Morris v. Chandler Exterminators, Inc.

409 S.E.2d 677, 200 Ga. App. 816, 1991 Ga. App. LEXIS 1137

• Court: Court of Appeals of Georgia
• Decided: July 15, 1991
• Docket: A91A0400
• Status: Published

Opinions

McMurray, Presiding Judge.

The plaintiffs in this tort action are the individual members of the Morris family, William E. Morris, his wife Susan C. Morris, and their children Lisa Morris and Heather Morris. Defendants are Chandler Exterminators, Inc., and certain affiliated individuals including Dennis H. Chandler, president of the corporate defendant, and Jimmy Keith Chandler, general manager of the corporate defendant.

Plaintiffs’ complaint alleges that the defendants undertook to treat plaintiffs’ residence with chemical pesticides, including Aldrin, a hazardous carcinogen, and that the application of the chemicals was done in a negligent manner causing the contamination of various portions of plaintiffs’ home. Further acts of negligence are alleged to have occurred during defendants’ attempt to clean up the spilled chemicals resulting in a further spreading of the contamination to additional portions of the residence. Plaintiffs allege that due to defendants’ negligence, they have inhaled the chemicals, resulting in physical injuries to themselves which may not be fully manifested for several years. The plaintiffs also allege that their home has been rendered unfit for human habitation, that they have been deprived of the use thereof, and that the chemical contamination has substantially reduced the value of the residence and personal property therein. Additionally, plaintiffs allege that they have suffered and continue to suffer mental pain and anguish over the adverse health effects to themselves, and over the loss of value of their home and personal property. Plaintiffs’ complaint seeks a judgment for general damages, mental pain and suffering, special damages, and punitive damages.

Plaintiffs appeal the superior court’s grant of defendants’ joint motion for summary judgment. In regard to plaintiffs’ claim predicated on personal injuries, the superior court concluded that defendants had sufficiently pierced plaintiffs’ allegations that the alleged negligent chemical application or cleanup had caused any personal injury or resulted in increased risk of contracting any form of cancer. In reaching the conclusion that defendants were entitled to summary judgment on the issue of personal injuries, the superior court also determined that portions of the affidavit of a neuropsychologist submitted by plaintiffs and directed to the causation issue could not be considered. The superior court’s ruling that defendants were entitled to summary judgment as to the property damage issue was predicated upon a release executed by Susan C. Morris. Held:

1. Plaintiffs’ first enumeration of error contends that the superior court erred in failing to consider the affidavit of Dr. Currie, a neuropsychologist, as admissible evidence on the causation issue in regard to their personal injury claims. Dr. Currie’s vita shows that he received his Ph.D in Clinical Psychology in 1965 and has been active in a broad range of activities within his profession, involving teaching and the private practice of psychology. The affidavit of Dr. Currie shows that he specializes in the practice of clinical neuropsychology “which is that branch of psychology which deals with the behavioral expressions of brain functions and dysfunctions, including information reception, processing, judgment, retention, accessing and expression, and the ability of people to master new and novel learning situations and material.” Dr. Currie evaluated each of the plaintiffs in the case sub júdice and opined that each has suffered organic brain damage due to inhalation of the chemical, Aldrin. The superior court determined that while Dr. Currie was qualified, on the basis of his Ph.D in psychology, to state which mental dysfunction plaintiffs may be suffering, he was not competent to testify as to causation since he is not a medical doctor.

However, this conclusion is not well founded. The practice of psychology includes diagnosing and treating mental disorders. OCGA § 43-39-1 (2). “[O]nly a qualified expert such as a psychiatrist, psychologist or medical doctor would be competent to diagnose and define ... a mental disorder.” (Emphasis supplied.) Ellis v. State, 168 Ga. App. 757, 759 (3) (309 SE2d 924).

In Jacobs v. Pilgrim, 186 Ga. App. 260 (367 SE2d 49), this Court upheld admission of expert testimony by a neuropsychologist concerning the diagnosis and cause of that plaintiff’s mental disorder. That decision is consistent with decisions in other jurisdictions which conclude that since psychologists are entitled, by statute, to diagnose and treat mental and nervous disorders, it is incongruous to prohibit these same health care providers from testifying concerning the cause of an affliction which lies within the area embraced by their practice: “It consequently appears to us a curious proposition that the legislature has enough confidence in the competence of non-physician health care providers to grant them licenses to practice their professions, and to authorize treatment by them to injured compensation claimants, but to have intended that those same health care providers be prohibited from testifying concerning the cause of an injury which lies squarely within the areas of their competency.” Madrid v. Univ. of Calif., 737 P2d 74, 76. See also Hooper v. Industrial Comm. of Ariz., 617 P2d 538, 540; Howle v. PYA/Monarch, 344 SE2d 157 (S.C. App.); Sandow v. Weyerhaeuser Co., 449 P2d 426.

While there are jurisdictions which take the opposite view, that is, that a psychologist is not qualified to provide an opinion as to an organic cause of a mental disorder, we view the superior rule to be that applied here. Many health care providers other than medical doctors possess substantial expertise as to medical matters. “[T]he law in Georgia does not require that only medical doctors be permitted to give testimony regarding a medical issue, but allows others with certain training and experience to testify on issues within the scope of their expertise.” Hyde v. State, 189 Ga. App. 727, 728 (377 SE2d 187). See also Avret v. McCormick, 246 Ga. 401 (271 SE2d 832); Jacobs v. Pilgrim, 186 Ga. App. 260, 262 (1), supra; and Macon-Bibb County Hosp. Auth. v. Whipple, 182 Ga. App. 195, 196 (1) (355 SE2d 83). The superior court, having accepted Dr. Currie as a qualified psychologist and expert witness concerning the diagnosis of plaintiffs’ mental ailments, abused its discretion in excluding his further opinions on the causation issue.

2. The release signed by plaintiff Susan C. Morris does not provide a basis for the grant of summary judgment as to the claims for damages of the remaining plaintiffs. The release purports to relate to the claims of the signatory only. Under the evidence of record there is at least an issue of material fact as to whether Susan C. Morris signed as an agent of her husband, who is the sole owner of the family residence, and of her children.

Secondly, there is evidence of mutual mistake concerning the effect of the release. “An honest mistake of the law as to the effect of an instrument on the part of both contracting parties, when the mistake operates as a gross injustice to one and gives an unconscionable advantage to the other, may be relieved in equity.” OCGA § 23-2-22. Susan C. Morris stated that at the time she signed the release she believed the sole effect of the document was to aid defendants being reimbursed by their insurance company (for replacement of carpet and linoleum, and for certain out-of-pocket expenses of defendants in the repair of plaintiffs’ home), and that her belief in this regard was founded upon statements made to her by Dennis H. Chandler. The alleged statements of Dennis H. Chandler may be viewed as showing that he believed, as Susan C. Morris did, that the release would serve only to permit reimbursement of defendants by their insurance company and would not affect her claim against defendants. Fulghum v. Kelly, 255 Ga. 652, 653 (340 SE2d 589). The evidence of record does not demand a finding that Susan C. Morris’ claim is precluded because of the release she signed. Vann v. Williams, 165 Ga. App. 457 (299 SE2d 908). The superior court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

Banke, P. J., Birdsong, P. J., Pope and Cooper, JJ., concur. Beasley, J., concurs specially. Sognier, C. J., concurs in the judgment only. Carley and Andrews, JJ., dissent.