CITY OF HAPEVILLE Et Al. v. GRADY MEMORIAL HOSPITAL CORPORATION ( 2014 )

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, 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, 2014
In the Court of Appeals of Georgia
A14A0724. CITY OF HAPEVILLE et al. v. GRADY MEMORIAL DO-038
HOSPITAL CORPORATION.
DOYLE , Presiding Judge.
Grady Memorial Hospital Corporation, d/b/a Grady Health System (“the
Hospital”) filed a complaint against the City of Hapeville and the Police Department
of the City of Hapeville (collectively “the City”), alleging that the City failed to pay
for medical services provided by the hospital to four prisoners in the custody of the
City.1 The City responded, arguing that it was immune from suit. The trial court found
that pursuant to Cherokee County v. North Cobb Surgical Assoc. P.C.,2 the City had
1
Based on the procedural posture of this case, we assume that there is no
genuine issue as to whether the City had custody of the prisoners at the time the
hospital rendered treatment.
2
221 Ga. App. 496 (471 SE2d 561) (1996) (addressing whether an inmate was
in custody such that the County was liable for his medical expenses under OCGA §
waived sovereign immunity based on OCGA § 42-5-2.3 For the reasons that follow,
we affirm.
The brief record before us reveals that the City transported four prisoners to the
Hospital for treatment. The Hospital now seeks payment from the City in the amount
of $81,694.74 for the cost of the services rendered to those prisoners. The City filed
a motion to dismiss, arguing, inter alia, that it was immune from suit. In denying the
City’s motion to dismiss, the trial court found that the Hospital “is suing for payment
of services rendered. This puts the instant case in line with Cherokee County v. North
Cobb Surgical Assoc. P.C., and removes the matter from sovereign immunity
analysis. Alternatively, the legislature has waived the [City’s] sovereign immunity by
statute.” The City appeals this ruling, arguing that the trial court erred by finding that
it was not immune from suit. We review this ruling under the de novo standard of
review.4
45-5-2), citing Macon-Bibb County Hosp. Auth. v. Houston County, 207 Ga. App.
530, 532 (428 SE2d 374) (1993). But see Nolan v. Cobb County, 141 Ga. 385 (81 SE
124) (1914).
3
See Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).
4
See Ga. Dept. of Natural Resources v. Center for a Sustainable Coast, Inc.,
294 Ga. 593, 596 (2) (755 SE2d 184) (2014); City of Atlanta v. Mitcham, 325 Ga.
App. 481, 483 (751 SE2d 598) (2013) (physical precedent only), cert. granted May
2
1. The Hospital maintains that the trial court correctly determined that OCGA
§ 42-5-2 provides a waiver of sovereign immunity in this case, which allows it to
pursue its claims that the City has breached a duty to pay for the medical services
rendered to the prisoners by the Hospital.
OCGA § 42-5-2 (a) states that
[e]xcept as provided in subsection (b) of this Code section, it shall be
the responsibility of the governmental unit, subdivision, or agency
having the physical custody of an inmate to maintain the inmate,
furnishing him food, clothing, and any needed medical and hospital
attention; to defend any habeas corpus or other proceedings instituted by
or on behalf of the inmate; and to bear all expenses relative to any
escape and recapture, including the expenses of extradition. Except as
provided in subsection (b) of this Code section, it shall be the
responsibility of the department to bear the costs of any reasonable and
necessary emergency medical and hospital care which is provided to any
inmate after the receipt by the department of the notice provided by
subsection (a) of Code Section 42-5-50 who is in the physical custody
of any other political subdivision or governmental agency of this state,
except a county correctional institution, if the inmate is available and
eligible for the transfer of his custody to the department pursuant to
Code Section 42-5-50. Except as provided in subsection (b) of this Code
section, the department shall also bear the costs of any reasonable and
19, 2014.
3
necessary follow-up medical or hospital care rendered to any such
inmate as a result of the initial emergency care and treatment of the
inmate. With respect to state inmates housed in county correctional
institutions, the department shall bear the costs of direct medical
services required for emergency medical conditions posing an
immediate threat to life or limb if the inmate cannot be placed in a state
institution for the receipt of this care. The responsibility for payment
will commence when the costs for direct medical services exceed an
amount specified by rules and regulations of the Board of Corrections.
The department will pay only the balance in excess of the specified
amount. Except as provided in subsection (b) of this Code section, it
shall remain the responsibility of the governmental unit having the
physical custody of an inmate to bear the costs of such medical and
hospital care, if the custody of the inmate has been transferred from the
department pursuant to any order of any court within this state. The
department shall have the authority to promulgate rules and regulations
relative to payment of such medical and hospital costs by the
department.
In Macon-Bibb Co., this Court summarily determined that OCGA § 42-5-2
constituted an express waiver of sovereign immunity by the State.5 This Court held,
“[t]he county’s immunity was waived by the legislature’s enactment of OCGA §
42-5-2, and its responsibility to pay all medical and hospital expenses may not be
5
See Macon-Bibb County Hosp. Auth., 207 Ga. App. at 532 (3).
4
avoided by the defense of sovereign immunity.”6 No further explanation of what part
of OCGA § 42-5-2 acts as an “express” waiver of sovereign immunity appears in the
opinion.
The interpretations of this Code section, however, vary throughout our case law
depending on whether the party seeking to establish a waiver is an inmate or a
medical provider.7 In cases involving an inmate’s claim against the State or its
subdivision for failure to provide medical care, this Court has taken the view contrary
to Macon-Bibb Co. and held that OCGA § 42-5-2 did not constitute an express waiver
in such cases.8
As recently explained by the Supreme Court in Ga. Dept. of Natural Resources
v. Center for a Sustainable Coast, Inc.,9 if the plain language of a statute “does not
6
Id.
7
See Mitcham, 325 Ga. App. at 483; Graham v. Cobb County, 316 Ga. App.
738, 742 (1) (b) (i) (730 SE2d 439) (2012); Gish v. Thomas, 302 Ga. App. 854,
862-864 (4) (691 SE2d 900) (2010); Cantrell v. Thurman, 231 Ga. App. 510, 513-514
(3) & (4) (499 SE2d 416) (1998); Macon-Bibb County Hosp. Auth., 207 Ga. App. at
532 (3).
8
See Mitcham, 325 Ga. App. at 483; Graham, 316 Ga. App. at 742 (1) (b) (i);
Gish, 302 Ga. App. at 862-864 (4); Cantrell, 231 Ga. App. at 513-514 (3) & (4).
9
294 Ga. at 603 (2).
5
provide for a specific waiver of governmental immunity nor the extent of such
waiver, . . . no waiver can be implied or shown.”10 That is not to say that an act must
use the phrase, ‘the [S]tate waives its sovereign immunity’ [in order for
an express waiver to occur. If] a legislative act creates a right of action
against the [S]tate which can result in a money judgment against the
[S]tate treasury, and the [S]tate otherwise would have enjoyed sovereign
immunity from the cause of action, the legislative act must be
considered a waiver of the [S]tate’s sovereign immunity to the extent of
the right of action — or the legislative act would have no meaning.11
Thus, the Court in Macon-Bibb Co. determined that the Legislature’s
enactment of OCGA § 42-5-2 containing the requirement that a county or the
Department of Corrections reimburse a medical provider created a right to a money
judgment on behalf of the medical provider, thereby waiving sovereign immunity.
This Court has, on the other hand, determined that such a right of action was not
created by the Legislature’s enactment of the statute when it deals with claims by
inmates against prison officials for failure to provide medical care.12 Moreover, had
10
Id. at 603, construing OCGA § 12-5-245.
11
Williamson v. Dept. of Human Resources, 258 Ga. App. 113, 115 (1) (572
SE2d 678) (2002).
12
We note that prisoners may maintain actions for this type of claim via 28
U.S.C. § 1983 for violations of the Eighth Amendment Right to medical care. See
6
the Legislature disagreed with or desired to clarify the conclusion of this Court
regarding the waiver of sovereign immunity by OCGA § 42-5-2 as stated in Macon-
Bibb County, it could have done so in its overhaul of OCGA § 42-5-50 et seq., which
occurred in 2009.13
2. Our inquiry is not at an end, however, because the City is a municipality, and
therefore, treated differently in terms of immunity than other subdivisions,
departments, or agencies of the State.14 Generally speaking, “State law relating to the
sovereign immunity of municipalities is codified in OCGA § 36-33-1 et seq.”15 And
Gish, 302 Ga. App. at 863 n. 10.
13
See Ga. L. 2009, p. 136, § 1A/HB 464. See, e.g., OCGA § 42-4-105
codifying immunity for regional jail authorities.
14
See also Ga. Const. of 1983, Art. IX, Sec. II, Par. IX, “[t]he General
Assembly may waive the immunity of counties, municipalities, and school districts.”
See City of Thomaston v. Bridges, 264 Ga. 4, 7 (439 SE2d 906) (1994) (holding that
under the 1991 amendment to Ga. Const. of 1983, Art. I, Sec. II, Par. IX
municipalities are not the State or its departments and agencies).
15
Precise, 261 Ga. at 211 (1). Generally, municipal immunity under OCGA §
36-33-1 provides a waiver of sovereign immunity if the municipal corporation
neglects to perform or improperly or unskillfully performs a ministerial duty, i.e., a
proprietary rather than governmental function. See Mitcham, 325 Ga. App. at 483.
7
a review of case law has revealed no case directly determining that the waiver found
in OCGA § 42-5-2 for counties and the State also applies to municipal corporations.16
Looking to the Code, Chapter 5 of Title 42 addresses “Correctional Institutions
of State and Counties,” while Chapter 4 of Title 42 addresses “Jails” and specifically
includes the police chief of a municipal corporation in its defined list of jailers.17 And
OCGA § 42-4-1 et seq. contains a separate section addressing medical charges for
emergency medical care services provided to inmates by medical facilities, and this
subsection includes “municipal and county jail” in its definition, thereby making
some provisions contained in OCGA § 42-5-2 redundant as applied to municipal
corporations when read together with Title 42 Chapter 4.18 Moreover, the Chapter
16
See Mitcham, 325 Ga. App. at 483; Johnson v. City of Carrollton, 249 Ga.
173, 177 (4) (288 SE2d 565) (1982) (in dicta stating that the former version of OCGA
§ 42-5-2 made it the responsibility of a city to pay all medical and hospital expenses
for a prisoner).
17
See OCGA § 42-4-1 (b). OCGA § 42-5-1 et seq., on the otherhand, generally
defines the State actors as the Department of Corrections or county facilities acting
on behalf of the Department and does not specifically include municipal corporations
in most subsections.
18
See OCGA § 42-4-15 (a) (2).
8
contains a separate section imposing requirements for municipal jails regarding
sanitation, health requirements, and medical treatment generally.19
Nevertheless, while there seems to be some distinction made by the Legislature
in its treatment of municipal jailers and county jailers, OCGA § 42-5-2 (b)
specifically covers inmates to whom OCGA § 42-4-1 et seq. applies, thereby
including inmates held by municipal corporations. Accordingly, we conclude that the
waiver of sovereign immunity as to medical providers alleging claims against county
or State jailers as stated in Macon-Bibb County also applies to municipal jailers, and
therefore, we affirm the trial court’s denial of summary judgment based on our
determination that the Legislature included municipal corporations in its waiver of
sovereign immunity pursuant to OCGA § 42-5-2.20
3. The Hospital’s motion for attorney fees on the basis that the City instituted
a frivolous appeal is hereby denied.
Judgment affirmed. Miller, J. concurs. Dillard, J., concurs in the judgment
only.
19
See OCGA § 42-4-32.
20
“[W]e will affirm a trial court’s denial of a motion for summary judgment if
it is right for any reason.” Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325)
(2010).
9
A14A0724. CITY OF HAPEVILLE et al. v. GRADY MEMORIAL
HOSPITAL CORPORATION.
DILLARD, Judge, concurring in judgment only.
I concur in judgment only because I do not agree with all that is said in the
majority opinion. As such, the majority’s opinion decides only the issues presented
in the case sub judice and may not be cited as binding precedent. See Court of
Appeals Rule 33(a).