SMITH et al. v. NORTH FULTON MEDICAL CENTER.
No. A91A0532
Court of Appeals of Georgia
July 2, 1991
July 15, 1991
408 SE2d 468
McMURRAY, Presiding Judge.
That case had, as its foundation, the statutory duty of care imposed upon a residential landlord by housing codes and other laws to ensure the safety of his tenant. Without that as a cornerstone, the argument of Moore based on Thompson is not applicable here.
There is in place, however, a principle developed under the assumption of the risk theory that applies. “[T]he doctrine of the assumption of the risk of danger applies only where the plaintiff, with a full appreciation of the danger involved and without restriction from his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct so that it can be said as a matter of law he has assumed all risk of injury. [Cit.]” Myers v. Boleman, 151 Ga. App. 506, 509 (3) (260 SE2d 359) (1979).
There is no evidence here that Moore was so limited in his freedom of choice. His own testimony was that on previous occasions he had exercised that choice and remained in his truck while Service Merchandise employees handed him packages. On this occasion, he chose not to without coercion or removal of that option or others by defendants.
“This is a ‘plain, palpable, and indisputable’ case not calling for resolution by a jury.” Favour v. Food Lion, 193 Ga. App. 750, 751 (389 SE2d 22) (1989); Smith v. Wal-Mart Stores, 199 Ga. App. 808 (406 SE2d 234) (1991).
Judgment affirmed. Sognier, C. J., and McMurray, P. J., concur.
DECIDED JULY 2, 1991 — RECONSIDERATION DENIED JULY 15, 1991.
Morse & Ontal, Jack O. Morse, for appellant.
DeVille, McNatt & Halberg, Blake D. Halberg, Alston & Bird, Peter M. Degnan, James C. Grant, for appellees.
McMURRAY, Presiding Judge.
Addie Smith (plaintiff) brought an action against North Fulton Medical Center (defendant), seeking damages for injuries she alleg
Defendant denied the material allegations of the complaint and defended on the ground that plaintiff failed to file an expert‘s affidavit supporting any claim of nursing malpractice. Defendant subsequently filed an
The trial court granted defendant‘s
1. Plaintiff contends the trial court erred in granting defendant‘s motion for summary judgment, arguing that genuine issues of material fact remain as to defendant‘s liability for ordinary negligence.
“’ “To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (cits.) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff.” (Cit.)’ (Emphasis omitted.) Waller v. Transworld Imports, 155 Ga. App. 438, 439 (271 SE2d 1) (1980); Tolbert v. Tanner, 180 Ga. App. 441, 444 (2b) (349 SE2d 463) (1986).” Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (2), 875 (392 SE2d 535) (1990).
In the case sub judice, the evidence shows that plaintiff was admitted to defendant‘s hospital on February 15, 1987, and that her “nursing Admission Assessment” sheet indicates “yes” with respect to “SIDE RAILS” in a section labeled, “HOSPITAL ROUTINE.” There
2. Plaintiff contends the trial court erred in dismissing her medical malpractice action under
“In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”
“[I]f a plaintiff fails to file an affidavit as required by this Code section contemporaneously with a complaint alleging professional malpractice and the defendant raises the failure to file such an affidavit in its initial responsive pleading, such complaint is subject to dismissal for failure to state a claim and cannot be cured by amendment pursuant to Code Section 9-11-15 unless a court determines that the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file the affidavit was the result of a mistake.”
In the case sub judice, defendant raised an
3. Plaintiff contends the trial court erred in granting summary judgment, dismissing any medical malpractice claim with prejudice. See Robinson v. Starr, 197 Ga. App. 440, 441 (2) (398 SE2d 714).
The two-year limitation period for any claim of professional malpractice stemming from plaintiff‘s alleged February 22, 1987, fall has expired.
Judgment affirmed in part and reversed in part. Banke, P. J., Birdsong, P. J., Pope and Beasley, JJ., concur. Carley, J., concurs in Divisions 1 and 2 and in the judgment. Sognier, C. J., and Andrews, J., dissent. Cooper, J., disqualified.
ANDREWS, Judge, dissenting.
I agree with the disposition of the professional negligence claim, but dissent because I believe the trial court also properly granted summary judgment as to any claim for ordinary negligence.
In the initial complaint, Smith alleged that, because “[b]oth rails of the bed were improperly positioned and not raised all the way up” when she fell out of her bed, the hospital was negligent in its duty to provide proper care and supervision. Although the complaint specifically stated the alleged negligent placement of the side rails, it made only a general allegation as to who at the hospital was responsible for the alleged negligent act or omission, stating: “Contrary to this duty, Defendant [hospital] by and through its agents and/or employees was negligent in the care and supervision which they rendered to Plaintiff.”
In its initial defensive pleadings the hospital raised the failure of Smith to file an expert affidavit with the complaint pursuant to
Smith argued that the grant of total summary judgment was error because, under the general allegations of her complaint, she stated a claim for ordinary negligence on which genuine issues of fact remain. She claims questions of fact exist as to ordinary negligence on two grounds: (1) that the nurses themselves could have been guilty of ordinary negligence, or (2) that she may possibly have proved other non-nursing or non-professional hospital employees could have negligently lowered or failed to raise the side rails. The record does not support the claim that any genuine issue of fact remains on these grounds, and the trial court properly granted summary judgment on any claim based on ordinary negligence.
The record reflects that, in the absence of a physician‘s order, the decision to have the side rails in a raised or lowered position was made by the nursing staff based on the patient‘s medical condition. Smith was under sedative medication and there is no evidence of a physician‘s order with respect to side rails. When Smith was admitted to the hospital a written nursing admission assessment indicated a “yes” with respect to side rails. Subsequent to the initial assessment, the medical records show nursing notations for each eight-hour shift reflecting various changing positions of the side rails. At the time of the fall, evidence shows that only one side rail was in the up position. On the night of the fall, four registered nurses were on duty for Smith‘s floor, along with one nurse‘s aide. There is no evidence that other hospital employees were present on the floor. With respect to who may have raised or lowered Smith‘s side rails, the only evidence is deposition testimony of the shift charge nurse as follows:
“Q. Whose decision was it just to put one side of Mrs. Smith‘s bed up on the evening of February 21st, ‘87?
“A. It would be the nurse‘s.”
The practice of nursing is recognized as a profession subject to its own general standards of care and qualifications.
As to claims that non-nursing or non-professional hospital personnel could have been guilty of simple negligence, the record is devoid of any indication that such personnel were involved in adjusting the side rails. To the contrary, though one of the hospital‘s nurses deposed that a nurse‘s aide was on duty, she also indicated that it was the nurses’ decision to lower or raise the side rails. Furthermore, the nursing routine flowsheets in the medical records reflect the shift-to-shift monitoring of the side rails by the nursing staff. The affidavit of the plaintiff‘s non-treating nurse expert, who had no personal knowledge of the present case, to the effect that side rails could have been adjusted by non-professionals is pure speculation, and sets forth no specific facts necessary to create a factual issue on summary judgment in response to the evidence produced by the hospital. Levine v. First Bank of Savannah, 154 Ga. App. 730, 731 (270 SE2d 20) (1980).
The trial judge correctly concluded that there were no genuine issues of fact with respect to ordinary negligence. On summary judgment, a responding party may not rest upon the allegations in the pleadings, but must set forth specific facts by affidavit or otherwise to show there is a genuine issue for trial. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974);
The majority finds summary judgment on ordinary negligence inappropriate because the record does not conclusively establish how or why Smith fell out of her bed, but only that the side rail was in the down position at the time of the fall, and that the nurses and a nurse‘s aide were on duty. Since the record does not establish the specific circumstances of the defendant‘s fall, by stating that the evidence does not demand a finding that the hospital exercised ordinary
I am authorized to state that Chief Judge Sognier joins in this dissent.
DECIDED JUNE 28, 1991 — RECONSIDERATION DENIED JULY 15, 1991.
Ellerin & Associates, Irwin M. Ellerin, Denise A. Hinds, Heidi Koch, for appellants.
Sullivan, Hall, Booth & Smith, Timothy H. Bendin, for appellee.