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| [1] | COURT OF APPEALS OF GEORGIA |
| [2] | A93A2182 |
| [3] | 1994.GA.24101 <http://www.versuslaw.com>,
442 S.E.2d 775, 212 Ga. App. 762 |
| [4] | February 28, 1994 |
| [5] | CANDLER GENERAL HOSPITAL, INC. v. PERSAUD ET AL. |
| [6] | Medical malpractice, etc. Chatham State Court. Before Judge Karpf, pro
hac vice. |
| [7] | Reconsideration Denied April 1, 1994. Certiorari Applied for. |
| [8] | Bouhan, Williams & Levy, Joseph A. Mulherin III, Frank W. Seiler,
for appellant. |
| [9] | Beckmann & Pinson, William H. Pinson, Jr., Roberson & Haugabrook,
David Roberson, Fendig, McLemore, Taylor & Whitworth, James B. Durham,
for appellees. |
| [10] | Beasley, Cooper, Smith |
| [11] | The opinion of the court was delivered by: Beasley |
| [12] | BEASLEY, Presiding Judge. |
| [13] | The administrators of Persaud's estate filed this medical-malpractice/wrongful-death
renewal action against Candler General Hospital, Dr. Freeman, his professional
association, and Dr. Thomas. We granted Candler's application for interlocutory
appeal of the denial of its motion for summary judgment. |
| [14] | On about February 15, 1990, decedent was referred to Dr. Freeman for consultation
and treatment of gallstones, which were infected. He recommended that she
undergo a surgical procedure known as a laparoscopic cholecystectomy. On
February 16, Dr. Freeman requested that the hospital grant him temporary
privileges to perform this procedure with an experienced laparoscopist.
He submitted a certificate of completion of a laparoscopic laser cholecystectomy
workshop which he took on February 10, 1990,. The president of the hospital
granted these privileges to Dr. Freeman on the terms requested by him on
the same day he made the request. The procedure was performed by Dr. Freeman,
assisted by Dr. Thomas, on February 20. |
| [15] | The complaint, supported by an expert's affidavits, alleges that the procedure
was performed by the doctors negligently, as a result of which Persaud bled
to death. The complaint charges Candler with negligence in permitting Freeman,
assisted by Thomas, to perform this procedure on decedent without having
instituted any standards, training requirements, protocols or otherwise
instituted any method for judging the qualifications of a surgeon to perform
such procedure. It alleges that Candler knew or reasonably should have known
that it did not have a credentialing process which could have assured the
hospital of the doctors' education, training, and ability to perform this
procedure. |
| [16] | Candler sought summary judgment. It pointed out that plaintiffs' own expert
testified that Freeman and Thomas did not deviate from the applicable standard
of care in the performance of the laparoscopic cholecystectomy. It argued
that the evidence is thus undisputed that there is no element of causation,
even assuming arguendo that Candler negligently credentialed Freeman and
negligently allowed the surgery to go forward. Candler later added that
under Georgia law, the mere allegation that a hospital was negligent in
allowing or permitting a duly licensed physician or surgeon to practice
a branch of surgery or medicine in which he was not specially skilled, is
not sufficient to render the hospital liable to a patient for injuries inflicted
on the patient solely by reason of the doctor. |
| [17] | In support of the latter theory, Candler submitted the affidavit of the
chairman of Candler's department of surgery, who along with other members
of the surgery department makes recommendations to the president of the
hospital regarding extension of staff privileges to surgeons. He testified
that prior to the surgery in question Freeman had been appointed to the
active surgical staff at Candler for generalsurgical privileges, which included
general abdominal surgery and cholecystectomy. He was personally aware that
Dr. Freeman had accomplished many cholecystectomies and was experienced
and competent in this surgical procedure. The chairman testified in effect
that the hospital was not negligent either in its appointment or retention
of Dr. Freeman on Candler's surgical staff. |
| [18] | Candler also relied on an exhibit as showing that Dr. Thomas was an experienced,
qualified laparoscopist on the staff of Candler with training in laser technique.
However, plaintiff's expert testified that Dr. Thomas is a gynecologist
who acted as assistant surgeon in this case, and that Dr. Thomas admits
he does not possess the skills in the procedure of laparoscopic laser cholecystectomy. |
| [19] | The trial court denied Candler's motion for summary judgment, on the ground
that plaintiffs' evidence is sufficient to raise a question of fact regarding
whether a surgical permit should have been issued by the hospital to Dr.
Freeman. *fn1 |
| [20] | 1. Candler's argument on appeal is that under the holding in Division
2 of Clary v. Hosp. Auth. of the City of Marietta, 106 Ga. App. 134, 135
(126 S.E.2d 470) (1962), there is no cause of action against a hospital
based solely on the issuance of a surgical permit for a specific procedure
to an independent surgeon already duly and properly appointed to its active
surgical staff. |
| [21] | Clary supports Candler's argument. |
| [22] | In Clary, plaintiff was a patient, at the defendant hospital, of the individual
defendant doctors, a general surgeon and a general practitioner. Plaintiff
alleged that the hospital was negligent in knowingly allowing the doctors
who were not specialists to practice a routine procedure within the field
of thoracic surgery contrary to its bylaws, rules and regulations, and accepted
standards of medicine. |
| [23] | We held in Division 1: "Ordinarily, a physician or surgeon on the
staff of a hospital is not an employee of such hospital, and in the absence
of allegations that the hospital was negligent in the selection of an unskillful
physician or surgeon or that the hospital undertook to direct him in the
way and manner of treating the patient, the hospital is not liable for the
mere negligent performance of professional services by a physician or surgeon
on its staff. [Cit.]" 106 Ga. App. 134, 135 (1). |
| [24] | We further held in Division 2: "A physician or surgeon, being anindependent
contractor following a separate calling (cit.), under the rule announced
in the first headnote, the mere allegation that the hospital was negligent
in allowing or permitting a duly licensed physician or surgeon to practice
a branch of surgery or medicine in which he was not specially skilled is
not sufficient to render the hospital liable to a patient for injuries inflicted
on the patient solely by reason of the negligence of the doctor." |
| [25] | 2. However, the doctrine of independent negligence, as expounded by the
Georgia Supreme Court in Joiner v. Mitchell County Hosp. Auth., 125 Ga.
App. 1, 2 (1) (186 S.E.2d 307) (1971), aff'd 229 Ga. 140 (189 S.E.2d 412)
(1972), authorizes the imposition of liability against a hospital under
the allegation stated in Division 2 of Clary. |
| [26] | Plaintiff Joiner, who had brought her husband into the hospital for emergency
treatment, alleged that the negligence of the treating physician who was
on the staff of the hospital resulted in her husband's death. She also sought
to hold the hospital liable, not under the doctrine of respondeat superior
or principal and agent, but rather upon the doctrine of independent negligence,
in permitting the alleged negligent physician to practice his profession
in the hospital when his incompetency was known. 229 Ga. at 141. Joiner
identified negligence as failing to investigate and require satisfactory
proof of the physician's qualifications and as failing to exercise care
in determining his professional competency. |
| [27] | This court held that while the hospital satisfied one of the requirements
of Clary by showing that it did not undertake to direct the doctor in the
way or manner of treating the patient, it failed to overcome plaintiff's
averment that it was negligent in the selection of an unskilled physician. |
| [28] | The Supreme Court granted certiorari to review this court's decision with
respect to the responsibility of a hospital authority in permitting an unqualified
physician to serve on its staff, although such physician holds a valid license
from the state to practice medicine. 229 Ga. at 141. |
| [29] | It affirmed this court and stated that under decisions it had rendered
(since Clary), a hospital has authority to examine the qualifications of
any physician seeking staff privileges and to limit his or her practice
to those procedures or areas it deems the physician qualified for, or to
completely bar the physician from such practice because of incompetency,
lack of qualifications, inexperience or recklessness. 229 Ga. at 142. |
| [30] | The question in this case is whether this authority recognized by the
Supreme Court in Joiner gives rise to a duty which the hospital owes to
a Patient when: (1) the patient rather than the hospital selected the independent
staff surgeon to perform the procedure at issue, and (2) the hospital was
allegedly negligent, not in its appointment or retention of the surgeon
on its staff, but rather in its grant tohim of privileges to practice a
procedure which he allegedly was not qualified to perform. *fn2 |
| [31] | As have cases in other jurisdictions, we interpret Joiner as authority
in support of the proposition that a hospital has a direct and independent
responsibility to its patients to take reasonable steps to ensure that staff
physicians using hospital facilities are qualified for privileges granted.
Johnson v. Misericordia Community Hosp., 99 Wis. 2d 708, 301 NW2d 156, 165
(4) (Wis. 1981); see Pedroza v. Bryant, 101 Wash. 2d 226, 677 P2d 166, 169,
171 (Wash. 1984); Elam v. College Park Hosp., 132 Cal. App. 3d 332, 183
Cal. Rptr. 156, 164 (8) (4th Dist. 1982). The hospital did owe a duty to
plaintiffs' decedent to act in good faith and with reasonable care to ensure
that the surgeon was qualified to practice the procedure which he was granted
privileges to perform. While there is no evidence of the surgeon's curtailment
or denial of staff privileges at other hospitals as in Johnson, or of any
prior malpractice claim as in Elam, Candler does not dispute that there
is a material issue of fact on the question of whether it was negligent
in its grant of the staff privileges requested. Compare Sheffield v. Zilis,
170 Ga. App. 62, 63 (1) (316 S.E.2d 493) (1984). |
| [32] | Judgment affirmed. Cooper, J., concurs. Smith, J., concurs in the judgment
only. |
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| Opinion Footnotes | |
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| [33] | *fn1 In their
complaint, plaintiffs also asserted claims against the doctors for failure
to obtain decedent's informed consent, and Candler was charged with negligence
in permitting the doctors to perform the surgery without her informed consent.
Plaintiffs' counsel later conceded that Candler was not bound by the terms
of Georgia's informed-consent statute. For this reason, this issue was not
mentioned in the court order denying Candler's motion for summary judgment.
After the order was entered, Candler asked that the order be clarified to
show that Candler is entitled to summary judgment on this issue. The court
did so. |
| [34] | *fn2 Plaintiffs
also argue that by issuing the surgical permit Candler undertook to direct
Freeman in the way and manner of treating the patient. However, this is
a ground for holding the hospital vicariously liable for Freeman's negligence.
See Pogue v. Hosp. Auth. of DeKalb County, 120 Ga. App. 230 (170 S.E.2d
53) (1969). Plaintiffs have asserted no such claim in their pleadings and
did not advance this argument in the trial court. It cannot now be urged.
Kennedy v. Johnson, 205 Ga. App. 220, 222 (1) (421 S.E.2d 746) (1992). |
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