Fletcher v. Ford , 189 Ga. App. 665 ( 1988 )

McMurray, Presiding Judge.

Fran Ford and Walter Ford filed this medical malpractice action and alleged that their infant son died because of Dr. Fletcher’s negligent failure to advise them to take the child for emergency medical treatment. Dr. Fletcher denied liability and subsequently moved for summary judgment.

During the early evening of July 25, 1984, the Fords’ infant son began displaying signs of illness. The child’s body temperature was elevated, he was lethargic and the infant displayed signs of nausea. The Fords responded by administering cool baths and Tempra drops.¹ However, the child’s condition worsened and “at approximately 8:00 o’clock p.m.” Mrs. Ford called the child’s pediatrician’s office. She was told by personnel at the doctor’s answering service that the office was closed, that Dr. Fletcher was on call and that he would return her call. About an hour elapsed, the child’s condition continued to deteriorate and Dr. Fletcher did not return Mrs. Ford’s call. “At approximately 9:10 p.m.,” Mrs. Ford again called her child’s doctor’s office and was told by personnel at the answering service “that Dr. Fletcher is just getting ready to pick up his calls and that he would call . . . shortly.” About “five minutes later,” an unidentified woman called the Ford home, stated that she was calling on behalf of Dr. Fletcher and advised the Fords to continue treating the child with cool baths and Tempra drops. The unidentified woman suggested that the child had a stomach virus and also recommended that the Fords administer “Gatorade.”

The next morning, Mrs. Ford brought her son to the pediatrician’s office for treatment. The doctor immediately recognized that the child was suffering from meningitis and rushed the infant to the hospital. Two days later the Fords’ son died.

From this and other information surrounding their child’s death, Jonathan D. Winner, “a physician duly licensed to practice medicine in the State of Georgia,” deposed that the Fords’ child would have probably survived if “appropriate antibiotic therapy ...” had been applied at the time the Fords received a response to their emergency telephone call.² Dr. Winner further deposed that “the [unidentified] woman caller . . . failed to exercise good and adequate medical judgment and failed to meet the [appropriate] standard of care by not advising Mrs. Ford to have the child seen by a doctor as soon as possible.” Dr. Winner concluded that “whoever allowed [the unidentified woman] to return Mrs. Ford’s call also failed to meet the standard of care by permitting such a person to give medical advice concerning ill infants.”

In opposition, Dr. Fletcher testified that he never received a message from the Fords and that he was totally unaware of the child or the child’s illness until his return from a vacation which began the morning after the Fords received the call from the unidentified woman. Dr. Fletcher also testified that no one was authorized by him on that occasion to pick up messages or to call patients on his behalf. However, the night shift supervisor for the pediatrician’s answering service testified that she examined a message slip which reflected the Fords’ emergency telephone call and observed that the message slip “was stamped out and initialed as being given out. . .” shortly after the message was received. The night shift supervisor further testified that the Fords’ emergency message was dispatched to Dr. Fletcher along with “several other messages. . . .”³

From this and other evidence, the trial court denied Dr. Fletcher’s motion for summary judgment. This interlocutory appeal followed. Held:

1. Dr. Fletcher contends that the statements made by the unknown woman to Mrs. Ford were inadmissible hearsay.

“ ‘As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made. Assuming that the proof is limited to merely showing that the statement was made and not as evidence of the truth of the fact asserted in the statement, the statement is admissible as original evidence and does not concern the hearsay rule.’ Green, Ga. Law of Evidence, (2d ed.), 369, § 218.” Walker v. State, 187 Ga. App. 631, 633 (1) (371 SE2d 199). In the case sub judice, Mrs. Ford was not testifying as to the validity of the substance of the unidentified woman’s statements, but as to her utterances and the time they were made. To this, Mrs. Ford is qualified to testify. See 5 Wig-more on Evidence 2, § 1361 (2) (Chadbourn rev. 1974).

2. “ ‘On motion for summary judgment the evidence is viewed in a light most favorable to the respondent, and the respondent is given the benefit of every doubt.’ Lorie v. Standard Oil Co., 175 Ga. App. 308 (333 SE2d 110). The movant has the burden to prove the nonexistence of any genuine issue of material fact (OCGA § 9-11-56), and in so determining, the court will treat the respondent’s paper with considerable indulgence. Butler v. Terminix Intl., 175 Ga. App. 816 (334 SE2d 865).” Mallard v. Jenkins, 179 Ga. App. 582 (347 SE2d 339). In the case sub judice, it is undisputed that Dr. Fletcher was “on call” at the time Mrs. Ford placed the emergency telephone call and that he was then to be available for the Ford child’s medical care. It is also undisputed that the pediatrician’s answering service dispatched the Fords’ emergency telephone call shortly after it was received. This evidence, along with Mrs. Ford’s testimony that she twice contacted the pediatrician’s answering service and that an unidentified woman returned her call on behalf of Dr. Fletcher, was sufficient to challenge Dr. Fletcher’s testimony that he did not receive the Fords’ emergency call. The trial court did not err in denying Dr. Fletcher’s motion for summary judgment.

Judgment affirmed.

Deen, P. J., Banke, P. J., Sognier and Pope, JJ., concur. Birdsong, C. J., and Carley, J., concur specially. Beasley, J., concurs in the judgment only. Benham, J., dissents.

1 Tempra is a “trademark for preparations of acetaminophen.” Dorland’s Illustrated Medical Dictionary (25th ed.), p. 1547. Acetaminophen is a compound “used as an analgesic.” Id. at 11.

2 More specifically, Dr. Winner deposed that “[t]he type of bacterial meningitis which [the Fords’ child] had, hemophilus influenza meningitis, has a mortality rate of less than 10%, with some more recent studies showing the mortality rate to be less than 5%.”

3 Personnel of the pediatrician’s answering service testified that the custom of the answering service was to indicate on message slips to whom a message was directed unless it was given to the person to whom it was directed. The night shift supervisor for the answering service testified that she could remember nothing about the message slip documenting the Fords’ emergency call other than the time the message was received and the time it was given out.