author: PHIPPS, Presiding Judge. MCFADDEN, Judge,

text:
    A11A1556.
    In the Interest of A. R. et al., children.
    (726 SE2d 800)
   PHIPPS, Presiding Judge.

We granted an application for discretionary appeal to review a juvenile court order terminating the parental rights of a biological mother to her children, A. R. and J. R. The mother contends that the evidence was insufficient to support many of the juvenile court’s factual findings. Because we find no reversible error, we affirm.

In reviewing a juvenile court’s decision to terminate parental rights, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody should be terminated. In so doing, we do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.

Viewed in the light most favorable to the juvenile court’s findings, the record shows that on November 3, 2008, the mother of two-year-old A. R. and one-year-old J. R. told her roommates that she was going to kill herself and locked herself in a bathroom with a knife. The roommates called the police, and the mother was taken to an emergency room. At the hospital, a case manager with the Georgia Department of Human Resources, Division of Family and Children Services (DFCS) interviewed the mother, who stated that she was suicidal because neither she nor her children had eaten in 24 hours; she had no family, no money, no food, and no other resources; and she was about to be evicted from her residence. When asked about the children’s whereabouts, the mother gave several different answers. Finally, she stated that the children were at home but she was not sure who was supervising them.

The case manager arrived at the home late that night and both children were awake, but were not clean and appeared to be wearing soiled diapers. There were several adults in the home, but it was not clear who was supervising the children. J. R. was in a room alone, lying on a mattress. One child had bruises on the buttocks and marks on the legs. The case manager took the children into emergency custody.

On November 10, 2008, DFCS filed a deprivation petition. The children were still in DFCS’s custody at the time. On November 19, 2008, with her attorney, the mother appeared before the court for a hearing on the deprivation petition, and she consented to the entry of an order of adjudication and disposition finding her children to be deprived and placing temporary legal custody of the children with DFCS for one year. In December 2008, the court found that the children were deprived as defined in OCGA § 15-11-2 (8) (A), and found that the causes of deprivation were the mother’s “neglect/lack of supervision; and the mother’s financial inability to provide proper parental care, control and supervision for the children.”

The court ordered DFCS to prepare a case plan for reunification. The court specifically ordered that the case plan be submitted to the court “to become the Court Ordered plan of care unless a party appeals the plan as provided by law. The mother... shall successfully complete the goals established in said plan before the children may be returned home.” Acase plan was developedfor each child. The mother attended the case plan meeting and participated in the development of the case plans. She never requested a formal review of the case plans, which on January 9, 2009, were made an order of the court.

The case plans required the mother, for a minimum of six consecutive months, to obtain and maintain a source of income and to provide the DFCS case manager with monthly verification of income. The mother was also required, for a minimum of six consecutive months, to obtain and maintain stable, clean, and safe housing, and to provide her case manager with monthly verification that rent and utility payments were current. The mother was required to cooperate with a parent aide and follow the aide’s recommendations. The mother was required to attend and successfully complete a psychological evaluation, including a parental fitness evaluation, and to follow all recommendations of a licensed treatment provider. The case plans also required that the mother attend all hearings, appointments with DFCS, case plan reviews, and scheduled visits with her children, and that she notify DFCS of all address changes within 48 hours.

On April 13, 2009, DFCS filed a motion for judicial review, alleging that the mother had failed to attend the last two periods of unsupervised visits with the children and that she had moved to Tennessee, without informing the case manager. After a hearing, the court suspended the mother’s unsupervised visitations, but did allow for supervised visitation, and ordered that the mother continue to address the other issues identified in her case plans until further review.

On October 26, 2009, DFCS filed another motion for judicial review, this time alleging that the mother had failed to attend the last two scheduled visits with the children and had moved to Michigan without informing the case manager. DFCS filed also a motion to extend for a year the temporary order of deprivation and custody, which was due to expire on November 2, 2009. After a hearing, the court found (among other things) that returning the children to the mother’s home would be contrary to their welfare because the mother “was not sufficiently stable residentiary or economically and she ha[d] not maintained a consistent bond with her children.” The court further found that the children were deprived and extended temporary custody of the children to DFCS by order issued on May 26,2010, “nunc pro tunc for December 2, 2009.”

On November 30, 2009, DFCS filed a complaint and petition to terminate the mother’s parental rights. At the termination hearing, the mother was present with an attorney. The parties stipulated to the admission of all previous court orders and to admission of a psychological evaluation report of the mother.

Recognizing that the mother had no family resources or support in Georgia, the DFCS case manager who had been assigned the case testified that she had placed a parent aide and a counselor in the home to work with the mother. These services were discontinued however, in March 2009 when the mother moved to Tennessee. The case manager testified that the mother called her within a week or two after she moved to Tennessee, but a period of six months had passed without the mother having any visitation with her children. On one occasion, the mother spoke with the children on the phone and on another occasion, she sent a letter with $140 enclosed for J. R.’s birthday.

The case manager testified that she could offer no services to the mother while she was in Tennessee until an evaluation through the Interstate Compact on the Placement of Children (ICPC) was completed. The case manager requested through the ICPC a home evaluation in Tennessee, but the request was not fulfilled because by the time the home evaluation was scheduled to be conducted, the mother had reported to the case manager that she had temporarily moved to Michigan for employment. In September 2009, the mother told the case manager that she was moving back to Tennessee, to a different address. Because the mother had next mentioned moving to Florida, the case manager never initiated another home evaluation through the ICPC because she did not know where the mother would be residing. The case manager repeatedly asked the mother for documentation of income, but the mother never provided any verified proof of such.

The children’s foster mother testified that before the mother moved to Tennessee, she (the mother) was exercising visitation three days a week. After moving to Tennessee, however, she visited the children only three times. Then, six months passed without visitation. Thereafter, she visited the children once in November 2009, twice in December 2009, and once in February 2010. The foster mother testified that the children called her “Mommy,” and that she would be interested in adopting the children.

The coordinator of the supervised visitation center testified that from April 2009 to June 2009, the center had scheduled seven supervised visits for the mother, who attended only three of them. Before these visits, he had previously supervised visitation in November and December 2008; but his services were terminated after the mother was granted unsupervised visitation. The visitation center coordinator testified that during the visits in November and December 2008, the mother and children interacted in a positive manner. In contrast, during the April and May visits, he observed that the children no longer seemed to know their mother as well and were no longer relating well to her. During the last visit of February 1, 2010, just prior to the termination hearing, as the mother sat beside A. R., the coordinator asked A. R. to tell him who the person was sitting next to her, and the child “shrugged her shoulders, saying she didn’t know.” The coordinator testified that he felt the mother was “at a loss” as to what to do with the children during visitation.

A clinician who worked with the mother testified that for two months she counseled the mother for depression. The mother completed eight of twelve scheduled sessions. Of the four missed appointments, the mother gave no excuse for missing two; she explained that she missed one because she thought she had obtained a job, and she missed another one so she could visit her brother. The clinician testified that in many of the sessions, the discussion concerned getting a job and a place to live. The mother had been prescribed medication to treat her depression, but did not take it.

When the clinician counseled the mother, she (the mother) still had no job and no means to provide for her children, and she was being evicted from her home. The clinician testified that “the people who were supporting [the mother] had moved.” The clinician testified that the mother had a low IQ, which, coupled with her depression and failure to take her medication, would cause her to need a lot of support to care for herself and her children. The clinician testified that the mother lacked an understanding of how to obtain basic assistance for various services, and that the mother did not demonstrate that she could “follow up and do a lot of things,” in caring for the children. The clinician did not believe that the mother was capable of providing and caring properly for her children.

A parent aide provided parent training services for the mother; she covered topics such as health, safety, discipline, and nutrition with the mother. The aide testified that the mother did not seem motivated, did not follow through with recommendations, and did not make any significant progress during the time that they worked together.

A speech pathologist testified that J. R. has a communication disorder and that, prior to the termination hearing, she had been working with J. R. on a weekly basis for the past seven months to improve his communication skills.

The mother’s brother testified that the mother and her newborn child lived with him, his wife, and another brother in a four-bedroom, two-bath apartment in Tennessee. Both brothers had jobs in the construction industry. The brother’s wife, who worked in the daytime, cared for the baby while the mother worked in the evenings.

The juvenile court entered an order terminating the mother’s parental rights to A. R. and J. R.

The mother challenges the juvenile court’s findings that (1) A. R. and J. R. were deprived; (2) their deprivation was likely to continue; (3) the mother suffered from a medically verifiable deficiency; and (4) the mother without justifiable cause had failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights to: (a) develop and maintain a parental bond with the children in a meaningful, supportive manner, (b) provide for the care and support of the children as required by law or judicial decree, and (c) comply with a court-ordered case plan designed to reunite the children with the parent.

To prove that parental rights ought to be terminated, [DFCS] first must prove “parental misconduct or inability” by clear and convincing evidence. Such proof requires [DFCS] to establish that (1) the child is deprived; (2) the deprivation results from a lack of proper parental care or control; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. Where [DFCS] carries this burden, it then must prove that termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home.

1. Parental Misconduct or Inability.

(a) Finding of Deprivation. The mother contends that in determining that A. R. and J. R. were deprived at the time of the termination hearing, the juvenile court erroneously relied on a temporary disposition order which had not been signed by the court or filed prior to the issuance of the termination order. Citing In the Interest of Tidwell, the mother argues that because a juvenile court order is not effective for any purpose until it is signed and filed with the clerk, in finding that A. R. and J. R. were deprived, the juvenile court could properly place no reliance on the temporary disposition order from the December 2, 2009 hearing because it was not signed and filed until after the termination order was entered.

The mother is correct that generally, “until an order is signed by the judge (and is filed) it is ineffective for any purpose.” But an exception to this general rule “may be made when [as in this case] an order is entered nunc pro tunc to the date of the court’s oral ruling.” “A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake.”

Although a nunc pro tunc entry may not be used to supply an order not yet made by the court, [the mother] has failed to show that such order [issued May 26, 2010] was not initially made during the hearing before the trial court, which appears to have taken place on December [2, 2009]. As the appellant, [the mother] had the burden to affirmatively show error by the record. This [s]he failed to do. Therefore, we must presume the trial court’s judgment is correct.

The mother further asserts that despite any reliance on prior findings of deprivation, the evidence failed to show that A. R. and J. R. were deprived at the time of the termination hearing. She argues that “it was undisputed that she was gainfully employed, had obtained stable housing, and [was] now surrounded by a great deal of familial support. Further, she was successfully caring for a new child without any government intervention.”

OCGA § 15-11-2 (8) (A) provides that a child is deprived if he or she “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” “The juvenile court is not required to reunite the child with the parent in order to obtain current evidence of deprivation or neglect.” “The test in determining termination of parental rights... is whether the mother, ultimately standing alone, is capable of mastering and utilizing the necessary skills to meet her parenting obligations.”

The mother never appealed the issuance of the December 4,2008 initial temporary order which included a finding of deprivation; indeed, she had consented to that finding. Nor did she appeal the juvenile court’s December 2, 2009 extension of the temporary order, which also included a finding of deprivation.

Where, as here, the children have been removed from parental custody, DFCS may prove current deprivation by showing that, if the children were returned to their mother at the time of the hearing, they would be deprived. This may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist at the time of the termination hearing.

The mother’s circumstances at the time of the termination hearing were not significantly different from the circumstances which caused A. R. and J. R. to be placed in the custody of DFCS. At the time DFCS opened a case on the family, the mother was living in an apartment with other adults upon whom she relied for support. The court based its earlier findings of deprivation on the mother’s “neglect/lack of supervision; and the mother’s financial inability to provide proper parental care, control and supervision for the children,” the mother’s insufficient compliance with the case plan, and the mother’s failure to maintain “a consistent bond with her children.” In its termination order, the court found that these circumstances had not changed. There was testimony that the mother depended on her brother for housing and on her sister-in-law for child care, and that she had failed to comply with the case plan requirement of showing written proof of employment and stable housing.

The mother failed to complete counseling for her depression and parenting aide counseling, and she failed to take medication prescribed to treat her depression. After consenting to a court finding that her children were deprived and consenting to them being placed in the custody of DFCS, the mother moved to two different states within a period of six months and discussed moving to a third state, effectively hindering DFCS’s ability to transfer agency services to her at any new place of residence. The mother failed to exercise scheduled visits with her children, and the older child no longer recognized her. “We find no merit in the mother’s claim that the court impermissibly based its finding upon past rather than present deprivation; the order stated that the children remained deprived.” There was clear and convincing evidence to support the court’s finding that the children were deprived.

(b) Lack of Proper Parental Care or Control as the Cause of Deprivation.

(i) Finding that the mother suffered from a medically verifiable deficiency. The mother contends that the juvenile court erred in finding that there was a lack of proper parental care or control due to a medically verifiable deficiency of her physical, mental or emotional health of such a duration or nature as to render her unable to provide adequately for the needs of her children.

In determining whether a lack of proper parental care or control as a cause of deprivation has been made,

the court shall consider, without being limited to, the following: ... A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child. . . ,

“The court received evidence that the mother’s psychological condition contributed to the reasons for which the court initially found the children to be deprived.” A psychological evaluation showed that the mother was diagnosed with depression. In addition to an evaluation of the mother’s cognitive, emotional, and personality functioning, the mother was given a parent assessment. The psychologist noted the mother’s low level of education and low IQ. The psychologist recommended that before the mother regained custody of her children, she needed, among other things, to participate in ten to twelve individual counseling sessions to “work through emotional issues (treatment for depression, separation from her children, and guilt).” But the mother moved out of state and did not complete the case plan or recommended treatment for depression and emotional issues. At the time of the evaluation the psychologist noted that the mother was “willing to seek professional help to assist,” and concluded that her symptoms of anxiety and depression could “most likely” be managed. The psychologist noted that all of these factors contributed to determining the mother’s fitness for parenting.

The clinician who counseled the mother for depression testified that the mother’s ability to function in society was compromised by her low IQ, her depression, and her failure to take her medication. The clinician testified that the mother did not have a good understanding of how to obtain basic assistance, and did not seem either to care about or to understand the consequences of losing her place of residence again. The mother did not demonstrate the ability to “do a lot of things,” such as setting up doctor appointments for the children and being able to keep food in the home. The clinician did not believe the mother was capable of providing and caring properly for her children. Accordingly, any rational trier of fact could have found by clear and convincing evidence that the mother suffered from a medically verifiable deficiency such as to render her unable to provide adequately for the needs of her children, including one child with a communication disorder.

(ii) Finding that the mother without justifiable cause had failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights to: develop and maintain a parental bond with the children in a meaningful, supportive manner, provide for the care and support of the children as required by law or judicial decree, and comply with a court-ordered case plan designed to reunite the children with the parent. Where children are not in the parent’s custody, OCGA § 15-11-94 (b) (4) (C) provides that the aforementioned are additional factors for the court to consider in determining whether children are deprived because they are “without proper parental care and control.”

The mother takes issue with the termination petition being filed less than one year after the filing of the case plans. But “[e] ven if the reunification plan[s] ha[ve] been in effect for less than one year, a termination of parental rights may be warranted by other factors.” There was evidence that the mother: failed to exercise visitation with her children, to the extent that one child no longer knew who she was; moved to two other states in a short period of time; failed to provide proof of income and stable housing as required under her case plans; failed to complete counseling sessions and follow psychological treatment recommendations; failed to complete parent-aide sessions; and failed to maintain a stable residence such that DFCS could provide services for her to regain custody of her children. The record supports the juvenile court’s conclusion that the lack of proper parental care or control caused A. R.’s and J. R.’s deprivation.

The mother contends that the juvenile court’s finding that she failed to pay child support is not supported by the record. “Even assuming certain findings of the juvenile court are not supported by the record, there remain many authorized findings that support the court’s finding of deprivation,” as stated above. In any event, the record shows that prior to the mother’s move to Tennessee, she did not have a job and never provided proof of income to the court. There is no evidence in the record that the mother provided any financial support for A. R. and J. R., other than the one time she sent money for J. R.’s birthday.

(c) Finding that the cause of the deprivation was likely to continue. In support of her assertion that DFCS failed to prove that the cause of the deprivation was likely to continue, the mother claims, among other things, that by the time of the termination hearing, “it is undisputed that [she] had been continuously employed in the same job on a full time basis for the past four to five months. She had achieved housing stability, having resided for approximately five months in [a] large apartment that she shared with other family members, and she intended to stay there.”

[Although it is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue, it is equally true that evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required. However, in considering past deprivations compared to present achievements, juvenile courts are entitled to assign much less weight to such assertions of sudden parental fitness when compared to the other evidence. In considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.

As part of the mother’s case plan she was required to, for a minimum of six consecutive months, obtain and maintain a source of income/support and to provide the DFCS case manager with monthly verification of income. The mother was also required to, for a minimum of six consecutive months, obtain and maintain stable, clean, and safe housing, and to provide her case manager with monthly verification that rent and utility payments were current. Although the case manager repeatedly asked the mother for verifiable proof of income, she never received any. And there was no evidence that the mother’s rent and utility payments were current.

The clinician who had worked with the mother testified that based on her observations and consultations with the mother, she did not believe that the mother had the capacity to adequately parent her children on her own. According to the parent aide who had worked with the mother on her parenting skills, the mother exerted minimal effort and made little progress; the aide was concerned about the mother’s inability to apply the things she was taught.

The evidence presented at the termination hearing further established that the mother: did not take her depression medication; missed appointments with her mental health counselor; missed visitation with her children; moved to two different states within a period of six months and discussed moving to a third state, effectively hindering DFCS’s ability to transfer agency services to her at any new place of residence; and showed no proof of income or stable housing as required under the case plan.

Evidence of the mother’s past conduct was properly considered in determining whether the cause of the children’s deprivation was likely to continue, and testimony given by her brother at the hearing could be viewed as “positive promises which are contrary to negative past fact.” In reviewing the question of whether any rational trier of fact could have found by clear and convincing evidence that the mother’s rights should have been terminated, “the appellate court must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.” Any rational trier of fact could have found by clear and convincing evidence that the cause of the children’s deprivation was likely to continue.

(d) Finding that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. The mother does not challenge the juvenile court’s finding as to this factor. Notwithstanding, “it is well settled that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” Evidence of a parent’s repeated failures to take the steps necessary to reunite with her children is sufficient to prove that continued deprivation will cause serious physical, mental, emotional or moral harm. Here, the mother repeatedly failed to comply with the requirements of her case plan to reunite with her children. A. R. and J. R.’s foster mother, with whom the children had lived for the past 15 months, testified that she was interested in adopting the children. The juvenile court’s finding that continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to A. R. and J. R. is supported by the record.

2. Best interest of the children. As for the second prong of the termination analysis, the mother does not challenge the juvenile court’s finding that termination of her parental rights is in the best interest of the children. Notwithstanding, we are persuaded that the evidence shows that termination of the mother’s parental rights was in the best interest of the children, considering the children’s physical, mental, emotional, and moral condition and their “need for a secure and stable home.”

“The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” Children need permanency, stability, and a safe environment, which the mother has not demonstrated she can provide. “The juvenile court was authorized to consider the children’s need for a stable home situation and the detrimental effects of prolonged foster care.”

“Given this evidence, and having reviewed the entire record in this case, we find there is sufficient clear and convincing evidence to support the juvenile court’s decision to terminate the mother’s parental rights.”

Judgment affirmed.

Andrews, J., concurs. McFadden, J., concurs specially and in judgment only.

Decided March 30, 2012.

Jones & Erwin, Anthony B. Erwin, Rebecca B. Paris, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Holly A. Bradfield, Calandra A. Harps, Assistant Attorneys General, Elinor H. Portivent, for appellee.

MCFADDEN, Judge,

concurring specially and in the judgment only.

I limit my concurrence to the judgment only and write separately in order to emphasize that our decision today is not a departure from the settled rule that “poverty alone is not a basis for termination” of parental rights. (Citation omitted.) In the Interest of C. T., 286 Ga. App. 186, 190 (2) (648 SE2d 708) (2007).

        In the Interest of A. R, 302 Ga. App. 702 (691 SE2d 402) (2010) (citation and footnote omitted).

        In the Interest of R. S., 287 Ga. App. 228 (651 SE2d 156) (2007).

       No transcript of the November 19, 2008 hearing was included as part of the appellate record.

       See OCGA § 39-4-4, governing the placement of a Georgia child in another state.

       The mother gave birth to a third child approximately two weeks before the termination hearing. That child is not a subject of this proceeding.

       OCGA§ 15-11-94 (a).

       See OCGA § 15-11-94 (b) (4) (A) (i)-(iv).

        In the Interest of M. S. S., 308 Ga. App. 614, 620 (2) (708 SE2d 570) (2011) (citations and punctuation omitted).

       279 Ga. App. 734, 739 (1) (632 SE2d 690) (2006).

        State v. Sullivan, 237 Ga. App. 677, 678 (516 SE2d 539) (1999) (citation, punctuation and footnote omitted).

       Id. at n. 1; Franklin v. State of Ga., 227 Ga. App. 30, 31, n. 1 (488 SE2d 109) (1997).

        In the Interest of H. L. W., 244 Ga. App. 498, 498-499 (535 SE2d 834) (2000) (punctuation and footnote omitted).

        Sebby v. Costo, 290 Ga. App. 61, 62 (658 SE2d 830) (2008) (citation and punctuation omitted).

        In the Interest of R. B., 285 Ga. App. 556, 561 (3) (647 SE2d 300) (2007) (citation and punctuation omitted).

        In the Interest of A. R., supra at 710 (1) (c) (citations, punctuation and footnotes omitted; emphasis in original).

       See State v. Morrell, 281 Ga. 152, 153 (2), (3) (635 SE2d 716) (2006) (an order is not appealable unless it is in writing; where trial court failed in its duty to put its oral order in writing, the party wishing to appeal the oral order may file a mandamus petition seeking to require the court to do so).

        In the Interest of Z. H. T., 302 Ga. App. 424, 429 (1) (a) (691 SE2d 292) (2010) (footnotes omitted).

       See In the Interest of A. R., supra at 709 (1) (c) (because the mother’s income and housing were completely dependent upon her relationship with her boyfriend, they could not be considered stable).

        In the Interest of Z. H. T., supra (emphasis in original).

       OCGA§ 15-11-94 (b) (4) (B) (i), (v).

        In the Interest of Z. H. T., supra at 430 (1) (b).

       Compare In the Interest of S. J., 270 Ga. App. 598, 609 (1) (c) (607 SE2d 225) (2004) (finding of deprivation reversed where, among other things, juvenile court’s finding that mother exhibited a medically verifiable deficiency so as to render her unable to provide for her child was not supported by the evidence; psychologist who diagnosed a mother with depression did not evaluate her for parenting capacity).

       See In the Interest of Z. H. T., supra; In the Interest of J. J. J., 289 Ga. App. 466, 467-468 (657 SE2d 588) (2008); In the Interest of T. B. R., 304 Ga. App. 773, 779 (1) (a) (697 SE2d 878) (2010); In the Interest of K. N., 272 Ga. App. 45, 53 (a) (2) (611 SE2d 713) (2005).

        In the Interest of C. A. S., 308 Ga. App. 757, 760 (2) (708 SE2d 655) (2011) (citation and punctuation omitted).2

       See id.

       See In the Interest of R. C. H., 307 Ga. App. 774, 777 (1) (706 SE2d 686) (2011) (citation and punctuation omitted).

        In the Interest of D. B. C., 292 Ga. App. 487, 496 (1) (c) (664 SE2d 848) (2008) (citations and punctuation omitted).

       See In the Interest of A. R., supra at 710 (1) (c).

       See id. at 708 (1) (c).

       See In the Interest of Z. H. T., supra at 431 (1) (c) (“repeated failure to comply with case plan goals may show that the cause of deprivation is likely to continue”).

       See In the Interest of J. J. J., supra at 470 (punctuation and footnote omitted).

        In the Interest of A. C., 285 Ga. 829, 836 (3) (686 SE2d 635) (2009).

       See In the Interest of D. B. C., supra; In the Interest of S. P., 300 Ga. App. 883,887 (3) (686 SE2d 474) (2009).

        In the Interest of A. B., 274 Ga. App. 230, 232 (617 SE2d 189) (2005) (citation omitted).

       Id.

       See id.

       OCGA§ 15-11-94 (a); id.

        In the Interest of T. J., 281 Ga. App. 673, 675-676 (1) (637 SE2d 75) (2006) (citations and punctuation omitted); see In the Interest of M. L. P., 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652) (1999) (juvenile court has broad discretion in determining how the interest of the child is best served).

       See In the Interest of T. J., supra at 676 (1).

       Id. (citation and punctuation omitted).

       Id.


source: Caselaw Access Project

author: McFadden, Judge. DILLARD, Judge, MlKELL, Presiding Judge, ANDREWS, Judge,

license: Public Domain

text:
    A11A1870.
    PETERSON v. REEVES et al.
    (727 SE2d 171)
   McFadden, Judge.

Monisa Reeves and the conservator of her estate sued psychiatrist Mark Peterson for injuries she sustained when she attempted suicide. Peterson moved for summary judgment, arguing that he had no duty to involuntarily commit Reeves, who was participating in voluntary, outpatient mental health care. Because we find that whether Peterson breached duties arising from the psychiatrist-patient relationship is an issue of fact, we affirm the denial of Peterson’s motion for summary judgment.

We decline Peterson’s invitation to establish a rule that, as a matter of law, a psychiatrist’s statutory duty to “bring to the exercise of his profession a reasonable degree of care and skill,” OCGA § 51-1-27, can never be violated by failure to involuntarily commit a patient. Such innovations are the province of the General Assembly.

We likewise decline Peterson’s invitation to add “control” of the patient to the essential elements of medical malpractice in cases of suicide. Again such innovations are for the General Assembly. And the evidence at bar, construed as Reeves, the nonmovant on summary judgment, is entitled to have it construed, shows why judicial creation of such a rule would be improper. The evidence would authorize a jury to find that Peterson shares in the responsibility for a negligent failure to subject Reeves to a suicide or self-injury risk assessment, an adequate psychiatric evaluation, and consideration for hospitalization; that he shares in the responsibility for the failure to stabilize Reeves in a proper medication regimen; and that he was negligent in failing to be available for consultation, or to have another psychiatrist available, when she was discharged. And the evidence would authorize a jury to find that those negligent omissions were a proximate cause of the defendant’s lack of control over Reeves at the time of her attempted suicide as well as of the attempted suicide itself.

1. On appeal from the grant or denial of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the non-moving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

Viewed in a light most favorable to Reeves as the nonmovant, the facts show that Reeves has a history of mental illness dating back to December 2001, and she began seeing Peterson at that time. She continued her treatment with Peterson, as well as other mental healthcare providers, until the incident at issue. She has been diagnosed with a schizo-affective disorder, a recurrent major depressive disorder, a bipolar disorder and psychotic disorders related to her other mental illnesses.

On August 5 or 6,2005, Reeves’s brother took her to the Parkridge Valley Hospital emergency room because she exhibited psychotic symptoms and behavior. She was not hospitalized. The next day, she attempted to jump from a balcony into an empty swimming pool. Reeves’s friend called 911, and the police took her to the Hutcheson Medical Center emergency room. Reeves was found to be at high risk of committing suicide and was involuntarily committed to Northwest Georgia Regional Hospital.

Three days later, Reeves’s status was changed from involuntary to voluntary, and on August 15,2005, she was discharged to Horizons Crisis Group Home, a voluntary treatment facility. On August 17, 2005, Horizons discharged Reeves at her request.

On August 23, 2005, Reeves’s brother and sister-in-law again brought her to the Hutcheson Medical Center emergency room. Later that evening, she was admitted to Horizons Crisis Group Home. Peterson saw Reeves on August 26, 2005, diagnosed her with severe major depressive disorder with psychosis and bipolar disorder with psychosis, and prescribed medication.

On August 29, 2005, Reeves was discharged from Horizons either at her request or perhaps for unspecified “administrative reasons.” According to the expert affidavit Reeves submitted with her complaint, there was no indication that Reeves was subjected to a suicide or self-injury risk assessment, an adequate psychiatric evaluation, or considered for hospitalization, even though she had been admitted to Horizons because of clinical instability and danger of suicide.

On the evening of August 31, 2005, Reeves poured gasoline over herself and set herself on fire.

Reeves and her conservator filed this action against multiple defendants, seeking damages for Reeves’s pain and suffering, medical expenses, personal injuries and economic losses. Peterson moved for summary judgment. The trial court denied the motion. Peterson moved for reconsideration, and the trial court denied that motion as well. After we granted his application for interlocutory appeal, Peterson filed this appeal.

2. Peterson argues that Georgia law requires a psychiatrist to have control over a patient before he can be held liable for “any resulting harm” and that because he lacked control over Reeves, he had no affirmative duty to prevent her suicide attempt. His authority for that argument is the plurality opinion in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982).

Bradley Center is not on point. In that case, our Supreme Court, “granted certiorari to consider whether an individual other than the patient can recover for the alleged malpractice of the physician where that person is injured by the criminal conduct of the patient and there is no privity between the injured party and the physician.” 250 Ga. at 200. The court’s “concern... [was] with the first element [of the cause of action for negligence] — specifically, whether a physician can owe a legal duty of care to an injured party who was not his patient.” Id. The court was at pains to make clear that Bradley Center was “not a malpractice case; it [was] an ordinary negligence case in which privity has never been an essential element.” Id. at 203. The Supreme Court explained that in

cases [ ] called “classic medical malpractice actions” by the Court of Appeals, doctor-patient privity is essential because it is this “relation which exists between physician and patient which is a result of a consensual transaction” that establishes the legal duty to conform to a standard of conduct. Norton v. Hamilton, 92 Ga. App. 727, 731 [(89 SE2d 809) (1955)].

Id. at 201.

Rather the duty at issue in Bradley Center “ar[ose] out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Id. at 201. Consequently the court found it necessary to address the “general rule [that] there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.” Id. (citing Shockley v. Zayre &c., Inc., 118 Ga. App. 672 (165 SE2d 179) (1968); Restatement of Torts 2d, § 315). The court found applicable one of the exceptions to that rule: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” (Punctuation omitted.) Id. at 201-202 (citing Restatement of Torts 2d, § 319; Prosser, Torts, § 56, p. 349). Reeves was Peterson’s patient. So they were in privity. It follows that Bradley Center has no application here.

This court has twice declined to extend Bradley Center to medical malpractice cases — most recently over a dissent joined by Judge Andrews. Purcell v. Breese, 250 Ga. App. 472, 476 (3) (552 SE2d 865) (2001); Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 773-774 (3) (403 SE2d 235) (1991). We now decline that invitation for the third time — and with it we decline the invitation in Judge Andrews’s dissent here to disregard the rationale of Bradley Center and distinguish Purcell on its facts.

3. Peterson next argues that no duty should be placed on a psychiatrist in a voluntary, outpatient facility to involuntarily commit any patient. But the General Assembly has imposed on every physician the duty to “bring to the exercise of his profession a reasonable degree of care and skill.” OCGA § 51-1-27. If the decision whether to involuntarily commit a patient in such circumstances is to be excepted from that statutory duty, it is for the General Assembly to create the exception.

But the General Assembly has taken the opposite course — notwithstanding that it has established a public policy favoring treatment of psychiatric patients in the least restrictive appropriate care setting. The chapter setting out that policy contains an immunity provision. Until last year, it read:

Any . . . physician . . . who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.

OCGA § 37-3-4. Effective July 1,2011, the GeneralAssembly amended that provision, adding language that reaffirms the long-recognized policy that physicians may be held liable for failing to meet the applicable standard of care: “[N]othing in this Code section shall be construed to relieve any . .. physician ... from liability for failing to meet the applicable standard of care in the provision of treatment to a patient.” See also Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 112 (2) (372 SE2d 265) (1988); OCGA§ 51-1-27. Another statutory provision makes clear that patients receiving treatment for mental illness “shall receive care and treatment that is suited to [their] needs.” OCGA§ 37-3-162 (a).

Although the least-restrictive-placement policy might be relevant to the standard of care, it is not dispositive of whether a particular placement was suited to a particular patient’s needs, and thus whether a medical professional’s choice of that placement met the professional’s duty of care to the patient. In Misfeldt v. Hosp. Auth. &c. of Marietta, 101 Ga. App. 579 (115 SE2d 244) (1960), for example, a woman diagnosed as a probable paranoid schizophrenic was hospitalized. She went into a bathroom and jumped from a third story window, injuring herself. We reversed the defendant’s directed verdict, finding that the reasonableness of the steps taken by the hospital to protect the patient from herself, including placing her in a four-bed room instead of a more restrictive environment, thereby enabling her to jump out of a third-story window and sustain serious injuries, was a disputed issue for the jury. Id. at 583.

Peterson mischaracterizes the trial court’s order when he argues that it creates an affirmative duty to involuntarily commit patients. The duty at issue is not, properly speaking, a duty to involuntarily commit. It is a much broader duty, which may, in particular cases, entail a duty to commit. Reeves alleges breach of the duty to care for her in compliance with the standard of care applicable to psychiatrists and counselors. The trial court’s denial of summary judgment is nothing more than a determination that genuine issues of material fact exist and that Peterson is not entitled to judgment as a matter of law. See Benton, 280 Ga. at 470.

Further, as we held in Division 2, while Peterson had no duty to guarantee that Reeves did not attempt suicide, he had a long-recognized duty inherent in the doctor-patient relationship to exercise the applicable degree of care and skill in the treatment of Reeves, his patient. Brandvain v. Ridgeview Institute, 188 Ga. App. at 112 (2). Peterson can be held liable if his treatment of Reeves fell below the requisite standard of care, and this failure proximately caused Reeves’s injury. OCGA § 51-1-27.

Without citing any authority, Judge Andrews says that we should create an exception to this long-standing rule of law and hold that, if a patient is not hospitalized at the time of a suicide attempt, a psychiatrist can never be held liable for the consequences of that suicide attempt — even if the psychiatrist fails to exercise the applicable degree of care and skill in the treatment of the patient. We decline to usurp the authority of the General Assembly in this way. The law is clear: a physician may be held liable “for failing to meet the applicable standard of care in the provision of treatment to a patient.” OCGA § 37-3-4.

Reeves attached to her complaint an expert affidavit in support of her allegations as required by OCGA § 9-11-9.1. The expert opined within a reasonable degree of medical certainty that Peterson did not comply with the requisite standard of care. Accordingly, whether Peterson’s treatment of Reeves violated the standard of care is a question for the factfinder. See Bowling v. Foster, 254 Ga. App. 374, 381 (1) (b) (562 SE2d 776) (2002) (when a claim is based upon the failure of a professional to meet the requisite standards of the subject profession, it is necessary “to establish such standards and the violation thereof by expert testimony for the guidance of the jury”).

Presiding Judge Mikell and Judge Andrews argue that Peterson is entitled to summary judgment on the ground of proximate causation. Judge Andrews contends that Reeves has failed to submit any evidence of causation. On the contrary, Reeves presented the expert testimony of Dr. William Reid that she should have been — but was not — subjected to a suicide or self-injury risk assessment, an adequate psychiatric evaluation, and consideration for hospitalization. And she presented the testimony of Dr. Robert Alpern, who testified that Peterson owed Reeves a duty, “that he was derelict in performing his duties, that there were damages that resulted from his dereliction of duty, and that the burning and the self-immolation was the direct result of his negligent care.” As detailed in Judge Dillard’s special concurrence, Dr. Alpern also testified that Peterson was negligent in failing to be available for consultation, or to have another psychiatrist available, when Reeves was discharged. It is true, as detailed in Judge Andrews’s dissenting opinion, that there is also evidence pointing in the opposite direction. But it is not our place to weigh the evidence. “[Q]uestions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.” (Citation and punctuation omitted.) Pruette v. Phoebe Putney Mem. Hosp., 295 Ga. App. 335, 338 (1) (671 SE2d 844) (2008). This is not such an undisputed case.

Presiding Judge Mikell would rule that because Reeves attempted suicide five days after Peterson last saw her, her injury is too remote to find that Peterson’s negligence proximately caused it. Acknowledging that Reeves has presented expert testimony on the issue, he nonetheless would remove the case from the jury and instead determine, as a matter of law, an issue that is “undeniably a jury question.” Pruette, 295 Ga. App. at 338 (1). But although such delay may be relevant to the issue of causation, it is not dispositive as a matter of law. Our cases have often recognized a cause of action where there is a delay of months or years between the breach of duty and the resultant harm. See, e.g., Amu v. Barnes, 283 Ga. 549 (662 SE2d 113) (2008) (cancer diagnosed four years after failure to perform a colonoscopy).

“In our de novo review of [the denial of] a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.

(Citations and punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003). And “Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.” Id. at 503. Reeves presented expert testimony that Peterson’s breaches of his duty of care directly resulted in the foreseeable harm of Reeves attempting suicide.

Correctly noting that analysis of the issue of proximate cause, as distinguished from cause in fact, entails analysis of the scope of physicians’ duties to patients, see McAuley v. Wills, 251 Ga. 3, 6-7 (5) (303 SE2d 258) (1983), Presiding Judge Mikell would also hold, as a matter of law, that Peterson violated no duty to Reeves. Presiding Judge Mikell reasons that as the “statutes are silent,” it is for this court “to say whether a duty exists or not in the circumstances presented.” So empowered, he would decline to “create” or “ratify,” inter alia, a duty “to perform a ‘suicide or self-injury assessment’ and an ‘adequate psychiatric assessment.’ ” Imposing such duties, he maintains, would constitute ill-considered “rearrangements of the practice of the profession of psychiatry” and are better left to the General Assembly.

But contrary to Presiding Judge Mikell’s position, the statutes are not silent. OCGA § 51-1-27 provides, “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” The statute leaves no room for procedure-by-procedure determinations by the appellate courts as to whether a cause of action should be allowed.

As Presiding Judge Mikell notes, the General Assembly has the authority to conduct committee hearings. So it has the competence, as well as the authority, to decide whether to create exceptions to that general duty. It has not done so. But it has mandated that juries hearing malpractice cases will hear expert testimony. See OCGA § 9-11-9.1. So juries have the competence, as well as the authority, to decide whether that general duty has been violated in particular cases. Appellate judges, although they have the raw power to create exceptions consistent with their policy preferences, have neither the competence nor the legitimate authority to do so, and should therefore exercise self-restraint.

As Judge Dillard aptly writes in his special concurrence, the evidence, when construed against Peterson, supports inferences of a “reasonable apprehension of harm” and is therefore sufficient to withstand Peterson’s summary judgment motion. See Purcell, 250 Ga. App. at 475 (1) (the issue of proximate causation was for the jury-in case where patient committed suicide nearly two months after psychiatrist last saw him).

We emphasize that the trial court did not create, and we are not creating, a new “duty to commit.” Rather, we are simply recognizing that, under some circumstances, the failure to commit may constitute a breach of the well-established duty of care physicians owe patients, and that when a fact question has been created on that issue, it is for the jury.

For these reasons, we conclude that the trial court did not err in denying Peterson’s motion for summary judgment.

Judgment affirmed.

Phipps, P. J., concurs. Dillard and Boggs, JJ., concur specially. Barnes, P. J., concurs in judgment only. Mikell, P. J., and Andrews, J., dissent.

DILLARD, Judge,

concurring specially.

While I agree with the majority’s conclusion that the trial court did not err in denying Peterson’s motion for summary judgment, I believe that the majority’s opinion could be misconstrued as creating an affirmative duty for a mental healthcare professional to involuntarily commit a potentially suicidal patient. Accordingly, I specially concur in the judgment of the Court but write separately to emphasize that summary judgment was properly denied because genuine issues of material fact exist as to whether Peterson negligently breached the duty of care owed to Reeves prior to her discharge from hospitalization and whether such negligence was a proximate cause of Reeves’s attempted suicide.

As is the case with all physicians, a psychiatrist’s duty “is that inherent in the doctor-patient relationship, which, if breached by failure to exercise the requisite degree of skill and care, with that failure being the proximate cause of the injury, will result in liability.” And “[ijnextricably entwined with [the concept] of... proximate cause is a notion of foreseeability, not foreseeability as to the particular harm but that some harm would occur.” Moreover, no matter what test is used in determining the issue of proximate cause, “all of the tests envision some reasonable apprehension of harm.” Furthermore, questions of proximate cause ordinarily are “reserved solely for the jury and should not be resolved as a matter of law except in plain and indisputable cases.” This is not such a case.

Here, Peterson narrowly characterizes Reeves’s claim as being that Peterson breached his duty of care by failing to involuntarily commit Reeves and further argues that Reeves failed to provide evidence of proximate cause. But the record shows that Peterson’s duty of care was not so limited and that there was sufficient evidence of proximate cause to withstand summary judgment. Indeed, the expert affidavit of Dr. William Reid, attached to Reeves’s complaint, avers that Peterson breached his duty of care by negligently failing “to adequately assess and appreciate [Reeves’s] psychiatric condition and risk of harm to herself while she was a resident of Horizons and prior to discharging her to the community.” Dr. Reid’s affidavit further states that Reeves’s suicide attempt could have been avoided if Peterson had not breached his duty of care.

In addition, Reeves’s other expert witness, Dr. Robert Alpern, testified in his deposition as to several ways in which Peterson breached his duty of care to Reeves. Specifically, Dr. Alpern testified that Peterson breached his duty of care by failing to perform a proper suicide risk assessment on Reeves prior to her being discharged despite being aware that she had recently attempted to jump from her balcony into an empty swimming pool, had sent her children to live elsewhere, gave away all her clients at her place of employment, had repeatedly expressed guilt for not taking care of her deceased mother, and had experienced hallucinations in which voices told her that she needed to burn in hell. Indeed, Dr. Alpern testified that such behavior put Reeves at a high risk of suicide “that even a second year medical student would recognize.” Dr. Alpern further testified that Peterson breached his duty of care by failing to stabilize Reeves in a proper medication regimen despite being cognizant of the fact that her continuing psychotic behavior and hallucinations indicated that her current medication regimen was ineffective. Importantly, Dr. Alpern also testified that Peterson breached his duty of care by not being available for consultation on the day that his patient Reeves was discharged, or at the very least, by not arranging for another psychiatrist to be available, if he was not, to evaluate Reeves on the day of her discharge. Finally, Dr. Alpern concluded that Peterson’s numerous breaches of his duty of care resulted in the foreseeable harm of Reeves attempting suicide.

Construed against Peterson, the evidence and inferences drawn therefrom show that, when she was discharged from Horizons, Reeves was at a high risk for committing suicide. Furthermore, the evidence shows that Peterson breached his duty of care owed to Reeves by failing to perform a proper suicide risk assessment, failing to stabilize her in a proper medication regimen, and failing to be available for consultation, or arrange for another psychiatrist to be available, on the day that Reeves was discharged. These breaches of his duty of care created a reasonable apprehension of harm sufficient to withstand summary judgment.

Relying on Bradley Center v. Wessner, Peterson argues that a psychiatrist cannot be held liable for a patient who commits or attempts to commit suicide if the psychiatrist had no physical control over the patient at the time of the incident. In Bradley Center, our Supreme Court carved out a narrow exception to the general rule requiring privity between a plaintiff and a physician in a medical-malpractice action by holding that

where the course of treatment of a mental patient involves an exercise of “control” over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient.

However, this Court has previously rejected an attempt to apply Bradley Center in a context similar to this case and with good reason. In essence, Bradley Center marked an expansion of a physician’s duty of care, albeit a very narrow one, by holding that such a duty extended to third parties injured by a patient whom the physician knew to be dangerous and over whom the physician exercised control. I therefore cannot agree with Peterson that the opinion also simultaneously limits the duty of care owed by a physician to his own most mentally troubled patients.

Accordingly, I concur with the majority that the trial court did not err in denying Peterson’s motion for summary judgment but do so for reasons slightly different than those expressed in the majority’s opinion.

I am authorized to state that Judge Boggs joins in this opinion.

MlKELL, Presiding Judge,

dissenting.

I respectfully dissent. As Judge Andrews explains in his dissent, a plaintiff in a case such as this must prove (1) a legal duty, (2) a breach of that duty, i.e., negligence, (3) a “legally attributable causal connection” between the breach and the resulting injury, and (4) loss or damage as a result of the breach of the duty. Analysis of all lawsuits alleging negligence, and especially analysis of psychiatric malpractice cases, would be easier and more just if, when discussing item (3) above, we carefully distinguish between cause-in-fact and proximate cause.

As explained by our Supreme Court in a scholarly opinion,

a holding that a defendant’s conduct is not the proximate cause of the plaintiff’s injury does not constitute a determination that the defendant’s conduct is not a cause in fact of the plaintiff’s injury, but rather is in the nature of a policy decision by the court that, for a variety of reasons . . . , the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance a recovery.

The scattershot affidavit of Dr. Reid, supplemented and modified by his deposition and that of Dr. Alpern, asserts that Dr. Peterson breached his professional duty of care in several ways. For example, Dr. Alpern asserts negligence by Dr. Peterson in not ordering the involuntary commitment of Mrs. Reeves, or not assessing her properly, or not being present when she was discharged from Horizons.

Of course, a physician owes a duty to his or her patient, indeed, a high duty. But he is not an insurer of the patient’s health in all circumstances.

As argued in Judge Andrews’s dissent, the circumstances in which a duty exists is a matter of law, not an issue of fact for a jury. Where the General Assembly has spoken about duty, our task is merely ministerial. But when statutes are silent on the issue, we must nonetheless, like all common law judges, decide the dispute in front of us. Doing so may oblige us to say whether a duty exists or not in the circumstances presented. And our decision is precedent until and unless changed by the representatives of the people.

I would be reluctant to create, or, to use a less argumentative term, to ratify, several of the duties argued for in the majority and specially concurring opinions. Those opinions and the plaintiffs experts cite as negligent Peterson’s failure on August 26, 2005, to perform a “suicide or self-injury assessment” and an “adequate psychiatric assessment.” We are not informed as to the time required for these assessments, and hence we do not know how much time would be added to the usual time spent by a psychiatrist with a hospitalized patient with whom he is already familiar. Dr. Peterson did not know on August 26, 2005, that he would not see Mrs. Reeves again at Horizons. Imposing a duty on a psychiatrist to prevent self-harm by a patient five days after the physician last sees her by means of administering these additional assessments would mean that every time a psychiatrist sees any patient with a history of suicidal attempts or thoughts, he must again administer those assessments. Every psychiatrist-patient encounter might be the last encounter before the five-day event.

Similarly, I would not create nor find that Georgia law already implies a duty incumbent on a psychiatrist to prevent a patient from harming herself two days after discharge by being available for consultation at discharge or having another psychiatrist be available. Having a psychiatrist be available for consultation would obviously increase the costs of community mental health facilities such as Horizons, or the cost to the patient’s insurance company, if any. More importantly, it would make the psychiatrist unavailable to other patients while he was doing discharge consultations. Such involuntary rearrangements of the practice of the profession of psychiatry would be better left to a more-fully informed legislature.

One allegation of a plaintiff’s expert might invoke a duty which does already exist. Dr. Alpern asserted that Dr. Peterson breached a duty of care by “failing to stabilize Reeves in a proper medication regimen.” The implication is that this failure breached a duty to prevent a patient from harming herself five days later. Dr. Peterson’s notes of the August 26 visit say “meds will take a while.” Whether we find Dr. Alpern’s testimony plausible is, of course, not relevant to our decision. Unlike the alleged duty to do things he did not do, e.g., be available for a discharge consultation, we know that Dr. Peterson did attempt to adjust Reeves’s medications. Whether any medication would prevent attempted suicide five days later is a dispute among experts.

Taking Alpern’s testimony as correct, as we must, Peterson’s alleged failure would be a cause-in-fact of Mrs. Reeves’s injuries. Georgia uses the conservative “but for” test to determine cause-in-fact. Under that analysis, the horrific injuries of the plaintiff would not have occurred five days later but for the negligence of the defendant and, of course, the negligence of others.

But was the alleged negligence the proximate cause? Proximate cause is a policy decision, to be made by the jury except in plain cases, as to whether it is reasonable to impose liability for resulting injury, injury clearly “caused,” by the defendant, when the connection between the negligence and the injury is attenuated. Here, the injury may have been foreseeable, but it occurred five days later, and Peterson did not know that Reeves would leave Horizons in the interval. Under those circumstances, I would find that Peterson’s negligence was not the proximate cause of the injuries.

I would reverse.

ANDREWS, Judge,

dissenting.

In cases involving whether a doctor may be held liable for a patient’s injury to a third person, Georgia law requires that the doctor have control over the patient before liability may be imposed. See Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); Gilhuly v. Dockery, 273 Ga. App. 418, 419 (615 SE2d 237) (2005); Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd., 290 Ga. App. 638 (660 SE2d 440) (2008). In cases involving whether a doctor may be liable for patients’ injuries to themselves, we have held that the doctor may be held liable where the patient is hospitalized at the time of the suicide or injury. See Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 112 (372 SE2d 265) (1988) (finding a duty to the extent possible under reasonable medical practice to prevent suicide of a hospitalized patient). We have never held that a doctor may be liable for failing to involuntarily commit someone or failing to prevent a suicide where the patient was not under the doctor’s control.

Because the existence of a legal duty in a negligence action is a question of law for the court, City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993), and because the majority provides no authority for creating a legal duty of the psychiatrist in this case, and because of the numerous reasons set forth below which would militate against doing so, I respectfully dissent.

The undisputed facts in the record show that Reeves had a lengthy psychiatric history dating from at least 2001. Peterson was a psychiatrist who worked only two days a week at Horizons, which housed only voluntary patients, not patients who have been involuntarily committed.

On August 7, 2005, following a suicide attempt, Reeves was involuntarily committed to Northwest Georgia Regional Hospital. On August 15, 2005, she was discharged to Horizons. Her discharge papers stated that her condition had improved and she no longer had thoughts about wanting to hurt herself.

On August 17, 2005, Reeves requested that she be discharged from Horizons. She returned for inpatient care on August 23, 2005, and Peterson examined her on August 26, 2005. Peterson noted that Reeves was psychotic and that her “meds will take a while.” That was the last time Peterson saw Reeves. Three days later, Reeves again asked to be discharged from Horizons. Peterson was not working at Horizons on August 29, and he was not consulted about Reeves’s discharge. Reeves was nonetheless discharged. She attended a group therapy session at Horizons on August 30, 2005, but she did not see Peterson. The next day, Reeves attempted suicide.

The basis for Reeves’s complaint is that Peterson failed to properly assess her when she saw him on August 26. But it is undisputed that, at that time, Reeves was a voluntary in-patient being treated until her medications could take effect.

1. In order to sustain this cause of action, Reeves must prove: (1) a legal duty; (2) a breach of this duty; (3) a legally attributable causal connection between the breach and the resulting injury; and (4) loss or damage as a result of the alleged breach of the legal duty. See Bradley Center v. Wessner, supra. Under the circumstances of this case, I fail to see how Reeves can establish proximate cause. Reeves attempted suicide after she voluntarily left Horizons. Peterson did not discharge Reeves from the facility, and he was not consulted prior to her discharge. Notably both of plaintiff’s experts refused to state that when Peterson saw Reeves on August 26, his treatment fell below the standard of care because he did not anticipate that she might attempt suicide and did not involuntarily commit her. Dr. Alpern was asked: “Do you agree or disagree that... on August 26th Ms. Reeves was not a danger to herself or others?” Answer: “I have no way of knowing.” Dr. Reid was asked: “Was it below the standard of care for a physician not to try to commit her on August 26, 2005?” Answer:

The short answer is no. . . . What was required was a good evaluation, including adequate risk assessment and then adequate consideration of what to do to both protect her and help her. I don’t believe I can come to the conclusion based on what’s in the record, that the standard required someone to put her in the hospital.

“It is clear that a plaintiff cannot recover for medical malpractice, even where there is evidence of negligence, unless the plaintiff establishes by a preponderance of the evidence that the negligence either proximately caused or contributed to cause plaintiff harm.” Miranda v. Fulton DeKalb Hosp. Auth., 284 Ga. App. 203, 206 (644 SE2d 164) (2007), quoting Zwiren v. Thompson, 276 Ga. 498, 502-503 (578 SE2d 862) (2003) (a medical expert’s statement of proximate cause as being merely possible, as opposed to reasonably probable, is insufficient to establish liability). Thus, Reeves must submit some evidence that Peterson’s negligence proximately caused her attempted suicide and without that negligence, the attempted suicide would not have occurred. See Miranda, supra at 208 (no proximate cause as a matter of law where hospital did not release patient who escaped restraints and left without permission); compare Purcell v. Breese, 250 Ga. App. 472, 475 (1) (552 SE2d 865) (2001) (question of fact existed as to negligence where doctor was consulted and authorized release of suicidal patient from facility without talking to patient or reviewing most recent records).

2. In Division 2, the majority rejects Peterson’s contention that he had no duty to prevent Reeves from attempting suicide in this instance because he had no control over her at the time of the attempted suicide. The majority cites Purcell, supra, to support this holding, but Purcell cannot do so. In that case, a teenager was released from the hospital psychiatric unit at his mother’s request. Before releasing him, a call was made to Purcell, his treating psychiatrist, who authorized the discharge. Id. at 473-474. Here, it is undisputed that Peterson was never consulted about Reeves’s discharge and therefore had no opportunity to consider whether she should be discharged or involuntarily committed.

The crux of Peterson’s argument on appeal is that he cannot be held liable for the attempted suicide of a patient who was not under his control. The other case cited by the majority, Brandvain v. Ridgeview Institute, supra, concerns the duty to prevent the suicide of a hospitalized patient, id. at 112, and therefore is not analogous because the patient was under the control of the healthcare provider.

More persuasive is Ermutlu v. McCorkle, 203 Ga. App. 335, 336 (1) (416 SE2d 792) (1992), which held that for a physician to be under a special relationship of control of such person so that liability may attach for failure to exercise ordinary care to protect others from such mental patient, a two-part test must be satisfied: “(1) the physician must have control over the mental patient; and (2) the physician must have known or reasonably should have known that the patient was likely to cause bodily harm to others.” Id. Although Ermutlu is a case in which the patient harmed a third person, the reasoning should also apply in this case. As stated, the majority has cited no authority for making a different standard applicable in cases where the patient is a danger to herself.

3. In Division 3, the majority addresses Peterson’s contention that he was under no duty to involuntarily commit Reeves. In support of its holding that failure to involuntarily commit Reeves fell below the applicable standard of care, the majority again relies on Brand-vain, an in-patient case where the patient committed suicide while at Ridgeview Institute. That is not the issue before us. Further, we note again that neither of Reeves’s experts could state that failure to hospitalize Reeves was a breach of the applicable standard of care.

4. In Peterson’s last enumeration of error, he contends that imposing a duty to involuntarily commit patients violates the purpose of OCGA § 37-3-161. That Code section provides:

It is the policy of the state that the least restrictive alternative placement be secured for every patient at every stage of his medical treatment and care. It shall be the duty of the facility to assist the patient in securing placement in noninstitutional community facilities and programs.

Peterson points out that the “least restrictive alternative placement” is designed to prevent a plethora of patients from being improperly committed to facilities with possible tragic consequences. He argues that it is recognized in the profession that suicides are virtually impossible to predict, and that involuntarily committing patients could lead to more suicides and will expose doctors to an increased risk of liability in suits for false imprisonment. See Krachman v. Ridgeview Institute, 301 Ga. App. 361, 365 (687 SE2d 627) (2009) (material issues of fact exist as to claim of false imprisonment by involuntarily committed patient).

Finally, Peterson correctly points out that Georgia’s involuntary commitment statute does not create an affirmative duty to involuntarily commit a patient, providing only:

Any physician within this state may execute a certificate stating that he has personally examined a person within the preceding 48 hours and found that, based upon observations set forth in the certificate, the person appears to be a mentally ill person requiring involuntary treatment. . . .

(Emphasis supplied.) OCGA § 37-3-41 (a).

Thus, for any and all of the above reasons, the trial court erred in not granting summary judgment to Peterson on the legal duty of care. Accordingly, this case must be reversed.

Decided March 30, 2012

Lawrence A. Stagg, for appellant.

Ragland & Jones, Evan W. Jones, for appellees.

       Judge Dillard’s special concurrence describes his reasoning as only “slightly different” from ours. His only difference appears to be his concern that our opinion “could be misconstrued as creating an affirmative duty for a mental healthcare professional to involuntarily commit a potentially suicidal patient.” But we cannot avoid the issue of whether a psychiatrist’s decision not to commit a patient can ever amount to a breach of the duty of care. Peterson squarely raises the issue on appeal, and the issue could he dispositive of the case.

        Brandvain v. Ridgeview Inst., Inc., 188 Ga. App. 106, 112 (2) (372 SE2d 265) (1988); see OCGA§ 51-1-27.

        Brandvain, 188 Ga. App. at 115 (3) (b) (punctuation omitted).

        Id. (punctuation omitted).

        Purcell v. Breese, 250 Ga. App. 472, 475 (1) (552 SE2d 865) (2001).

        See id. (holding that summary judgment was not warranted given some evidence that plaintiff’s son’s suicide was proximately caused by defendant’s failure to evaluate him prior to releasing him from hospitalization); Brandvain, 188 Ga. App. at 116 (3) (b) (holding that if the intervening act of suicide “is a reasonably foreseeable consequence of the defendant’s negligent conduct, the legal, causal connection between that conduct and injury is not broken” (punctuation omitted)).

       250 Ga. 199 (296 SE2d 693) (1982).

        Id. at 201 (punctuation omitted).

        See Purcell, 250 Ga. App. at 476 (3) (holding that a physician had a duty to prevent harm to mental patient even though patient was not under physician’s control at time patient committed suicide).

       See generally C. Mikell, Jury Instructions and Proximate Cause: An Uncertain Trumpet in Georgia, 27 Ga. St. Bar J. 60 (1990); W. Prosser, The Law of Torts, 244 et seq. (4th Ed. 1971); L. Green, Causal Relationship in Negligence Law, 60 Mich. L. Rev. 543 (1962).

        McAuley v. Wills, 251 Ga. 3, 7 (5) (303 SE2d 258) (1983), cited with approval in Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). But see Justice Weltner’s special concurrence in Coleman, supra at 574 (4) (b) (“McAuley v. Wills . . . should be disapproved”).

       Or overruled by the Supreme Court of Georgia. The legislature can make an informed decision after committees hear from the concerned profession, from consumer advocates, etc. Our decisions could perhaps he called uninformed. We have only the information furnished us by the parties.

        King v. Zakaria, 280 Ga. App. 570, 576 (4) (b) (634 SE2d 444) (2006) (in medical malpractice action, plaintiff must show that purported violation was both cause-in-fact and proximate cause of injury, which would not have occurred but for violation); see also Black v. Ga. Southern & Fla. R. Co., 202 Ga. App. 805, 807 (1) (415 SE2d 705) (1992) (malfunctioning signal may have been cause-in-fact of accident under theory that but for conditions created by malfunction, accident would not have occurred, but this does not mean railway’s negligence was proximate cause of accident as there may have been intervening acts of third parties). See generally Gen. Motors Corp. v. Davis, 141 Ga. App. 495, 496 (1) (233 SE2d 825) (1977).

        McAuley, supra. The controversial decision in Palsgraf v. Long Island R. Co., 248 N.Y. 339 (162 NE 99) (1928), can be explained only as a finding that there was no proximate cause (or that the guards were not negligent in the first place). Clearly, Mrs. Palsgraf was within the “ambit” of those to whom a duty was owed. She had already bought a ticket, so she was a passenger. The railroad was a common carrier and owed her a duty of extraordinary care.

       The majority’s attempt to characterize its holding as not stating that Peterson had a duty to involuntarily commit Reeves or a duty to prevent her suicide attempt fails, because that is what the complaint alleges that Peterson failed to do; and, that is also the effect of the majority’s conclusion that Reeves has raised an issue of fact as to whether Peterson’s treatment fell below the standard of care in not involuntarily committing her and in not preventing her suicide attempt.

       The discharging doctor and Northwest Georgia Regional Hospital have settled with Reeves and are no longer in the case.

       Reeves was discharged from Horizons by Beverly Chapman. Reeves has already settled her case against Chapman and Horizons.

       The majority also cites Misfeldt v. Hosp. Auth. &c. of Marietta, 101 Ga. App. 579 (115 SE2d 244) (1960), another case in which a patient was injured while hospitalized and under the doctor’s control.


author: Miller, Judge.

text:
    A11A2283.
    MOORE et al. v. STEWART.
    (727 SE2d 159)
   Miller, Judge.

Ronald and Debra Moore, as temporary guardians and conservators of Tracy Ann Boone, filed a negligence action against William Edward Stewart, seeking damages for injuries Boone sustained as a result of a vehicular accident involving Stewart. Following a jury trial, a verdict and judgment were entered in favor of Stewart. The Moores filed a motion for judgment notwithstanding the verdict (“judgment n.o.v.”), or in the alternative, a motion for new trial. The Moores appeal from the trial court’s denial of both motions. While we affirm the portion of the trial court’s order denying the Moores’ motion for judgment n.o.v., we otherwise agree with the Moores that the trial court failed to apply the proper standard of review in considering the Moores’ motion for new trial under OCGA § 5-5-20. We therefore vacate the portion of the trial court’s order denying the Moores’ motion for new trial and remand the case for the trial court’s proper consideration of that motion.

Where a jury returns a verdict, the same must be affirmed on appeal if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict. We review a denial of a motion for a new trial according to this same standard. Thus, a jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.

(Citations and punctuation omitted.) Green v. Key Custom Homes, 302 Ga. App. 800, 802-803 (1) (692 SE2d 56) (2010).

So viewed, the evidence shows that on November 7, 2007, Boone sustained disabling injuries as a result of a vehicular collision involving Boone, Stewart, and James Vangilla (nonparty in the underlying lawsuit). According to Stewart’s accident reconstructionist expert, Boone caused the initial collision when she turned her vehicle in front of oncoming traffic and collided with Vangilla’s vehicle. Boone’s initial collision with Vangilla caused her vehicle to move backward in a diagonal position and collide with the front corner of Stewart’s vehicle, which had been traveling behind Boone. According to what Stewart could remember about the collision, he had glanced down to check his speed and upon looking back up, he saw that the driver of the vehicle in front of him (Boone) had applied her brake lights; although Stewart applied his brakes, he did not believe he could stop before striking Boone. As a result, Stewart “steered to the right and then . . . remember[ed] seeing trees.”

According to the Moores, however, it was Stewart’s negligence that was the sole cause of the collision. The Moores specifically alleged that Boone had been waiting to turn left when Stewart struck her from behind, which pushed her vehicle into oncoming traffic and caused her to collide with Vangilla’s vehicle. At trial, the Moores presented witness testimony in support of their theory that Stewart, and not Boone, was responsible for the initial collision. Through cross-examination and testimony of his expert accident reconstructionist, however, Stewart attempted to impeach the credibility of the Moores’ witnesses and otherwise discount their respective versions of the collision. The jury found in favor of Stewart.

The Moores subsequently moved for a judgment n.o.v., or in the alternative, a new trial under OCGA § 5-5-20. The Moores’ basis for both motions was their presentation of witness testimony that the initial collision was caused by Stewart’s act of hitting Boone’s vehicle from behind. The trial court denied both the Moores’ motion for judgment n.o.v., as well as their alternative motion for new trial.

1. The Moores contend that Stewart presented no evidence to support the jury’s verdict, and that as a result, the trial court should have granted their motion for new trial. We disagree. The aforementioned evidence was sufficient to sustain the jury’s verdict and the conflicting evidence was a matter for the jury to resolve.

2. The Moores also contend that the trial court erred in finding that their motion for new trial was procedurally barred for their failure to move for a directed verdict during the trial. Inasmuch as the Moores misconstrue the trial court’s finding, their contention is without merit.

Significantly, the trial court’s order clearly reflects that it was the Moores’ motion for judgment n.o.v., and not their motion for new trial, that was found to be procedurally barred under OCGA § 9-11-50 (b). As the Moores themselves concede on appeal, “[ujnder OCGA § 9-11-50 (b) a motion for directed verdict is a condition precedent to a subsequent motion for judgment n.o.v.” (Citations and punctuation omitted.) Gray v. Miller, 166 Ga. App. 792 (305 SE2d 651) (1983). Here, in light of the Moores’ failure to move for a directed verdict during the case, the trial court correctly found that their motion for judgment n.o.v. was procedurally barred under OCGA § 9-11-50 (b). Cf. id. at 792-793. We therefore affirm the trial court’s denial of the Moores’ motion for judgment n.o.v. Contrary to the Moores’ contention otherwise, however, there is nothing in the trial court’s order indicating that OCGA § 9-11-50 (b) was also the basis for denying the Moores’ alternative motion for new trial. Accordingly, the Moores’ enumeration of error is without merit.

3. The Moores contend that the trial court failed to apply the proper standard of review in considering their motion for new trial under OCGA § 5-5-20. Given the language of the trial court’s order, we agree.

OCGA § 5-5-20 authorizes a trial court to grant a new trial “[i]n any case when the verdict of a jury is found contrary to evidence and the principles of justice and equityf.]” In considering a motion for new trial under OCGA § 5-5-20, the trial court is afforded “broad discretion to sit as a ‘thirteenth juror’ and weigh the evidence on a motion for new trial alleging these general grounds.” (Citations and punctuation omitted.) Hartley v. State, 299 Ga. App. 534, 540 (3) (683 SE2d 109) (2009); see also Bhansali v. Moncada, 275 Ga. App. 221, 222 (1) (620 SE2d 404) (2005). “If the record reflects that the trial court failed to exercise its discretion and sit as the thirteenth juror, we will vacate and remand for the trial court to fulfill its affirmative statutory duty.” (Citations omitted.) Hartley, supra, 299 Ga. App. at 540 (3).

As discussed in Division 2 above, the trial court in this case denied the Moores’ motion for judgment n.o.v. on the ground that it was procedurally barred under OCGA § 9-11-50 (b). The trial court went on to find that, even if not procedurally barred, the Moores’ motion for judgment n.o.v. nevertheless failed under the “any evidence” standard of review, finding that “[t]here was evidence presented to the jury which legally authorized the verdict rendered.” According to the Moores’ contention on appeal, the trial court’s order erroneously applied this same “any evidence” standard of review in considering the Moores’ alternative motion for new trial. Indeed, the standard imposed upon a trial judge in granting a motion for judgment n.o.v. is different from the standard imposed upon the trial judge in granting a motion for new trial. See Beasley v. Paul, 223 Ga. App. 706, 707 (1) (478 SE2d 899) (1996). Specifically, “[a] trial judge cannot grant motions for [judgment] n.o.v. on any issue if ‘any evidence’ exists to support that issue. By contrast, a trial judge can grant a motion for new trial if the verdict is contrary to the evidence [under OCGA§ 5-5-20] or strongly against the weight of the evidence [under OCGA§ 5-5-21].” (Punctuation omitted.) Id.

As an initial matter, we note that the trial court’s order reveals no explicit reference to the standard it employed in denying the Moores’ motion for new trial on the general grounds set forth in OCGA § 5-5-20. Generally,

[i]n interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the court agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

(Citation and punctuation omitted.) Brown v. Service Coach Lines, 71 Ga. App. 437, 443 (1) (31 SE2d 236) (1944). Here, a review of the language in the trial court’s order indicates that the trial court failed to exercise its discretion under the applicable standard set forth in OCGA § 5-5-20.

Notably, although the trial court reviewed the testimony of each witness upon which the Moores based their motion for new trial, the trial court repeatedly stated that “the credibility of a witness [was] a matter to be determined by the jury”; that the jury, and not the trial court, had properly determined the credibility of each witness; and that a trial judge is not “invested with authority to usurp this power which is reserved by law to the jury.” It thus appears that the trial court failed to apply the proper standard in assessing whether the evidence was contrary to the jury’s verdict as requested by the Moores in their motion for new trial. See Alvelo v. State, 288 Ga. 437, 438-439 (1) (704 SE2d 787) (2011) (concluding that trial court failed to apply proper standard in assessing the weight of the evidence as requested by defendant in his motion for new trial where trial court explicitly stated that it was solely within the purview of the jury to weigh conflicting evidence and judge credibility of witnesses and that the trial court would not usurp the jury’s function); Hartley, supra, 299 Ga. App. at 540 (3). Compare Tolbert v. State, 313 Ga. App. 46, 54 (2) (720 SE2d 244) (2011) (holding that trial judge’s statements at motion for new trial hearing — that witness credibility was a jury issue and would not be the basis for the grant of a new trial unless the jury’s findings were “just way in left field” —• “establish[ed] that she did not apply an erroneous standard of review [and] instead acknowledged that she would not usurp the jury’s role as factfinder unless it was strongly against the weight of the evidence”) (punctuation and footnote omitted).

Decided March 30, 2012.

Savage & Turner, Robert B. Turner, Kathryn H. Pinckney, for appellants.

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, for appellee.

We therefore must vacate the portion of the trial court’s order denying the Moores’ motion for new trial under OCGA § 5-5-20 and remand this case to the trial court for consideration of the Moores’ motion under the proper legal standard.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Ellington, C. J., and Doyle, P. J., concur in judgment only.