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GOODMAN et al. v. ST. JOSEPH'S INFIRMARY, INC.
54966.
Medical malpractice. Gwinnett State Court. Before Judge Cheeley.
DEEN, Presiding Judge.
Although, on a motion for summary judgment, the burden is on the movant to show that no genuine issue of fact exists, once the movant has carried its burden by the factual allegations of its pleading supported by affidavits and other documentary evidence, and has thereby established a prima facie case, the opposing party has a duty to show that an issue of fact remains, and it cannot do this by attempting to suggest a defense so vague and conclusory that neither the movant nor the court can tell upon what circumstances it relies.
The appellee hospital filed a suit on account against Mr. and Mrs. Goodman. The latter answered denying the indebtedness and filed a counterclaim in three counts, alleging that the wife was admitted to the hospital three times in 1974 and 1975 at the instance of her personal physician during which time she underwent surgery (it further appears that the procedures followed were either to energize or replace a pacemaker which had been placed in Mrs. Goodman's heart by physicians at Duke University some years previously). These procedures took place between July 20 and 22, 1974; February 26 and March 2, 1975, and March 14 and 15, 1975. The counterclaim charges that this defendant "continued to suffer and undergo great physical pain, nervous shock and mental anguish," that the hospital "failed to conform to reasonable standards of conduct and care in treating her cardiac problems" to her injury and damage, that the hospital "was negligent in treating her for her cardiac problems"; that as a result of its negligence and that of its agents and employees she suffered pain and anguish; that because of its "negligence and failure to conform to reasonable standards of conduct and care [and that of] its agents and employees," Mr. Goodman suffered loss of consortium. Count 3, added by amendment, alleged that the hospital was negligent in the selection of unskilled doctors, physicians and surgeons who advised, examined and treated Mrs. Goodman; that it "undertook to direct doctors, physicians and surgeons in the way and manner of advising, examining, diagnosing and treating" defendant, which acts were conducted negligently, and that the hospital, through its doctors "and other service employed by it" was negligent in advising, examining, diagnosing and treating the defendant.
The hospital's reply alleged that Mrs. Goodman's personal physician was Dr. Thomas, a member of the staff with the privilege of admitting and discharging his patients, and he was not an agent or employee of the hospital, nor did the infirmary ever attempt or exercise any control over the diagnosis or treatments of patients admitted by him or other staff members. Plaintiff then filed interrogatories. In reply to a request to state with specificity and detail the events forming the basis of the suit, Mrs. Goodman replied only that they were as set forth in the counterclaim. Asked for the names of doctors who had examined or treated her, she listed none who were employees of the hospital, the uncontradicted evidence showing only that her personal physician was on the hospital staff as were the Peachtree Cardiovascular and Thoracic Surgeons group and the Atlanta Cardiology Group. The Radiology Department of St. Joseph's and the Anesthesiologists of St. Joseph's were also independent of hospital control. Their contracts are attached as exhibits and are not attacked or contravened. Asked to state in detail what injuries she received she answered "complete physical and mental damage to heart and body since being treated." She does not know the amount of her damages. Asked again to identify specific violations she replied that the plaintiff was guilty "of negligent acts as alleged." Again asked to itemize the grounds of negligence, she replied they were "as alleged in the counterclaim in administering treatment."
In supplementary answers Mrs. Goodman stated that the infirmary examined her, could not find out what was wrong with the pacemaker, concluded that it was defective and had to be removed, operated and replaced the pacemaker, and after this she began to have problems; that it was negligent in examining and evaluating her condition, in operating on her, in advising her of her physical condition and in performing "examinations, tests and diagnosis." No witnesses are identified. She contends that every person involved in her case was an employee, or agent of the infirmary. These latter replies were filed some eight months after the litigation commenced.
The infirmary's motion for summary judgment, supported by the affidavit of the associate administrator, establishes that Dr. Thomas was not an agent or employee of the hospital, nor was the Division of Cardiac Services, the Department of Radiologists, the Anesthesiologists of St. Joseph's Hospital or anyone else identified by Mrs. Goodman. Agreements with these groups or individuals are attached, are not controverted and show the medical personnel to be independent contractors. These conclusions are not denied by the defendant in her response to the motion, except for denials of the statements that none of the officers, directors or employees ever attempted to exercise any control over diagnosis or treatment, or examined, treated, or operated on Mrs. Goodman. The response to the motion consists only of general denials coupled with statements that the plaintiff's information is insufficient to form the basis of any belief as to the truth of the statements in plaintiff's motion. Summary judgment was granted the plaintiff on defendant's counterclaim and this appeal followed.
The rule applicable in malpractice cases against physicians (Code 84-924: that they must bring to the exercise of their profession a reasonable degree of care and skill) applies equally to an action brought against a hospital where technical questions are involved and expert testimony by medical witnesses is offered. Steverson v. Hospital Authority, 129 Ga. App. 510, 513 (199 SE2d 881). See to the same effect Hill v. Hospital Authority, 137 Ga. App. 633, 639 (224 SE2d 739), which holds further that mere proof of negative results "neither establishes nor supports an inference of lack of proper care, skill or diligence on the part of the employees of the hospital." Under ordinary rules of respondeat superior the hospital is liable for the negligence of nurses, orderlies and other employees in the performance of mere administrative or clerical duties "which, though constituting a part of the patient's prescribed medical treatment, do not require the application of specialized technique or the understanding of a skilled physician or surgeon and which are not performed under the direct supervision of the attending physician." Porter v. Patterson, 107 Ga. App. 64 (1) (129 SE2d 70). A third type of negligence which may be alleged and proved against a hospital is lack of due care in the selection of an unskilled physician or surgeon as an employee or member of its staff, or it may be proved that although such person was carefully selected, hospital authorities undertook to direct him in a negligent manner as to the treatment of a hospital patient. Clary v. Hospital Authority, 106 Ga. App. 134 (1) (126 SE2d 470). It is obvious from an examination of the counterclaim, interrogatories and answers, motion for summary judgment and response, that the defendants here have completely failed to supply more than general allegations and conclusions regarding negligent conduct on the part of the infirmary. They have failed to indicate which possible theory of negligence they are proceeding on or what facts may exist to support the theory chosen. "Code Ann. 81A-156 (e) provides that when a motion for summary judgment is made and supported by evidence outside the pleadings, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974); Crutcher v. Crawford Land Co., 220 Ga. 298 (138 SE2d 580) (1964); Ga. L. 1966, pp. 609, 634 . . . The purpose of the Summary Judgment Act, as we have
interpreted it, would be defeated if a party opposing a motion for summary judgment was permitted to defeat the motion by suggesting so vague a defense as to prevent the movant or the court from ascertaining the theory behind the defense. One opposing the motion must present the essence of his case or else suffer judgment against him." Meade v. Heimanson, 239 Ga. 177, 178, 180 (236 SE2d 357).
"In a negligence case, presented on motion for summary judgment by a defendant charged with negligence, the trial judge must determine: (1) the defendant's duty to the plaintiff and the risks that fall within the scope of that duty, and (2) the sufficiency of the evidence to raise an issue of fact." Carden v. Ga. Power Co., 231 Ga. 456 (202 SE2d 55). The appellants here have not identified a single factual situation which would authorize a recovery in their behalf' in view of their failure to rebut the affidavit and contracts of Mrs. Goodman's physicians showing that they were not employees or agents of the hospital, and their failure to raise an inference from any other state of facts which might constitute actionable negligence. "Once the motion is supported by evidentiary matter showing a prima facie right in the movant to have judgment rendered in its favor, the duty is placed upon the opposing party to show the existence of a genuine issue of fact." Goldsmith v. American Food Services, 123 Ga. App. 353, 354 (181 SE2d 95). Mere conclusory allegations that negligence exists will not suffice. Resolute Ins. Co. v. Norbo Trading Co., 118 Ga. App. 737, 741 (165 SE2d 441); Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628 (206 SE2d 598).
The trial court properly sustained the plaintiff's motion for summary judgment as to the counterclaim.
Judgment affirmed. Smith and Banke, JJ., concur.
Swift, Currie, McGhee & Hiers, Arthur H. Glasser, W. Wray Eckl, William A. Moncrief for appellee.
Darryl R. Vandeford, for appellants.
ARGUED JANUARY 3, 1978 -- DECIDED JANUARY 26, 1978.
Friday May 22 04:19 EDT


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