450 S.E.2d 253 | Ga. Ct. App. | 1994
Jacqueline C. Morse, individually and as executrix of the estate of Louis T. Morse, brought suit against Flint River Community Hospital, Raj Gupta, M.D., and Laverne Bentley, R.N., alleging negligent treatment of an injury suffered by Louis Morse in a motor vehicle accident, resulting in Mr. Morse’s quadriplegia and eventual death. The acts complained of occurred on December 18, 1989, and the action was filed on December 12, 1991.
Case No. A94A1014
We conclude that the trial court did not err in denying the motions to dismiss by the hospital and Bentley. When an action is filed within the applicable statute of limitation but not served within five days as provided by OCGA § 9-11-4 (c), the plaintiff must establish that she acted reasonably and diligently in attempting to effect service. If she failed to act reasonably and diligently, service will not relate back to the date of filing to toll the statute of limitation. Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991). However, the trial court’s exercise of discretion in determining diligence will not be reversed on appeal unless it has been actually abused and cannot be supported as a matter of law. Id.;
In the earlier Macon County action, plaintiff had served the hospital and Bentley within a few days of filing the action. This action was filed in Bibb County, and these defendants were served by second original in another county. OCGA § 9-10-72. The defendants were served at the same addresses indicated in the original complaint; the same individual at the hospital was served on both occasions. The affidavit of plaintiff’s counsel shows that the delay in service originated with the clerk of court or the sheriff’s department or both.
The reliance of the hospital and Bentley upon Varricchio v. Johnson, supra, is misplaced for two reasons. First, Varricchio was told by the sheriff that the defendant had moved, but she did nothing to provide a new address for service for nearly a month. Varricchio v. Johnson, supra at 145. Second, and more importantly, this court affirmed the trial court’s decision dismissing Varricchio’s action under the abuse of discretion standard. Varricchio v. Johnson, supra at 146. There was some evidence on the record here suggesting that service could have been effected more quickly, and counsel for Morse was not positive in his enumeration of every step taken to assure service. However, the weighing of these matters was within the discretion of the trial court, and we cannot say that its discretion was abused as a matter of law.
Case No. A94A1015
We likewise affirm the trial court’s denial of Gupta’s motion to dismiss, but without reaching the issue of Morse’s diligence in effecting service. The return of service form shows that service was acknowledged for Gupta as of December 16 or 17, 1991. Gupta
Case No. A94A1013
Morse contends the trial court erred in granting summary judgment to the hospital and Bentley. The complaint and the affidavits provided by a physician and a nurse contend that Bentley failed to notify the supervising physician in a timely manner of Mr. Morse’s worsening condition, contributing to the severity of his injury.
We disagree. It is true that a finding of fact which may be inferred from circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. See Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419 (379 SE2d 192) (1989). However, this is not a case of conflict between circumstantial and direct evidence. The medical records are not silent; instead, they specify a time of contact later than that testified to by Bentley and the physician. This conflict in the direct evidence is con
As in Kirby, we are presented with a variance between the nursing records and the testimony of parties to this action. The record shows that contact was made at a time later than that testified to by the parties. There was also testimony that an earlier notation should have been made on the nursing records, if the nursing staff attempted to reach the physician at an earlier time. Under these circumstances a genuine issue of material fact remains as to the time at which Bentley attempted to notify the attending physician.
The hospital and Bentley also contend that the expert affidavit provided by a nurse was defective because in its preamble it refers to her “familiarity with the standards of medical care in the United States,” instead of referring to standards of nursing care. This contention is without merit. Assuming without deciding that the statement in the preamble of the affidavit was not inadvertently inserted, the body of the affidavit makes it abundantly clear that the nurse bases her conclusions on “the accepted standards of nursing practices that would be expected of nurses in the same or similar circumstances.” An issue of fact remains for resolution by the jury, and the trial court erred in granting summary judgment.
Judgment reversed in Case No. A94A1013. Judgments affirmed in Case Nos. A94A1014 and A94A1015.
Plaintiff originally filed her complaint in Macon County. That action was dismissed without prejudice on December 10, 1991, two days before the filing of this action.
These two legible dates appear superimposed in the appropriate blank on the return of service, and it is unclear which is intended as a correction. Adoption of the later date of December 17, 1991 does not affect the result here.
We note that the delay was probably exacerbated by the Christmas and New Year’s holidays which fell during that time. See Bennett, supra at 349, n. 1.
This expert testimony establishes a causal link between Bentley’s conduct and the injury. Appellees’ contention that there is no evidence of causation is thus without merit.
The physician is a party to this action, though not to this appeal, and was a party at the time his deposition was taken.
