Wаtts sued Apple Investment Properties, Inc., which operates a personal care home called Bayberry Trace Personal Care Home. Watts is administrator of the estate of her father, William Harrison, who suffered from Alzheimer’s disease and lived at Bayberry Trace before his death. The suit alleges that in November 1991 Mr. Harrison wandered unsupervised into the cold, that a passer-by found him, lying on the ground wearing only his underwear, and that he had to be hospitalized for hypothermia. Watts claims compensatory and punitive damages due tо negligent supervision.
During discovery, Watts sought to obtain records of incidents and accidents involving other residents which Apple was required by law to make and keep in the residents’ files. Pursuаnt to OCGA § 9-11-34, she served on Apple requests for: a copy of each and every record maintained by defendant of any case of an accident or sudden adverse change in the health of any resident of Bayberry Trace for the period from January 1, 1991 through December 1, 1991, said records being required by 290-5-35-.10 (1) of the Rules of the Department of Human Resources, a copy of the investigation report initiated by defendant’s manager relating to any incident concerning any resident of Bayberry Trace for the period from January 1, 1991 through Dеcember 1, 1991, said records being required by DHR Rule 290-5-35-.10 (3).
Copies of these requests are not in the record, but counsel agree on their language. Our ability to properly review these matters is hindered and slowed when the parties fail to ensure the record is complete and fail to cite to the record in their briefs, as required by Court of Appeals Rule 27 (c) (3).
The requеsts prompted Apple to file a motion for protective order contending 1) the records were not relevant and 2) it could not produce the records pursuant to DHR Rule 290-5-35-.08 (h), which required Apple to guarantee to its residents the right to “confidential treatment of personal information in [their] files as provided in Rule 290-5-35-.05 (1). . . ,”
In a well-reasoned opinion, the trial court denied the protective order and required production of the reports. We agreed to hear Apple’s interlocutory appeal on this issue, OCGA § 5-6-34 (b), and affirm the trial court’s decision.
1. The trial court properly found these reсords to be relevant, ruling that “[e]vidence concerning the extent of similar conduct would be highly relevant concerning the true scope of the problem and the extent to which punitive damages might be required to punish or deter.” The Civil Practice Act contemplates full investigation, allowing discovery of “any matter, not privileged, which is relevant [and] . . . reasonably calculated to lead to the discovery of admissible evidence.” OCGA § 9-11-26 (b) (1); Bullard v. Ewing,
The mission of a personal care home such as Bayberry Trace is to provide “protective care аnd watchful oversight of a resident who needs a watchful environment. . . . Protective care and watchful oversight includes but is not necessarily limited to a daily awareness by the managemеnt of the resident’s functioning, his or her whereabouts, . . . with a 24-hour responsibility for the well-being of the resident.” DHR Rule 290-5-35-.01 (b).
Watts alleged Apple did not properly supervise Mr. Harrison, who suffered from a disease which required that he be given special care and structural supervision. Watts sought these reports to determine if Apple’s employees had failed to monitor other residents, as other similar instances of conduct would tend to support a claim thаt Apple was, as alleged, “consciously indifferent” to the needs of its residents so as to justify punitive damages. The principle that similar acts may be admitted during the punitive damages portion of a trial to show a pattern of misconduct is well established. Holt v. Grinnell,
Evidence of similar incidents might also be admissible in the liability portion of this trial, as Watts contends. Evidence of prior similar acсidents could show Apple had notice its employees were not properly supervising residents or that residents were finding a way out of the facility; it could also rebut a claim by Apple that it was unaware of such problems. Gunthorpe, supra at 114-115 (2), (3).
2. If these documents are relevant, as the trial court determined, do the DHR
Apple did not meet its burden of showing a basis for compelling a protective order as a matter of law. Young v. Jones,
3. In affirming the trial court’s decision, we confirm the importance of prоtecting residents’ privacy rights. “[T]he potential for abuse created by ... a discovery right is obvious,” and the court must “balanc[e] the plaintiff’s right of discovery against the defendant’s right to privacy.” Holman v. Burgess,
We also recognize, in striking the balance, that there is no direct quid pro quo here; disclosure, if it yields similar incidents of negligence, would redound to the benеfit of plaintiff alone, in that any punitive damages would not be shared by the injured third parties. The broader aspect is that it is in the public interest to deter future “conscious disregard for the consequences” of failing to provide the degree of personal care called for under the law, as alleged by plaintiff.
To protect the residents’ privacy, thе court has power to conduct in camera reviews and to fashion orders limiting the use of and the dissemination of records. OCGA § 9-11-26 (c); see Goldstein v. Goldstein,
Judgment affirmed.
Notes
This regulation was repealed effective November 1993; it was replaced by a nearly identical provision, DHR Rule 290-5-35-.18 (r), which is currently in effect.
Reрealed effective November 11, 1993; replaced with nearly identical language currently found at DHR Rule 290-5-35-.17.
Repealed effective November 11, 1993. It is now found at DHR Rule 290-5-35.12 (1).
Repealed effective November 11, 1993; similar language found at DHR Rule 290-5-35.12 (1).
Repealed effective November 11, 1993; similar language now found at DHR Rule 290-5-35.17 (2).