Gusky v. Candler General Hospital, Inc.

385 S.E.2d 698, 192 Ga. App. 521, 1989 Ga. App. LEXIS 1085
CourtCourt of Appeals of Georgia
DecidedJuly 14, 1989
DocketA89A0291
StatusPublished
Cited by15 cases

This text of 385 S.E.2d 698 (Gusky v. Candler General Hospital, Inc.) 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
Gusky v. Candler General Hospital, Inc., 385 S.E.2d 698, 192 Ga. App. 521, 1989 Ga. App. LEXIS 1085 (Ga. Ct. App. 1989).

Opinions

McMurray, Presiding Judge.

On July 1, 1980, plaintiff Leila Mae DuFour Gusky consulted physician Kessler to have a head injury examined, diagnosed and treated. As a result of his examination, Dr. Kessler scheduled plaintiff for a CAT (computerized axial tomograph) scan examination at a hospital operated by defendant Candler General Hospital, Inc., on July 3, 1980. Before the scheduled time for plaintiff’s CAT scan, the CAT scan machine at defendant’s hospital became inoperable and plaintiff’s appointment was rescheduled for July 10, 1980. On July 4, 1980, after plaintiff began having convulsions, she was transported by ambulance to defendant’s hospital where the CAT scan machine was still inoperable. Shortly thereafter, plaintiff was transported to another local hospital where a CAT scan was conducted which revealed that she [522]*522had a very large right-side subdural hematoma. Despite immediate surgery to remove the hematoma plaintiff suffered severe permanent mental and physical injury which has left her totally disabled.

Plaintiff, acting through her next friend and guardian, filed an action against Dr. Kessler and against defendant Candler General Hospital, Inc. Prior to trial, plaintiff’s action against Dr. Kessler was settled leaving the hospital as the sole remaining party defendant. Upon the trial of the case the jury returned a verdict in favor of the defendant hospital and plaintiff appeals. Held:

1. In her third enumeration of error, plaintiff contends the tria court erred in its pretrial order and in its charge to the jury by ruling that defendant was held to the “locality rule” standard of care rather than the “general” standard of hospital care. “The ‘locality rule’ states that a hospital owes to its patients only the duty of exercising ordinary care to furnish equipment and facilities reasonably suited to the uses intended and such as are in general use in hospitals in the area. See Emory Univ. v. Porter, 103 Ga. App. 752, 755 (120 SE2d 668). See also Smith v. Hosp. Auth. of Terrell County, 161 Ga. App. 657 (288 SE2d 715).” Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (1) (355 SE2d 104). “[T]he underlying rationale for the ‘locality rule’ is that the care a small hospital can provide is limited by its location and resources.” Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, 119 (311 SE2d 836). The “locality rule” is applicable only where the plaintiff is questioning the adequacy of the services of facilities of a hospital. Where the plaintiff questions the professional judgment of the hospital’s employee, such judgment must adhere to a general professional standard of training and qualificatior if the employee is subject to any. Wade v. John D. Archbold Mem Hosp., 252 Ga. 118, 119, supra; Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 456 (1), 457 (349 SE2d 756); Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173, 174, supra.

In the case sub judice, plaintiff’s amended recast complaint al leges that on July 3, 1980, plaintiff presented herself at the defendan hospital, for the CAT scan scheduled on that date, and was informec that the CAT scan machine was inoperative and that the CAT scar requested by Dr. Kessler would have to be rescheduled. Plaintiff aven that defendant negligently failed, in performing its administrative and clerical duties, to notify Dr. Kessler that the CAT scan was no then available and could not be and was not provided plaintiff a scheduled on July 3, 1980, so that Dr. Kessler could have made ar rangements for a CAT scan to be performed at one of the other tw hospitals located in Chatham County that provided the same diagnos tic CAT scan procedure or in the alternative, defendant negligentl failed, in performing its administrative and clerical duties, to mak arrangements for the CAT scan to be conducted on July 3, 1980, a [523]*523one of the other two said hospitals. Plaintiff alleges that in this manner plaintiff was negligently denied by defendant a determination on July 3, 1980, of whether plaintiff was in need of treatment and that, by reason of the negligence of defendant in carrying out plaintiff’s physician’s instructions and in performing its administrative and clerical acts that required no medical judgment, defendant is responsible to plaintiff for damages resulting from said negligent acts.

Plaintiff’s allegations are questioning the judgment of those employees of defendant responsible for formulating and implementing the procedures for scheduling patients for the CAT scan machine. Plaintiff does not suggest that the defendant’s employees’ alleged failure to communicate with Dr. Kessler concerning their inability to conduct the CAT scan as scheduled arose from any lack of resources. Indeed, it appears that such would have required only a brief telephone call. Instead, plaintiff’s allegations suggest negligence on the part of defendant’s employees as the cause of the failure to communicate with Dr. Kessler.

It follows that the trial court erred in concluding in its pretrial order that the “locality rule” was the appropriate standard of care to be applied in the case sub judice. Wade v. John D. Archbold Mem. Hosp., 252 Ga. 118, supra; Hodges v. Effingham County Hosp. Auth., 182 Ga. 173, supra; Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, supra; Johnson v. Wills Mem. Hosp. &c., 178 Ga. App. 459 (343 SE2d 700). See also Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290, 291 (1) (291 SE2d 1). Unless modified, a pretrial order controls the subsequent course of the action. Thus, in addition to precipitating an erroneous jury charge on the locality rule, the trial court’s pretrial order served to bar the introduction of evidence by plaintiff and a charge to the jury in regard to the correct general standard of care. As such errors were harmful to plaintiff, the judgment of the trial court must jbe reversed.

2. Certain evidence of benefits received by plaintiff from collateral sources was admitted at trial on the assumption that such was admissible under OCGA § 51-12-1 (b). However, during the course of the trial in the case sub judice, the Supreme Court of Georgia rendered its decision in Polito v. Holland, 258 Ga. 54 (365 SE2d 273), holding that OCGA § 51-12-1 (b) was not to be given retroactive effect. Since the events of the case sub judice predate the effective date af OCGA § 51-12-1, the trial court undertook to correct the resulting arror by instructions to the jury to disregard certain payments to alaintiff.

Plaintiff’s first enumeration of error contends that those instructions to the jury were insufficient to eliminate the prejudicial effects af the collateral source evidence. However, since we must reverse on )ther grounds and this issue is unlikely to recur on another trial of [524]*524the case, this enumeration of error is moot and need not be decided. City of Jefferson v. Maddox, 116 Ga. App. 51 (2) (156 SE2d 553); Georgia Power Co. v. McElmurray, 113 Ga. App. 789, 795 (5) (149 SE2d 740).

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Gusky v. Candler General Hospital, Inc.
385 S.E.2d 698 (Court of Appeals of Georgia, 1989)

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Bluebook (online)
385 S.E.2d 698, 192 Ga. App. 521, 1989 Ga. App. LEXIS 1085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gusky-v-candler-general-hospital-inc-gactapp-1989.