Bunn-Penn v. Southern Regional Medical Corp.

488 S.E.2d 747, 227 Ga. App. 291, 97 Fulton County D. Rep. 2752, 1997 Ga. App. LEXIS 898
CourtCourt of Appeals of Georgia
DecidedJuly 11, 1997
DocketA97A0677
StatusPublished
Cited by14 cases

This text of 488 S.E.2d 747 (Bunn-Penn v. Southern Regional Medical Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bunn-Penn v. Southern Regional Medical Corp., 488 S.E.2d 747, 227 Ga. App. 291, 97 Fulton County D. Rep. 2752, 1997 Ga. App. LEXIS 898 (Ga. Ct. App. 1997).

Opinions

Andrews, Chief Judge.

Cheryl Bunn-Penn brought an action alleging that, while she was a patient in the emergency room of Southern Regional Medical Corporation (the hospital) on October 13, 1992, John Mountz, an emergency room technician employed by the hospital, assaulted her by fondling her breasts and inserting his fingers into her vagina without her consent while she was sedated. As defendants, she named Mountz, the hospital, and Kay Neal, a nurse manager in the emergency room. The action sought compensatory and punitive damages and set forth separate counts alleging negligence, professional negligence, negligent hiring and retention, assault and battery, and intentional infliction of emotional distress. Bunn-Penn’s husband also joined the action in asserting a loss of consortium claim.

The hospital and Neal moved for summary judgment on all counts. The trial court granted summary judgment in favor of the hospital and Neal on all counts, and Bunn-Penn and her husband appeal. They contend the trial court erred by granting summary judgment in favor of the hospital and Neal on the claims for negligent hiring and retention, professional negligence, loss of consortium, and punitive damages. They concede that, if the trial court correctly granted summary judgment on the negligent hiring and retention and professional negligence claims, then the claims for loss of consortium and punitive damages also fail. They also enumerate as error that the trial court improperly excluded certain evidence as hearsay in its consideration of the summary judgment motion.

1. Since our review of the record is de novo, we examine all of the evidence proper for consideration on summary judgment to determine if an issue of material fact remains for determination, regardless of whether the trial court considered all of the evidence below. Taylor v. Schander, 207 Ga. App. 627 (428 SE2d 806) (1993).

The hospital produced the affidavit of Deborah Boatwright to show the process by which Mountz was hired as an emergency room technician. Boatwright also gave sworn testimony on this issue in her deposition. Boatwright testified that Mountz went through an [292]*292application and interview process which verified that he was a trained, licensed, and experienced emergency medical technician. In the written application for employment completed by Mountz, which required disclosure not only of education and work experience but also criminal history, Mountz stated that he had never pleaded guilty or been convicted of a crime more serious than a traffic offense. There is no evidence in the record that Mountz had any such criminal history. He was interviewed by a recruiter from the hospital’s human resources department and by the director of nursing. In checking employment history, the hospital contacted Fayette County where Mountz was then employed as a firefighter and emergency medical technician and received a satisfactory report. After this process, Mountz was hired by the hospital as an emergency room technician in June 1989.

The hospital’s director of nursing provided an affidavit stating that Mountz thereafter received high ratings during an initial performance appraisal period ending in September 1989 and in subsequent reviews. In his first annual employment review in June 1990, Mountz received high performance ratings and was described as “pleasant in working with patients and staff. . . In his second annual employment review in June 1991, Mountz again received consistently high performance ratings and was praised in the evaluation as “an asset to the department [and] [w]ell organized and a hard worker.” In June 1992, in his third annual employment review about four months prior to the alleged sexual assault, Mountz again received high ratings and was described as “a diligent worker and an asset to our department.” In September 1992, the month prior to the alleged sexual assault, Mountz received the hospital’s “Employee of the Month” award.

Neal, the nurse manager of the hospital’s emergency department from September 1989 through May 1992, stated by affidavit and deposition that sometime in the latter part of 1990 or early 1991, nurses Amy Wernert-Yarion and Julia Olivier told her that they were concerned that Mountz’s behavior around female patients was sometimes inappropriate in that he was “quick to help female patients get their clothes off. . .” and was “lingering” in patient’s rooms when the patients were undressing. Neither nurse could tell Neal of any specific incident where Mountz’s behavior raised these concerns, and neither nurse had ever heard any patient complain about Mountz. Neal testified that, although male employees did not routinely assist in dressing or undressing female patients, it depended on the circumstances, and in critical situations “everybody pitches in regardless of sex.” Thereafter, Neal observed Mountz more closely and saw nothing out of the ordinary in his performance.

Nurse Olivier confirmed in her deposition that in the latter part [293]*293of 1990, she told Neal that there had been some instances where she told Mountz to leave a female patient’s room when it was not necessary for him to be there. After Neal suggested to her that she raise her concerns directly with Mountz, Olivier testified that she talked to Mountz and told him to watch himself in those circumstances and that she did not have any problems with Mountz after that time. She testified that all the patients liked Mountz, complimented him a lot, and that she had never heard any complaints.

Nurse Wernert-Yarion also confirmed in her deposition that she and Olivier spoke to Neal about Mountz. She said that on several occasions she noticed that, while a female patient was being undressed, Mountz would stay in the room when in her opinion he should have realized, as other male technicians did, that it was inappropriate for him to remain. She testified that, after they spoke with Mountz about the problem, he agreed to watch his behavior and he improved. She stated that no patients ever complained about Mountz.

Nurse Donna Coker testified by deposition of one instance where she noticed that Mountz was about to assist a female patient with a bedpan, that she thought it was inappropriate for him to do so, and that she took over from Mountz and assisted the woman. Although Coker denied that she expressed any other concerns about Mountz’s behavior, this testimony was clearly contradicted in an affidavit given by a Clayton County detective who said Coker told him that she had complained about Mountz going into the treatment rooms and watching female patients undress and that Olivier had spoken to Neal about this concern.1

Nurse Sherrye Ayers-Drew testified by deposition that she knew of two instances where Mountz placed female patients on bedpans while she was in the room. She testified that, although Mountz acted very professionally in those situations, it was not the normal procedure for male technicians to place female patients on bedpans unless extra strength was needed with a large person, and she mentioned the incidents to Olivier.

2. Bunn-Penn’s negligent hiring and retention claim against the hospital is based on her allegation that she was injured when Mountz fondled her breasts and inserted his fingers into her vagina without her consent while she was sedated — acts which would constitute sexual battery (OCGA § 16-6-22.1

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Bunn-Penn v. Southern Regional Medical Corp.
488 S.E.2d 747 (Court of Appeals of Georgia, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
488 S.E.2d 747, 227 Ga. App. 291, 97 Fulton County D. Rep. 2752, 1997 Ga. App. LEXIS 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bunn-penn-v-southern-regional-medical-corp-gactapp-1997.