text:
    A15A0419.
    OWENS v. THE STATE.
    (773 SE2d 783)
   McFadden, Judge.

Allen Porter Owens appeals from his conviction, after a bench trial, of possession of marijuana with intent to distribute. OCGA § 16-13-30 (j). At trial, Owens asserted that police officers obtained inculpatory statements from him in violation of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Finding no violation, the trial court considered the statements in determining that Owens was guilty of the charged offense. Owens argues that this was error. Because Miranda did not apply to some of Owens’s inculpatory statements, and because Owens had been given Miranda warnings when he made other inculpatory statements, we affirm.

1. Facts.

By asking the trial court not to consider his statements at the bench trial, Owens essentially sought to have the statements suppressed. Owens did not file a written motion to suppress. See OCGA § 17-5-30 (b) (requiring motions to suppress to be filed in writing); Copeland v. State, 272 Ga. 816, 817 (2) (537 SE2d 78) (2000) (oral motions to suppress are procedurally defective). Nevertheless, the trial court decided the issue of whether the statements were inadmissible because of a Miranda violation, and the state neither objected at trial to the lack of a written motion to suppress nor has argued on appeal that the issue was waived by Owens’s failure to file a written motion. Accordingly, we will review the trial court’s ruling on the statements.

In considering that issue, “we owe no deference to the way in which the trial court resolved questions of law, but we generally accept [his] findings about questions of fact and credibility unless clearly erroneous.” Edenfield v. State, 293 Ga. 370, 374 (2) (744 SE2d 738) (2013) (citation and footnote omitted). In this case, the trial court expressly found the testimony of law enforcement officers more credible than that of Owens.

Those officers testified that on August 20, 2010, a group of several probation and police officers initiated a search of the house of a probationer, James Marshall Brown, pursuant to a Fourth Amendment waiver in the terms of Brown’s probation. The officers asked other persons in the house, including Owens, to remain in the living room while the officers spoke with Brown and performed the search. Owens was not handcuffed, and the officers did not consider him to be under arrest.

As Brown took two officers to his bedroom, another officer stood in the doorway between the living room and the kitchen. From that position, he smelled an overwhelming odor of raw marijuana and saw on the kitchen table a pile of green leafy material that appeared to be marijuana. The officer asked Brown, who had returned to the living room, if the material was marijuana. When Brown replied that he did not know, Owens spoke and stated that it was marijuana. Owens also volunteered that the marijuana on the table was his. The officer asked if there was more marijuana in the house, and Owens replied, “There might be some, I don’t know.” A search of the kitchen uncovered, in addition to the marijuana on the table, multiple bags of marijuana and two scales of different sizes with marijuana residue on them.

The officers placed Owens under arrest and handcuffed him. Before Owens was given a Miranda warning, however, other officers who had been searching the yard came into the house with a bag that contained marijuana and a firearm. As those officers were going through the bag and talking among themselves, Owens stated that the bag and its contents belonged to him.

At that point one of the officers read Owens Miranda warnings and asked if he would talk about the marijuana. Owens told the officers that all of the marijuana was his.

2. Statements made before Owens received Miranda warnings.

Owens argues that the trial court should not have considered the statements he made before receiving Miranda warnings because they were custodial statements subject to Miranda. We disagree.

Miranda applies only to statements which result from an in-custody interrogation of the accused. Accordingly, in order for [Owens] to show that the [trial court’s consideration] of his statement [s] was error, he must demonstrate that he was both in custody and was interrogated at the time the statement[s were] made.

Cook v. State, 274 Ga. 891, 894 (3) (561 SE2d 407) (2002) (citations and punctuation omitted).

The evidence authorized a finding that Owens was not in custody when he made his initial statements regarding the marijuana on the kitchen table. “A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary.” Sewell v. State, 283 Ga. 558, 560-561 (2) (662 SE2d 537) (2008) (citation and punctuation omitted). Case law distinguishes custody from brief detentions. See Harrison v. State, 213 Ga. App. 174, 176 (444 SE2d 354) (1994).

When Owens made the initial statements, he was being lawfully detained in the living room while officers conducted a search of the common areas of the house pursuant to a Fourth Amendment waiver in a probation order pertaining to his housemate, Brown. See Harrison, 213 Ga. App. at 176 (holding that officers are entitled to briefly detain occupants of house pending search pursuant to probation order and recognizing that such search presents same need for detention as does search executed pursuant to warrant, because “[s]uch an undertaking is fraught with danger, particularly when other people are inside [the house, and] leaves the officers vulnerable to attack”). He had not been formally arrested and was not handcuffed. A reasonable person in his position would not have thought that the detention would not be temporary. See Knapp v. State, 229 Ga. App. 175, 178 (4) (493 SE2d 583) (1997) (person being detained “is ‘in custody’ [only] if a reasonable person in the detainee’s position would have thought the detention would not be temporary”), citing Berkemer v. McCarty, 468 U. S. 420, 442 (104 SCt 3138, 82 LE2d 317) (1984); see also Lewis v. State, 268 Ga. App. 547, 551 (2) (602 SE2d 278) (2004). Such brief, legal detention does not invoke the requirement for Miranda warnings. See Tolliver v. State, 273 Ga. 785, 787 (546 SE2d 525) (2001) (Miranda warnings not required for routine questioning of witnesses briefly detained at crime scene); Lewis, 268 Ga. App. at 550-551 (2) (same); Zackery v. State, 262 Ga. App. 646, 650 (2) (586 SE2d 346) (2003) (detention pending execution of search warrant).

The evidence also authorized a finding that Owens was not being interrogated when, after being placed in custody, he stated that the marijuana found in a bag outside the house belonged to him. Owens did not make the statement in response to any questions, but instead volunteered the statement while two officers were searching the bag and talking to each other. Miranda would not apply to such an utterance, even if Owens had made it while in custody. See Haggins v. State, 277 Ga. App. 742, 745 (2) (a) (627 SE2d 448) (2006) (“[Although [defendant] was in custody when he made the statement, [the officer] was not interrogating him or otherwise soliciting a response. A defendant’s spontaneous, voluntary, unprompted utterance to a police officer is admissible against him at trial.”) (citations omitted).

Because Miranda did not apply to the statements discussed above, the trial court did not err in rejecting Owens’s argument that he should not consider the statements in the bench trial because they violated Miranda.

3. Statements made after Owens received Miranda warnings.

Owens argues that the trial court should not have considered the statements he made after receiving Miranda warnings because those statements were secured using the “two-step interrogation technique” disapproved by the United States Supreme Court in Missouri v. Seibert, 542 U. S. 600 (124 SCt 2601, 159 LE2d 643) (2004). But in Seibert,

officers procured an initial statement in violation oí Miranda, then advised the defendant of his Miranda rights without informing him that his initial statements would have been inadmissible, and finally conducted further interrogation that led the defendant to repeat the same information that he had provided in the inadmissible initial statement. Id. at 606 (I); [cit.]. Here, in contrast, the . . . statement^] that [Owens] provided prior to the reading of Miranda [were] admissible and not in violation of Miranda, and the . . . interview after [Owens] waived his rights was no circumvention of Miranda.

Decided June 16, 2015.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

Walker v. State, 296 Ga. 161, 170 (3) (a) (766 SE2d 28) (2014); see also Drake v. State, 296 Ga. 286, 290 (2), n. 3 (766 SE2d 447) (2014) (“Because there was no Miranda violation [as to Owens’s earlier statements], there is no merit to [his] further claim that the statements he made after being Mirandized were inadmissible under Missouri v. Seibert[.]”).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A0107.
    DOCTORS HOSPITAL OF AUGUSTA, LLC et al. v. ALICEA.
    (774 SE2d 114)
   BARNES, Presiding Judge.

This appeal raises questions pertaining to the immunity of health care providers and facilities under the Georgia Advance Directive for Health Care Act, OCGA § 31-32-1 et seq. (“Advance Directive Act”) and to the law of informed and basic consent. The plaintiff, as administrator of the estate of her grandmother, sued Doctors Hospital of Augusta, LLC and Dr. Phillip William Catalano (collectively, the “Defendants”), alleging that they intubated the plaintiff’s grandmother and placed her on mechanical ventilation, which prolonged her life when she was in a terminal condition and caused her unnecessary pain and suffering, contrary to the grandmother’s advance directive and the specific directions of her designated health care agent. The plaintiff asserted claims for, among other things, medical malpractice for lack of informed consent and medical battery for lack of basic consent.

The Defendants moved for summary judgment, contending that the uncontroverted evidence showed that they were immune from liability for intubating the grandmother on March 7, 2012 based on OCGA § 31-32-10 (a) (2) and (3) of the Advance Directive Act; that they obtained informed consent for a March 5, 2012 surgical procedure performed on the grandmother; and that they obtained basic consent for the March 5 procedure and March 7 intubation. The trial court denied summary judgment to the Defendants on these claims.

For the reasons discussed below, we affirm the trial court’s denial of the Defendants’ motion for summary judgment on their defense of statutory immunity and on the plaintiff’s medical battery claim for lack of basic consent to the March 7 intubation. However, we reverse the trial court’s denial of summary judgment to the Defendants on the plaintiff’s claims based on the alleged lack of basic and informed consent relating to the grandmother’s March 5 surgical procedure.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c). We review the denial of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010). Guided by these principles, we turn to the record in the present case.

Stephenson’s Advance Directive for Health Care. In November 2009, Bucilla C. Stephenson executed an advance directive for health care (the “Advance Directive”). In her Advance Directive, Stephenson designated Jacqueline Alicea, her granddaughter with whom she lived, as her health care agent if she became “incapable of making [her] own decisions.” She granted Alicea the unlimited authority “to make all health-care decisions for [her], including decisions to provide, withhold, or withdraw artificial hydration and nutrition, and all other forms of health care to keep [her] alive.” Alicea was authorized to consent or refuse consent to any medical treatment or procedure and to direct the withholding of cardiopulmonary resuscitation (“CPR”) and other forms of health care.

Additionally, in her Advance Directive, Stephenson instructed her health care providers and others involved in her care not to prolong her life under the following circumstances: (1) when she had an incurable and irreversible condition that would result in her death within a relatively short period of time; (2) when she became unconscious and, to a reasonable degree of medical certainty, would not regain consciousness; or (3) when the likely risks and burdens of treatment outweighed the expected benefits. The Advance Directive did not specifically list or define the medical technology that Stephenson did or did not desire to be used as part of her medical care. But Stephenson informed her family members that she did not want to be kept alive “on any machines” at the hospital, including a ventilator, if her condition was terminal.

Stephenson’s Admission to Doctors Hospital. In late February 2012, Stephenson, then 91 years old, developed a persistent cough. On the morning of March 3, 2012, Stephenson awoke lethargic and “not very responsive,” and she lost consciousness and bowel control when Alicea was bathing her. Alarmed by Stephenson’s condition, Alicea and her husband drove Stephenson to the Doctors Hospital emergency room.

Upon arrival at the emergency room, Stephenson was disoriented and unable to complete a sentence because of her shortness of breath. Stephenson was examined in the emergency room and subsequently was admitted to Doctors Hospital after her blood work and a chest x-ray showed that she was suffering from pneumonia, sepsis, and acute renal failure.

Alicea provided the hospital with a copy of Stephenson’s Advance Directive and her contact information so that she could be consulted about Stephenson’s care if she were away from the hospital. Hospital policy required that upon admission to the hospital, a copy of a patient’s advance directive be placed in the front of the medical record behind the admission tab to ensure that it was readily available to all physicians and hospital staff. A copy of Stephenson’s Advance Directive was placed in her medical record, but not behind the admission tab where it could easily be seen and reviewed.

Alicea’s Communications to the Physicians. On the morning following Stephenson’s admission, Alicea was at home preparing to return to the hospital when she received a phone call from Dr. Catalano, a thoracic and cardiovascular surgeon with staff privileges at Doctors Hospital. Dr. Catalano informed Alicea that Stephenson was being moved to the intensive care unit (“ICU”) where he would be treating her and that he planned to perform a computed tomography (“CT”) scan to better assess her condition. During the phone call, Alicea told Dr. Catalano about Stephenson’s Advance Directive and specifically instructed that no CPR should ever be administered and “no heroic measures” employed.

The CT scan performed on March 4 showed that the pneumonia was causing a build-up of fluid around Stephenson’s lung that was displacing her heart. Around 2:30 p.m. that same day, Alicea received a phone call from Dr. Carmel Joseph, an ICU physician, who wanted to perform a thoracentesis, a therapeutic procedure that involved inserting a tube into Stephenson’s chest to drain the fluid around the lung. Alicea consented to the thoracentesis during the phone call.

Repeating what she told Dr. Catalano earlier that day, Alicea informed Dr. Joseph during their phone call that although she was consenting to the thoracentesis, Stephenson wanted no “heroic measures” to prolong her life and that there was to be no CPR because she feared that Stephenson would be injured during chest compressions. Alicea also specifically directed Dr. Joseph that no intubation be performed or mechanical ventilation be used on Stephenson without first calling her for permission. Under hospital policy, any discussions between a physician and family members regarding an advance directive were to be documented in the progress notes on the patient’s medical chart. Pursuant to that policy, Dr. Joseph made two notations in his March 4 progress note that Stephenson was “no CPR” and that Alicea was to be called “before patient is intubated.”

After his phone call with Alicea, Dr. Joseph performed the thoracentesis, which revealed pockets of pus within Stephenson’s chest cavity outside of her lungs. Concerned that Stephenson faced an imminent risk of death from overwhelming infection in her chest cavity, the physicians involved in Stephenson’s care agreed that Dr. Catalano would consult with Stephenson’s family about performing an additional surgical procedure to drain the pus.

The March 5 Surgical Procedure. On the morning of March 5, Alicea received a telephone call from Dr. Catalano, who asked for her consent to perform the surgical procedure to drain more fluid from Stephenson’s lung cavity. He told Alicea he would insert a tube for drainage and that Stephenson would be under general anesthesia for the procedure. Dr. Catalano had not reviewed the progress notes in the medical chart and did not inform Alicea that the procedure would require intubation. Unaware that Stephenson would be intubated, Alicea consented to the procedure.

Dr. Catalano performed the surgical procedure later that day. He cleaned out the infected area of Stephenson’s chest cavity and removed portions of the lung upon discovering that the tissue was necrotic. Once the procedure was completed, Stephenson was extubated (i.e., the tube inserted into her airway was removed) and taken off the ventilator.

The March 7 Intubation. Following the March 5 surgical procedure, Stephenson’s condition continued to deteriorate, and by approximately 4:00 a.m. on March 7, she was unable to respond to questions from the ICU nurses and “was beginning to go into respiratory failure.” Despite the notation in the progress notes that there was to be no CPR or intubation without calling Alicea, the nurses did not contact Alicea, who had gone home for the night. Instead, one of the nurses called Dr. Catalano at home around 4:00 a.m. and asked him to give an order for Stephenson to be intubated. Although Alicea had told Dr. Catalano on March 4 that Stephenson had an Advance Directive and he knew that Alicea was the designated health care agent, Dr. Catalano had not reviewed the Advance Directive since that time and did not contact Alicea upon receiving the phone call from the ICU nurse. Furthermore, although hospital policy was to document conversations regarding an advance directive in the progress notes, Dr. Catalano had not reviewed the progress notes regarding Stephenson’s care.

Without contacting Alicea for permission, Dr. Catalano gave the order to intubate Stephenson. Based on Dr. Catalano’s order, Dr. Troy Coon, the on-duty physician in the emergency room, came to the ICU and intubated Stephenson around 4:50 a.m.

Later that morning, Alicea’s husband visited Stephenson in the ICU and was surprised to find her intubated and on a ventilator. After her husband called and informed her of the intubation, Alicea returned to the hospital. Alicea spoke with the ICU nurses and asked them to locate the hospital’s copy of Stephenson’s Advance Directive. The nurses initially could not find the hospital’s copy but ultimately located it in Stephenson’s medical chart at the ICU main desk. When Alicea demanded to know why Stephenson had been intubated without calling her first for permission, the nurses asked Dr. Michael Behnia, the attending pulmonologist who was managing Stephenson’s overall care in the ICU, to speak with Alicea about the situation.

Dr. Behnia advised Alicea of the circumstances of the early morning intubation and of Stephenson’s condition and treatment options. He informed Alicea that she could authorize an extubation and the removal of the ventilator, and that to do so would cause Stephenson to suffocate. Alicea was further advised that, alternatively, she could authorize the medical team to continue to treat Stephenson, including a second surgical procedure by Dr. Catalano to clean out more pus from the chest cavity.

Alicea showed the Advance Directive to Dr. Behnia and told him that the hospital had failed to follow Stephenson’s wishes by intubating her and placing her on a ventilator, but that “since they put her on it, they had to take care of her.” Alicea drew a distinction between never placing Stephenson on a ventilator and “let [ting] nature take its course,” and taking the affirmative step of removing her from the ventilator now that she was already on it. According to Alicea, she now “had to make the decision that [she] wasn’t supposed to have to make.” Declining to have Stephenson extubated and the ventilator removed at that point, Alicea chose to continue treatment for Stephenson and consented to the second surgery by Dr. Catalano, which he performed on March 8.

Stephenson’s Subsequent Medical Procedures. As Stephenson’s condition continued to deteriorate after the March 8 surgery, a number of additional medical procedures and interventions were performed on the advice of Stephenson’s physicians and with Alicea’s consent, including the placement of a feeding tube, a bronchoscopy to remove pus from the airway, and a tracheostomy to provide an airway and remove lung secretions. Stephenson remained in the ICU until March 14, when Alicea and the attending physicians authorized the removal of Stephenson from the ventilator, the entry of a “Do Not Resuscitate” order, and the provision of comfort measures only from that point forward. Stephenson died on March 17.

Procedural Background. On May 14, 2013, Alicea, as the administrator of the estate of Stephenson, filed her complaint for damages against the Defendants, alleging claims of breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty for injuries allegedly arising out of the care and treatment of Stephenson at Doctors Hospital. The complaint alleged that Dr. Catalano and the nurses and other medical personnel associated with Doctors Hospital had caused Stephenson pain, suffering, and emotional distress by subjecting her to unnecessary medical procedures, specifically intubation and placement on a ventilator on March 5 and March 7, when she was terminally ill, in violation of her Advance Directive and the instructions of Alicea as her designated health care agent. The complaint sought compensatory and punitive damages, together with attorney fees and the expenses of litigation.

Alicea relied upon an expert on gerontology, geriatrics, and palliative care to support her claims. The expert opined that when Stephenson arrived at the emergency room on March 4, “she had an incurable and irreversible condition that was likely to result in her death within a relatively short period of time thereafter.” Consequently, the expert opined that the Defendants were required under the standard of care to refrain from taking steps to prolong Stephenson’s life in accordance with her Advance Directive and the instructions of her designated health care agent, Alicea. According to the expert, Dr. Catalano breached the standard of care by failing to review Stephenson’s Advance Directive and the progress notes in her medical chart to determine if Alicea had given any directions for Stephenson’s care; by failing to obtain basic and informed consent from Alicea before the March 5 surgical procedure involving intubation; and by failing to obtain basic consent from Alicea before the March 7 intubation. The expert further opined that the nurses employed by Doctors Hospital had violated the standard of care by failing to contact Alicea before the March 7 intubation and failing to call Dr. Catalano’s attention to Stephenson’s Advance Directive and the notation in the progress notes regarding intubation.

Alicea later testified in her deposition that she would not have consented to Stephenson’s March 5 surgical procedure if she had been told it would involve intubation, and would not have consented to the March 7 intubation if she had been called before it occurred. According to Alicea, if she had been told on March 5 that the proposed procedure involved intubation, she would have authorized only less invasive procedures such as a thoracentesis, and if she had been called on March 7, she would have authorized only comfort measures from that point forward rather than intubation.

Dr. Catalano conceded in his deposition that he knew that Alicea was Stephenson’s health care agent under the Advance Directive but did not contact her before the March 7 intubation. Nor had he reviewed the Advance Directive or the March 4 progress note containing Alicea’s direction that no intubation occur without calling her first. Dr. Catalano testified that because the family had authorized the March 5 surgical procedure on Stephenson that had involved general anesthesia, and “obviously [he] had to intubate her to do [that] surgery,” he had believed there would be no objection to the March 7 intubation. Later in his deposition, Dr. Catalano testified that he had decided it would be better to order the intubation on March 7 and then consult the family later about whether they wanted to remove the ventilator: “[W]hen this happened I really didn’t go into any of the code/no code/do not intubate/resuscitate. Save the patient’s life first and then we’ll do whatever it takes to make the family and the patient whatever, but we can’t undo death. So that’s what I was thinking.”

Following discovery, the Defendants moved for summary judgment. The Defendants contended that they were shielded from liability for any claims relating to the March 7 intubation under the immunity provisions of OCGA § 31-32-10 (a) (2) and (3), and that any claims for lack of basic and informed consent for the March 5 surgical procedure and the March 7 intubation failed as a matter of law.

After conducting a hearing, the trial court granted in part and denied in part the Defendants’ motion for summary judgment. Specifically, the trial court granted summary judgment to the Defendants with respect to any informed consent claim based on the March 7 intubation, finding as a matter of law that intubation was not a medical procedure that required informed consent under Georgia law as set forth in OCGA § 31-9-6.1 (a). The trial court denied the Defendants’ motion for summary judgment as to all remaining claims and issues, including whether the Defendants were entitled to immunity for the March 7 intubation under OCGA § 31-32-10 (a), whether there was basic and informed consent for the March 5 surgical procedure, and whether there was basic consent for the March 7 intubation.

In conjunction with its summary judgment order, the trial court granted a certification of immediate review. The Defendants filed an application for interlocutory appeal, which we granted. This appeal followed.

1. The Defendants contend that the trial court erred in denying their motion for summary judgment on Alicea’s claims pertaining to the March 7 intubation because the uncontroverted evidence showed that they were entitled to immunity under OCGA § 31-32-10 (a) (2) and (3). Immunity under the statute is an affirmative defense, and thus the Defendants had the burden of proving that they were immune from liability. See Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 631 (2) (431 SE2d 427) (1993) (defendants had burden of proving affirmative defense of statutory immunity for good faith compliance with procedures for holding a patient in a mental health facility after the patient has requested discharge). We conclude that the trial court properly denied summary judgment to the Defendants on the immunity question because genuine issues of material fact exist regarding whether the Defendants made a good faith effort to rely on the directions and decisions of Alicea, Stephenson’s health care agent under her Advance Directive, in carrying out the March 7 intubation.

The Advance Directive Act is codified at OCGA §§ 31-32-1 through 31-32-14. In adopting the current version of the Act, the General Assembly noted that it “has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn,” and that “the clear expression of an individual’s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families.” Ga. L. 2007, p. 133, § 1 (a), (d).

Among other things, the Advance Directive Act authorizes an adult of sound mind (the “declarant”) to execute a document designating a health care agent to make decisions on his or her behalf when the “declarant is unable or chooses not to make health care decisions for himself or herself.” OCGA §§ 31-32-2 (3), (6); 31-32-5 (a) (1). The health care agent may consent to or refuse any medical care or treatment for the declarant, including any surgical or life-sustaining procedures. OCGA § 31-32-7 (e) (1). The agent must exercise his or her powers “consistent with the intentions and desires of the declarant” if known, but if the declarant’s wishes are unclear, the agent must “act in the declarant’s best interest considering the benefits, burdens, and risks of the declarant’s circumstances and treatment options.” OCGA § 31-32-7 (b).

When the designated agent notifies a health care provider of a decision regarding the declarant’s medical care or treatment, the provider must abide by the agent’s decision, “subject to the health care provider’s right to administer treatment for the declarant’s comfort or alleviation of pain.” OCGA § 31-32-8 (2). However, OCGA § 31-32-10 (a) (2) and (3) of the Advance Directive Act affords health care providers and facilities immunity from liability for the refusal or failure to comply with a health care agent’s decision, so long as certain conditions are met. Specifically, OCGA § 31-32-10 (a) provides in part:

(a) Each health care provider, health care facility, and any other person who acts in good faith reliance on any direction or decision by the health care agent shall be protected and released to the same extent as though such person had interacted directly with the declarant as a fully competent person. Without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of the health care agent and each such health care provider, health care facility, and any other person acting in good faith reliance on such direction or decision:
(1) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for complying with any direction or decision by the health care agent, even if death or injury to the declarant ensues;
(2) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for failure to comply with any direction or decision by the health care agent, as long as such health care provider, health care facility, or person promptly informs the health care agent of such health care provider’s, health care facility’s, or person’s refusal or failure to comply with such direction or decision by the health care agent. The health care agent shall then be responsible for arranging the declarant’s transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent’s decision shall continue to provide reasonably necessary consultation and care in connection with the pending transfer;
(3) If the actions of a health care provider, health care facility, or person who fails to comply with any direction or decision by the health care agent are substantially in accord with reasonable medical standards at the time of reference and the provider cooperates in the transfer of the declarant pursuant to paragraph (2) of Code Section 31-32-8, [] the health care provider, health care facility, or person shall not be subject to civil or criminal liability or discipline for unprofessional conduct for failure to comply with the advance directive for health care ....

(Emphasis supplied.)

The immunity question raised in this case centers on the Defendants’ “failure to comply” with Alicea’s direction to contact her and obtain permission before intubating Stephenson and placing her on a ventilator on March 7. By its plain language, OCGA § 31-32-10 (a) (2) and (3) afford immunity to a health care provider or facility that fails to comply with a direction of the health care agent if: the provider or facility promptly informed the agent of the failure to comply with the agent’s direction; the actions of the health care provider or facility that failed to comply with the agent’s direction were “substantially in accord with reasonable medical standards at the time of reference”; and the provider or facility cooperated in the transfer of the declarant at the behest of the agent and provided reasonably necessary consultation and care of the declarant in connection with the pending transfer.

In addition to these elements, Alicea argues that when the statute is read as a whole, immunity for the failure to comply with a health care agent’s direction under OCGA § 31-32-10 (a) (2) and (3) requires a showing that the health care provider or facility was acting in good faith reliance on the directions and decisions of the agent. In contrast, the Defendants suggest that good faith reliance, referenced in the introductory clause of the statute, is not an element of proving immunity for a provider or facility’s failure to comply with an agent’s direction under OCGA § 31-32-10 (a) (2) and (3). We agree with Alicea that good faith reliance must be taken into account as part of the immunity analysis.

Statutory construction is a question of law, and our review is de novo. Hill v. First Atlantic Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). “In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” (Punctuation and footnote omitted.) Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 207 (1) (704 SE2d 858) (2010). Furthermore, “in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.” (Citation and punctuation omitted.) Walker County v. Tri-State Crematory, 292 Ga. App. 411, 414-415 (1) (664 SE2d 788) (2008). Different subsections of a statute should be read in pari materia, and we must strive to “reconcile them, if possible, so that they may be read as consistent and harmonious with one another.” (Punctuation and footnote omitted.) City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615, 621 (2) (675 SE2d 525) (2009).

Applying these principles in the present case, we conclude that the immunity afforded by OCGA § 31-32-10 (a) (2) and (3) applies only where the health care provider or facility was making a good faith effort to rely on the decisions and directions of the health care agent when treating the declarant, but nevertheless failed to comply with a direction of the agent. The first sentence of the introductory clause of OCGA § 31-32-10 (a) refers to health care providers and facilities that act “in good faith reliance on any direction or decision by the health care agent,” and the second sentence states that

[w]ithout limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of the health care agent and each such health care provider, health care facility, and any other person acting in good faith reliance on such direction or decision[.]

(Emphasis supplied.) OCGA § 31-32-10 (a). The second sentence of the introductory clause then ends with a colon followed by several subsections, including subsections (a) (2) and (3), which address failures to comply with a health care agent’s direction or decision. In turn, OCGA § 31-32-10 (a) (2) begins with the words “[;n]osuch health care provider, health care facility, or person,” linking the subsection to the introductory clause, and OCGA § 31-32-10 (a) (3) further elaborates on the conditions under which immunity can be obtained for failing to comply with an agent’s direction or decision.

Taken together, the language, grammar, and structure of OCGA § 31-32-10 (a) reflect that the requirement of “good faith reliance” on a health care agent’s direction or decision referenced in the introductory clause was intended to apply to the subsections that follow it, including subsections (a) (2) and (3) pertaining to a failure to comply with an agent’s direction or decision. To reconcile and harmonize the introductory clause with these subsections and give effect to all the statutory language, we construe the immunity afforded by OCGA § 31-32-10 (a) (2) and (3) to arise only where the health care provider or facility made a good faith effort to rely on the directions and decisions of the health care agent in the medical care and treatment of the declarant that has been called into question. By construing the introductory clause and subsections in this manner, we avoid any apparent internal conflict in the statute and render the provisions consistent and harmonious with one another, as we are charged to do. Ford Motor Co. v. Carter, 239 Ga. 657, 661 (238 SE2d 361) (1977).

Accordingly, the Defendants, to prove that they were entitled to immunity under OCGA § 31-32-10 (a) (2) and (3) as a matter of law, had to establish that the uncontroverted evidence of record showed that they were making a good faith effort to rely on the directions and decisions of the health care agent, Alicea, when Stephenson was intubated in the ICU on March 7. “Good faith” has been defined as “a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.” (Punctuation and footnote omitted.) O’Heron v. Blaney, 276 Ga. 871, 873 (1) (583 SE2d 834) (2003). See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753 (1) (251 SE2d 250) (1978). “Ordinarily, good faith is a question for the jury based on a consideration of the facts and circumstances of the case.” Purcell v. Breese, 250 Ga. App. 472, 476 (4) (552 SE2d 865) (2001). See Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

As previously discussed, Dr. Catalano testified in his deposition that he had believed he was carrying out the family’s wishes in ordering the March 7 intubation because in his “framework of thinking” Alicea had authorized him to perform the March 5 surgical procedure involving general anesthesia that required intubation. Dr. Catalano’s testimony would support a finding by a jury that he was making a good faith effort to rely on the directions and decisions of Alicea when he ordered Stephenson’s intubation.

On the other hand, Dr. Catalano later testified in his deposition that he “didn’t go into any of the code/no code/do not intubate/resuscitate” in deciding to intubate Stephenson on March 7 because he had decided to place her on ventilation first and then give the family the choice whether to remove her from it. Additionally, there was evidence that Alicea had specifically told Dr. Catalano that Stephenson had an Advance Directive and that Alicea did not want CPR or “heroic measures” performed on Stephenson. Despite these communications, Dr. Catalano chose not to read the Advance Directive or to contact Alicea before ordering the intubation, even though up to 50 minutes passed between when he was called by the ICU nurses and when the intubation was performed. Dr. Catalano also chose not to review the progress notes in Stephenson’s medical chart, which would have alerted him to Alicea’s express direction that no intubation occur without her permission, even though hospital policy reflected that any communications between a physician and family members regarding an advance directive would be documented there, and Dr. Catalano conceded that he had seen and reviewed the hospital’s policies pertaining to advance directives.

This combined evidence, when viewed in the light most favorable to Alicea as the nonmoving party, creates a genuine issue of material fact as to whether Dr. Catalano made a good faith effort to rely on the directions and decisions of Alicea when he ordered the March 7 intubation. See Purcell, 250 Ga. App. at 477 (4) (genuine issues of material fact precluded summary judgment on question of physician’s good faith under different immunity statute, where there was evidence that, among other things, the physician failed to call the patient’s parents or review notes in the patient’s file made by another physician that would have alerted him to the patient’s need for further treatment). The trial court thus committed no error in denying summary judgment to Dr. Catalano on his immunity defense under OCGA § 31-32-10 (a) (2) and (3).

We reach the same result with respect to Doctors Hospital, which failed to point to any evidence reflecting that the nurses employed at the hospital who were involved in the March 7 intubation of Stephenson made a good faith effort to rely on the directions and decisions of Alicea as the designated health care agent. Because Doctors Hospital had the burden of proof on this issue, see Heath, 208 Ga. App. at 631 (2), the lack of evidence in the record regarding the good faith reliance of its nurses precluded the grant of summary judgment in its favor on the issue of immunity under OCGA § 31-32-10 (a) (2) and (3), as the trial court properly concluded.

2. The Defendants also contend that the trial court erred in denying their motion for summary judgment on Alicea’s medical malpractice claim for lack of informed consent based on the March 5 surgical procedure performed on Stephenson that involved intubation. According to the Defendants, Alicea failed to come forward with any evidence showing that Stephenson was injured by the March 5 procedure, and thus cannot succeed on her informed consent claim as a matter of law. We agree.

“Georgia does not recognize a common law duty to inform patients of the material risks of a proposed treatment or procedure [.]” Blotner v. Doreika, 285 Ga. 481 (678 SE2d 80) (2009). However, by statute,

any person who undergoes any surgical procedure under general anesthesia .. . must consent to such procedure and shall be informed of the diagnosis, nature, and purpose of the surgical or diagnostic procedure, material risks of the procedure, likelihood of success, the practical alternatives to the procedure, and the prognosis if the procedure is rejected.

(Citation and punctuation omitted.) Roberts v. Connell, 312 Ga. App. 515, 518 (2) (718 SE2d 862) (2011). See OCGA § 31-9-6.1 (a). To bring an action for medical malpractice premised upon the failure to obtain informed consent for a procedure in accordance with OCGA § 31-9-6.1 (a), the plaintiff must present evidence showing that “the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure.” OCGA § 31-9-6.1 (d) (1).

In the present case, the March 5 surgical procedure involved general anesthesia and thus triggered a duty to inform Alicea, as Stephenson’s health care agent, of the material risks associated with the procedure and the other information required to be disclosed under OCGA § 31-9-6.1 (a). Alicea claims that informed consent was not properly obtained from her for the March 5 surgical procedure because she was not told that Stephenson would be intubated and was not fully informed of the nature, purpose, prognosis, alternatives, and advisability of the proposed procedure. She seeks compensatory and punitive damages based on this alleged lack of informed consent.

Alicea, however, has failed to come forward with any evidence that Stephenson suffered an injury that was proximately caused by the March 5 surgical procedure. There is nothing in the record to suggest that the intubation and ventilation of Stephenson during the procedure injured her in any manner, and Stephenson was extubated and the ventilator was removed when the procedure was completed. Nor is there any evidence that Stephenson experienced any adverse side effects or complications arising from the procedure, that her condition worsened from the procedure, or that she experienced any pain, suffering, or mental distress as a result of the procedure apart from what she was already experiencing as a result of her severe illness. Accordingly, we conclude that Alicea failed, as a matter of law, to satisfy the statutory requirement of showing an injury proximately resulting from the alleged lack of informed consent. See OCGA § 31-9-6.1 (d) (1). It follows that the trial court erred in denying summary judgment to the Defendants on Alicea’s informed consent claim predicated on the March 5 surgical procedure.

3. Lastly, the Defendants contend that the trial court erred in denying their motion for summary judgment on Alicea’s medical battery claim. We agree with the Defendants with respect to the March 5 surgical procedure, but not with respect to the March 7 intubation.

It is well established that a competent adult patient has the right to refuse medical and surgical treatment. See OCGA § 31-9-7; State of Ga. v. McAfee, 259 Ga. 579, 580 (1) (385 SE2d 651) (1989). If a health care agent has been designated for the patient in accordance with the Advance Directive Act, the agent may exercise the patient’s right to refuse such treatment. OCGA §§ 31-32-5 (a) (1); 31-32-7 (e) (1).

In addition to the legal principle of “informed consent” previously discussed in Division 2, consent to medical treatment encompasses the principle of “basic consent.” Paden v. Rudd, 294 Ga. App. 603, 605 (2) (669 SE2d 548) (2008). “With respect to basic consent, a medical touching without consent constitutes the intentional tort of battery for which an action will lie.” (Punctuation and footnote omitted.) Id. See Prince v. Esposito, 278 Ga. App. 310, 311 (1) (a) (628 SE2d 601) (2006). Continued treatment of a patient after consent has been withdrawn also will give rise to a medical battery claim. Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). “Actual physical injury is not required to support a claim for battery, which is an intentional tort.” (Citation and punctuation omitted.) Lawson v. Bloodsworth, 313 Ga. App. 616, 619 (722 SE2d 358) (2012).

Here, the uncontroverted evidence of record reflects that there was basic consent for the March 5 surgical procedure. Alicea consented to Dr. Catalano conducting a surgical procedure under general anesthesia to drain more fluid from Stephenson’s lung cavity on that date. And while Alicea alleges that Dr. Catalano did not fully disclose to her the nature of the procedure (including that it would entail intubation), the likelihood of success, and the practical alternatives to the procedure, those allegations reflect an informed consent, not a battery, claim. See OCGA § 31-9-6.1 (a). Because the “purported failure to obtain . .. informed consent does not give rise to a claim of battery,” Paden, 294 Ga. App. at 605 (2), the trial court erred in denying summary judgment to the Defendants on Alicea’s battery claim based on the March 5 surgical procedure.

We reach a different result with respect to the March 7 intubation. Alicea specifically directed Dr. Joseph that no intubation of Stephenson was to occur until she had been called and had given consent, and Dr. Joseph placed this information in his March 4 progress note in the medical chart. Based on this evidence, a jury could find that the Defendants had notice of this specific limitation on Stephenson’s medical care and treatment and thus were under an obligation to abide by it. See OCGA § 31-32-8 (2). Compare Roberts v. Jones, 222 Ga. App. 548, 549 (2) (475 SE2d 193) (1996) (physician could not be held liable for battery, where medical procedure limitation contained in advance directive was neither placed in the patient’s medical chart nor told to the physician). Nevertheless, Dr. Catalano and the ICU nurses did not contact Alicea to obtain her consent before the March 7 intubation. Furthermore, given that there was evidence that approximately 50 minutes elapsed between the time Dr. Catalano was called and the intubation was performed, a jury could find that the situation was not so emergent that consent could not have been obtained from Alicea by calling her at home before performing the intubation. Under these circumstances, a jury must resolve whether the Defendants committed medical battery by performing the March 7 intubation, and the trial court committed no error in denying the Defendants’ motion for summary judgment on this claim.

Decided June 17, 2015

Insley & Race, Kevin P. Race, David V. Johnson, Brett A. Tarver, for appellants.

Nicholson Revell, Harry D. Revell; Connor & Connor, Kenneth L. Connor, C. Caleb Connor, for appellee.

In summary, we affirm the trial court’s denial of the Defendants’ motion for summary judgment on their immunity defense predicated on OCGA § 31-32-10 (a) (2) and (3) and on Alicea’s medical battery claim predicated on the March 7 intubation. We reverse the trial court’s denial of the Defendants’ motion for summary judgment on Alicea’s medical malpractice claim for lack of informed consent and on her medical battery claim predicated on the March 5 surgical procedure.

Judgment affirmed in part and reversed in part.

Ray andMcMillian, JJ., concur.

       Stephenson’s Advance Directive varied from the model form set out in OCGA § 31-32-4. However, none of the parties dispute that the Advance Directive was valid under Georgia law. See OCGA § 31-32-5 (b).

       Intubation involves passing a plastic tube through the mouth of the patient down into her airway. The plastic tube is then connected to a ventilator that controls the patient’s breathing.

       The complaint also named Dr. Coon and his employer, CSRA Emergency Physicians, P. C., as defendants. The trial court granted summary judgment in favor of Dr. Coon and his employer on all of Alicea’s claims. Alicea has not appealed that ruling.

       Gerontology is “[t]he scientific study of the biological, psychological, and sociological phenomena that are associated with old age and aging.” The American Heritage Medical Dictionary (2007). Retrieved May 22,2015 from http://medical-dictionary.thefreedictionary.com/gerontology. Geriatrics is “[t]he branch of medicine that deals with the diagnosis and treatment of diseases and problems specific to old age.” Id. Retrieved May 22, 2015 from http://medical-dictionary. thefreedictionary.com/Geriatrics. Palliative care refers to treatments aimed at “[rjelieving or soothing the symptoms of a disease or disorder without effecting a cure.” Id. Retrieved May 22, 2015 from http://medical-dictionary.thefreedictionary.com/palliative.

       The Defendants assert that Alicea’s expert was not qualified to testify under OCGA § 24-7-702. The record reflects that after the trial court entered its summary judgment order, the Defendants raised the qualification issue in a motion to strike the affidavit and opinions of Alicea’s expert, but the trial court has not ruled on that motion and thus it remains pending below. Given this record, the qualification issue is not ripe for our review and will not be addressed on appeal. See Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 474 (1) (b) (765 SE2d 525) (2014); Renz v. Northside Hosp., 285 Ga. App. 882, 884 (1) (648 SE2d 186) (2007).

       Alicea has not filed a cross-appeal challenging the trial court’s grant of summary judgment to the Defendants on the informed consent claim pertaining to the March 7 intubation.

       It is undisputed that asa licensed hospital established under the laws of Georgia, Doctors Hospital satisfied the statutory definition of a “health care facility” under the Advance Directive Act. See OCGA § 31-32-2 (7). It is likewise undisputed that as a licensed attending physician permitted by law to administer health care, Dr. Catalano met the Advance Directive Act’s definition of a “health care provider.” See OCGA § 31-32-2 (8).

       OCGA § 31-32-10 (b) provides immunity from civil liability “for failing or refusing in good faith to effectuate the declarant’s directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.” (Emphasis supplied.) The Defendants did not rely upon this provision in the trial court as a basis for immunity, and we will not consider it for the first time on appeal. See Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 186 (1) (726 SE2d 673) (2012) (“Appellate courts do not consider whether summary judgment should have been granted for a reason not raised below because, if they did, it would be contrary to the line of cases holding that a party must stand or fall upon the position taken in the trial court.”) (citation and punctuation omitted).

       OCGA § 31-32-8 (2) provides:
      A health care decision made by a health care agent in accordance with the terms of an advance directive for health care shall be complied with by every health care provider to whom the decision is communicated, subject to the health care provider’s right to administer treatment for the declarant’s comfort or alleviation of pain; provided, however, that if the health care provider is unwilling to comply with the health care agent’s decision, the health care provider shall promptly inform the health care agent who shall then be responsible for arranging for the declarant’s transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent’s decision shall provide reasonably necessary consultation and care in connection with the pending transfer.

       Because the Defendants never argued in the trial court that they were entitled to immunity for the March 5 surgical procedure, we will not consider that issue on appeal. See Wellons, Inc., 315 Ga. App. at 186 (1). We also note that this case does not involve a “refusal” by a health care provider to follow a health care agent’s direction for religious or philosophical reasons.

       Because there are genuine issues of material fact regarding whether there was a good faith effort hy the Defendants to rely on the directions and decisions of Alicea in carrying out the March 7 intubation, we need not address whether the other statutory conditions for immunity were met in this case. See generally Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010) (“[W]e will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.”).

       As noted in Division 2, Alicea’s informed consent claim predicated on the March 5 surgical procedure fails for lack of evidence of any injury.

       The Defendants’ reliance on Pruette v. Ungarino, 326 Ga. App. 584, 590-592 (3) (757 SE2d 199) (2014) (physical precedent only) is misplaced. Pruette addressed, among other things, whether certain expert testimony regarding what the defendant physician should have told the patient’s family went to the issue of informed consent or basic consent and whether it should have been excluded from trial. In contrast, the issue in the present case is the more general one whether there was any evidence to support a battery claim for lack of basic consent to the March 7 intubation.


author: MCMILLIAN, Judge.

text:
    A15A0420.
    WILLIAMS v. THE STATE.
    (774 SE2d 126)
   MCMILLIAN, Judge.

Larry Eugene Williams was charged with nine drug-related counts arising out of three drug transactions on two different dates. Williams was convicted on all counts on March 4, 2009, but the trial court later granted his motion for new trial. On retrial, he was again convicted on all nine counts. Williams now appeals the denial of his subsequent motion for new trial, asserting that the trial court erred in granting the State’s motion in limine and in denying his motion for new trial despite what he asserts is a fatal variance between the allegations in the indictments and the evidence introduced at trial.

Viewed in the light most favorable to the verdict, the evidence showed that in June and July 2008, Brice Parrish was assisting Detective Josh Brock of the Summerville Police Department in making undercover purchases of controlled substances. On June 24, 2008, Parrish made two separate undercover purchases from Williams of a substance that contained cocaine. The next day, Williams again sold cocaine to Parrish during another controlled buy. Williams was later arrested and charged with the nine drug-related counts. Additional facts will be recited as necessary to consider Williams’ arguments.

1. Williams asserts that the trial court erred in granting the State’s motion in limine to prevent his cross-examining Brock about a website and publication with which he was affiliated.

At the hearing on the motion in limine, the parties presented no evidence and thus the trial court made no findings as to disputed facts or credibility. Moreover, the parties’ arguments reflect no factual dispute regarding the circumstances at issue. Therefore, we will review the trial court’s ruling on the motion in limine “to ensure that there was a substantial basis for it,” and we review de novo the trial court’s application of the law to the undisputed facts. State v. Gaggini, 321 Ga. App. 31, 32 (740 SE2d 845) (2013).

(a) We first address the State’s assertion that Williams failed to preserve this issue for appellate review under the requirements of OCGA § 24-1-103 (a) (2). That statute provides:

Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and... [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked.

The State asserts that Williams failed to make the requisite offer of proof to preserve his argument regarding the motion in limine.

However, we do not read OCGA § 24-1-103 (a) (2) as requiring a formal offer of proof in every instance, as it expressly states that error also may be preserved if the substance of the evidence is apparent from the record. See Hand v. South Ga. Urology Center, P.C., 332 Ga. App. 148 (769 SE2d 814) (2015) (on motion for reconsideration) (requirements of OCGA § 24-1-103 (a) (2) met where the record was “replete with discussions between both parties and the trial court” regarding the content of the evidence). We note that the comparable evidentiary rule under federal law, Federal Rule of Evidence 103 (a) (2), “does not require that a formal offer of proof be made to preserve an objection.” United States v. Quinn, 123 F3d 1415, 1420 (11th Cir. 1997). Rather, “[w]here the substance of the evidence is apparent to the court from its context, an appellant is entitled to ordinary appellate review of a ruling excluding evidence.” Id.

The trial court considered the matter at a pre-trial hearing on the State’s motion in limine seeking to exclude evidence regarding Detective Brock’s affiliation with “an entity known as Uncle Wiggy,” which, according to the prosecutor, led to Brock leaving his employment with the Summerville Police Department. Williams’ counsel further explained that Brock had developed a website and a publication called Uncle Wiggy’s Secret Guide to Dealing With the Police (the “Publication”). And he stated that, “among a lot other things,” the Publication states, “remember, the police will try to trick you. The police can and will lie to you” (the “Statement”). Williams’ counsel asserted that he sought to introduce evidence of the Statement on the issue of Brock’s “credibility,” “believability,” “veracity,” and “truthfulness.” However, the trial judge granted the State’s motion in limine without elaborating on his reasons for doing so.

Although the better practice may have been to proffer the Publication into the record for consideration at both the trial and appellate levels, we find that the substance of the evidence at issue is sufficiently apparent from the attorneys’ discussion to preserve Williams’ argument for our review.

Ob) Georgia’s new Evidence Code, OCGA § 24-6-608, sets out specific, limited methods for attacking or supporting the credibility of a witness by evidence in the form of opinion or reputation. Specifically, with respect to this case, the pertinent limitation provides that “[t]he evidence may refer only to character for truthfulness or untruthfulness.” OCGA § 24-6-608 (a) (1). Additionally, the statute provides that specific instances of a witness’s conduct, “for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime ... or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence.” (Emphasis supplied.) OCGA § 24-6-608 (b). “Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness [ c]oncerning the witness’s character for truthfulness or untruthfulness.” OCGA § 24-6-608 (b) (1).

Williams sought to cross-examine Brock about the Statement in the Publication that “police can and will lie.” Williams argued that this Statement went directly to the issue of Brock’s credibility, which he contends was crucial to proof of identity, as Brock was only one of two witnesses who had identified Williams as a participant in the three drug transactions. The record provides no express context for the Statement within the Publication, but the trial court said that he was “a little bit familiar” with the Uncle Wiggy website, and he drew the distinction between a police officer’s credibility under oath and an officer’s tactics during an investigation into a crime. It is well settled in Georgia that “the means used to obtain admissions in the nature of a confession [do] not prevent them from being free and voluntary notwithstanding the fact that they might have been obtained by artifice, trick or deception.” Moore v. State, 230 Ga. 839, 840 (1) (199 SE2d 243) (1973) (holding defendant’s statement admissible even though police lied to him about finding the murder weapon). See, e.g., Thorpe v. State, 285 Ga. 604, 611 (6) (678 SE2d 913) (2009) (admission of defendant’s “unguarded response to a perceived confidante,” not barred where, unbeknownst to defendant, confidante was actually a state agent). Accordingly, within certain defined limits, police may lie to or trick a suspect, and thus the Statement itself is not untrue.

Moreover, even assuming that Brock’s undefined “affiliation” with the Uncle Wiggy website and Publication somehow equates with his adoption or authorship of the Statement, we find that such a generalized statement about police conduct is not probative of Brock’s own credibility in testifying under oath. A statement that “police can and will lie” does not constitute a specific instance of Brock’s personal conduct, probative of his own truthfulness or untruthfulness and concerning his character for truthfulness or untruthfulness as required to allow cross-examination on the issue under OCGA § 24-6-608 (b) (1). Accordingly, we conclude that the trial court had a substantive basis for granting the State’s motion in limine and for prohibiting Williams’ inquiry into the Statement on cross-examination.

2. Williams next asserts that the trial court erred in denying his motion for new trial on the ground that a fatal variance existed between the proof at trial and the allegations of the indictments charging him with possession of a controlled substance with intent to distribute within 1,000 feet of a Summerville Housing Authority housing project. Specifically, he asserts that the State failed to prove that the address stated in the indictment was a Summerville Housing Authority housing project as charged.

OCGA § 16-13-32.5 (b) provides, in pertinent part, that it is “unlawful for any person to . . . possess with intent to distribute a controlled substance ... in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project.” And the statute defines the term “housing project” to mean “any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.” OCGA § 16-13-32.5 (b). One indictment charged that Williams “did possess with intent to distribute cocaine, a controlled substance, within 1,000 feet of a Summerville Housing Authority housing project, a publicly operated housing project located at 151 Hawkins Drive, Summerville, Chattooga County, Georgia” and the second charged that the prohibited activity occurred “within 1,000 feet of a publicly owned and operated housing project to wit: Summerville HousingAuthority, 151Hawkins Drive, Summerville, Chattooga County, Georgia.”

Williams asserts that at no point during the trial did any witness testify that 151 Hawkins Drive was owned or operated by the Summerville Housing Authority, that the address contained dwellings that were occupied by low and moderate-income families, or that Williams possessed a controlled substance near that address. And thus, he asserts that a fatal variance in proof occurred.

However, as this Court has previously explained, “[w]e no longer adhere to an overly technical application of the fatal variance rule, focusing instead on materiality.” (Citation omitted.) Chambers v. State, 284 Ga. App. 400, 401 (1) (643 SE2d 871) (2007).

The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.”

Id.

At trial, Parrish testified that the drug transactions occurred at the back corner of a store on Hawkins Drive, which was “straight across” the street from the Summerville Housing Authority property. He also stated that a portion of the housing project was located on the same side of the street as the store. He described the distance between the back of the store and the Summerville Housing Authority property as being the same distance from the witness stand to the second or third row bench in the courtroom.

Brock testified about the location of the housing project in relation to a location known as the “Vann House.” Brock stated that the store faced Highland Avenue at the corner of Hawkins Drive and that as one drives up Hawkins Drive, one first comes to the store’s parking lot and then the side of the store. He further described that the Vann House was directly across Hawkins Drive from the store, and the housing project run by the Summerville Housing Authority “starts” directly behind the Vann House. Brock opined that the distance between the corner of the store and the housing project as being “a lot less” than 1,000 feet. From his measurements at the time, the distance between a tree in the store parking lot to the Housing Authority property was 111 feet. Brock also stated that the housing projects were for low income families.

Based on this evidence and the evidence presented at the hearing on the motion for new trial showing that a housing project operated by the Summerville Housing Authority existed in the 100 block of Hawkins Drive, we find that any variance between the indictment and the proof at trial did not misinform or mislead Williams in any way that would have surprised him at trial or impaired his ability to prepare his defense. We also find that the allegations of the indictment were sufficient to protect him from being subjected to another prosecution for the same offense. Accordingly, no fatal variance occurred, and the trial court properly denied his motion for new trial on this ground. See Chambers, 284 Ga. App. at 402 (1) (no fatal variance in indictment alleging burglary occurred at nonexistent street number on a certain street and the burglary actually occurred at property with three different street numbers next to each other on the same street); Jackson v. State, 217 Ga. App. 485, 490 (5) (458 SE2d 153) (1995) (physical precedent only) (no fatal variance where indictment alleged that burglary occurred at dwelling of “Bobby Jackson, located at 1892 Highway 92 South,” and proof at trial showed that burglary occurred at 1889 Highway 92 South). Compare Hunter v. State, 155 Ga. App. 561, 561 (271 SE2d 694) (1980) (fatal variance occurred where indictment alleged burglary occurred at “West’s Grocery” and evidence at trial showed that it occurred at “Dews Pond Grocer/’ owned by a Mr. West where no evidence showed that the two stores were the same business establishment or that the business identified at trial was known by both names); Charles v. State, 167 Ga. App. 806, 807 (307 SE2d 703) (1983) (fatal variance found where victim owned five warehouses on three different streets in county and indictment alleged address on one street and proof showed burglary occurred at address on one of the other streets).

Decided June 17, 2015.

Victor P. Aloisio, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Williams was charged with three counts each of sale of cocaine under OCGA § 16-13-30 (b), possession of cocaine under OCGA § 16-13-30 (a), and possession of illegal substances near a housing project with intent to distribute under OCGA § 16-13-32.5 (b).

       The offenses in this case were charged in two separate indictments, which were joined for trial.

       OCGA § 24-1-103 (a) (2) is part of Georgia’s new Evidence Code, which became effective for trials occurring after January 1, 2013. See Ga. L. 2011, p. 99, § 101. “Because the new Evidence Code is patterned after the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting these new statutes. See Ga. L. 2011, p. 99, § 1.” Flading v. State, 327 Ga. App. 346, 351 (2), n. 6 (759 SE2d 67) (2014).

       Williams argues that the trial court applied the wrong standard in considering OCGA § 24-6-608, citing what he asserts are misstatements of the appropriate standard by the State during the argument on the issue. But we find no indication that the trial court misapplied the law. The trial judge stated that he was familiar with OCGA § 24-6-608 and never said that he was adopting the State’s interpretation of that Code section in granting the motion in limine.

       We note that State v. Green, 135 Ga. App. 622, 623 (218 SE2d 456) (1975) cited by Williams is also distinguishable as it involved a special demurrer to which this Court necessarily applied a different standard. See, e.g., State v. Thomas, 331 Ga. App. 220, 221 (770 SE2d 301) (2015) (“[A] defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.”) (citation and punctuation omitted). However, we do not suggest that Williams’ indictment would have been subject to a special demurrer.


author: ANDREWS, Presiding Judge.

text:
    A12A2295.
    CARTER v. PROGRESSIVE MOUNTAIN INSURANCE.
    (774 SE2d 145)
    Decided June 18, 2015.

      Toliver & Gainer, William G. Gainer, Samuel J. Crowe, for appellant.
   ANDREWS, Presiding Judge.

In Carter v. Progressive Mountain Ins., 320 Ga. App. 271 (739 SE2d 750) (2013), we affirmed the trial court’s grant of summary judgment in favor of Progressive Mountain Insurance on Carter’s claim for underinsured motorist benefits. In Carter v. Progressive Mountain Ins., 295 Ga. 487 (761 SE2d 261) (2014), the Supreme Court reversed the judgment of this Court. Accordingly, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s grant of summary judgment in favor of Progressive Mountain Insurance is reversed.

Judgment reversed.

Doyle, P. J., and Boggs, J., concur.

Carlock, Copeland & Stair, Megan E. Boyd, Jason W. Hammer, for appellee.


author: McFadden, Judge.

text:
    A15A0017.
    LITTLE v. THE STATE.
    (774 SE2d 132)
   McFadden, Judge.

After a jury trial, Chester Little was convicted of practicing dentistry without a license. He appeals, challenging the sufficiency of the evidence and the denial of a motion for a mistrial based on the court impermissibly speaking to a juror about the deliberations. Because there was enough evidence to support the jury’s verdict and the mistrial issue was waived, as there was not actually a motion for a mistrial based on the ground now raised, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This [c]ourt does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013) (citations omitted).

So viewed, the evidence shows that in 2011, Little filed an insurance claim for a motor vehicle allegedly stolen from the parking lot of his business. An insurance company investigator telephoned Little, who stated that he was a dentist and agreed to meet the investigator at his dental office in Macon the following day. The investigator arrived at the office for the meeting and discovered the name of another dentist, not Little, listed on the building. The investigator went into the office, where she found Little and an assistant in medical scrubs performing a dental procedure on a patient. While in the waiting room, the investigator heard a dentist’s drill, observed a patient with gauze in his bloody mouth, saw Little holding a dental instrument, and heard Little schedule a postoperative visit with the patient. Among other things, Little informed the insurance investigator of his annual income from his dental practice. During her subsequent investigation, the investigator learned that Little was not licensed to practice dentistry.

The insurance investigator contacted the Georgia Secretary of State’s office, which began an investigation of Little for the unlicensed practice of dentistry. Investigators for the Secretary of State learned that Little had voluntarily surrendered his license to practice dentistry in Georgia in 1993, with the surrender having the same effect as a revocation of his license. Investigators also learned that Little had surrendered a dentistry license in Texas because it had been obtained through fraudulent means. The Secretary of State’s office contacted the Macon Police Department to join in the investigation. A police officer, acting undercover, contacted Little and asked him about performing dental work on a sore tooth. Little quoted a price for the dental work and met with the undercover officer to take him to the dentistry office to perform the dental procedure. The Secretary of State’s office and the police department then conducted a search of Little’s dentistry office, where they discovered dental tools, equipment and supplies. When Little was taken into custody, officers found two-sided business cards in his pockets. One side of the cards advertised a used car sales business and the other side advertised Little’s general and cosmetic dentistry practice.

“Any person . . . who practices dentistry in this state without obtaining a license to practice from the [Georgia Board of Dentistry] shall be guilty of a felony[.]” OCGA § 43-11-50. The evidence, as recounted above, was sufficient for a rational trier of fact to find Little guilty beyond a reasonable doubt of practicing dentistry without a license. See McMillan v. State, 266 Ga. App. 729, 731-733 (1) (b), (c) (598 SE2d 17) (2004), overruled in part on other grounds by Glidewell v. State, 279 Ga. App. 114, 122 (7) (a) (630 SE2d 621) (2006).

2. Motion for a mistrial.

Little enumerates that the trial court erred in denying his motion for a mistrial based on the court impermissibly speaking to an individual juror during deliberations. However, Little never moved for a mistrial on that ground.

The trial transcript shows that the jury foreperson sent a note to the judge indicating that one of the jurors disagreed with the other jurors and seemed unlikely to change his mind. At that point, Little’s attorney moved for a mistrial based on the jury being deadlocked or, alternatively, asked the court to give an Allen charge to the jury. See Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896). The trial judge denied the motion for a mistrial and the request for an Allen charge, and instead indicated that he wanted to talk to the jury foreperson to determine whether the juror was refusing to deliberate and if the jurors were indeed deadlocked. The judge spoke to the foreperson, who reiterated that one juror disagreed with the other jurors, but did not indicate that the juror was refusing to deliberate.

Decided June 18, 2015.

Jonathan R Waters, for appellant.

K. David Cooke, Jr., District Attorney, William D. Johnson, Myra H. Tisdale, Assistant District Attorneys, for appellee.

The foreperson returned to the jury room, and the judge indicated that he wanted to speak to the juror in question to determine if he was refusing to follow the court’s instructions to deliberate. Little’s attorney objected, stating that the defense “would rather you not bring him in here and say anything, but the court is in charge.” The court then brought the juror into the courtroom, and the juror stated that he was willing to follow the judge’s instructions and continue to deliberate. The judge also reminded the juror of an earlier instruction that if he had an opinion about the evidence, he was “not required to surrender that opinion, to be congenial or to get along with the fellow jurors.” The judge then sent the juror back to the jury room to continue deliberations.

At that point, Little stood silent and neither renewed his earlier motion for a mistrial based on a deadlocked jury, nor made a new motion for a mistrial based on any ground. Thereafter, the jury returned its verdict and was polled, a sentencing hearing was held, and the court imposed sentence. Because Little has not shown that he actually moved for a mistrial based on the court’s allegedly improper discussion with the juror, he has “waived review of this issue on appeal.” Andrews v. State, 293 Ga. 701, 704 (4) (749 SE2d 734) (2013) (citation omitted). See also Coe v. State, 293 Ga. 233, 238 (4) (748 SE2d 824) (2013) (where defendant fails to show that a motion for a mistrial was made, “he has waived this issue for the purposes of appeal”).

Judgment affirmed.

Dillard and Ray, JJ., concur.


author: Miller, Judge.

text:
    A15A0564.
    RAMSEY v. NEW TIMES MOVING, INC.
    (774 SE2d 134)
   Miller, Judge.

Julie Ramsey sued New Times Moving, Inc. d/b/a State Wide Relocation (hereinafter “State Wide”) for breach of contract, fraud and other claims arising from State Wide’s actions during her move from Georgia to California. The trial court granted State Wide’s motion to dismiss Ramsey’s complaint for lack of jurisdiction and improper venue. Ramsey appeals, contending, inter alia, that the trial court erred in granting State Wide’s motion to dismiss. For the reasons that follow, we reverse.

We review a trial court’s ruling on a motion to dismiss under the de novo standard of review. Houseboat Store v. Chris-Craft Corp., 302 Ga. App. 795 (692 SE2d 61) (2010); Sun v. Girardot, 302 Ga. App. 395 (691 SE2d 278) (2010).

So viewed, the record shows that in September 2012, Ramsey entered into a contract with State Wide to move her household goods from Roswell, Georgia, to Oxnard, California. The contract, which contained no forum selection provision, provided for a binding “not-to-exceed” price of $4,082.79 based on an estimated weight of 7,811 pounds for Ramsey’s household goods. Ramsey paid a $200 deposit on the contract to have her household goods picked up in Roswell on September 28, 2012 and delivered to Oxnard on October 2, 2012.

On September 28, 2012, the movers arrived early in the morning and immediately began loading and packing the truck. After the truck was loaded, the foreman confronted Ramsey and told her that her household goods weighed 12,600 pounds, rather than the agreed-upon 7,811 pounds as set forth in the binding estimate.

The foreman then told Ramsey that the new charge for moving her household goods was $6,300. The foreman also produced documents prepared by State Wide, which Ramsey signed, after the foreman told her that the binding estimate was invalid and that weighing her household goods would incur thousands of dollars in additional charges and her shipment would be delayed. One of the documents signed by Ramsey — a one-page preprinted General Agreement — contains a forum selection clause stating that Ramsey consented to jurisdiction and venue in Miami, Florida for any legal proceedings arising out of that agreement. The record also includes an unsigned Revised Written Estimate which contains a similar forum selection clause.

Ramsey subsequently filed suit against State Wide for breach of contract, fraud and other claims. State Wide responded and moved to dismiss the complaint for lack of jurisdiction and improper venue based on the forum selection clause in the General Agreement and the Revised Written Estimate. The trial court granted State Wide’s motion to dismiss, and this appeal ensued.

Ramsey contends that the trial court erred in granting State Wide’s motion to dismiss. We agree, and reverse.

“A motion to dismiss may be granted only where a complaint shows with certainty that the plaintiff would not be entitled to relief under any state of facts that could be proven in support of his claim.” (Citation omitted.) Croxton v. MSC Holding, 227 Ga. App. 179, 180 (489 SE2d 77) (1997).

If, within the framework of the complaint, evidence may be introduced which will sustain a grant of the relief sought by the claimant, the complaint is sufficient and a motion to dismiss should be denied.

(Citation and punctuation omitted.) Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010). Moreover, “[i]nruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff.” (Citation omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010).

In its motion to dismiss, State Wide argued that Ramsey entered into a binding contract on September 28, 2012, which included a mandatory forum selection clause requiring her to file her suit in Florida. In support of its argument below, State Wide relied on the forum selection clause in the General Agreement. Contrary to State Wide’s argument, a forum selection clause in an agreement that is not freely negotiated, or is the product of fraud or undue influence, is not prima facie enforceable. See Houseboat Store, supra, 302 Ga. App. at 797 (b).

Here, Ramsey alleged facts, which if proven, are sufficient to show that she signed the General Agreement under duress and due to the foreman’s intentional misrepresentations regarding the weight of her household goods. Moreover, Ramsey has also alleged facts, which if proven, are sufficient to show that she is entitled to relief under applicable federal law, namely that she signed the General Agreement after her household goods were loaded onto the truck.

Notably, with regard to the interstate transportation of household goods for an individual shipper, federal law requires motor carriers to provide either a binding or nonbinding written estimate of the total charges before shipment of the goods. See 49 CFR § 375.401 (b). A binding estimate is an agreement made in advance between the shipper, in this case Ramsey, and the motor carrier. See id. at (b) (1). Federal law specifically provides that motor carriers may not amend the estimate after loading the shipment. See 49 CFR § 375.401 (i).

A motor carrier is not required to honor a binding estimate or service the shipment where it appears that the shipper has tendered additional household goods or requires additional services that were not identified in the binding estimate. See 49 CFR § 375.403 (a) (6). If the motor carrier chooses to service the shipment, however, the carrier must do one of the following before loading the shipment: (1) reaffirm the binding estimate; (2) negotiate a revised written binding estimate which accurately lists the additional goods or services in detail; or (3) mutually agree with the shipper, in writing, that the original binding estimate will be considered to be a nonbinding estimate. 49 CFR § 375.403 (a) (6) (i)-(iii). If the motor carrier loads the shipment, without first taking one of these steps, then the original binding estimate is affirmed by operation of law. See 49 CFR § 375.403 (a) (7).

In this case, Ramsey alleged facts in her complaint showing that she entered into a contract with State Wide to move her household goods from Georgia to California for a binding, “not-to-exceed” price of $4,082.79, and State Wide attempted to revise the binding estimate after loading her shipment. Accepting these allegations as true, the documents that Ramsey signed after her shipment was loaded, including the General Agreement, had no effect, and the original binding estimate was affirmed by operation of federal law. See 49 CFR § 375.403 (a) (7). The original binding estimate in this case had no forum selection clause. Therefore, the trial court erred in dismissing Ramsey’s complaint. See Sherman, supra, 288 Ga. at 95 (trial court erred in dismissing complaint for failure to state a claim where plaintiff made material allegations in support of its claim which could be supported by admissible evidence). Accordingly, we reverse.

Decided June 18, 2015.

Lynn Akeley-Alderman, for appellant.

Eric Azulay, for appellee.

Judgment reversed.

Branch, J., concurs. Andrews, P. J., concurs in judgment only.

       Ramsey also sued Reliable Low Cost Moving, Inc. d/b/a Low Cost Moving; however, that company failed to respond to the complaint and is not a party to this appeal.

       We note that the trial court did not convert the motion to dismiss for improper venue into a motion for summary judgment by considering matters outside the pleadings. See Laibe Corp. v. Gen. Pump & Well, 317 Ga. App. 827, 830-831 (1) (733 SE2d 332) (2012) (consideration of matters outside pleadings on motion to dismiss for improper venue does not convert that motion to one for summary judgment); see also OCGA § 9-11-12 (only a motion to dismiss for failure to state a claim is converted to summary judgment by consideration of matters outside the pleadings).

       The contract was prepared by Low Cost Moving, who had an agency relationship with State Wide.

       Ramsey’s remaining enumerations of error, which all concern procedural issues related to the trial court’s grant of the motion to dismiss, are moot in light of our reversal. Accordingly, we need not address them.

       State Wide also relied on the forum selection clause in the Revised Written Estimate. State Wide’s reliance on that document is misplaced, because the Revised Written Estimate is unsigned, and it contains a provision stating that it is “only valid if fully executed before any work begins.”

       State Wide was not required to and did not file a response brief in this case. See Court of Appeals Rule 23 (b).