ALLRID et al. v. EMORY UNIVERSITY et al.
No. 38012
Supreme Court of Georgia
DECIDED FEBRUARY 17, 1982
DECIDED FEBRUARY 17, 1982.
Richard M. Cowart, for appellants.
H. Lamar Cole, District Attorney, Richard W. Shelton, Assistant District Attorney, Michael J. Bowers, Attorney General, for appellee.
38012. ALLRID et al. v. EMORY UNIVERSITY et al.
GREGORY, Justice.
In February, 1956, following a series of convulsions, James Allrid was admitted to Emory University Hospital (Emory) for the purpose of undergoing a cerebral angiogram. This diagnostic test is performed by injecting an x-ray contrast medium into the carotid artery in the neck. A series of x-rays is taken as the contrast medium passes through the brain‘s arterio-venous system in order to diagnose obstructions or other abnormalities. Both a right-side and a left-side carotid study were performed on Allrid. It is undisputed that Diodrast, a non-radioactive contrast medium was used in the right-side study. The record does not clearly reflect what contrast medium was used in the left-side study, but plaintiff alleges that Thorotrast, a radioactive substance which gradually destroys body tissues, was used.
The record indicates that between February, 1956 and March, 1979, Allrid suffered from sore throats, the cause of which his physicians were unable to determine. Allrid was admitted to Crawford Long Hosрital in March, 1979. At that time his physician determined that “despite an apparent history for patient having received Diodrast [in the left-side study]..., the present appearance suggests Thorotrast having been received instead” as “any other material would no longer be visible on x-rays.” Emory records indicated that Diodrast alone had been used as the contrast medium in conducting the angiogram. In October, 1979 Allrid and his wife brought this action against Emory University and Tenneco Chemicals, Inc., a manufacturer of Thorotrast, alleging that their combined acts of negligence were the proximate cause of his injuries. Allrid subsequently died. His widow proceeds as executrix in this action. She appeals from the trial court‘s order granting summаry judgment to Emory University Hospital. We affirm.
Insofar as medical malpractice actions are concerned, this section replaced
The trial court correctly found that, since the alleged negligent act occurred in February, 1956 and suit was not brought until October, 1979, plaintiff‘s claim was barred under
In a personal injury case, “a cause of action accrues when exposure to the hazard first produces ascertainable injury.” Everhart v. Rich‘s, Inc., 229 Ga. 798, 802 (194 SE2d 425) (1972). Plaintiff acknowledgеs, as she must, that her claim did not become a cognizable action until Allrid had suffered an ascertainable injury.
“[T]he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” U-Haul Co. v. Abreu & Robeson, 247 Ga. 565, 566 (277 SE2d 497) (1981); Mobley v. Murray County, 178 Ga. 388 (1) (173 SE 680) (1933). The record discloses two injuries claimed by plaintiff to have been relаted to use of Thorotrast: (1) the sore throats Allrid experienced from 1956 to 1979 and (2) Allrid‘s debilitated physical condition in March, 1979 and subsequent death. If plaintiff contends her cause of action relates to the sore throats Allrid first experienced in 1956, her claim would have been barred by
While we are constrained by the terms of
(b) “A statute of limitation is remedial in nature. The legislature can constitutionally provide for the retrospective application of a remedial statute provided a timе be fixed subsequent to the passage of the statute which allows citizens affected by it a reasonable time to protect their rights.” Jaro, Inc. v. Shields, 123 Ga. App. 391, 392 (181 SE2d 110) (1971). Plaintiff takes the position that the one-year grace period provided by
Nо cause of action which existed on July 1, 1976, the effective date of
The theory advanced by plaintiff and expressed in Hart v. Eldridge, 158 Ga. App. 834 (282 SE2d 369) (1981), will not be followed. There the Court of Appeals indicated that, during the grace period,
(c) Plaintiff next argues that
We have held that a separate classification of medical malpractice actions under
In Dalbey v. Banks, 245 Ga. 162, 163-4 (264 SE2d 4) (1980), we held that “[w]hen a physician places a foreign object in his patient‘s body during treatment, he has actual knowledge of its presence. His failure to remove it goes beyond ordinary negligence so as to be clаssified by the legislature as a continuing tort which tolls the statute of limitations until the object is discovered. The purpose of the legislature in making a distinction between the two types of medical malpractice was to allow the plaintiff‘s claim which does not rest on professional diagnostic judgment or discretion to survive until actual discovery of the wrongdоing. In such situations the danger of belated, false or frivolous claims is eliminated. The foreign object in the patient‘s body is directly traceable to the doctor‘s malfeasance.” Our holding in Dalbey clearly reflects a determination by this court that the classification created by
(2) The trial court found that if Dr. Fincher, the physician who performed the angiogram on Allrid in 1956, knowingly injected Allrid with a potentially hazardous substance and failed to warn him оf the same, these facts would be sufficient to constitute fraud which would toll the statute of limitations under
Plaintiff argues that whether Dr. Fincher was an agent of Emory is a question of fact for the jury.
“The rule is that for the hospital to be held liable it must be shown that the doctor was an employee of the hospital and not an independent contractor.” Ga. Osteopathic Hospital v. Hollingsworth, 242 Ga. 522 (250 SE2d 433) (1978). “The true test of whether the relationship is one of employer-employee or employer-
The record shows that Fincher, while on staff at Emory, had no contract with the hospital nor did the hospital compensate him. Emory did not сarry insurance on him. Further, Fincher rented office space in the Emory facilities. The affidavit of the Administrator of Emory University Hospital from 1952 to 1977 states that “Emory did not control, or did it have the right to control the time, manner or method in which Dr. Fincher treated his patients.” The record also demonstrates that, in 1956, staff physicians at Emory controlled the flow of drugs into the Emory Hospital pharmacy without supervision from the hospital administration; that it was customary for staff physicians to bring otherwise unavailable, and sometimes experimental, drugs into the hospital for use in treating patients; and that there was no procedure whereby these physicians coordinated these practices with any hospital policy. We agree with the trial court that a careful examination of the record demonstrates that Emory‘s evidence is in no way controverted by plaintiff. Plaintiff attempts to controvert this evidence by noting that Fincher was required to attend staff meetings and by citing a hospital policy that staff physicians had the right to object to unreasonable procedures used by оther staff physicians. However, where a “hospital reserve[s] no right to control specific medical techniques employed by the . . . doctors, but merely exercise[s] a limited surveillance in order to monitor the quality of medical care provided,” these controls are not inconsistent with an employer-independent contractor relatiоnship. Overstreet v. Doctors Hospital, 142 Ga. App. 895, 897 (237 SE2d 213) (1977).
Further, “[w]here a physician is an independent contractor the hospital is not liable for his negligent performance of professional services unless it negligently selected him or undertook to direct him in the manner and method of treating the patient.” Hollingsworth v. Ga. Osteopathic Hospital, 145 Ga. App. 870, 871-2 (245 SE2d 60) (1978), affd., 242 Ga. 522 (250 SE2d 433) (1978), supra. Accord, Moore v. Carrington, 155 Ga. App. 12 (270 SE2d 222) (1980). Plaintiff does not argue that Emory negligently selected Dr. Fincher or directed him to use Thorotrast in conducting the angiogram. We find this enumeration of error to be without merit.
(3) Plaintiff next argues that Emory committed a fraud independent of Dr. Fincher‘s actions which tolled the statute of
The rule in Georgia is that ” ‘[a] private hospital is under a duty to exercise such reasonable care in looking after and protecting a patient as the patient‘s condition which is known to the hospital through its agents and servants charged with the duty of loоking after and supervising the patient may require.’ ” (Emphasis supplied.) Doctors Hospital v. Poole, 144 Ga. App. 184 (241 SE2d 2) (1977). There is no evidence in the record of this case to demonstrate that anyone other than Dr. Fincher was aware of what contrast medium had been used in the left-side carotid study. The record does not bear out plaintiff‘s contention that Dr. Rogers, the radiologist who assisted Dr. Fincher in reading Allrid‘s x-rays, knew that Thorotrast had been used. In his deposition Dr. Rogers stated that when he read Allrid‘s x-ray in February, 1956, “it must have been in my mind that possibly not Diodrast but some other agent was used [in the left-side study] because if I had known the agent I‘m sure I would have stated the agent [on the patient‘s chart] if I had known with certainty.” (Emphasis supplied.) Rogers also stated his belief that based on an examination of x-rays, “there is no radiologist living... that could take two studies, one with Thorotrast and one with Diodrast, and be sure which agent was used.” As noted above, Dr. Fincher‘s entry on Allrid‘s chart following the angiogram showed that only Diodrast had been used.
We are unwilling to hold that Emory was required to disclose the dangers of a contrast medium allegedly used in diagnosing a patient‘s condition when there is no evidence to show that either Emory or its agents were aware that this medium had been used. Nor do we find that the failure to make this disclosure constituted actual fraud which would toll the statute of limitations.
(4) In August, 1980 Emory filed a motion for summary judgment as to three issues: (a) that plaintiff‘s claim was barred by the statute of limitations,
Pretermitting a determination of whether a hospital may be held liable as a “supplier of dangerous chattel” under the theory plaintiff advances, we find that the issue of Emory‘s liability under this theory was not resolved by the trial court‘s order. We conclude that the effect of the trial court‘s order wаs to grant partial summary judgment to Emory, but to reserve for future determination the issue of “supplier of dangerous chattel.”
Judgment affirmed. All the Justices concur, except Jordan, C. J. and Smith, J., who dissent.
DECIDED FEBRUARY 17, 1982.
Phillips, Hart & Mozley, George W. Hart, Philip C. Henry, W. Edward Andrews, for appellants.
Freeman & Hawkins, J. Bruce Welch, Daryll Love, John A. Gilleland, Robert S. Wiggins, Troutman, Sanders, Lockerman & Ashmore, Daniel S. Reinhardt, King & Spalding, Kirk M. McAlpin, for appellees.
JORDAN, Chief Justice, dissenting.
I would affirm the trial court‘s grant of a total summary judgment in favor of the appellees. I therefore respectfully dissent.