*1 probable about lished exists cause because as as it and can be estab- pursuant
later, evidence seized to it be would admissible. This completely magistrate’s “responsibility,” avoid the which is de- quotation State, scribed 916 Leon Adams v. SE2d Supreme “[Reviewing in Leon: Court said courts will not ‘provide defer to a warrant based on an affidavit that does not magistrate probable determining with a substantial basis for the existence of ” Supra cause.’ at 915. principle good exception Adams, the Leon of a faith is made opinion an issue. The categories in Adams does all of not address good apply. in which the faith Two of 1) lacking probable them are relevant here: so affidavit indicia of (Leon 2) cause so to render the officer’sbelief at unreasonable affidavit which makes issuance of search warrant look like a rubber stamp (Leon application of the officer’s at inadequate
The affidavit in Adams was so that it could con- experienced i.e., cluded the sonably better, officerknew he not have rea- could “objectively relied the warrant based on it. He must be good apply. reasonable” in his reliance on it faith supported Leon, at 922. The trial court would have been had it suppressed the evidence on this I basis. But could not conclude Adams that as matter of law trial court was error not fit- ting category. the affidavit into this finding hand,
On the other the evidence here would not sustain a good State, faith. Cf. Evans v. Judge joins I am authorized to state that Benham this dissent. July Rehearing July appellants. Zell,
Glenn Attorney, Nancy Slaton, Jones, Lewis R. District Thomas A. Joseph Attorneys, appellee. Grace, Drolet, J. Assistant District
A89A0281.CUTTS v. FULTON-DeKALB HOSPITAL
AUTHORITY et al. Carley, Chief Judge. appellant-plaintiff, by against friend, The minor suit next filed appellee-defendants (Hospital), Hospital Authority complaint sought damages and Dr. Russell. The al- leged malpractice Dr. Russell oc- delivery curring during appellant’s The case was reached, the trial but, not be a verdict could tried before when not- then moved for a mistrial. court declared relying upon withstanding mistrial, immu- granted nity. appellees’ notwith- The trial court motion appellant appeals standing from that order. *2 1. the rule
pital, primarily institution, liable for as is not maintained a charitable employees, unless it fails to the ordinary of its officers and competent servants, or the selection to such officers and [Cit.]” ees.’ Fulton-DeKalb (1) (353 515) (1987). is, however, an to doc- There patient in such an institution trine charitable “Where pay pay recipient charity, is not the of its but is able to negligence, services, carelessness, account corpora- incompetence employee institution, the an officeror of the tion is liable therefor. . . Morton 887) (1918). undisputed of record shows that Hospital’s charity
appellant recipient appellee and that the controlling immunity therefore, is, doctrine of viable and appellee Hospital. to “out-patient” expenses ap- undisputed
It that the pellant’s upon were in Based her financial situ- $100. charge appellee Hospital agreed ation, however, her to providing appellant’s Accordingly, these mother, these services to services. charity appellee Hospital to of at extended its the extent “in-patient” undisputed least of both these services was never It is $93. also that the Although appellant her a bill for $997.52. mother were undisputed appellee submitted, Hospital’s appellant charge maximum those services would be to “in-patient” expenses, appellee Accordingly, as $30. to charity There extended extent of least $967.52. payable $967.52 no evidence charitably any secondary by from was not source and absorbed summary judgment, lee but not decided Hosp. Compare Auth., v. Fulton-DeKalb after a trial. Patterson appellee Hospital pro- After charity appellant, duced evidence that den shifted to the bur- it had extended its appellant produce showing came that she immunity that, within the to the doctrine and contrary only appellee Hospital’s agreement to bill the evidence $1,100 in to her
$37 for the more medical services rendered than mother, and her with a sec- she was nevertheless a ondary source for undisputed balance. Because the evi- dence of record that, discloses based the financial situation of appellant’s mother, charity did extend its to the ex- tent of more $1,000, than correctly the trial granted judgment court notwithstanding appellee Hospital. in favor of Appellee Hospital 2. has not by immunity waived creating plan. a self-insurance See Ponder Hosp. supra Auth., Appellant’s at 835 attempts distinguish have been considered and found to be without merit. Appellant 3. urges that the immunity doctrine of charitable erroneously extended to duty and Dr. Russell had a to exercise a rea degree sonable skill ap medical services to pellant. See § OCGA Insulating 51-1-27. them from breaching duty simply they employed because were a charita ble purpose would not further the of the charitable “By design doctrine. protects doctrine depletion charitable institution funds of in order that these [preserved] funds purpose out the charitable institution for the benefit (Emphasis supplied.) beneficiaries.” Ponder v. at 834 To extend of charitable employed who are *3 hospitals serve to insulate the resources of those from the of claims who were as a alleged result trial malpractice. of Accordingly, we hold the that extending court erred in the doctrine of charitable appellees Daly and Dr. erred, Russell granting and therefore, in judgment their motion for notwithstanding the mistrial. v. Swofford Cooper, 184 Ga. (1987) 50, 53 SE2d aff’d 258 Ga. (368 518) (1988); 143 SE2d (1) Jackson Miller, v. 176 Ga. 220 (335 438) (1985). (366 See also Stover, Davis v. 258 Ga. 156 670) 4. The is affirmed and reversed Judgment part part. in and Deen, reversed in J., affirmed P. Birdsong, Banke, J., Sognier, P. Pope, Beasley, Benham and JJ., McMurray, concur. part J.,P. part. concurs in and dissents Presiding Judge, concurring part dissenting and part. I concur opinion, Division 3 of the and all that is said therein, grant and the reversal of the notwithstanding of the mistrial in favor of defendants and However, Russell. I re- spectfully carry dissent to Grady Division 1 as it is proving its burden of the defense of charitable
520 hospi- that rule the liable institution, is aas primarily maintained
tal, fails employees, unless and officers its negligence of the servants, or and competent officers of in selection ordinary in the and such (96 SE 438 Ga. 148 Morton ees.’ There rule: general is an recovery limited is patient, but ato liable be to DeKalb Fulton- v. Id.” sources. non-charitable derived income (1) (353 SE2d 833, 834 Ga. Grady non- ais shows judice, evidence sub case In the hospitali- primarily operated profit County Fulton poor DeKalb of indigent sick zation through funded shows Georgia. evidence County, Other County, i.e., Fulton sources, “non-charitable” “charitable” DeKalb gifts [private] Medicaid, and Medicare, fees, “patient County, ' showing whether conclusive no- However, there . . “charity aor plaintiff was a assert- party iswho upon the lies proof generally burden “The or defense whose existence affirming fact ing negative affirmation negation or If a is essential. proof fact such negation or proof such defense, the party’s case to a essential § 24-4-1. affirming OCGA it.” party so lies negative affirmation in an a defense asserted answer, its liability to question of attempt avoid char- defense Consequently, burden malpractice. McKinney, v. Grady. McCrackin See immunity itable v. & Co. Williamson, Inman 831); (2) SE App. 519, 520 Ga. Ex-& (9) Commercial App. Thompson, Ga. Tc App. Ga. McDaniel, change Bank a charitabk isit required show satisfy burden, patient of non-paying institution (1) 833, See supra. o support defense Grady offered only Pinkston, Jr. testimony William John thewas charitable “[t]he Authority DeKalb Fulton secretary-treasurer of the *4 testi Hospital.” Pinkston Grady Memorial director executive that ability t< according their charged are fied ii expenses were “out-patient” medical plaintiff’s mother’s pay; that expenses am these billed mother $100; “in testified further Pinkston bill. paid she baby” the de “for patient” patient” nowas “the $997.52;that plaintiff were livery care of expense these costs, but that these billed “would have been $30 total” for the baby. mother and the There was explanation why no did not bill “the for her “in- expenses, nor is there evidence whether these costs were secondary plaintiff source of which the beneficiary. direct Compare Patterson v. Accordingly, Grady burden of without question plaintiff non-paying patient conclusion is demanded because, Grady’s consideration of mo tion for notwithstanding the mistrial, the evidence must be light viewed favorably which most supports plaintiff’s claim. See Findley v. McDaniel, From this perspective, genuine issues of material fact remain whether negligent plain medical care to tiff and whether she “paying patient,” was a entitled to recover based on income Grady’s derived from “non-charitable sources.” See Morton v Savannah (3), supra. July Rehearings July Gambrell, Clarke, Anderson Stolz, & Irwin W. Stolz, Jr., Seaton
D. Purdom, Wood Grant, & L. Wayne Lin Wood, Grant, for lant. Eugene Alston & Bird, T. Branch, Taylor, Bernard S. Judson appellees. Graves, for A89A0291. GUSKY v. CANDLER GENERAL HOSPITAL, INC. Presiding Judge. July plaintiff 1, On 1980, Leila Gusky Mae DuFour consulted physician Kessler injury to have a head diagnosed examined, treated. As a result of his examination, Dr. Kessler scheduled (computerized for a CAT tomograph) axial scan examination at a pital operated by defendant Hospital, Candler July General Inc., 1980. Before the plaintiff’s scheduled time for CAT scan, the CAT scan machine at defendant’s inoperable plain- became appointment tiff’s July rescheduled July 1980. On 4, 1980, plaintiff began after having convulsions, transported by she was am- bulance defendant’s where the CAT scan machine was still inoperable. Shortly thereafter, transported to another lo- cal where a CAT scan was conducted which revealed that she