author: McFadden, Judge. Dillard, Judge, RAY, Judge,

text:
    A15A1491.
    GOLDSTEIN, GARBER & SALAMA, LLC v. J. B.
    (779 SE2d 484)
   McFadden, Judge.

A jury found Goldstein, Garber & Salama, LLC (“GGS”), a dental practice, liable to J. B. on the theory that GGS’s negligence resulted in her being sexually assaulted by Certified Registered Nurse Anesthetist Paul Serdula while she was under anesthesia at GGS’s office, and the trial court entered judgment on that verdict. On appeal, GGS contends (1) that the trial court erred in denying its motion for directed verdict because J. B. did not establish that GGS was liable under either a theory of negligence per se or professional negligence; (2) that the trial court erred in making numerous evidentiary rulings; and (3) that the jury’s assignment of no fault to Serdula on the verdict form requires a new trial. We find, however, that the trial court did not err either in allowing the jury to decide the issue of GGS’s liability or in her evidentiary rulings, and that GGS has waived its challenge to the jury’s verdict. Accordingly, we affirm.

1. Facts.

We review the judgment entered by the trial court after approval of a jury verdict using the “any evidence test, absent any material error of law.” Boston Men’s Health Center v. Howard, 311 Ga. App. 217, 218 (715 SE2d 704) (2011) (punctuation omitted). So viewed, the record reflects that on September 16, 2009, J. B. underwent a three-phase dental procedure at GGS. In one phase of the procedure, Dr. Maurice Salama surgically installed a post for a tooth implant. Nurse Serdula administered anesthesia to J. B. for this phase. In a subsequent phase, Dr. David Garber placed a temporary dental prosthetic device in place of the future implant.

Between the conclusion of Dr. Salama’s surgical procedure and the beginning of Dr. Garber’s cosmetic procedure, J. B. remained in a heavily sedated state for approximately two hours. At some point during this period, J. B. was left alone with Serdula, who made three brief video recordings of her: one in which he looked down her shirt at her breasts, another in which he moved her underwear to reveal her vagina, and a third in which he placed his penis between her lips. These videos of J. B. were later discovered when Serdula’s hidden cell phone was found recording employees in GGS’s office restroom. Examination of the phone also revealed video recordings of Serdula sexually molesting other anesthetized patients. Serdula eventually pleaded guilty to numerous charges related to the vile acts he perpetrated against J. B. and other victims, and he was sentenced to life in prison.

J. B. sued GGS, asserting, among other things, that GGS was liable for negligence per se and professional negligence. The case proceeded to trial, at which expert evidence was presented that GGS had violated certain statutory requirements for dentists supervising certified registered nurse anesthetists and had violated certain standards of care for monitoring patients under anesthesia. The trial court denied GGS’s motion for directed verdict, and the jury awarded $3.7 million to J. B. and apportioned 100 percent of the liability to GGS and none to nonparty Serdula. (J. B. had initially sued Serdula, but voluntarily dismissed him from the action before trial.)

2. Directed verdict.

GGS argues that the trial court erred in denying its motion for directed verdict because J. B. did not prove liability by negligence per se or professional negligence. GGS argues that there was not evidence to show the proximate cause required for both causes of action. It further argues that J. B.’s negligence per se claim fails because the statute at issue did not intend to prevent the harm she suffered, and that her professional negligence claim fails because the conduct at issue did not involve the exercise of professional judgment and skill. We find no merit in these arguments. There was evidence upon which the jury could find the proximate cause required for both of these causes of action, and GGS’s other arguments related to these causes of action lack merit.

(a) Proximate cause.

We first address proximate cause because it is an element required for both negligence per se and professional negligence. Allen v. Family Medical Center, 287 Ga. App. 522, 524 (1) (652 SE2d 173) (2007); Norman v. Jones Lang LaSalle Americas, 277 Ga. App. 621, 628 (2) (b) (627 SE2d 382) (2006).

No single standard exists to determine proximate causation. Atlanta Obstetrics & Gynecology Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). Instead, as our Supreme Court has explained, “proximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.” Id. (citation and punctuation omitted). This determination

requires both factfinding in the “what happened” sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are appropriately made by a jury upon appropriate instructions from the judge. The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of “foreseeability”) to the facts.

Id. (citation omitted). Stated another way, questions regarding proximate cause “may only be determined by the courts in plain and undisputed cases.” Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686-687 (2) (572 SE2d 533) (2002) (citations and punctuation omitted).

[T]he proximate cause of an injury may be two separate and distinct acts... acting concurrently and... the mere fact that the plaintiff’s injuries would not have been sustained had only one of the acts ... occurred will not of itself operate to limit the other act as constituting the proximate cause.

Granger v. MST Transp., 329 Ga. App. 268, 270 (1) (764 SE2d 872) (2014) (citation and punctuation omitted). While Granger involved two acts of negligence, the rule it sets out applies where, as here, there is a negligent act and an intervening criminal act. Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 131 (2) (766 SE2d 669) (2014); Granger, 329 Ga. App. at 270-272 (1).

For an intervening act to become the sole proximate cause of a plaintiff’s injuries, the intervening act must not have been foreseeable by the defendant, must not have been triggered by the defendant’s act, and must have been sufficient by itself to cause the injury. If the character of the intervening act was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken.

Zaldivar v. Prickett, 297 Ga. 589, 601-602 (2) (774 SE2d 688) (2015) (citations and punctuation omitted; emphasis supplied); see also Ontario Sewing Machine Co., 275 Ga. at 686 (2). Moreover, J. B., the plaintiff in this case,

need not prove that [GGS] could foresee the precise manner in which [someone took advantage of her vulnerable state while anesthetized]. The foreseeability analysis is not that specific: the relevant inquiry is not whether the exact intervening . . . act was foreseeable, but whether, as a general matter, the original negligent actor should have anticipated that this general type of harm might result.

Granger, 329 Ga. App. at 271 (1) (citation and punctuation omitted). And as with the broader question of proximate cause, “the question of reasonable foreseeability of a criminal act is generally for a jury’s determination rather than... adjudication by the courts.” Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997) (citation and punctuation omitted).

This is not a plain and undisputed case suitable for adjudication by the courts. The evidence does not show, as a matter of law, that GGS could not have reasonably anticipated that its patient might be victimized if left sedated to a medically-unjustifiable degree and for medically-unjustifiable amount of time without proper supervision. The record in this case is “replete with factual disputes [that pertain to the foreseeability of the intervening act] and the legal inferences to be drawn from those facts.” Atlanta Obstetrics & Gynecology Group, 260 Ga. at 570 (footnote omitted).

The evidence must be viewed in the light most favorable to J. B. See Mathews v. Cloud, 294 Ga. 415, 416 (1) (754 SE2d 70) (2014) (in reviewing whether trial court erred in denying motion for directed verdict, we construe evidence in light most favorable to prevailing party). So viewed, the evidence showed that Serdula sedated J. B. at an unnecessarily deep level and for two hours more than necessary. This not only rendered her a more vulnerable target, but also constituted a violation of the standard of care and placed her at unnecessary risk of medical complications, which fortunately did not materialize.

The evidence, viewed most favorably to J. B., also showed that the dentists purporting to supervise Serdula were not qualified or competent to do so. They had not undergone the training or earned the certifications required of dentists who would supervise nurse anesthetists, see OCGA § 43-11-21.1 (governing qualifications required for dentist to supervise certified registered nurse anesthetist administering general anesthesia), which an expert witness opined rendered them unable to recognize J. B.’s level of sedation. They did not know how to read an anesthesia chart, and they depended upon Serdula to make decisions regarding J. B.’s anesthesia.

This evidence created jury questions as to whether it was foreseeable that the GGS dentists’ failure to discharge their statutory duties and professional obligations would make J. B. vulnerable to the predation she suffered. See Ontario Sewing Machine Co., 275 Ga. at 687 (2) (finding jury questions regarding the reasonableness of sewing machine manufacturer’s recall and the foreseeability of plaintiff’s failure to comply with it).

It is true, of course, that most anesthetized patients are not assaulted. And there was no evidence that GGS knew of Serdula’s previous assaults on patients. We are not persuaded, however, that the relatively uncommon nature of Serdula’s intervening acts compels a determination that GGS could not reasonably have foreseen them. In Medical Center Hosp. Auth. v. Cavender, 331 Ga. App. 469 (771 SE2d 153) (2015), and Brown v. All-Tech Investment Group, 265 Ga. App. 889 (595 SE2d 517) (2004), we stressed the unusual nature of workplace shooting incidents to hold that those incidents were not reasonably foreseeable as a matter of law. Cavender, 331 Ga. App. at 475-476 (1) (a); Brown, 265 Ga. App. at 895-896 (1). But unlike those cases, which concerned claims of ordinary negligence and premises liability, this case involves claims of negligence per se and professional negligence based on violations of statutory requirements and professional standards that address the specific needs and vulnerabilities of an anesthetized patient. Expert testimony was presented that the dental profession is aware that assaults like the one J. B. suffered do occur and actively seeks to prevent them. There was testimony, for example, that sexual assaults and molestation are considered “never events” in the medical community — occurrences that are preventable and should “never” happen. And there was expert testimony that the requirement for monitoring an anesthetized patient existed to safeguard patient safety, among other reasons.

Given the specific statutory requirements and professional standards that exist to protect anesthetized patients, we do not believe that the abuse of an anesthetized patient is “so unusual, contrary to ordinary experience, and rare that no reasonable jury could find [GGS] should have guarded against [such abuse].” Cavender, 331 Ga. App. at 475 (1) (a) (citation and punctuation omitted; emphasis supplied). We should not substitute our judgment for that of the jury as to whether proximate cause existed in this case.-

(b) Negligence per se.

In addition to arguing that proximate cause did not exist as a matter of law, GGS also argues that the trial court should not have permitted J. B.’s negligence per se claim to go to the jury because OCGA § 43-11-21.1, the statute GGS violated, was not intended to prevent the type of injuries she suffered. See OCGA § 51-1-6 (when law requires person to “perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby”); McLain v. Mariner Health Care, 279 Ga. App. 410, 411 (2) (631 SE2d 435) (2006) (generally, plaintiff may assert claim of negligence per se arising from violation of statute if, among other things, “the harm complained of was the same harm the statute was intended to guard against”). We disagree.

OCGA § 43-11-21.1 governs the qualifications required for a dentist to supervise a certified registered nurse anesthetist administering general anesthesia. While OCGA § 43-11-21.1 does not list the harms it intends to guard against, its requirements, among other things, address a dentist’s ability to competently supervise a certified registered nurse anesthetist. There was evidence that the GGS dentists did not meet these statutory requirements and were unable to recognize J. B.’s inappropriate level of sedation.

And the legislative intent behind this statute is set out expressly in another Code section within the chapter: “[S]uch unlicensed activities as are mentioned in this chapter [including a dentist without proper qualifications allowing a certified registered nurse anesthetist to administer anesthesia] are a menace and a nuisance dangerous to the public health, safety, and welfare.” OCGA § 43-11-2 (e) (emphasis supplied). This broad language encompasses unreasonable risks. Cf. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 732 (2) (333 SE2d 829) (1985) (similar anesthesia statute applying to doctors serves to protect others against unreasonable risks); Groover v. Johnston, 277 Ga. App. 12,16 (1) (b) (625 SE2d 406) (2005) (statute permitting doctors to delegate to nurses with specific certifications the authority to order certain drugs, treatments, and diagnostic studies, and which did not explicitly state a purpose, created a “duty recognized by the law to protect patients against unreasonable risk”). Contrary to the view expressed by Judge Dillard in his dissent, this language encompasses both medical and nonmedical dangers that could arise where, as here, a dentist is incapable of adequately supervising a certified registered nurse anesthetist, including the increased risk of a patient to abuse when the patient is placed under a greater level of sedation than necessary for a greater amount of time than necessary. See Brown v. Belinfante, 252 Ga. App. 856, 861 (1) (557 SE2d 399) (2001) (provisions of Georgia Dental Act serve to “protect [ ] the health and welfare of patients who submit themselves to the care of dentists, by guarding against injuries caused by inadequate care or by unauthorized individuals”).

(c) Professional negligence.

GGS argues in the alternative that this is not a professional negligence case. Because this case does not concern an exercise of professional judgment and skill required for a claim of professional negligence, GGS argues, J. B. must prove all the elements of a claim of ordinary negligence — including that Serdula’s crimes were foreseeable. The argument is without merit. “An action for professional negligence . . . exists when the plaintiff’s claim addresses the propriety of a professional decision rather than the efficacy of conduct in the carrying out of a decision previously made.” King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 45-46 (616 SE2d 835) (2005) (citation and punctuation omitted). J. B.’s professional negligence claims address the propriety of the professional decisions made by GGS regarding the treatment and care provided to its sedated patients, and expert evidence was submitted as to the professional standards that governed these decisions.

3. Evidentiary rulings.

(a) Evidence of prior assaults committed by Serdula.

GGS argues that the trial court erred in permitting evidence of other assaults perpetrated by Serdula on GGS patients but excluding evidence of assaults perpetrated by him on patients of health-care providers other than GGS. J. B. correctly points out, however, that the trial court initially excluded all evidence of Serdula’s other assaults. See OCGA § 24-4-403. She later permitted the evidence of other assaults on GGS patients for the purpose of impeachment after one of the GGS dentists testified that GGS never left an anesthetized patient with fewer than two people in attendance. See OCGA § 24-6-621. We discern no abuse of discretion. See Rivers v. K-Mart Corp., 329 Ga. App. 495, 496 (1) (765 SE2d 671) (2014) (“As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.”) (citations and punctuation omitted); Bolah v. Driskell, 318 Ga. App. 405, 407 (734 SE2d 108) (2012) (“A trial court, in its discretion, may admit evidence relevant to the issue of impeachment even if the evidence would not qualify for admission on other grounds.”) (citation omitted).

(b) Evidence of photographs posted on social media.

GGS argues that the trial court erred in excluding, on relevance grounds, parts of an exhibit containing photographs that J. B. had posted on social media in the several years following the assault. Again, we discern no abuse of discretion in this evidentiary ruling. See Rivers, 329 Ga. App. at 496 (1).

(c) Rehearing of evidence.

GGS argues that the trial court erred when, during jury deliberations, she permitted the jury to rehear a portion of evidence setting forth certain of GGS’s responses to requests for admission but did not permit the jury to rehear a portion of the evidence containing certain expert witness testimony. The jury had asked to rehear both portions. Whether to accede to or decline the jury’s request to rehear parts of the evidence was a matter within the trial court’s discretion. Byrd v. State, 237 Ga. 781, 782-783 (1) (229 SE2d 631) (1976). And, as J. B. points out, the fundamental nature of the evidence at issue — party admissions versus expert testimony — differed. See generally Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) (1987) (“Answers to requests for admissions are not on the same footing in the eyes of the law with other evidence.”) (citation and punctuation omitted). We discern no abuse of discretion in the trial court’s decision to permit the rehearing of the admissions while denying the rehearing of the expert testimony. Compare Scroggins v. State, 237 Ga. App. 122, 125 (5) (514 SE2d 252) (1999) (although ordinarily whether trial court will require court reporter to read former testimony is matter resting within trial court’s sound discretion, trial court nevertheless abused its discretion in denying rehearing of testimony where parties in presence of jury raised a question about substance of that very testimony and serious disagreement existed regarding whether defense counsel had misstated testimony, which could be settled unequivocally by rehearing disputed testimony while causing little, if any, harm).

4. Apportionment.

(a) GGS argues that it is entitled to a new trial because the jury’s verdict form allocated no fault to nonparty Serdula. GGS frames this argument as a challenge to the sufficiency of the evidence to support the judgment. But that is not what it is; it is a challenge to the verdict. And GGS waived appellate review of this challenge by failing to obtain a ruling before the jury was dispersed.

Although the statutory grounds for a new trial do focus on the relationship between the evidence and the jury’s verdict, OCGA § 5-5-20 et seq., a challenge to the sufficiency of the evidence is a challenge to the judgment entered on the verdict, not a challenge to the verdict itself. OCGA § 5-5-40 (a) (motion for new trial to “be made within 30 days of the entry of the judgment”). The question properly before us is not whether the jury’s verdict sufficiently reproaches Serdula, the convicted felon who assaulted J. B., but whether the evidence supports the judgment entered on that verdict. Because Serdula was not a named defendant, the trial court’s judgment could not impose liability upon him. Judgment could be entered only against the sole named defendant, GGS — which it was.

GGS’s sufficiency argument rests on an inference from the verdict form. The jury, GGS infers, found “that the predator was blameless for the injuries he caused.” That does not follow. It is unlikely that the jury was composed of moral imbeciles. It is far more likely that the jury was fully cognizant of Serdula’s blameworthiness, but also cognizant that it was not in their power to add to his punishment. Their duty was to determine if and in what amount civil liability should be imposed on GGS and, in the course of making that determination, to give due consideration to Serdula’s fault. OCGA § 51-12-33 (c). They were apprised of that duty in the charge and on the verdict form. And we must presume that they faithfully discharged that duty.

The verdict form asked the jury to first set out the amount of damages they found appropriate and then to set out percentages of fault assigned to GGS and to Serdula. The form explained that the judge would reduce those damages by any percentage of fault assigned on the form to Serdula.

The jury’s decision to assign no fault to Serdula on the verdict form may reflect their determination that GGS’s liability would not be offset on the basis of Sedula’s fault. If it were clear that the jury had made that determination, we would be faced with the question whether, under OCGA § 51-12-33 (c), the jury was required not only to “consider the fault” of “persons or entities” not party to the action “who contributed to the alleged injury or damages” but also — at least where there is undisputed evidence of such fault — to reduce the liability of the named defendant by some amount. As we explain below in subdivision (b), and as Judge Ray notes in his dissenting opinion, that question is conceptually difficult in this case because it requires the comparison of negligent and intentional acts. See Thomas A. Eaton, Who Owes How Much? Developments in Apportionment and Joint and Several Liability Under OCGA § 51-12-33, 64 Mercer L. Rev. 15, 17 (II) (A) (2012) (prior to 2005 enactment of Georgia’s apportionment statute, “the long-standing rule in Georgia [was] that intent and negligence [were] not comparable”) (discussing principles set forth in Georgia cases suchas Gates v. Navy, 274 Ga. App. 180, 183 (4) (617 SE2d 163) (2005)). And it is a question of first impression.

But it is a question for another day. The verdict may also reflect that, after considering Serdula’s fault and adjusting its award in light of that fault, the jury intended to award J. B. $3,700,000 from GGS and that — perhaps uncomfortable with the complexity of the procedure described in the form — it expressed that intent in a way that ensured the judge would not further reduce the award, but that did not spell out its reasoning.

We cannot tell from looking at the verdict form exactly what was the jury’s intent. Under OCGA § 9-12-4, however, “[v]erdicts shall have a reasonable intendment and shall receive a reasonable construction. They shall not be avoided unless from necessity.” Consequently,

[e]ven if the verdict is ambiguous and susceptible of two constructions, one of which would uphold it and one of which would defeat it, that which would uphold it is to be applied. Furthermore, in determining the proper interpretation of a jury verdict and to remove any ambiguity, the trial court may question the jury prior to dis[pe]rsal in order to clarify the jury’s intent.

Anthony v. Gator Cochran Constr., 288 Ga. 79, 80-81 (702 SE2d 139) (2010) (citations and punctuation omitted). See Tucker v. Love, 200 Ga. App. 408, 410 (3) (408 SE2d 182) (1991) (the time to resolve any questions about the jury’s verdict was “when the verdict was returned so that the jury could clarify its meaning”).

It is true, of course, as Judge Ray explains, that if the verdict was void — or if the verdict was ambiguous, but void in all its possible interpretations — then additional deliberations would not have been required. See Anthony, 288 Ga. at 80 (verdict that truly was contradictory and repugnant was void and no valid judgment could be entered on it, regardless of how it arose). In that case, preservation of error would not have been a prerequisite to enumerating as error the entry of judgment on the verdict. Id. Our disagreement with Judge Ray is that we hold at least one of the two possible interpretations of this verdict to be sustainable, while he would hold that both are void.

If she had been persuaded the verdict at issue was improper, the trial court, in her discretion, could have given the jury additional instructions and permitted it to consider the matter again. See Force v. McGeachy, 186 Ga. App. 781, 784 (1) (368 SE2d 777) (1988). GGS, however, did not ask the trial court for any relief that would clarify the verdict or otherwise afford the jury that heard the evidence an opportunity to return an unambiguously proper verdict. See Clifton v. Clifton, 249 Ga. 831, 832 (294 SE2d 518) (1982). Although GGS objected to the verdict form as being “improper and incorrect” because of the jury’s assignment of no fault to Serdula, it did not ask for a ruling on that objection. Instead, GGS stated that it was “just putting that on the record” for purposes of appeal. When the trial court asked whether there was “anything else before I have the jury back and have them released,” GGS did not respond or otherwise object to the trial court dismissing the jury.

It is not enough for a party to object to perceived error. “[I]t is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver.” Olagbegi v. Hutton, 320 Ga. App. 436, 437 (1) (740 SE2d 190) (2013) (citation and punctuation omitted). GGS, however, chose not to obtain a ruling on its objection or otherwise ask the trial court for relief, apparently hoping to seek a new trial with a different jury. “Upon hearing an improper verdict rendered, a litigant should not sit silently by, hoping to gain a retrial by failing to [secure a ruling on its] object[ion].” Clifton, 249 Ga. at 832 (2) (citation omitted); accord Tucker, 200 Ga. App. at 410 (3). By failing to do so, GGS waived appellate review of its challenges to the form of the jury’s verdict. See Davis v. Whitford Properties, 282 Ga. App. 143, 147 (2) (637 SE2d 849) (2006). Cf. Anthony, 288 Ga. at 80-81 (failure to object to void verdict does not waive appellate review of error, but ambiguous verdicts are not void if they are susceptible of a construction that will uphold the verdict).

(b) Nor should we reach GGS’s apportionment argument under the plain error doctrine. That doctrine obtains only if, among other things, a ruling is not merely error but “obviously so.” State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation omitted). Here the issue is one of first impression. Judge Ray’s dissent cites to no authority finding the amount of damages awarded by a jury in a civil case to be plain error, and we are aware of none. And the general rule is that apportionment determinations are the jury’s prerogative. See Scapa Dryer Fabrics v. Knight, 332 Ga. App. 82, 90 (4) (770 SE2d 334) (2015).

The issue is not only novel. It is also difficult. It is difficult because intentional and negligent torts are qualitatively distinct. See Ellen M. Bublick, The End Game of Tort Reform: Comparative Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 335, 376 (2003). Our Supreme Court has implied that it reads the apportionment statute to leave the task of reconciling that distinction to the finder of fact. Answering in the affirmative a certified question whether a jury is “allowed to consider the ‘fault’ of [a] criminal assailant and apportion its award of damages among [a negligent tortfeasor] and [a] criminal assailant, pursuantto OCGA § 51-12-33,” Couch v. Red Roof Inns, 291 Ga. 359 (729 SE2d 378) (2012), the Supreme Court addressed and rejected the plaintiff’s argument “that the [negligent tortfeasor] in this case cannot establish evidence to support any rational basis for apportionment.” Id. at 366 (2). “That,” the Supreme Court held, “is a question of fact not relevant to answering the legal questions set forth in this case.” Id. (citation omitted). Under these circumstances, we should not decide the merits of GGS’s apportionment challenge.

Judgment affirmed.

Barnes, P. J., Ellington, P. J., and Phipps, P. J., concur. Dillard, Ray, and McMillian, JJ., dissent.

Dillard, Judge,

dissenting.

I respectfully dissent. The trial court erred in denying GGS’s motion for directed verdict because, contrary to the majority’s holding, J. B. could not prove liability by negligence per se or professional negligence for the reasons set forth infra.

(a) Negligence Per Se. I disagree that GGS could, under the facts of this case, be liable for negligence per se by its violation of OCGA § 43-11-21.1, which regulates the administration of deep sedation and general anesthesia. In pertinent part, OCGA § 43-11-21.1 prohibits dentists from “administer [ing] general anesthesia on an outpatient basis unless such dentist has been issued a permit by the board under the conditions specified in this Code section.”

Permits under OCGA § 43-11-21.1 are only issued to a dentist who has “successfully completed a minimum of one year of advanced training in anesthesiology and related academic subjects beyond the undergraduate dental school level” at specific institutions or who is “a diplómate of the American Board of Oral and Maxillofacial Surgery, is a member of the American Association of Oral and Maxillofacial Surgeons, or is a fellow of the American Dental Society of Anesthesiology.” Additionally, in order to receive a permit, the dentist must utilize a “properly equipped facility for the administration of general anesthesia, including physical plant and equipment which has been evaluated and certified by an on-site examination[,]” and have “demonstrated to the satisfaction of the board or any designee thereof proficiency in administering general anesthesia on a patient or patients in the dentist’s office in a safe and effective manner.”

OCGA § 43-11-21.1 does not “prohibit a personwho is duly licensed to practice medicine in this state and who is a member of the anesthesiology staff of an institution classified as a hospital and issued a permit as an institution under Code Section 31-7-1 from administering general anesthesia in a dental facility.” Nor does this statutory provision prohibit licensed CRNAs, such as Serdula, “from administering general anesthesia in a dental facility, provided that such anesthesia is administered under the direction and responsibility of a dentist duly permitted under this Code section . . . .”

Here, it is undisputed, and the majority concedes, that J. B. suffered no medical complications as a result of receiving anesthesia at GGS. Nevertheless, the majority accepts J. B.’s argument that Drs. Salama and Garber did not “appreciate [her] level of sedation and attendant vulnerability,” and holds that OCGA § 43-11-21.1

encompasses both medical and nonmedical dangers that could arise where, as here, a dentist is incapable of adequately supervising a certified registered nurse anesthetist, including the increased risk of a patient to abuse when the patient is placed under a greater level of sedation than necessary for a greater amount of time than necessary.

Thus, the majority holds, in essence, that Drs. Salama and Garber’s lack of the necessary permits and the anesthesiology training required to obtain such permits resulted in Serdula’s act of sexual assault because he administered anesthesia to J. B. while under the direction and responsibility of dentists who were not permitted in accordance with OCGA § 43-11-21.1.1 disagree with the majority’s conclusions.

To begin with, when the law requires a person to “perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” But even assuming that a statute or mandatory regulation has been violated, before negligence per se can be determined, a court must consider “(1) whether the injured person falls within the class of persons it was [designed] to protect and (2) whether the harm complained of was the harm the statute was [designed] to guard against.”

Here, it is true that Drs. Salama and Garber admitted that they were operating in violation of OCGA § 43-11-21.1 when they did not possess the required permits. And it is undisputed that J. B. falls within the class of persons the statute was designed to protect. But the harm she suffered — i.e., sexual assault by CRNA Serdula — is not the type of harm that the statute was designed to guard against.

Looking to the plain language of OCGA § 43-11-21.1, it is clear that the harm the statute is designed to guard against is not sexual assault while under the effects of anesthesia, but is instead the improper administration of anesthesia itself due to inadequate training, lack of experience, and/or the improper use of equipment, which can result in medical complications. As pointed out by GGS, if this statute were designed to protect against sexual assault while under the effects of anesthesia, there is no conceivable reason why an anesthesiologist would be permitted to administer sedation without supervision while a CRNA may only do so “under the direction and responsibility of a dentist” who is duly permitted. And while OCGA § 43-11-2 (e) declares that “such unlicensed activities as are mentioned in this chapter are a menace and a nuisance dangerous to the public health, safety, and welfare,” this text cannot plausibly be interpreted as evincing a legislative design to protect patients against sexual assault when the very same text appears in a statute that applies to barbers and cosmetologists. Accordingly, under the particular facts of this case, contrary to the majority’s holding, J. B. could not show, as a matter of law, that GGS was liable for negligence per se by violating OCGA § 43-11-21.1.

(b) Professional Negligence. The majority also accepts J. B.’s argument that GGS is liable for professional negligence by breaching the standard of care when its staff did not recognize J. B.’s level of sedation and left her, a female patient, alone under sedation with Serdula, a male CRNA, thereby providing him with the opportunity to perpetrate his criminal acts. Again, I disagree.

Negligence is “not actionable unless it is the proximate cause of the injury.” And 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.” Proximate cause acts as “a limit on legal liability; it is a policy decision that, for a variety of reasons, . . . the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” One such reason can be the occurrence of an intervening act that breaks the causal connection.

On the issue of intervening acts, the Supreme Court of Georgia has explained that the general rule is that “if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote [,]” But if the character of the intervening act is such that “its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrongdoer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act.” This latter rule applies even to intervening acts of a criminal nature. Thus, although the general rule is that “the intervening criminal act of a third person will insulate a defendant from liability for an original act of negligence,” that rule does not apply when it is alleged that “the defendant had reason to anticipate the criminal act.” And here, contrary to the majority’s holding, Serdula’s intervening criminal act of sexual assault could not have been anticipated by GGS and, thus, was not foreseeable as a matter of law.

According to the expert testimony at trial, patients under anesthesia are vulnerable to, inter alia, obstructed airways, cardiac arrest, allergic reactions, neurological events, and even death. Thus, according to these experts, patients who are under the effects of anesthesia should always have at least two people trained in basic life support in the room with them. The experts explained that this rule is in place because, should a medical emergency arise, one person can begin resuscitation efforts while the other calls for help; the extra personnel assist the person administering anesthesia, but also “protect the patient” and help to maintain the patient’s airway; and the rule prevents dentists in remote areas from attempting to perform procedures alone. Although J. B. contends that an anesthetized female patient should never be left alone with a male CRNA, the testimony established that gender is not a factor in the rule. Nevertheless, J. B.’s experts opined that GGS violated the standard of care by leaving J. B. alone with Serdula.

At trial, Drs. Salama and Garber and members of the GGS staff who assisted the doctors in performing the various phases of J. B.’s procedure all testified with regard to their usual practices and as to the layout of the operating room and office in general. This testimony established that the GGS operating room is located in a busy portion of the office with people entering and exiting the room at all times, and the door to the room is always open with personnel roaming about the hallway.

According to a dental assistant who participated in J. B.’s surgery, when a patient is “handed off” between procedures, an assistant will stay with the patient in the operating room or in the general surgical area, but the patient is never left alone for more than one or two minutes. Dr. Salama also testified that during the transfer period, an assistant may leave the operating room to change out the sterilized equipment, but that personnel are always “in voice range” of the surgical room, that assistants never leave the surgical area of the office, that personnel are always in the surgical area in the event of dental and medical emergencies, and that a patient would never be left alone with a CRNAfor an extended period of time. However, Dr. Salama also admitted that the videos of J. B. appeared to have been recorded during the transition period between his surgical procedure and Dr. Garber’s cosmetic procedure. Notwithstanding the foregoing circumstances, and despite admitting that the nature of Serdula’s intervening acts is “relatively uncommon,” the majority is “not persuaded ... that... GGS could not reasonably have foreseen them.”

First, it is undoubtedly true that sexual assaults in dental offices can and do occur, as evidenced by the vile acts perpetrated on J. B. by Serdula. And other testimony established that sexual assaults and molestation are considered “never events” in the medical community, which are occurrences that are preventable and should “never” happen. Additionally, one of J. B.’s experts testified that while the requirement for monitoring an anesthetized patient is mainly intended to address medical emergencies, it is also “somewhat of a safeguard not only for patient safety reason[s] but for ... practitioner reasons”; that “[n]o one would want to be left alone with a sedated patient” so as to protect their license and “avoid any kind of accusations of any kind of problems that might occur”; and that having two people in the room protects against sexual assaults and claims of sexual assault. Another expert opined that Drs. Salama and Garber’s failure to have the necessary permits resulted in their inability to recognize J. B.’s level of sedation and, thus, “allowed this event to happen” due to a lack of proper procedures and protocols. But GGS could only be liable for Serdula’s criminal acts if those acts were foreseeable as a matter of law — i.e., if they were the natural or probable consequences of leaving J. B. alone with Serdula, no matter how briefly, while under the effects of anesthesia. And contrary to the majority’s holding, the evidence simply does not establish that the criminal acts perpetrated on J. B. by Serdula were foreseeable in this legal sense, thereby breaking the causal connection and relieving GGS of liability.

Foreseeable consequences are “those which are probable, according to ordinary and usual experience, or those which, because they happen so frequently, may be expected to happen again.” The law does not require one to “anticipate or foresee and provide against that which is unusual or that which is only remotely and slightly probable.” And the above-referenced expert testimony is founded upon a vague and generalized concept of violence that only suggests the mere possibility of improper conduct if a patient is left alone while under anesthesia, not the probability of improper conduct. If anything, testimony by GGS’s expert regarding a single dental-school classmate who molested patients demonstrated how infrequently such instances occur.

Furthermore, it is undisputed that Serdula had been highly recommended to GGS, had nearly perfect credentials and references, had no known prior criminal history, and did not make co-workers or patients feel uncomfortable while in his presence. Thus, nothing made it foreseeable that Serdula would sexually assault a sedated patient if left alone with her for a brief period of time. Accordingly, the evidence did not establish that Serdula’s intervening criminal act “could reasonably have been anticipated, apprehended, or foreseen” by GGS, thereby breaking the causal connection.

Thus, I disagree that, as a matter of law, sexual assault is a reasonably foreseeable consequence of leaving a patient alone for brief periods of time with a CRNA who has no known history of sexual violence or deviance, in an operating room left open to an area continuously occupied by multiple medical staff members. And because GGS had no reason to anticipate the criminal act, the general rule applies and Serdula’s intervening criminal act insulates GGS from J. B.’s allegations of liability. Moreover, although questions of negligence, diligence, cause, proximate cause, and whose negligence constituted the proximate cause of the harm suffered by the plaintiff are generally for the jury, a trial court can “conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff... [when] the evidence is plain, palpable [,] and undisputable.” This is such a plain, palpable, and undisputable case that I would hold that the trial court erred in failing to grant GGS’s motion for directed verdict.

In reaching these conclusions, I recognize that the acts perpetrated by Serdula against J. B. and others were heinous, reprehensible, and inexcusable. J. B. was the victim of outrageous, vile acts committed by a man whose imprisonment has no doubt made the world a safer place. But even in the face of circumstances as horrific and extraordinarily sympathetic as those presented in this case, this Court is nevertheless duty bound to uphold well-settled principles of law. As always, our charge is to see that “justice is fairly dispensed to all parties concerned, and this creates an equally important judicial obligation not to render judgments born only of generosity or compassion.” In so doing, I would reverse.

I am authorized to state that Judge Ray and Judge McMillian join in this dissent.

RAY, Judge,

dissenting.

While I join in Judge Dillard’s dissent, I write additionally to address Goldstein, Garber & Salama, LLC (“GGS”)’s claim that it is entitled to a new trial because the jury’s apportionment of 100 percent of the liability to GGS is against the great weight of the evidence. Even if GGS could be liable on the grounds that the event was reasonably foreseeable, as the majority contends, at a minimum a new trial should be granted as the verdict assigning 100 percent of the fault to GGS is not supported by the evidence.

As has been sufficiently detailed by the majority, this case involves a dental practice, GGS, a highly anaesthetized patient, J. B., and a Certified Registered Nurse Anesthetist, Paul Serdula. During the surgery, GGS left J. B. alone with Serdula for some amount of time. While alone with the patient, Serdula molested J. B. and took videos of her private body parts. J. B. brought suit against both Serdula and GGS, but later dismissed Serdula from the case. Nonetheless, GGS requested that Serdula be included on the verdict for apportionment purposes; however, after the jury found in favor of J. B., it apportioned 100 percent of the fault to GGS and nothing to Serdula, who had committed these vile acts.

The majority finds that the issue of apportionment is not properly before us as GGS waived the argument by failing to obtain a ruling on the issue. Generally, “our appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court.” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 293 (1) (701 SE2d 915) (2010).

The majority cites to Anthony v. Gator Cochran Constr., 288 Ga. 79 (702 SE2d 139) (2010), for the rule that a verdict must be upheld even if it is ambiguous as long as one of the constructions would uphold it. However, they ignore the actual holding of Anthony. In Anthony v. Gator Cochran Constr., 299 Ga. App. 126, 128-129 (2) (682 SE2d 140) (2009), this Court held that Anthony had waived any right to challenge the verdict by its failure to object to the verdict prior to the dismissal of the jury. There, we utilized the same words that the majority uses to defend their holding here. See maj. op. at 425. On appeal, in a unanimous decision by our Supreme Court, the holding that Anthony had waived the right to challenge the verdict on the basis of it being void was reversed and remanded. In fact, our Supreme Court went as far as to overturn our cases to the extent that they “stand[ ] for the proposition that a party’s failure to object to a void verdict before the jury is dismissed will result in a valid judgment being entered on that verdict[.]” Anthony, 288 Ga. at 80.

This makes it clear to me that we do have the right to examine the verdict to determine whether it is void. A void verdict simply cannot stand. GGS did not waive the issue by failing to obtain a ruling on its objection. Contrary to the majority’s holding, it was perfectly acceptable for GGS to raise the issue just to put it on the record for purposes of appeal.

Even if the majority is correct in its assertion that GGS waived its objection, I believe the plain error doctrine would still allow us to review the error. In criminal cases, our Supreme Court has stated that “except in cases of plain error, enumerations of error not timely raised and/or argued shall be waived.” (Citation omitted.) Lynd v. State, 262 Ga. 68, 60-61 (8) (414 SE2d 5) (1992). “Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Id. at 61 (8), n. 2. We have also applied this doctrine in civil cases, stating that under “exceptional circumstances appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” (Citation and punctuation omitted.) Drug Emporium v. Peaks, 227 Ga. App. 121, 125 (2) (a) (488 SE2d 500) (1997). There are sufficient “exceptional circumstances” for us to review the verdict in light of the jury’s finding of no fault on the part of Serdula.

The responsible parties in this case were the molester, who is an intentional tortfeasor who committed a sexual assault, and the dental practice, an alleged negligent tortfeasor that put the molester in the position to harm the victim. Georgia law of comparative fault requires, upon proper request, that the factfinder allocate fault to all those responsible for the injury, whether they are litigants to the action or not. OCGA § 51-12-33 (b), (c). This required the jury to consider Serdula’s fault in assessing the liability against GGS, even though Serdula was not then still named as a defendant.

Astonishingly, the jury found that Serdula was not at fault at all for J. B.’s injuries, as it assessed 100 percent of the fault to GGS. The evidence at trial very clearly showed that Serdula acted intentionally. On three occasions, he waited until he was alone in the operating room with J. B. and used his phone to videotape himself acting inappropriately with her, essentially, unconscious body. He videotaped down her shirt, removed her underwear and videotaped her private area, and videotaped himself touching her face and mouth with his penis. There is absolutely no question that these were intentional acts, but yet, somehow, the jury found him zero percent at fault for her injuries. This situation most certainly presents circumstances mandating our consideration of the improper verdict due to obvious error. Drug Emporium, supra. Any verdict allowing this intentional tortfeasor to escape blame for his intentional tort simply cannot stand.

GGS argues that it is entitled to a new trial because the jury’s apportionment of 100 percent of the liability to GGS is against the great weight of the evidence. We have consistently held that

[n]o court except the trial court is vested with the authority to grant a new trial in a matter relating to the weight of the evidence. The appellate courts are not vested with discretion in this regard as are the trial courts. Thus, the only query... is whether the evidence supported the verdict.

(Citations and punctuation omitted.) General Ins. Svcs. v. Marcola, 231 Ga. App. 144, 146 (2) (b) (497 SE2d 679) (1998). It is clear to me that the evidence here does not support the verdict. Although the jury could rationally have chosen to assign a lower percentage than 100 percent to Serdula, the evidence does not support a finding of zero percent fault.

A finding that Serdula did not contribute to J. B.’s injuries is wholly incomprehensible. A finding that Serdula was not at fault would logically be a finding that he did nothing wrong. If he did nothing wrong by molesting J. B., how then can GGS be liable for negligently placing him in the position to molest her? A finding of no fault on Serdula’s part would seemingly equate to a finding of no fault on GGS’s part.

The majority cites to Couch v. Red Roof Inns, 291 Ga. 369 (729 SE2d 378) (2012), for the proposition that whether “the [negligent tortfeasor] ... [can] establish evidence to support any rational basis for apportionment... is a question of fact not relevant to answering the legal questions set forth in this case.” Id. at 366 (1). In Couch, our Supreme Court also defined “fault” and “liable” as they are used in OCGA § 51-12-33. “[F]ault . . . refers to the degree to which each tortfeasor’s actions contributed to the damages.” Id. at 361 (1). “One is liable to a plaintiff if he or she is responsible or answerable in law.” (Citation and punctuation omitted.) Id. at 365 (2). Although J. B. dismissed Serdula from this suit, he most certainly would be answerable in law to her for her injuries. It is also clear that he contributed to her injuries. Therefore, he is both at fault and liable to her.

The majority sets forth two possible ways we could interpret the jury’s verdict. I believe either of those possibilities would render the verdict void. Our law demands that the jury apportion damages between the tortfeasors. Whether it did so with a “determination that GGS’s liability would not be offset on the basis of Serdula’s fault[,]” see maj. op. at 425, or that “after considering Serdula’s fault and adjusting its award in light of that fault, the jury intended to award J. B. $3,700,000 from GGS and that... it expressed that intent in a way that ensured the judge would not further reduce the award,” see maj. op. at 425, it did not properly apportion the fault between GGS and Serdula.

The root problem in this case comes from the fact that Georgia law allows the allocation of fault between an intentional actor and a negligent actor. Georgia law allows the trier of fact to assess percentages of fault to all parties responsible because of strong public policy adopted by the legislature that a party should only be liable for the portion of harm that it personally caused. When an injury can be said to have been caused by multiple actors, we apportion the liability to the parties based on their individual portion of fault in causing the injury.

Decided November 20, 2015

Reconsideration denied December 16, 2015

Hawkins, Parnell, Thackston & Young, H. Lane Young, Matthew F. Barr, for appellant.

However, when we are dealing with an intentional tortfeasor and one who is merely negligent, apportionment does not work so well. Consider the inverse of this case. What if J. B. had sued GGS and Serdula, as she did, but prior to trial, she voluntarily dismissed GGS because the corporation was bankrupt? For the sake of argument, assume that Serdula was wealthy and had the means to pay any judgment. Would we want Serdula to be able to decrease his liability for the acts he intentionally performed by pointing to GGS and arguing that had it not put him in that position, he could not have performed the acts? The “I did it, but it is not fully my fault because they put me there” defense is, I believe, unconscionable; yet, our law enables and empowers such a defense. We should not want criminal defendants escaping civil liability because a negligent actor theoretically allowed them to be in that position. Individuals who commit intentional acts should be held fully responsible for their acts, both in the criminal and the civil justice system.

Our policy of only imposing liability on the party who caused the harm is very important. However, there are other ways of imposing liability on a negligent tortfeasor which operate in a cleaner fashion and avoid the situation which arose in this case.

Bird Law Group, William, Q. Bird; Shamp Speed Jordan Woodward, Jennifer A. Jordan; Houck Regas, Michael G. Regas, for appellee.

       OCGA §43-11-21.1 (a).

       OCGA § 43-11-21.1 (b) (1) (A), (B).

       OCGA § 43-11-21.1 (b) (2).

       OCGA §43-11-21.1 (b) (3).

       OCGA §43-11-21.1 (d)(1).

       OCGA § 43-11-21.1 (d) (2) (emphasis supplied).

       Maj. op. at 422.

       OCGA § 51-1-6.

        Norman v. Jones LangLasalle Americas, Inc., 277 Ga. App. 621, 628 (2) (b) (627 SE2d 382) (2006) (punctuation omitted); accord Brown v. Belinfante, 252 Ga. App. 856, 861 (1) (557 SE2d 399) (2001); see also Atlanta & W.P.R. Co. v. Underwood, 218 Ga. 193, 195 (1) (126 SE2d 785) (1962) (“The court in determining whether the violation of a statutory requirement is negligence per se as to the person complaining thereof upon which a cause of action will rest, will look to the particular statute in respect to its purposes, that is, the evils it was intended to guard against and the persons it was intended to protect.” (punctuation omitted)).

        See Central Anesthesia Associates, P.C. v. Worthy, 254 Ga. 728, 732 (2) (333 SE2d 829) (1985) (holding that statute requiring that certified nurse anesthetists operate under the direction and responsibility of licensed physicians trained and experienced in anesthesia when administering anesthesia was designed to protect against the improper administration of anesthesia causing medical complications); Central Anesthesia Associates, P.C. v. Worthy, 173 Ga. App. 150, 153 (325 SE2d 819) (1984) (holding that statute requiring that certified nurse anesthetists operate under the direction and responsibility of licensed physicians trained and experienced in anesthesia when administering anesthesia was designed “to protect patients from the dangers of improperly administered anesthesia by those unqualified by a lack of what public policy regards as minimum education in the field, and by a lack of specified supervision”);
        see also Groover v. Johnston, 277 Ga. App. 12, 16 (1) (b) (625 SE2d 406) (2005) (“Common sense dictates that if an unqualified person selects an improper drug or administers an improper type or amount of medication, especially to a patient emerging from anesthesia, disastrous consequences ... are possible.”). Cf. Brown, 252 Ga. App. at 861 (1) (holding that dentist’s provision of cosmetic surgery services did not constitute the practice of dentistry and, as such, dentist violated statute by performing services that exceeded its scope; and the harm that plaintiff suffered — chronic infection, remedial corrective surgeries, speech impediment, and facial asymmetry' — were the type of harm that statute was designed to prevent).

        Compare OCGA § 43-10-21.1 (d) (1) with OCGA § 43-11-21.1 (d) (2).

       See OCGA § 43-10-16 (providing actions to enjoin practice by unlicensed or unregistered barbers or cosmetologists, and containing the very same declaration that “the unlicensed activities referred to in this Code section are a menace and a nuisance dangerous to the public health, safety, and welfare”).

       Even if J. B. could establish negligence per se, she would still need to “demonstrate a causal connection between the negligence per se and the injury.” Norman, 277 Ga. App. at 628 (2) (b) (punctuation omitted); see also Worthy, 254 Ga. at 733 (2) (“Plaintiff must still prove proximate cause and actual damage in order to recover on a cause of action for ‘negligence.’... [E] ven when negligence per se has been shown, proximate cause must still be proved.” (citation omitted)); Humphreys v. Kipfmiller, 237 Ga. App. 572, 575 (2) (515 SE2d 878) (1999) (“Negligence per se is actionable negligence only where it is the proximate cause of the plaintiff’s injuries.”). And for the reasons discussed infra, she could not establish proximate cause.

        See OCGA § 51-1-27 (“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.”).

         Johnson v. Am. Nat'l Red Cross, 276 Ga. 270, 273 (578 SE2d 106) (2003) (punctuation omitted); accord Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 130 (2) (766 SE2d 569) (2014).

        Owens, 330 Ga. App. at 130 (2) (punctuation omitted); see also Cowart v. Widener, 287 Ga. 622, 627-28 (2) (b) (697 SE2d 779) (2010) (“In the tort context, proximate causation includes all of the natural and probable consequences of the tortfeasor’s negligence, unless there is a sufficient and independent intervening cause.”); Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344 (1928) (“The risk reasonably to be perceived defines the duty to he obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” (citation omitted)).

        Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 515 (1) (614 SE2d 745) (2005) (punctuation omitted); accord Owens, 330 Ga. App. at 130 (2); see also OCGA § 51-12-9 (‘“Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. However, damages traceable to the act, but which are not its legal and natural consequence, are too remote and contingent to be recovered.”).

        Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002) (punctuation omitted); accord Granger v. MST Transp., LLC, 329 Ga. App. 268, 270 (1) (764 SE2d 872) (2014).

        Ontario Sewing Mach. Co., 275 Ga. at 686 (2) (punctuation omitted); accord Granger, 329 Ga. App. at 270 (1).

        Owens, 330 Ga. App. at 131 (2); see Williams v. Grier, 196 Ga. 327, 338 (2) (26 SE2d 698) (1943) (“[When] there has intervened between the defendant’s negligence and the injury an independent illegal act of a third person producing the injury, and without which it would not have occurred, such independent criminal act should be treated as the proximate cause, insulating and excluding the negligence of the defendant. But even this rule would not apply if the defendant ‘had reasonable grounds for apprehending that such criminal act would be committed.’ ”).

        Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 202-03 (1) (296 SE2d 693) (1982) (punctuation omitted); accord Atlantic Coast Line R. Co. v. Godard, 211 Ga. 373, 377 (1) (86 SE2d 311) (1955).

        Bradley Ctr., Inc., 250 Ga. at 202-03 (1) (punctuation omitted); accord Atlantic Coast Line R. Co., 211 Ga. at 377 (1).

        See Atlanta Obstetrics & Gynecology Grp., P.A. v. Coleman, 260 Ga. 569, 570 (398 SE2d 16) (1990) (“[Wjhether proximate cause exists in a given case is a mixed question of law andfact. It requires both factfinding in the ‘what happened’ sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are most appropriately made by a jury upon appropriate instructions from the judge. The decision may be made by the trial judge or appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of ‘foreseeability’) to the facts. In other words, although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.” (citation and punctuation omitted)).

       Maj. op. at 420.

       Indeed, GGS’s own expert testified that he attended school with a dentist who was caught sexually molesting patients who were under conscious sedation with nitrous oxide.

       Although there was expert testimony that “never events” are “foreseeable,” it is clear from the testimony as a whole that “never events” are possible occurrences, not that these events are, according to ordinary and usual experience, probable, or that they happen so frequently that they may be expected to happen again such that they are foreseeable in a legal sense. See infra notes 18-22 & accompanying text. See generally 14 Ga. Juris. Personal Injury & Torts Proximate Cause § 21:23 (2015) (“To establish proximate cause,... a mere possibility of such causation is not enough, and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant. In addition, the injuries caused must be a foreseeable consequence of the defendant’s actions. Thus, there must he a direct relationship between the negligence and the plaintiff’s injury.” (footnotes omitted)). Indeed, there was testimony that “never events,” which include incidents such as operating on the wrong body part or leaving a sponge in place, are “foreseeable events. We don’t know who and when [sic] they’re going to happen, hut there are policies and procedures in place to prevent them from happening.” (Emphasis supplied.) Additionally, though “foreseeable” or “known,” the testimony emphasized that many “never events” are omitted from surgical consent forms because “[w]e can’t list every possible bad thing that could happen.... On a surgical consent we try to hit... common things that can happen with that surgical procedure ....” (Emphasis supplied.) And a broad, general statement that an occurrence such as sexual assault is always “foreseeable” runs afoul of the legal principle that “[t]he question of proximate cause depends upon the facts of each particular case[.]” Jacobs v. Taylor, 190 Ga. App. 520, 525-26(1) (c) (379 SE2d 563) (1989) (punctuation omitted) (emphasis supplied); accord Rustin Stamp & Coin Shop, Inc. v. Ray Bros. Roofing & Sheet Metal Co., Inc., 175 Ga. App. 30, 31 (1) (332 SE2d 341) (1985); Valdosta Street R. Co. v. Fenn, 11 Ga. App. 586 (3) (75 SE 984) (1912) (Syllabus by the Court); see also Coleman, 260 Ga. at 569 (“[Pjroximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent.” (punctuation omitted)).

        See discussion supra.

        See Ontario Sewing Mach. Co., 275 Ga. at 686 (2) (holding that if the character of the intervening act is “such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act” (punctuation omitted)); Williams, 196 Ga. at 337 (2).

        McAuley v. Wills, 251 Ga. 3, 7 (5) (303 SE2d 258) (1983) (“To hold that an intervening act was not reasonably foreseeable at the time of the defendant’s negligent conduct is to say that the defendant’s negligence was not the proximate cause of the plaintiff’s injury. Although what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.” (citation omitted)); see also Bradley Ctr., Inc., 250 Ga. at 202-03 (1) (“There are cases ... in which the intervening criminal acts may he foreseeable. In such cases, tort liability is proper. The general rule that the intervening criminal act of a third person will insulate a defendant from liability for an original act of negligence does not apply when it is alleged that the defendant had reason to anticipate the criminal act.”).

        See Medical Ctr. v. Cavender, 331 Ga. App. 469, 473 (1) (771 SE2d 153) (2015) (punctuation omitted); accord Brown v. All-Tech Investment Group, 265 Ga. App. 889, 893 (1) (595 SE2d 517) (2004); see Thomas v. Food Lion, LLC, 256 Ga. App. 880, 882 (1) (570 SE2d 18) (2002) (“The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again.”); Morris v. Baxter, 225 Ga. App. 186, 187 (483 SE2d 650) (1997) (same); Jacobs, 190 Ga. App. at 526 (1) (c) (same); see also City of Macon v. Dykes, 103 Ga. 847 (31 SE 443) (1898) (“[T]he negligence of the defendants was not the proximate cause of the injuries of which the plaintiff complained. His injuries were not the natural and probable consequences of such negligence. The only immediate and direct effect of the contact of the wheels of the cart with the rails of the track was the noise. This noise may have been a natural and probable result of such contact, but it was not reasonable and probable that an ordinarily gentle and roadworthy horse would have been so frightened by it as to instantly cause him to kick, become entirely unmanageable, and run away. Such a noise and such an extreme fright in an ordinarily gentle horse as to cause him to kick and run away, we think, are not known by common experience to he naturally and usually in sequence; the one does not follow the other according to the usual course of events.”).

        Cavender, 331 Ga. App. at 473 (1) (punctuation omitted); accord Dowdell v. Wilhelm, 305 Ga. App. 102, 105 (1) (699 SE2d 30) (2010); see also Allan v. Jefferson Lakeside, L.P., 333 Ga. App. 222, 228 (2) (775 SE2d 763) (2015); Jacobs, 190 Ga. App. at 526 (1) (c); Campbell v. S. Bell Tel. & Tel. Co., 161 Ga. App. 589, 590 (2) (288 SE2d 919) (1982).

        See Brown, 265 Ga. App. at 895 (1) (holding that assertion as to “common knowledge” regardingpropensitiesforworkplace violence were “too vague and generalized to support the... claim of liability,” and that expert testimony that event was foreseeable was based upon “generalized concepts of violent reactions” and four specific events of workplace violence).

        See Cavender, 331 Ga. App. at 476 (1) (a) (finding that the opinions of plaintiff’s expert illustrated “that even arguably similar acts of violence were so unusual, contrary to ordinary experience, and rare that no reasonable jury could find [the defendant] should have guarded against them” (punctuation omitted)); Brown, 265 Ga. App. at 895-96 (1) (holding that expert testimony as to four other incidents of workplace violence “illustrate [d] vividly that even arguably similar acts of violence were so unusual, contrary to ordinary experience, and rare that no reasonable jury could find the [defendants] should have guarded against them”).

        See Doe v. Shapiro, No. 273950, 2008 WL 583556, at *7 (Mich. Ct. App. 2008) (holding that plaintiff could not establish negligence after CRNA’s sexual assault while she was under effects of anesthesia because she failed to demonstrate that defendant doctor and medical center “had actual or constructive knowledge because she presented no testimonial or documentary evidence to indicate that” the defendants “either knew or should have known that [the CRNA] might sexually assault a patient”); N. X. v. Cabrini Med. Ctr., 280 AD2d 34, 39 (N.Y. App. Div. 2001) (holding that “the possibility that a surgical resident with no history of sexual misconduct would enter a surgical recovery room and assault a patient is too remote to be considered legally foreseeable”); see also Boone v. Udoto, 323 Ga. App. 482, 484 (1) (747 SE2d 76) (2013) (holding that shooting of club patron in parking lot was unforeseeable to club owners when they had no prior knowledge of shooter’s propensities and no prior altercations involving guns). Cf. Bunn-Penn v. S. Reg'l Med. Corp., 227 Ga. App. 291, 294 (2) (488 SE2d 747) (1997) (holding that plaintiff’s claim for negligent hiring and retention of technician who sexually assaulted her failed because there was no evidence to authorize a finding that the hospital knew or should have known that the technician was prone to commit such acts).

         Ontario Sewing Mach. Co., 275 Ga. at 686 (2) (punctuation omitted); accord Granger, 329 Ga. App. at 270 (1).

        Bradley Ctr., Inc., 250 Ga. at 202 (1); accord Atlantic Coast Line R. Co., 211 Ga. at 377 (1).

        See Owens, 330 Ga. App. at 131 (2); see also Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997) (“[T]he question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.” (punctuation omitted)); Stegall v. Central Ga. Elec. Mem. Corp., 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996) (“Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.” (punctuation omitted)).

        Munroe v. Univ. Health Srvs., Inc., 277 Ga. 861, 864 (2) (596 SE2d 604) (2004) (quoting Robinson v. Kroger Co., 268 Ga. 735, 739 (493 SE2d 403) (1997)); see also Coleman, 260 Ga. at 570 (“[Ajlthough what amounts to proximate cause is undeniably a jury question, it will be determined by the court as a matter of law in plain and undisputed cases.” (punctuation omitted)); see also Ga. Power Co. v. Kinard, 47 Ga. App. 483, 486 (3) (170 SE 688) (1933) (“[When] the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of the third person . . . , the defendant cannot be held responsible for having produced the injury, and the question is then one of law for determination by the court, and not one of fact for the jury. The liability of the defendant is limited to those consequences which it should reasonably have anticipated as the natural and probable result of its own act or omission.”).

        See Stegall, 221 Ga. App. at 190 (2) (holding that summary judgment to defendant was appropriate when intervening act was not foreseeable as a matter of law); Tucker Fed. Savings & Loan Ass’n v. Balogh, 228 Ga. App. 482, 484 (491 SE2d 915) (1997) (holding that summary judgment should have been granted to defendant when the harm suffered by the plaintiff was too remote to arise from any action taken by the bank); Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 67-68 (2) (d) (397 SE2d 576) (1990) (holding that summary judgment to defendant was appropriate when it was not foreseeable that appellant would leave hospital and shoot and kill his wife after being left unattended under the effects of various medications). Cf. Landings Ass’n v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) (noting that a “trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only [when] the evidence is plain, palpable and undisputable,” and holding that the trial court erred in failing to grant summary judgment to defendant in premises-liability case when plaintiff who was fatally injured in an alligator attack assumed the risk of injury and failed to exercise ordinary care for her own safety); Coleman, 260 Ga. at 570 (reversing grant of j.n.o.v. when case “involve[d] foreseeable complications relating to abortion procedures that would not have been necessary if not for [doctor’s] negligent administration of a hormone shot” and noting that “[t]he record .[was] not devoid of evidence that [doctor’s] negligence was the proximate cause of [plaintiff’s] injuries”); McAuley, 251 Ga. at 6 (5) (holding that, “assuming that the [earlier] car crash did not leave [plaintiff] wholly unable to give birth to a child, then the delivery of the child in a manner incompatible with the mother’s paraplegia constituted an intervening act not reasonably foreseeable at the time of the car crash,” and concluding that car crash was not the proximate cause of child’s death such that complaint was properly dismissed).

        Stegall, 221 Ga. App. at 190 (2); accord Caribbean Lumber Co. v. Phoenix Assurance Co. of NY, 227 Ga. App. 236, 238 (3) (a) (488 SE2d 718) (1997).

         The majority cites to Clifton v. Clifton, 249 Ga. 831, 832 (294 SE2d 518) (1982). In Anthony, we cited to Ford Motor Co. v. Tippins, 225 Ga. App. 128, 133 (5) (b) (483 SE2d 121) (1997). In Tippins, we cited to LaBanz v. Bank South, 198 Ga. App. 79, 82 (1) (400 SE2d 357) (1990), for the same quote. LaBanz, in turn, cited to Clifton for the same language.

       See In re E. C., 444 SW3d 760 (Texas Ct. App. 2014) (16-year-old who killed four people while driving drunk argued “affluenza” defense claiming that he was the product of wealthy privileged parents who never set limits for him).

       For alternative approaches to avoid the dilemma that is present in this case, see the Restatement Third of Torts, § 14, and the statutory scheme of the State of Florida, Fla. Stat. § 768.81 (4).

       See Ellen M. Bublick, The End Game of Tort Reform: Comparative Apportionment and Intentional Torts, 78 Notre Dame L. Rev. 355 (2003) (Detailed analysis of consequences of including intentional torts in comparative fault systems, as well as “guidance for courts and legislatures navigating the complex terrain of intentional and negligent fault comparisons”).


source: Caselaw Access Project

author: MCMlLLIAN, Judge.

license: Public Domain

text:
    A15A1572.
    A15A1573.
    PIEDMONT HOSPITAL, INC. v. D. M. COLQUITT v. D. M.
    (779 SE2d 36)
   MCMlLLIAN, Judge.

Piedmont Hospital (“Piedmont”) and Dr. James DeWayne Colquitt assert that the statute of repose for medical malpractice actions bars D. M.’s claims for negligence and fraud in connection with the failure to inform him of the results of a blood test performed while he was a patient at Piedmont. Thus, they contend that the trial court erred in denying their motions for summary judgment.

On May 11, 2005, Colquitt performed an appendectomy on D. M. at Piedmont after D. M. presented at the hospital’s emergency room complaining of abdominal pain. During the surgery, a Piedmont staff member was inadvertently exposed to D. M.’s blood or other bodily fluids, and Piedmont policy dictated that D. M.’s blood be tested for blood-borne pathogens, including HIV, to determine the risk of the employee’s exposure. Piedmont’s laboratory first used a sample of D. M.’s blood already in the lab’s possession to perform a rapid HIV test. On the morning of May 12, 2005, the rapid HIV test showed a presumptively positive result for HIV, necessitating a second confirmatory test, but Piedmont’s lab did not have a sufficient blood sample for further testing. D. M. was asked to supply a further sample, and at first he refused. However, after Colquitt explained that a blood test was needed to protect the Piedmont employee, D. M. agreed to give another sample, although he expressed reluctance about hearing the results of the test at that time. D. M. was discharged from the hospital the same day, with Colquitt’s instruction to make a follow-up appointment.

Piedmont used the new blood sample drawn from D. M. to perform a “more sensitive” in-house HIV test and an outside lab test, both of which showed that D. M. was positive for HIV. The second in-house HIV test result was verified on May 13, 2005, and the final confirmatory test result was received on May 14, 2005. Colquitt did not call D. M. to inform him of these results, planning instead to tell him in person at the follow-up appointment, although he did report the results to D. M.’s primary care physician. However, D. M. never scheduled a follow-up appointment with Colquitt or called him or anyone else to determine the results of his HIV tests. D. M. was not tested for HIV for another six years, until May 2011. After learning that the results of that test were “indicative of an AIDS diagnosis,” D. M. obtained his Piedmont medical records and learned for the first time of the positive results of the 2005 HIV tests.

D. M. filed the lawsuit in this case on May 10, 2013, almost eight years after the HIV tests revealed a positive result, asserting claims for professional negligence, negligence perse under OCGA § 31-22-9.2 (d), ordinary negligence, and fraud. D. M. later amended his complaint to assert additional claims for negligence per se, alleging that Colquitt and Piedmont breached duties imposed under OCGA §§ 24-12-21 and 31-12-2 (b) to inform the Georgia Department of Public Health and him that he had tested positive for HIV. Piedmont and Colquitt subsequently moved for summary judgment on the ground that OCGA § 9-3-71 (b), the statute of repose applicable to medical malpractice claims, barred D. M.’s claims against them.

Following a hearing, the trial court issued an order on December 16,2014 (the “December 16 order”), in which it found that the statute of repose would be applicable only to the one count of D. M.’s complaint expressly asserting a claim for “professional negligence.” However, the trial court also found that D. M. had effectively abandoned that claim and struck it from the complaint. The trial court further noted that D. M. had expressly withdrawn his claims for negligence per se against Piedmont. After making these findings, the trial court denied summary judgment as to the remaining claims because they “do not complain of ‘the propriety of a professional decision.’” On December 19, 2014, D. M. filed a “Second Amended Complaint” that omitted any claims for negligence per se against either defendant. Accordingly, only D. M.’s claims for ordinary negligence and fraud remain.

Subsequently, at the request of Piedmont and Colquitt, the trial court set aside its December 16 order and reentered it “verbatim” on January 14, 2015. The trial court also issued a certificate for immediate review of that order, and this Court granted the resulting applications for interlocutory appeal filed by Colquitt and Piedmont.

1. We first address D. M.’s argument that we should decline to exercise jurisdiction in this case. He asserts that the trial court used the procedure of setting aside and reentering the December 16 order to improperly grant Piedmont and Colquitt an extension of time for filing their interlocutory applications in violation of Court of Appeals Rule 30 (g), which provides that “[n]o extension of time shall be granted for filing of interlocutory applications or responses to interlocutory applications.” However, the Supreme Court of Georgia has approved a trial court’s use of a similar procedure, noting that “[s]ummary judgment orders [that] do not dispose of the entire case are considered interlocutory and... are subject to revision at any time before final judgment.” (Citation and punctuation omitted.) See Canoeside Properties, Inc. v. Livsey, 277 Ga. 425, 427 (1) (589 SE2d 116) (2003). And Court of Appeals Rule 30 (g) is not intended to limit the authority of a trial court to revise its interlocutory orders. In any event, the rules of the appellate courts “are directory only, and not jurisdictional.” Park v. Minton, 229 Ga. 765, 768 (1) (194 SE2d 465) (1972). Accordingly, we find no error by the trial court and conclude that the applications were timely filed and properly invoked the jurisdiction of this Court.

2. Piedmont and Colquitt argue on appeal that the trial court erred in denying their motions for summary judgment because all of D. M.’s claims constitute an “action for medical malpractice” under OCGA § 9-3-70 and thus are barred by the statute of repose set forth in OCGA § 9-3-71 (b).

Under the statute of repose, an action for medical malpractice must be brought within five years from the date on which the negligent or wrongful act or omission occurred. OCGA § 9-3-71 (b). And as our Supreme Court has explained:

A statute of repose stands as an unyielding barrier to a plaintiff’s right of action. The statute of repose is absolute; the bar of the statute of limitation is contingent. The statute of repose destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists.

(Citations omitted.) Simmons v. Sonyika, 279 Ga. 378, 379 (614 SE2d 27) (2005).

“The test for determining when OCGA § 9-3-71 (b)’s period of repose begins is based on the determination of when the negligent act causing the injury occurred.” Schramm v. Lyon, 285 Ga. 72, 73 (1) (673 SE2d 241) (2009). In this case, D. M. alleges that Piedmont and Colquitt were negligent in failing to inform him of the positive HIV results from the HIV tests in May 2005, and it is undisputed that he did not file his complaint until May 2013, almost three years outside the statutory period of repose.

Nevertheless, by its terms, OCGA § 9-3-71 applies only to claims for medical malpractice, not to claims for ordinary negligence, and D. M.’s complaint contains a claim designated as “ordinary negligence.” “While complaints against professionals may state a claim based on ordinary as well as professional negligence, the complaint’s characterization of the claims as professional or ordinary negligence does not control.” Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 82 (2) (666 SE2d 401) (2008). Rather, “[w]e must look to the substance of an action against a medical professional in determining whether the action is one for professional or simple negligence.” (Citation omitted.) Atlanta Women’s Health Group v. Clemons, 287 Ga. App. 426, 427 (651 SE2d 762) (2007). This determination presents a question of law for the court. Wellstar Health System, Inc. v. Painter, 288 Ga. App. 659, 662 (655 SE2d 251) (2007).

Under Georgia law, “[t]he confidential relationship between doctor and patient creates a duty to inform the patient of his or her condition.” (Citations and punctuation omitted.) In re Carter, 288 Ga. App. 276, 287 (4) (653 SE2d 860) (2007). See also Oliver v. Sutton, 246 Ga. App. 436, 438 (540 SE2d 645) (2000). And this Court has found that “a lawsuit premised upon a breach of this duty is a classic medical malpractice action.” Carter, 288 Ga. App. at 287 (4) (a). See also Stafford-Fox v. Jenkins, 282 Ga. App. 667, 671 (2) (639 SE2d 610) (2006) (holding that failure to inform patient of vitamin deficiency stated claim for medical malpractice); Peace v. Weisman, 186 Ga. App. 697, 699-700 (3) (368 SE2d 319) (1988) (noting that a treating physician’s failure to inform a patient of his condition constituted medical malpractice, but finding no physician-patient relationship existed in that case where doctor performed the examination on behalf of the Department of Human Resources). As this Court explained in Peace,

[t]here are three essential elements imposing liability [in a medical malpractice case] upon which recovery is bottomed: (1) [t]he duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. . . . [S]uch cases [are] called “classic medical malpractice actions.”

(Citations and punctuation omitted.) 186 Ga. App. at 698 (1).

This authority, and in particular the Carter case, controls our analysis here. In Carter, a newborn was screened for sickle cell anemia at birth in accordance with OCGA §§ 31-12-6 and 31-12-7. Under OCGA § 31-12-7 (b), when the screening test shows a positive result, “it shall be the duty of the examining physician or the [Department of Public Health] to inform the parents of such child that the child is so afflicted.” Although the child’s test showed a positive result and attempts were made to inform the parents, the notification was never successfully delivered. At the age of 12, the child, who had received no treatment for the disease in the interim, suffered a debilitating stroke, and the parents sued the child’s treating physicians, among others, for failing to notify them of the child’s condition. Carter, 288 Ga. App. at 278-279. This Court found that any duty on the part of the physicians to provide such notice “arose in the context of a medical malpractice claim,” and, in fact, presented a classic medical malpractice claim. Id. at 288 (4) (a). The Court found, however, that the parents’ claims were barred because they had failed to attach an expert medical affidavit to their complaint. Id.

D. M. similarly asserts that the duty of Colquitt and Piedmont to inform him of the positive results on the HIV tests arose under Georgia statutory law. See OCGA § 31-22-9.2 (d) and (g) (2). Preter-mitting the scope of the duty to inform a patient of a positive HIV test under these provisions, we find that, as in Carter, D. M.’s claims based on the failure of Colquitt and Piedmont to notify him of the positive HIV test results, even if designated as ordinary negligence or fraud claims, arise out of the breach of a professional duty to inform D. M. of his medical condition and thus must be considered classic medical malpractice claims. See Carr, 293 Ga. App. at 83 (2) (fraud claim based on allegation that nurses did not render services with the appropriate standard of care properly treated as a claim for medical malpractice); Thompson v. Long, 225 Ga. App. 719, 721 (4) (484 SE2d 666) (1997) (physical precedent only) (mere fact that plaintiff alleged that doctor’s conduct was intentional does not mean that claims were not medical malpractice claims).

We note that our Supreme Court has found a “tension” in the case law regarding the proper analysis to be applied in determining whether a claim presents a question of medical malpractice or ordinary negligence. Deen v. Stevens, 287 Ga. 597, 611 (3) (698 SE2d 321) (2010). The Court noted that one line of cases holds “that only when the claim goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made does it sound in professional malpractice rather than simple negligence.” (Punctuation omitted.) Id. at 610 (3) (citing Upson County Hosp., Inc. v. Head, 246 Ga. App. 386, 389 (1) (540 SE2d 626) (2000) and Robinson v. Med. Center of Central Ga., 217 Ga. App. 8, 10 (456 SE2d 254) (1995)). But other cases hold that actions against even nonprofessionals may be considered medical malpractice under the language of OCGA § 9-3-70 where “such claims ‘aris(e) out of’ the provision of professional services.” Id. (citing Baskette v. Atlanta Center for Reproductive Medicine, 285 Ga. App. 876, 880-881 (648 SE2d 100) (2007); and Stafford-Fox, 282 Ga. App. at 672).

We need not resolve this tension here, however, because under either analysis, D. M.’s claims must be considered medical malpractice claims. The first line of cases distinguishes between claims that “[call] into question the conduct of the professional in his area of expertise,” which assert claims of medical malpractice, and claims that address “[administrative, clerical, or routine acts demanding no special expertise!,]” which “fall in the realm of simple negligence.” Head, 246 Ga. App. at 389 (1). Because the claims in this case constitute a “classic medical malpractice action,” they necessarily implicate the breach of a professional duty. Thus, they cannot be considered as claims arising out of administrative, clerical, or routine acts and likewise cannot be considered as claims for ordinary negligence. And a claim asserting a breach of a professional duty to inform a medical patient of his condition, clearly “arises out of” the provision of medical services as broadly defined under the plain terms of OCGA § 9-3-70.

Accordingly, we find that D. M.’s claims are subject to the five-year statute of repose under OCGA § 9-3-71 (b).

3. D. M. argued below, however, that Piedmont and Colquitt should be equitably estopped from asserting the statute of repose as a defense because the failure to inform D. M. of the positive HIV tests constituted fraud and/or gross negligence that deterred him from filing a claim. See generally Rosenberg v. Falling Water, Inc., 289 Ga. 57, 60 (709 SE2d 227) (2011) (describing how a defendant may be equitably estopped from asserting a defense based on the statute of repose). The trial court did not address this issue because it found that D. M. had abandoned his only claim for medical malpractice; however, it acknowledged that if this ruling were reversed on appeal, “it will then be necessary to address the matter of equitable estoppel.” Piedmont and Colquitt nevertheless urge us to address this issue on appeal as part of our de novo review of the trial court’s order, but D. M. argues that we should remand the matter for consideration by the trial court. We agree with D. M.

Piedmont and Colquitt contend that the trial court erred in denying their motion for summary judgment. Thus, they are not urging us to engage in a “right-for-any-reason analysis” to affirm the grant of summary judgment; rather, they are asking us to pursue a “wrong-for-any-reason” analysis to reverse the denial of their motion. However,

[w]hen this Court reviews a decision of a trial court on a motion for summary judgment, it sits as a court for the correction of errors of law. An error of law has as its basis a specific ruling made by the trial court. . . . And although in certain instances an appellate court can review a record and determine that a summary judgment ruling was right for some reason other than that given by the trial court, an appellate court should not consider whether the trial court was “wrong for any reason.”

Decided October 28, 2015

Reconsiderations denied December 16, 2015

Weathington Smith, Paul E. Weathington, C. Matthew Smith, Paul I. Hotchkiss, for appellant (case no. A15A1572).

Allen McCain & O’Mahony, Hunter S. Allen, Jr., Joscelyn M. Hughes, Simuel F. Doster, Jr., for appellant (case no. A15A1573).

Warshauer Law Group, Frank A. Ilardi; The Jordan Firm, Jennifer A. Jordan, for appellee.

(Citations and punctuation omitted.) Williams v. United Community Bank, 313 Ga. App. 706, 707-708 (722 SE2d 440) (2012). See also Strength v. Lovett, 311 Ga. App. 35, 44 (2) (b) (714 SE2d 723) (2011).

Here, the trial court expressly declined to rule on the issue of whether Colquitt and Piedmont are equitably estopped from asserting a statute of repose defense based on its erroneous determination that no medical malpractice claims remained. Because the trial court did not reach the issue of equitable estoppel in denying the motions for summary judgment, we find that the issue is outside the proper scope of our review in this appeal. We therefore vacate the trial court’s order and remand the cases for consideration of D. M.’s claim of equitable estoppel. See Strength, 311 Ga. App. at 44 (2) (b). See also Community Renewal and Redemption, LLC v. Nix, 279 Ga. 840, 842 (2) (621 SE2d 722) (2005) (declining to apply a “right-for-any-reason” analysis where denial of summary judgment was based on an erroneous legal theory and trial court’s ruling left other issues unresolved); City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (appellate courts retain discretion in determining whether to apply the right-for-any-reason rule and consider alternative legal theories not addressed by the trial court on summary judgment, or to vacate order and remand for the trial court to consider alternative legal theories in the first instance).

Judgments vacated and cases remanded.

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

       We review the grant or denial of summary judgment de novo, viewing the evidence in a light most favorable to the nonmoving party. See Giles v. Swimmer, 290 Ga. 650, 651-652 (1) (725 SE2d 220) (2012).

       For ease of reference, we will refer to all three HIV blood tests collectively as the “HIV tests.”

       The trial court, however, noted that if it was reversed on appeal, the professional negligence claim would be reinstated and that it would become necessary to address the issue of equitable estoppel.

       By letter dated December 18, 2014, D. M.’s counsel informed the court that this amendment “crossed in the mail” with the December 16 order and that D. M. planned to amend his complaint “to conform to the Order after [Colquitt’s] requested certification of immediate review is denied.” No further amendment appears in the record.

       That statute provides:
      As used in this article, the term “action for medical malpractice” means any claim for damages resulting from the death of or injury to any person arising out of\

      (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or
      (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.
      (Emphasis supplied.) OCGA § 9-3-70.

       The Court also held that the statutory reporting requirement created no strict liability claim against the physicians. Carter, 288 Ga. App. at 283 (1).

       OCGA § 31-22-9.2 (d) requires that a “health care provider ordering an HTV test shall provide medically appropriate counseling to the person tested with regard to the test results. Such medically appropriate counseling shall only he required when the last confirmatory test has been completed.” OCGA § 31-22-9.2 (g) (2) applies where a health care provider has been exposed to bodily fluids and the patient refuses the HIV test. In such a case, an HIV test may be performed
      when at least one other health care provider who is otherwise authorized to order an HTV test concurs in writing to the testing, the patient is informed of the results of the test and is provided counseling with regard to those results, and the occurrence of that test is not made a part of the patient’s medical records, where the test results are negative, without the patient’s consent.
      OCGA § 31-22-9.2 (g) (2). OCGA § 31-22-9.2 has been amended since 2005, but not in any material way that would affect our analysis.

       But see Labovitz v. Hopkinson, 271 Ga. 330, 334 (3) (519 SE2d 672) (1999) (no expert affidavit necessary for actions alleging intentional or fraudulent acts by attorney because “OCGA § 9-11-9.1, by its very language, is applicable only to those professional malpractice actions alleging professional negligence”).


author: ELLINGTON, Presiding Judge.

text:
    A13A1963.
    KAUTZ v. POWELL et al.
    (780 SE2d 823)
    Decided December 16, 2015.

      Akin & Tate, S. Lester Tate III; Krevolin & Horst, Zahra S. Karinshak; Phyllis Miller, for appellant.

      Kelly D. Kautz, pro se.

      Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, Robert J. Wilson; Rubin Lublin, Jody C. Campbell; Drew, Eckl & Farnham, Kathryn S. Whitlock; Hawkins, Parnell, Thackston & Young, M. Elizabeth O’Neill, for appellees.
   ELLINGTON, Presiding Judge.

In Kautz v. Powell, 297 Ga. 283 (773 SE2d 690) (2015), the Supreme Court of Georgia reversed this Court’s opinion in Kautz v. Powell, 326 Ga. App. 816 (755 SE2d 330) (2014). We therefore vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and reverse the trial court’s judgment.

Judgment reversed.

Andrews, P. J., Barnes, P. J., Phipps, P. J., and Miller, Branch and McMillian, JJ., concur.