidural steroid injection” whereas he stated he intended to perform a “neurolytic thoracic sympathetic ganglion block.”

Dr. Kahn deposed that the nurses failed to recognize that the consent was not for the procedure being undertaken, failed to call it to the attention of the physician and to the hospital authority if not corrected, that one such procedure was undertaken with no consent form, and that all of this deviated from the standard of care for such hospitals.

Appellant refers also to the deposition of Nurse D’Agostino in regard to what is required of nurses, but her deposition is not in the record. However, her affidavit states that the requisite standard of care required the nursing staff to call to the attention of the doctor, and to a nursing supervisor or the hospital administration if not rectified by the doctor, that his stated intention to perform a neurolytic block when he instructed the nursing staff to obtain phenol was different than appeared on the patient’s consent form. She also stated that the nursing staff has a duty to call to the attention of the doctor and to the hospital administration the absence of a consent form, that the nurses have a duty to assure that the proper form is present, and that this was not done in plaintiff’s case.

In Hoffman v. Wells, 260 Ga. 588 (397 SE2d 696) (1990), the Supreme Court held that the hospital was not liable as a matter of law because the determination to proceed with the surgery which was different from what was on the consent form was a medical decision made by the doctor in the operating room after the nurse informed him of the discrepancy. In the instant case, there is no evidence that any of the nurses raised any question when it appeared from the doctor’s order of phenol and the indications that a phenol block was being done that this was not the procedure appearing on the consent form. “A hospital owes a duty of reasonable care to its patients and is liable for the injuries negligently inflicted upon its patients by the nurses and other employees of the hospital. [Cit.]” Id. at 589. Reporting or calling attention to the discrepancy would be an administrative task, although the knowledge that there was a discrepancy would arise from the nurse’s professional skill and training. “ ‘There is no transfer of liability for the negligence of an employee in the performance of clerical or administrative tasks not requiring the exercise of medical judgment even though these tasks are related to the treatment of the patient.’ [Cit.]” Id. at 590. I cannot say that it is conclusive as a matter of fact that the doctor would have proceeded nevertheless; we do not know what would have transpired. In any event, Hoffman does not indicate that there is no duty on the hospital, through its nurses, to assure that the procedure undertaken is that for which there is a consent.

In Marsh v. Crawford Long Hosp., 213 Ga. App. 262 (444 SE2d 357) (1994), the hospital’s nursing staff never discussed with the doctor or the patient the discrepancies in the records with respect to what was consented to and what was to be performed. The court regarded this as a clerical or administrative task and held that the trial court erred in determining that the hospital owed no duty to the patient in these regards. While the evidence in this case indicates that the patient would not have known the difference, the doctor certainly did. As in that case, so in this, “it is for the jury to determine whether [the hospital] breached its duty of reasonable care.” Id. at 264. Since there is some evidence that the nurses did not exercise “ ‘that reasonable degree of care and skill ordinarily exercised by members of the nursing profession generally under conditions and similar and surrounding circumstances,’ ” Deese v. Carroll City County Hosp., 203 Ga. App. 148, 149 (416 SE2d 127) (1992), and the duty here subject is administrative, the hospital is not entitled to summary judgment. Both Hoffman and Marsh imply that the duties with respect to the consent form do not lie exclusively with the physician except for the clerical duty of obtaining it from the patient.

Decided November 30, 1994

Reconsideration denied December 20, 1994

A. Russell Blank, for appellant.

Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., Melanie P. Simon, for appellee.

As pointed out by the trial court in this case, “[defendant hospital’s own procedures state that the operating room records should include . . . consent forms,” and the fact that the nurses in the operating room were different than the nurse who obtained the consent form did not relieve the hospital of checking to assure that the form was completed and matched the procedure to be undertaken. I agree with the trial court that “[t]his in no way suggests that the hospital nurse is responsible for deciding what medical treatment should be given. However, the defendant hospital’s own procedures require verification that a patient’s consent form is in the hospital chart. Here, two nurses in the operating room testified that they knew the difference between a steroid epidural injection and a thoracic neurolytic block, but they never reviewed the consent form.” If a jury finds that this constituted negligence, then it would fall within the hospital’s area of liability, if proximate cause is shown, because it is an administrative duty. See Richmond County Hosp. Auth. v. Dickerson, 182 Ga. App. 601, 604 (356 SE2d 548) (1987), and Ross v. Chatham County Hosp. Auth., 258 Ga. 234, 235 (367 SE2d 793) (1988), regarding administrative duties. Nor does the evidence preclude a finding that the failure to point out the discrepancy was a proximate contributing cause to the injuries which resulted when the phenol block procedure, which was not authorized by the consent form, was performed. As in Ross, supra, “the damage complained of here could have resulted from both administrative acts of hospital personnel and acts of medical skill and judgment of the surgeon.”

The judgment of the trial court should be affirmed in both Case Nos. A94A1244 and A94A1245.

I am authorized to state that Chief Judge Pope and Judge Blackburn join in this dissent.


text:
    A94A1280, A94A1281.
    RESURGENS PLAZA SOUTH ASSOCIATES et al. v. CONSOLIDATED ELECTRIC SUPPLY, INC.; and vice versa.
    (452 SE2d 784)
   Smith, Judge.

This action for foreclosure of a materialman’s lien arose out of interior finish work performed in an office building owned by Resurgens Plaza South Associates (“Resurgens”). Summit Commercial Contractors, Inc., the general contractor employed by Resurgens, subcontracted with DCG Electrical Construction, Inc. (“DCG”) to perform electrical work on several projects in the building, including the “M.D.S. Tenant Buildout” at issue here. DCG in its turn ordered materials from Consolidated Electric Supply, Inc., d/b/a B & W Electric Supply (“Consolidated”) to perform the electrical work. When DCG failed to pay for the materials, Consolidated filed a lien against the real property on February 19, 1991, and later brought an action to foreclose on the lien. After a jury verdict in favor of Consolidated, Resurgens appealed in Case No. A94A1280. Consolidated cross-appealed in Case No. A94A1281.

1. In Case No. A94A1280, Resurgens contends the trial court erred in denying its motions for directed verdict and for judgment n.o.v.

“In determining whether the trial court erred by denying (appellant’s) motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citations and punctuation omitted.) Parks v. Howard, 197 Ga. App. 405, 407 (4) (398 SE2d 308) (1990); Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992). There were substantial conflicts in the evidence presented here.

The parties disputed whether the underlying lien was filed within three months after the final delivery of goods to the project, thus satisfying the requirements of OCGA § 44-14-361.1 (a). The key invoice at issue is defendant’s Exhibit 155, Consolidated invoice 108088, showing two items identified only by a product number of the manufacturer, Boyd. A cross-referenced manufacturer’s invoice 009204 from Boyd identifies them further as “Prometheus” model wall brackets in polished brass. The Boyd invoice shows the order was placed on October 10, 1990, and the wall brackets were delivered on December 10, 1990.

Resurgens in essence contends .that the delivery made on December 10, 1990, was not part of the underlying contract, but a separate agreement between DCG and a tenant, thus providing no support for the claim of lien and showing that Consolidated failed properly to allocate charges between the two separate agreements. It bases these contentions on defendant’s exhibit 158, identified as a statement from the electrical subcontractor, DCG, and allegedly referring to the same two wall lighting fixtures. The DCG statement reads only: “MDS/ Furnished and installed (2) extra wall sconces,” with amounts charged for material and labor. The wall sconces are not identified by product number or name, and no date of order or delivery is stated.

According to Lisa Shirley, the property manager for Resurgens, the DCG statement was issued pursuant to a request by the owner’s construction supervisor, Jerry Schaeffer, to DCG. Schaeffer did not testify. Shirley also opined that the DCG statement was based on a separate contract between the tenant and DCG, because the request was made by the tenant after the space was built out, sometime in November or December.

A directed verdict was not proper based on the contention that the DCG statement was for the same items as Consolidated invoice 108088 and Boyd invoice 009204, and thus showed the existence of a separate contract, for several reasons. First, if the tenant’s request was not made until November or December, as Shirley testified, the October order memorialized in the Boyd and Consolidated invoices predates' the tenant’s request and therefore cannot reflect the same materials. Second, the DCG statement refers to “wall sconces” without identifying them by manufacturer or product number, while the Boyd invoice refers to “Prometheus wall brackets” with a particular product number. Finally, the DCG statement gives a unit price of $392.50 for each “wall sconce,” while the Consolidated invoice gives a unit price of $695 for each “Prometheus wall bracket.”

Given these unexplained inconsistencies, it cannot be said that Resurgens presented uncontradicted evidence that the delivery made on December 10, 1990 was part of a separate contract with the tenant. Contrary to the dissent’s contention, the issuance of a certificate of substantial completion, release of retainage, or other activity under the construction contract does not bar a claim of lien. See Sasser & Co. v. Griffin, 133 Ga. App. 83, 84-85 (1) (210 SE2d 34) (1974). The testimony and documents should have been, and were, weighed by a jury, and we should not disturb its findings on this issue.

2. In Case No. A94A1281, Consolidated contends the trial court erred in its charge to the jury on the issue of payment allocations to various accounts of the subcontractor, DCG. Consolidated contends the duty of a materialman to inquire as to the appropriate destination of a particular payment is limited to circumstances where the subcontractor fails to indicate the proper account for allocation. Therefore, it contends, the trial court erroneously failed to instruct the jury that Consolidated was only required to seek further information about the source of a particular payment if DCG failed to designate an account for allocation.

However, a review of the trial court’s instructions to the jury shows that it clearly stated the requirements that Consolidated credit all invoices according to the instructions of DCG when it made payments and that it contact DCG for directions as to how to apply a payment if no instructions came with the payment. This requirement was repeatedly mentioned in later portions of the instructions. While some details of the charge could have been more clearly worded, viewing the charge as a whole as we are required to do, Dept. of Transp. v. Lawrence, 212 Ga. App. 72, 73 (441 SE2d 81) (1994), we find no error.

3. In its final enumeration of error, Consolidated contends the form of the verdict was erroneous in that it allowed the jury to return a verdict in an amount less than the full amount sued for. However, no objection was made to the form of the verdict at trial; in fact, counsel for Consolidated apparently drafted the verdict form. Consolidated therefore waived its right to object on appeal. Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 289 (7) (431 SE2d 115) (1993).

Judgments affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not agree that the receipts cited by the majority authorized a jury issue as to whether Consolidated delivered goods for the M.D.S. tenant buildout project on December 10, 1990, so as to bring Consolidated’s lien within the three-month window prescribed by OCGA § 44-14-361.1 (a). In my view, the record indicates that the two fixtures delivered on December 10, 1990, were not part of the running account covered by the subcontract between DCG and Summit, but were ordered pursuant to a separate and distinct agreement between Resurgens and DCG. Thus, the last delivery of material DCG needed to complete its contract with Summit was on October 23, 1990, i.e., more than three months before Consolidated filed a lien against the premises.

Georgia’s lien laws are in derogation of the common law and must be strictly construed against the lien claimant. Benning Constr. Co. v. Dykes Paving &c. Co., 263 Ga. 16, 18 (426 SE2d 664). To this extent, it is not only incumbent upon the lien claimant to keep separate accounts and to find out upon what account money is to be paid, the lien claimant must likewise accurately determine upon what project materials are supplied. See Apex Supply Co. v. Commercial Union Ins. Co., 143 Ga. App. 131, 132 (237 SE2d 649); Sears, Roebuck & Co. v. Superior Rigging &c. Co., 120 Ga. App. 412, 413 (1) (170 SE2d 721). To say otherwise would allow a lien claimant to use an invoice under one contract to bootstrap invoices under another contract under which lien rights have long since expired.

In the case sub judice, Consolidated not only failed to accurately prove that the December 10, 1990, invoice was for the M.D.S. project, my study of the evidence shows that the fixtures delivered by Consolidated on December 10, 1990, were part of a project separate from the M.D.S. tenant buildout project. To this extent, I observe that Resurgens’ property manager, Lisa Shirley, clarified that the two fixtures Consolidated delivered on December 10, 1992, were ordered by the tenant who took possession of the M.D.S. space, not by DCG pursuant to completion of the M.D.S. tenant buildout project. This testimony is supported by undisputed proof that a certificate of occupancy issued for the M.D.S. space on October 6, 1990; that the M.D.S. tenant then moved into the space and that the final “punchlist” work was completed on the M.D.S. buildout project at the end of November 1990. Consequently, it is my view that the December 10, 1990, delivery of goods could not possibly have been attributed to the M.D.S. buildout project; that the last date materials were delivered on the M.D.S. project was October 23, 1990, and that Consolidated filed its lien outside the three-month window prescribed by OCGA § 44-14-361.1 (a). I would therefore reverse the trial court’s order denying Resurgens’ motion for directed verdict and motion for judgment n.o.v. based on an untimely filing of Consolidated’s lien against the premises. See Cherokee Culvert Co. v. Gurin, 153 Ga. App. 296 (1) (265 SE2d 106). Compare Schwan’s Sales Enterprises v. Martin Mechanical Contractors, 202 Ga. App. 510 (1) (414 SE2d 727) and Troup Enterprises v. Mitchell, Carrington & Rayfield, Inc., 199 Ga. App. 173, 174 (1) (404 SE2d 337) (physical precedent only), where genuine issues of material fact remained regarding work to be performed under original construction contracts.

Decided December 5, 1994

Reconsideration denied December 20, 1994

J. Michael Welch, for appellants.

Zachary & Segraves, J. Ed Segraues, Finn Duerr, for appellee.

       We need not consider the second invoice for goods delivered within the three-month period, because the first creates a disputed issue of fact for the jury.

       We note that hearsay standing alone cannot support a verdict, even if unobjected to. See Finch v. Caldwell, 155 Ga. App. 813 (273 SE2d 216) (1980). No individual with direct personal knowledge, such as Schaeffer himself, testified to the existence of a separate contract as opposed to a change order.

       Consolidated asserts there is evidence that it provided other material under the contract between DCG and Summit in December 1990, thereby bringing its lien within the three-month-window prescribed by OCGA § 44-14-361.1 (a). This assertion is not supported by the record. An examination of the trial transcript and the exhibits introduced into evidence at trial reveals that the goods Consolidated refers to were provided on a project DCG was involved with on another floor of Resurgens Plaza, i.e., the “Tiger” project.