Lloyd O. Cook v. John Forrester

• Court: Court of Appeals of Georgia
• Decided: July 15, 2013
• Docket: A13A0601
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

July 15, 2013

In the Court of Appeals of Georgia A13A0601. COOK v. FORRESTER. A13A0602. WYNN v. FORRESTER.

BOGGS, Judge.

In this medical malpractice action, James Wynn, M. D., and Lloyd Cook, M.

D., appeal from the trial court’s orders denying their claim of official immunity

provided by the Georgia Tort Claims Act, OCGA § 50-21-1 et seq. In their sole

enumeration of error on appeal, they contend that the trial court erred by concluding

that our recent opinion in Jones v. Allen, 312 Ga. App. 762 (720 SE2d 1) (2011),

precludes a finding of immunity. Based upon the Supreme Court of Georgia’s recent

decision in Shekhawat v. Jones, Ga. (Case No. S12G0552, decided July 11,

2013), we reverse. The party seeking to benefit from the doctrine of official immunity has the

burden of proof. See Howell v. Willis, 317 Ga. App. 199, 203 (729 SE2d 643) (2012).

The trial court’s ruling on a motion to dismiss is reviewed de novo, while factual

findings are sustained if there is evidence supporting them. Southerland v. Ga. Dept.

of Corrections, 293 Ga. App. 56, 57 (666 SE2d 383) (2008).

The record shows that Charlotte Forrester’s treating physician referred her to

the Kidney Transplant Program at the Medical College of Georgia hospital. During

a surgery to remove both her kidneys that was scheduled several weeks before Mrs.

Forrester was to receive a donated kidney from her sister,1 Mrs. Forrester’s spleen

was injured and the doctors performing the surgery, Dr. James Brown and Dr.

Jeremiah Murphy, ordered blood transfusions. The blood provided to Mrs. Forrester

during these transfusions was not leukoreduced and she subsequently “developed

antibodies against her sister,” resulting in the cancellation of her scheduled transplant.

At some point after the transplant of her sister’s kidney at another hospital and over

a year after the surgery in which her kidneys were removed at the Medical College

of Georgia hospital, Mrs. Forrester died. At the time Mrs. Forrester’s kidneys were

1 The purpose of the surgery was to prevent an infection from occurring before the scheduled transplant.

2 removed, the Medical College of Georgia did not have any policies in place to ensure

that transplant patients receive leukoreduced blood.

Following Mrs. Forrester’s death, John Forrester, as executor of the estate sued

the Board of Regents of the University System of Georgia, the Board of Regents of

the University System of Georgia d/b/a Medical College of Georgia Hospitals and

Clinics (“MCG”), MCG Health, Inc. (“MCGHI”), the doctors who performed the

surgery to remove Mrs. Forrester’s kidneys (Dr. Brown and Dr. Murphy), as well as

the director of the blood bank (Dr. Lloyd Cook), and the director of the renal

transplant program (Dr. James Wynn).2 The plaintiff’s amended complaint asserts that

Drs. Cook and Wynn

were employees of the Defendant Board of Regents of the University System of Georgia, Board of Regents of the University System of Georgia, d/b/a Medical College of Georgia Hospitals and Clinics, and/or were agents of the Defendant MCG Health, Inc., and each of said Defendants care and treatment of Charlotte Forrester was within the scope of their employment

2 Mr. Forrester subsequently dismissed his claims against Dr. Brown and Dr. Murphy without prejudice.

3 with each of these entities. It also contends that the doctors “exercised discretion not

controlled by policies of the defendant Board of Regents, and had independent

obligations to the Plaintiff and Charlotte Forrester that were independent of official

state duties. Said Defendants are also individually liable for the professionally

negligent performance of such acts.”

According to the complaint, Dr. Cook and Dr. Wynn’s “care and treatment of

Charlotte Forrester . . . fell below the standards of care of the medical and hospital

professions generally under like or similar circumstances.” With regard to Dr. Wynn,

the amended complaint alleges:

As Medical Director and as Administrative Director of the Department of Transplant Surgery, it was the responsibility of [Dr. Wynn] to establish, administer and oversee the solid organ transplant program and the system of services required of such a program at the Medical College of Georgia. Such a system should have included an institution-wide system for immediate identification of the transfusion needs of potential or actual solid organ transplant patients. Further, such a system should have included the provision of leukoreduced blood for potential or actual transplant patient/candidates should the need for transfusion occur. Said Defendant was negligent in his failure to so establish, administer and/or oversee such a system, and such failure was a proximate cause of the sensitization that led to Mrs. Forrester’s injuries.

4 The expert affidavits attached to the complaint did not include a contention that

Dr. Wynn, in his capacity as Charlotte Forrester’s transplant surgeon, committed a

negligent act or omission. During depositions of two of the plaintiff’s identified

expert witnesses (Dr. Snyder and Dr. Hardy), Dr. Wynn’s counsel confirmed that their

only standard-of-care criticism of Dr. Wynn related to his administrative failures as

the medical director of the transplant surgery, not his professional care of Charlotte

Forrester as an individual patient. Nevertheless, a third plaintiff’s expert (Dr.

Goodnough) testified that Dr. Wynn violated the standard of care by failing to

provide leukoreduced blood to Charlotte Forrester.

With regard to Dr. Cook, the amended complaint asserts:

[A]s Director of the Blood Bank at the Medical College of Georgia [Dr. Cook] had the professional, medical and administrative responsibility to establish, administer, and oversee the Blood Bank of the Medical College of Georgia (hereinafter “MCG”) as an integral part of the transplant program as required by the standards of care of hospitals similarly situated as MCG, including provision of leukoreduced blood for the transfusion needs of patients identified for organ transplant and a system-wide identification system for such patient-candidates. Said Defendant was negligent in his failure to establish, administer and/or oversee such a program, and such failure was a proximate cause of the sensitization that led to Mrs. Forrester’s injuries.

5 Because Dr. Cook was not an attending physician of Mrs. Forrester, it is undisputed

that the plaintiff’s allegations against Dr. Cook relate solely to his administrative

duties as the blood bank director.

Dr. Cook moved to dismiss and Dr. Wynn moved for summary judgment based

upon the official immunity provided to a state employee while acting within the scope

of their employment under the Georgia Tort Claims Act. OCGA §§ 50-21-25 (a) and

50-21-23 (b). Although the trial court initially granted Dr. Wynn’s motion for

summary judgment, it subsequently granted the plaintiff’s motion for reconsideration

and denied Dr. Wynn’s motion for summary judgment, as well as Dr. Cook’s motion

to dismiss.

All of the parties relied upon provisions in several contracts governing the

relationship between MCG, MCGHI, the Medical College of Georgia Physicians

Practice Group (“PPG”), and member physicians of PPG in support of their positions

with regard to the issue of immunity.

The Amended Master Affiliation Agreement between MCG and MCGHI,3

provides that “MCGHI is committed to supporting [the Board of] Regents Mission,

3 MCGHI is a nonprofit, Section 501 (c) (3) tax-exempt, charitable corporation MCGHI created for the purpose of leasing and operating the hospital.

6 and meeting the health care needs of the State and communities served by the MCG

Hospital and Clinics.” The agreement provides that the Board of Regents mission

“with regard to MCG Hospital . . . is to: (1) educate and train competent health care

professionals; (2) provide integrated, comprehensive, and quality health care services;

(3) benefit the indigent, near indigent, and paying patients in accordance with OCGA

§ 20-3-520;4 and (4) conduct medical and biomedical research.” The agreement

provided for “the lease and transfer of facilities, assets, employees and obligations of

MCG Hospital . . . from Regents to MCGHI in a manner supportive of the public

purposes of Regents and MCG Hospital. . . .” The Amended Master Affiliation

Agreement also provided that the parties would “execute a Clinical, Educational and

Research Service Agreement (‘CERSA’).” The CERSA agreement provides that

“Regents employs all Faculty other than adjunct (clinical) Faculty and is responsible

for the allocation of any and all of the professional time and services of employed

Faculty Members,” and that MCGHI agrees to provide non-physician clinical and

support services for the benefit of MCG. . . .”

4 This Code section provides in part: “The board of regents in the exercise of its public and governmental functions shall have power and is authorized to lease, buy, build, construct, contract for the use of, maintain, and operate a general nonprofit teaching hospital at Augusta, Georgia . . . for the benefit of indigent, near indigent, and paying patients . . . .”

7 The Medical College of Georgia Physicians Practice Group, PPG, is a

“cooperative organization” of the Board of Regents that handles billing, collecting

and disbursement of fees generated by member physician’s services, as well as the

management of the practice of medicine by MCG. All full-time faculty members of

the MCG Hospital are members “by reason of such empoyment.” The PPG

membership agreement form signed by physicians employed by the Board of Regents

expressly provides that the physician “is an employee of the Board of Regents of the

University System of Georgia and is not an employee of PPG.”

The agreement between PPG and the Board of Regents provides that the Board

of Regents “has the authority to determine what portion of a faculty members’ time

may be devoted to clinical services, medical direction and medical management

services,” that faculty members “are employees of the Board of Regents,” that “[a]ll

faculty appointments will be made at the discretion of MCG,” that all compensation

for MCG faculty will be determined by MCG, and that PPG shall not pay any

compensation to MCG faculty other than “fringe benefits in keeping with historical

fringe benefit packages.”

Based upon these agreements, MCGHI would pay a contractual fee to PPG for

the services of MCG faculty who perform administrative roles such as medical

8 directors of various departments. “PPG in turn pays MCG the fees it receives from

MCGHI for the administrative” services, and MCG pays the doctors.

Both doctors pointed to the following evidence in support of their claim that

they were acting within the scope of their employment with MCG: they were

professors at MCG in addition to their roles as medical directors at the hospital; that

only full-time faculty members with MCG can be appointed as medical directors; that

a condition of employment with MCG is acceptance of appointments to various

positions at facilities operated by MCGHI, including the director of the blood bank;

that MCGHI denied that it employed them; that MCG paid them and issued their W-2

tax form; and that their employment contracts were with MCG only.

The plaintiff asserts with regard to both doctors that their negligent conduct

arose from their respective roles as medical director for MCGHI, not their

employment as faculty members of MCG. In support of this argument, the plaintiff

points to the following facts: MCGHI operates the blood bank for MCG; MCGHI

appointed Dr. Cook to serve as the Director of the Blood Bank and Dr. Wynn as the

Director of Renal Transplant Program for the hospital on an annual basis “via

recommendation of MCGHI President/CEO and Chief Medical Officer in

consultation with PPG and the Dean of the School of Medicine;” that MCGHI

9 compensated PPG doctors for their services as medical directors; that Dr. Wynn

testified in his deposition that he rendered services to MCGHI and that he performed

services for MCGHI as the medical director of the renal transplant program; that

MCGHI purchased professional liability insurance which would cover the doctors for

claims arising out of their administrative duties for MCGHI; and the MCGHI job

descriptions specified that their performance as medical directors performance would

be evaluated annually by MCGHI and that “[u]nsatisfactory performance may be

addressed at any time through the mechanism as described in the PPG/MCGHI

agreement.” This agreement provided:

The Medical Administrative Services shall be provided by members of PPG who are also members in good standing of the medical staff of the Component of the Hospital in which such person is providing the Medical Administrative Services. If such person is serving as the chief of a service or as medical director of a unit such person shall have clinical privileges allowing him/her to practice medicine in that service or unit as the case may be. After consultation with PPG and the Dean of the Medical College of Georgia School of Medicine, MCGHI shall appoint the individuals to serve in such positions. If MCGHI is dissatisfied with the performance of any person providing Medical Administrative Services it shall notify PPG in writing summarizing the reasons for its dissatisfaction. PPG shall then consult with MCGHI and counsel the individual involved and attempt to rectify the situation. If at

10 least 30 days have passed and MCGHI is still dissatisfied, then MCGHI may remove and replace such person in accordance with the procedures for appointment set forth above. If MCGHI feels that the problem involved is having a detrimental impact on patient care, is causing a threat to the safety of patients, or is damaging the reputation or standing of the Hospital then it shall so notify PPG, in which case the foregoing procedures shall be dispensed with and the person may be removed by MCGHI immediately.

With regard to both doctors, the trial court reasoned that they were not acting

within the scope of their official duties while acting in their capacities as medical

directors at the Medical College of Georgia, based upon this court’s intervening

decision in Jones v. Allen, 312 Ga. App. 762, 762-766 91) (720 SE2d 1) (2011),

reversed by, Shekhawat v. Jones, Ga. (Case No. S12G0552, decided July 11,

2013). The trial court concluded:

The Court of Appeals has made it quite clear in the Jones case that a Board of Regents employed physician’s official duties as the Medical College of Georgia stem from obligations as a faculty member of the medical college. . . . Because [defendants have] not shown that [their] position[s] as the Medical Director . . . correspond[] with [their] official duties as a faculty member of the Medical College of Georgia[, they] are not entitled to official immunity under the Georgia Tort Claims Act.

11 In their appeals, both doctors contend that the trial court erred by interpreting

Jones, supra, to mandate a finding against immunity. The plaintiff asserts that we

should affirm based upon Jones, supra, as well as the Supreme Court of Georgia’s

decision in Keenan v. Plouffe, 267 Ga. 791 (482 SE2d 253) (1997). Based upon the

Supreme Court’s recent overruling of its decision in Keenan, and the reversal of this

court’s decision in Jones, we reverse. Shekhawat, supra.

In Shekhawat, the Supreme Court concluded that the analysis of whether a

physician is entitled to official immunity under the Georgia Tort Claims Act “shall

proceed exclusively on the basis of whether the physician was acting within the scope

of his state employment in performing the treatment that is the subject of the

malpractice action.” Slip. Op. at 12. In this case, as in Shekhawat, the issue is “easily

resolved” because this case involves identical affiliation agreements and it is clear

from the record that Dr. Cook and Dr. Wynn were full-time faculty members at MCG

who “were performing the regular duties of their employment, during their regular

hours of employment, at their regular site of employment.” Id. They were therefore

entitled to official immunity and we must therefore reverse the trial court’s denial of

Dr. Cook’s motion to dismiss in Case No. A13A0601 and the denial of Dr. Wynn’s

motion for summary judgement in Case No. AA13A0602.

12 Judgments reversed. Doyle, P. J., and McFadden, J., concur.