Lead Opinion
Vito J. Bruscato, in his capacity as the guardian of Victor Bruscato, appeals from the order of the Superior Court of DeKalb County, which granted summary judgment to Victor Bruscato’s psychiatrist, Derek Johnson O’Brien, M.D., in this medical malpractice case.
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal of a*453 grant of summary judgment, this Court reviews the evidence de novo to determine whether a genuine issue of material fact exists or whether the movant is entitled to judgment as a matter of law.
(Citations omitted.) Boggs v. Bosley Med. Institute,
So viewed, the record reveals the following. O’Brien began treating Victor Bruscato, a then 38-year-old, mentally ill patient with a history of violence, in January 2001. O’Brien reviewed Bruscato’s treatment records, which revealed that Bruscato’s mental illness manifested in childhood and that he had been diagnosed over the course of his life with mental retardation, organic mood disorder, pervasive developmental disorder, schizophrenia, a nonspecified psychotic disorder, pedophilia, and intermittent explosive disorder. Bruscato had expressed homicidal thoughts toward his parents, and he had physically assaulted them and others, including a hospital employee and a young girl. He had also experienced auditory hallucinations that commanded him to kill people or to molest girls.
When O’Brien began treating Bruscato, Bruscato had been living with his parents for almost two years. Before that, he had been living in a group home operated by the Gwinnett-Rockdale-Newton Community Service Board (“CSB”), but he had been removed from the home because of the risk that he might sexually assault a girl. Bruscato’s expert witness opined that his elderly parents were ill-equipped to manage a severely mentally-ill adult and were “strong-armed” into taking him home. While at home, Bruscato continued receiving outpatient treatment from the CSB. Bruscato’s expert witness opined that the medications the CSB staff administered to Bruscato controlled his violent behavior and sexual impulses. O’Brien knew that, because Bruscato was potentially dangerous, the CSB required his parents to monitor him continuously.
In late May 2002, O’Brien ordered that two of Bruscato’s medications, Zyprexa and Luvox, be discontinued for six weeks to rule out the possibility that Bruscato might be developing neuro-leptic malignancy syndrome (“NMS”). O’Brien’s own expert witness opined that, if Bruscato had NMS, which the expert believed he did not, the proper procedure would be to hospitalize him. He also opined that withholding Bruscato’s medications for that period to rule out the possibility of NMS, which is very rare, was not medically justified.
According to a family friend, about two-and-a-half weeks after Bruscato stopped taking Zyprexa and Luvox, he began having nightmares, panic attacks, and bouts of heavy sweating. He also started hearing voices telling him to kill, and he became increasingly
On August 15, Bruscato crushed his mother’s skull with a battery charger and stabbed her 72 times, killing her. When questioned by the arresting officers, Bruscato said that he killed his mother and that he knew it was wrong, but that the devil had told him to do it. After Bruscato was jailed, the assistant director of prison mental health services wrote Bruscato’s criminal defense attorney. She advised him that, when Bruscato was arrested, he had been “non-compliant with his anti-psychotic medications,” and, during his intake assessment, he had reported auditory hallucinations that were “persecutory in nature,” that he had trouble controlling his impulses, and that he had very poor insight into his situation, asking “what member of his family would become his new mother.” Bruscato wondered whether his mother could be “brought back to life.” After reintroducing Zyprexa into Bruscato’s medication regimen, the director noted that he became “compliant” and that his condition “improved steadily.” Although Bruscato was indicted for his mother’s murder in 2002, he was found to be incompetent to stand trial. As of the date of the trial court’s summary judgment order in the instant case, Bruscato has been residing at Central State Hospital, where he had been committed.
Bruscato’s expert witness opined that when O’Brien
abruptly terminated [Bruscato’s] Zyprexa, not only was this a violation of the standard of care required of Dr. O’Brien, it resulted in the imposition of chemical changes in [Brusca-to’s] brain. Those chemical changes in turn produced adverse physical responses in [Bruscato’s] brain and ultimately in his body.
The expert stated that Bruscato’s mental illness was not merely emotional or behavioral, but neurological — “a medical disorder.” The expert further opined that the chemical changes that resulted from withholding medication caused Bruscato to “decompensate”
1. Bruscato contends the trial court erred when it granted O’Brien’s motion for summary judgment based upon a finding that he “failed to establish an injury for which the law provides recovery,” and entered judgment in favor of O’Brien on all counts of the complaint. Specifically, Bruscato argues that the court erred in characterizing his claim for damages arising prior to the attack on his mother as a claim for “[mjental distress and anguish” and concluding that, because Bruscato had suffered no physical injury or pecuniary loss prior to the attack, he was barred from recovering for the “negligent infliction of emotional distress” by the so-called “impact rule.”
“Three elements are essential to establish a medical malpractice claim: the doctor’s duty to his patient; the doctor’s breach of that duty through the failure to exercise the requisite degree of skill and care; and an injury proximately caused by the doctor’s failure.” (Citations omitted.) Haughton v. Canning,
Bruscato asserts that O’Brien, his psychiatrist, breached his duty of care to him when he misdiagnosed him with possible NMS, negligently altered his medication regimen as a result thereof, and
Pretermitting whether the injuries that Bruscato alleges he suffered as a result of O’Brien’s professional negligence were physical, psychological, or both, we conclude that the question is irrelevant to Bruscato’s medical malpractice claim. We conclude that the medical malpractice statute, which provides that “any injury” resulting from the breach of a physician’s duty is a compensable injury, is not limited by the application of the “impact rule.” In reaching this conclusion, we have considered the underlying purposes of applying the “impact rule” to causes of action for the negligent infliction of emotional distress and conclude that there is no rational basis for applying the rule to causes of action sounding in medical malpractice.
It is beyond dispute that “emotional distress” is a normal, even expected, part of life and can be caused by an almost infinite array of factors or a combination of those factors. Further, a person’s perception of his or her “emotional distress” is subjective and difficult to prove or to disprove, as is the causal connection between a defendant’s allegedly negligent act or omission and the emotional distress. Thus, the Supreme Court of Georgia has held that, “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” (Citation, punctuation and footnote omitted.) Lee v. State Farm &c. Ins. Co.,
There are three policy reasons traditionally given for having the impact rule and denying recovery for emotional distress unrelated to physical injuries. First, there is the fear[ ] that[,] absent impact, there will be a flood of litigation of claims for emotional distress. Second, [there] is the concern for fraudulent claims. Third, there is the perception that, absent impact, there would be difficulty in proving the causal connection between the defendant’s negligent conduct and claimed damages of emotional distress. . . . [T]he benefits of an impact rule are plain in that it provides a brighter line of liability and a clear relationship between the plaintiff’s being a victim of the breach of duty and compens-ability to the plaintiff.
(Citations omitted; emphasis supplied.) Id. at 587 (II).
The above-stated policy concerns, however, are not present in medical malpractice cases, because such cases require a physician-patient relationship between the defendant and the plaintiff. See OCGA § 51-1-27; Haughton v. Canning,
Finally, once the plaintiff obtains an expert affidavit to support his or her claim that the defendant violated the applicable professional standards (pursuant to OCGA § 9-11-9.1), and presents evidence of “[a]ny injury resulting from a want of such care and skill” (pursuant to OCGA § 51-1-27), determinations regarding the existence and extent of the plaintiffs injuries and whether the defendant’s negligence caused those injuries are generally questions for the jury to resolve.
2. Bruscato contends that the trial court erred in granting summary judgment to O’Brien on Bruscato’s claims for damages occurring at. the time he attacked his mother and thereafter on the basis that “[t]he public policy of Georgia bars any recovery for a cause of action by a person who has committed an illegal act, where the plaintiff depends upon the illegal act to establish his case.” The trial court characterizes Bruscato’s lawsuit as a “claim brought by a psychiatric patient against his .. . psychiatrist for failing to prevent the patient from committing murder.” Finding Bruscato’s conduct “unlawful and wrongful” and assuming that all of Bruscato’s post-attack damages flowed from his illegal act, the court concluded
Bruscato’s claims for damages are not limited to those which flow from the act of killing his mother. Bruscato’s complaint seeks damages for medical malpractice, which is based upon O’Brien’s actions and which encompasses damages flowing from O’Brien’s alleged negligent medical treatment, including, for example, the physical and emotional injuries Bruscato experienced as a result of the ongoing deprivation of his medication. Thus, even if Bruscato is characterized as an intentional “wrongdoer,” his status as such would not be a bar to his recovering for those damages that are not attributable to the alleged immoral or illegal act.
Further, under Georgia law, “a person does not become an outlaw and lose all rights by doing an illegal act.” (Citation, punctuation and emphasis omitted.) Adams v. Smith,
Moreover, the statutes the trial court and the dissent rely upon as embodying Georgia’s public policy of prohibiting wrongdoers from profiting from their crimes only prevent those who “feloniously and
Further, the foreign cases upon which the trial court and the dissents rely for the proposition that Bruscato is a wrongdoer who is barred from profiting from his crime on public policy grounds are inapposite. Those cases involved plaintiffs who had been convicted of the crimes for which they claimed were the result of the defendants’
However, in a series of cases involving negligence suits against psychiatrists for harm caused by their patients, either to themselves or others, this Court has recognized that a patient’s psychiatric disorder may prevent him from having the mental capacity to exercise control over his intentional behavior or, at least, from exercising a reasonable degree of care in order to prevent himself from harming others. See Brandvain v. Ridgeview Institute,
As we explained in Brandvain v. Ridgeview Institute, the fact
Judgment reversed.
Notes
Judge Andrews notes in his dissent that “[t]his is the second appearance of this case before us.” The case the dissent refers to, however, was a suit brought by Vito Bruscato — who is not the real party plaintiff in interest in this case — against O’Brien and the Gwinnett-Rockdale-Newton Community Service Board, in Gwinnett County, for the wrongful death of Vito’s wife. We affirmed the grant of summary judgment in that case for reasons that have no application to the instant suit, which was brought by a different plaintiff arguing an entirely different theory of recovery. See Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd.,
A long succession of cases has explained, clarified, distinguished, and limited the impact rule to prevent a plaintiff from recovering for emotional distress from the negligence of a defendant when the plaintiff did not suffer either physical injury or monetary loss as a result of the negligence. See, e.g., Lee v. State Farm &c. Ins. Co.,
We do not address that aspect of the impact rule which allows recovery in cases involving the negligent infliction of emotional distress when the plaintiff has suffered a pecuniary loss. For a full discussion of that aspect of the rule, see Nationwide &c. Ins. Co. v. Lam,
In Lee, the Supreme Court ultimately concluded that
the policy concerns behind our traditional impact rule are not extant in this case, and there is no meritorious reason in an appropriate and compelling situation to refuse to extend recovery for emotional distress to an incident in which the distress is the result of physical injury negligently inflicted on another. The circumstance of this case is such an appropriate and compelling situation. When, as here, a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent.
(Citations and footnote omitted; emphasis supplied.) Id. at 588 (III).
It follows that it would constitute reversible error to grant summary judgment to the defendant under such circumstances. See OCGA § 9-11-56 (c) (standard for granting summary judgment).
In a competency proceeding, the defendant has the burden of proving incompetency by a preponderance of the evidence. Adams v. State,
Under Georgia law, a person is insane, and shall not be guilty of a crime, if at the time of the act, omission, or negligence constituting the crime, the person did not have mental capacity to distinguish between right and wrong in relation to the criminal act or acted because of a delusional compulsion which overmastered his will to resist committing the crime. OCGA §§ 16-3-2, 16-3-3; Foster v. State,
OCGA § 53-1-5 (d) further provides that a “final judgment of conviction or a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive in civil proceedings under this Code section. In the absence of such a conviction or plea, the felonious and intentional killing must be established by clear and convincing evidence.”
This Code section also provides that “[a] plea of guilty or a judicial finding of guilt not reversed or otherwise set aside as to any of such crimes shall be prima- facie evidence of guilt in determining rights under this Code section.” Absent such proof, in order to obtain summary judgment under this statute, the undisputed evidence must show as a matter of law that the alleged wrongdoer committed either murder or voluntary manslaughter. Cantera v. American Heritage Life Ins. Co.,
In fact, we can imagine a number of scenarios where, under the dissents’ analysis, a deserving plaintiff would be denied any recovery. Imagine, for example, a bipolar teenager with no history of violence who, upon receiving the wrong medication from a medical professional, suffers a hallucinatory, delusional mania — a rare but known side effect of the medication received. While in that delusional state, the child kills her brother, believing that he is a home invader bent on raping and killing her. While delusional, she perceives her act as one of self-defense. When she recovers from the effects of the medication, she realizes her mistake and, profoundly traumatized and remorseful, admits killing her brother. A jury would likely acquit her of murder, if she is even indicted. Yet, under the dissents’ analysis, she is a wrongdoer for whom the civil law offers no remedy for the loss of her brother. The dissent has not only created a class of people who have limited recourse against negligent medical professionals, they have stigmatized as immoral those mentally ill people who, for reasons which may be entirely beyond their control, commit violent acts.
See Cole v. Taylor,
Barker v. Kallash,
Concurrence Opinion
concurring specially in part and dissenting in part.
I agree fully with Division 1 of the majority opinion. In addition, even though the impact rule does not apply to Bruscato’s medical malpractice claim, I note that the expert, testimony of Roy Neil Johnston, M.D., that Bruscato suffered a physical injury upon the discontinuation of his anti-psychotic medication by Dr. O’Brien, would create a question of fact on this issue.
With respect to Division 2, I dissent in part because in this instance, public policy
As set forth in Bruscato’s complaint, however, his damages include “suffering through a psychotic break with reality caused by Dr. O’Brien withdrawing [Bruscato]’s anti-psychotic medication.” These damages are not limited to the time period prior to Bruscato’s attack on his mother and do not necessarily flow from the act of killing his mother. Thus, our determination — that public policy bars Bruscato’s recovery as to any damages that flow from his act of killing his mother — would not bar his recovery for those damages, if any, that are not attributable to that act, regardless of timing. Nevertheless, the trial court’s grant of summary judgment as to his claim seeking to recover for the damages arising from his act of killing his mother was appropriate and should be affirmed.
I am authorized to state that Judge Johnson joins in this opinion.
Cf. OCGA § 53-1-5 (a) (“An individual who feloniously and intentionally kills or conspires to kill or procures the killing of another individual forfeits the right to take an interest from the decedent’s estate and to serve as a personal representative or trustee of the decedent’s estate or any trust created by the decedent.”); OCGA § 17-14-31 (addressing distribution of profits received as a result of the commission of a crime).
(Punctuation omitted.) Brown v. State,
(Emphasis supplied.)
Dissenting Opinion
dissenting.
This is the second appearance of this case before us. In Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd.,
1. With a single exception marked out by our Supreme Court in Lee v. State Farm &c. Ins. Co.,
Littleton IPs discussion of the impact rule featured its overruling of Christy Bros. Circus v. Turnage,
The import of this line of cases is perfectly clear: neither a mere impact nor the mere aggravation of some preexisting mental condition, but only a new physical injury, can authorize a claim for mental distress arising from a defendant’s negligent act. It is nonsensical for this majority to assert that O’Brien’s withholding of medication from Bruscato could result in any new “physical injury” to him; rather, O’Brien’s withholding of medication resulted only in the resurgence
The majority also exceeds its authority when it argues against the “physical injury” rule for reasons of policy (the prevention of a flood of litigation, a concern about fraudulent claims, and the difficulty of proving a causal connection between negligent conduct and an emotional distress claim) and for a foreseeability rule. As the Supreme Court held in Lee, however, “the benefits of an impact rule are plain in that it provides a brighter line of liability” as well as “a clear relationship” between a plaintiffs status as a victim of negligence and her right to compensation. (Emphasis supplied.)
2. Although the issue has not previously arisen in Georgia, the well-developed rule in other jurisdictions is that public policy bars a wrongdoer’s emotional distress claim arising from his own immoral act. This is so even when, as in this case, the wrongdoer does not possess the mens rea to establish legally sufficient culpability for that act.
In the leading case of Cole v. Taylor,
[A] person cannot maintain an action if, in order to establish his cause of action, he must rely, in whole or in part, on an illegal or immoral act or transaction to which he is a party, or to maintain a claim for damages based on his own wrong or caused by his own neglect, ... or where he must base his cause of action, in whole or in part, on a violation by himself of the criminal or penal laws.
(Citations and punctuation omitted; emphasis supplied.) Id. at 768 (II). Any of these categories of wrongfulness, in other words, should be sufficient to bar recovery. Shortly after Cole, moreover, a second
It is true that the Cole and other plaintiffs were found guilty of the murder before bringing their tort suits, whereas Bruscato has been found mentally incompetent to stand trial in the killing of his mother. As other courts have held, however, the Cole rationale applies even where a plaintiff may not be held criminally responsible for his conduct. Thus the New York Court of Appeals barred a claim by a fifteen-year-old against a nine-year-old for supplying the former with firecrackers, holding that “[ajlthough the plaintiff may not be held criminally responsible for his conduct, the fact remains that constructing a bomb is prohibited by law.” Barker v. Kallash,
It is also true that “[a]n individual who feloniously and intentionally kills” another person “forfeits the right to take an interest from the decedent’s estate.” (Emphasis supplied.) OCGA § 53-1-5 (a). Although this statute expresses the General Assembly’s disapproval of a wrongdoer profiting from his wrongful act, the majority uses it to justify the validity of a tort claim brought by a person who does not possess the requisite mens rea against a decedent’s estate. The statute has no application to Bruscato’s garden variety tort claim, however, because that claim is not an inheritable “interest” under the Probate Code.
In short, even if Bruscato has been legally excused from the consequences of his actions, his defense of mental incompetence necessarily “admits the doing of the act charged.” Brown v. State,
As previously stated, I also believe that the “physical injury” component of Georgia’s longstanding impact rule bars recovery for any preexisting mental condition which reappears as a result of a