Houston Hospitals, Inc. v. Pamela Felder , 829 S.E.2d 182 ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 14, 2019
In the Court of Appeals of Georgia
A19A0422. HOUSTON HOSPITALS, INC. et al. v. FELDER et al. ME-021
A19A0423. HOUSTON HOSPITALS, INC. et al. v. BOWEN et al. ME-022
MERCIER, Judge.
In these related appeals, Houston Hospitals, Inc. and Houston Healthcare
Systems, Inc. d/b/a Perry Hospital (collectively referred to as the “Hospital”) appeal
the trial court’s orders denying their motions for summary judgment.1 This appeal
arises out of the misconduct of Rachel Repraeger, an employee of the Hospital, who
forged patients’ mammogram reports. This Court previously affirmed summary
judgment to the Hospital regarding similar allegations by different plaintiffs in Jefferson
v. Houston Hospitals, 336 Ga. App. 478 (784 SE2d 837) (2016), holding that the
1
While the Plaintiffs sued additional parties, some of which were parties to the
orders on the motions for summary judgment, those parties are not parties to this
appeal.
plaintiffs failed to present sufficient evidence to sustain their claims.2 Id. at 478-479.
For the following reasons, we find that the plaintiffs in this appeal failed to present
sufficient evidence to sustain their claims and reverse the denial of the Hospital’s
motions for summary judgment.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law[.]” OCGA § 9-11-6 (c). In our de novo review of the
grant or denial of a motion for summary judgment, “we must view the evidence, and
all reasonable inferences drawn therefrom, in the light most favorable to the
nonmovant.” Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010)
(citation and punctuation omitted).
[T]he rule with regard to summary judgment is that a defendant who will
not bear the burden of proof at trial need not affirmatively disprove the
nonmoving party’s case, but may point out by reference to the evidence
2
The same underlying fact pattern was the basis for Sidle v. Houston Hospital,
Case No. A15A1415 (decided Nov. 19, 2015), regarding the grant of the Hospital’s
motion to dismiss. “Using Court of Appeals Rule 36, [this Court] issued a
non-precedential affirmance of the [Sidle] trial court without opinion.” Judicial
Council of Georgia v. Brown & Gallo, 288 Ga. 294, 296 (702 SE2d 894) (2010).
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in the record that there is an absence of evidence to support any essential
element of the nonmoving party’s case.
Id. at 623 (1) (a) (citation and punctuation omitted).
The plaintiffs at issue received mammograms at the Hospital in 2008 or 2009.
Repraeger, the lead mammography technologist at the Hospital, was supposed to
transmit mammogram images to a radiologist for interpretation. See Jefferson, supra
at 479. Instead, she used passwords that she obtained from training to log into the
Hospital’s mammography record system and create forged reports which stated that
the mammograms were normal. Id. The Hospital discovered the forgeries following
an investigation, and Repraeger was terminated on April 6, 2010. Id at 479-480. She
was indicted on ten counts of reckless conduct and ten counts of computer forgery;
she ultimately pled guilty to ten counts of reckless conduct and one count of computer
forgery. Id. at 480. The Hospital refunded all payments made regarding the forged
mammograms to the patients’ insurance companies and paid for effected patients to
undergo another mammogram.
All of the plaintiffs at issue filed complaints in March of 2012, alleging claims
for medical negligence, fraud, RICO, intentional infliction of emotional distress, breach
of contract and express warranty, general negligence and negligence per se,
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conversion, bad faith costs, attorneys fees, and punitive damages. The Hospital filed
motions for summary judgment, and the trial court denied the motions as to the
plaintiffs’ claims, with the exception of the RICO and conversion claims. The trial
court reserved ruling on the RICO claims for a more definite statement from the
plaintiffs and granted summary judgment to the Hospital on the plaintiffs’ conversion
claims. The plaintiffs have not appealed these rulings.
It appears that the trial court issued two separate orders on the Hospital’s
motions for summary judgment due to the plaintiffs’ claim that if the mammograms
had been properly analyzed, three of the plaintiffs’ mamograms “would have revealed
the presence of incipient cancer or other positive findings warranting further diagnostic
measures.” Those three plaintiffs are the sole appellees in Case No. A19A0422.3 The
other fourteen plaintiffs, none of which claimed that they suffered from breast cancer
or any other health condition that the mammogram was likely to detect, are the
appellees in Case No. A19A0423.4 (Unless otherwise indicated, we will refer to the
3
The A19A0422 plaintiffs are Pamela Felder, Michelle Soley and Patricia
Bowers.
4
The A19A0423 plaintiffs are Daisy Bowen, Georgia Carter, Etherene Fendley,
Rosa Harris, Dorothy Hullett, Evelyn Hunt, Mary Jackson, Anne Metz, Vivian
Pennington, Annie Ross, Jennifer Scott, Diana Simpson, Nancy Simpson and Ann
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seventeen plaintiffs collectively as the “plaintiffs”). The Hospital appeals the trial court
orders, arguing inter alia, that similarly to the plaintiffs in Jefferson, the plaintiffs failed
to establish that they suffered physical or emotional injuries or pecuniary loss. We
agree.
1. The Plaintiffs, in their individual complaints, each claim that they suffered
physical and emotional injuries and pecuniary loss as a result of the Hospital’s medical
negligence.
The essential elements of a medical negligence claim are (1) the duty
inherent in the doctor-patient relationship; (2) the breach of that duty by
failing to exercise the requisite degree of skill and care; and (3) that this
failure be the proximate cause of the injury sustained.
Hill v. Jackson, 336 Ga. App. 679, 691-692 (4) (a) (783 SE2d 719) (2016) (citations
and punctuation omitted). “Any injury resulting from a want of such care and skill shall
be a tort for which a recovery may be had.” OCGA § 51-1-27.
(a) The plaintiffs argue that by submitting to a second mammogram after
Repraeger’s conduct was discovered, they suffered a physical injury due to
“excessive radiation,” “soft tissue damage and painful bruising to [their] breast.” The
Tippy.
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plaintiffs do not dispute that they consented to the second mammogram, but they
claim that the mammogram itself caused them injury.
A mammogram however, is an ordinary medical diagnostic procedure. See
Jefferson, supra at 486 (3) (a). In fact, the first mammogram report, which was issued
by Repraeger, informed the Plaintiffs that “[a] 1 year screening mammogram is
recommended.” The plaintiffs have failed to establish that they would not have had
another mamogram within the year that they had their second mammogram.
Furthermore, the plaintiffs have not shown that the second mammogram was
negligently performed, such that the radiation or bruising were not typical
consequences of a routine mammogram. Without more, we cannot hold that the
“injuries” sustained by voluntarily submitting to a recommended routine medical
diagnostic procedure were sufficient to sustain their claim. See Jefferson, supra at 486
(3) (a).
(b) The A19A0422 plaintiffs claim that they suffered an additional physical
injury as their “claims involved actual breast cancer or invasive medical procedures
proximately related to the delay in diagnosis caused by the fraudulent acts and
misrepresentations of the Hospital and its employee, [Repraeger.]”
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(i) On appeal, however, Soley and Bowers do not cite to any evidence that
suggests that they suffered from breast cancer or invasive medical procedures as a
result of the delay caused by Repraeger’s misconduct. In support of its motions for
summary judgment, the Hospital produced exhibits containing Soley’s and Bowers’s
medical records. The records establish that after the discovery that Repraeger had
forged their original mammograms reports, both Soley and Bowers submitted to a
second mammogram, where no breast cancer was detected.
Moreover, the expert affidavits attached to Soley’s and Bowers’s complaints
do not claim that either woman suffered from breast cancer or invasive medical
procedures. “Assertions in briefs not supported by evidence of record cannot be
considered on appellate review.” BTL COM Ltd. v. Vachon, 278 Ga. App. 256, 258
(fn. 2) (628 SE2d 690) (2006) (citation and punctuation omitted).
As in Jefferson, neither Soley, Bowers, nor the A19A0423 plaintiffs
have or have had breast cancer, and therefore the failure of a radiologist
to examine their mammography films did not exacerbate an existing
condition. This distinguishes their situation from those in which an
improper or negligent examination resulted in a delayed diagnosis and
treatment of a disease.
Jefferson, supra at 486 (3) (a).
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(ii) Felder, the daughter of Velma Riley and the administrator of Riley’s estate,
filed her lawsuit individually and on behalf of the estate. As with its motions for
summary judgment regarding Soley’s and Bower’s claims, the Hospital produced
exhibits containing Riley’s medical records to support its motion with respect to
Felder. The records stated that Riley had a history of breast cancer in her left breast,
and in 2006 she had a left breast mastectomy. On June 12, 2009, Repraeger performed
a mammogram on Riley’s right breast. After the Hospital discovered that Repraeger
had forged the mammogram report, the Hospital performed a second mammogram on
Riley’s right breast on June 1, 2010. The second mammogram report stated that there
were “no suspicious clusters of microcalcifications” and “[n]o new mass [was] seen.”
Furthermore, in November 2009, in between the two mammograms of Riley’s right
breast, her medical records state that Riley had a recurrence of her breast cancer in
“the left supraclavicular area and left axilla. She also had involvement of the left
brachial, plexus.” The plaintiffs have failed to point to anything in the record that
would indicate that Riley had breast cancer in her right breast, or that the June 12, 2009
mammogram would have found signs of breast cancer in her right breast if it had been
interpreted by the radiologist.
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The plaintiffs’ radiology expert averred that Riley died on June 27, 2010, “as a
result of metastic [sic] breast cancer and shock,” which he learned from reviewing her
death certificate. However, the death certificate is not attached to the affidavit, and
does not appear to be in the record, and the plaintiffs do not specify which breast had
cancer. As the death certificate was not attached to the affidavit and does not appear
to be in the record, the unsupported averment in the affidavit is “insufficient under
OCGA § 9-11-56(e) to meet the evidentiary standards on a motion for summary
judgment and, as a matter of law, lacked any probative value.” Estate of Patterson v.
Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 707 (1) (505 SE2d 232) (1998)
(citations omitted).
The medical records referenced by the Hospital indicate that if Repraeger had
transmitted the mammogram images to a radiologist for interpretation, the images
would not have shown signs of breast cancer in Riley’s right breast. The Hospital in
its motion for summary judgment and supporting materials “pointed out by reference
to the evidence in the record that there is an absence of evidence” of Riley having
suffered an injury due to the forged mammogram reports. Cowart, supra at 631 (3) (a)
(citations and punctuation omitted). The plaintiffs have failed to “point to specific
evidence, expert and non-expert, from which a jury could reasonably conclude by a
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preponderance of the evidence” that the forged mammogram report injured Riley. Id.
(citation and punctuation omitted). “Mere speculation, conjecture, or possibility are
insufficient to preclude summary judgment.” State v. Rozier, 288 Ga. 767, 768 (707
SE2d 100) (2011) (citations and punctuation omitted).
(c) The plaintiffs also claim they suffered mental and emotional injuries as a
result of Repraeger’s actions. However, in support of this claim the Appellees do not
cite to any depositions or affidavits given by the Plaintiffs. Instead, they cite to the
affidavit of their radiology expert who averred that the plaintiffs suffered “mental injury
and extreme distress.” The radiology expert does not claim to have spoken with the
plaintiffs or reviewed statements given by the plaintiffs. Nor does the expert claim to
have any background in psychology, psychiatry or any mental health field. As the
radiology expert’s affidavit regarding the plaintiffs’ emotional injuries is conclusory
and unsupported, it is insufficient to establish genuine issues of fact. See Edokpolor
v. Grady Memorial Hosp., 347 Ga. App. 285, 288 (1) (819 SE2d 92) (2018).
The plaintiffs claim in their appellate briefs that they suffered physical injuries
as a result of their emotional distress, including “hair loss, sleeplessness, extreme
depression, vomiting, and other such resulting symptoms,” but they fail to cite to the
record to support their claims. See Court of Appeals Rule 25 (b) (1) (failure of the
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appellee to cite to parts of the record or transcript deemed material shall “constitute
consent to a decision based on the appellant’s statement of facts. Except as
controverted, appellant’s statement of facts may be accepted by this Court as true.”);
BTL COM Ltd., supra. As the plaintiffs failed to present evidence that they suffered
a mental or physical injury, their medical negligence claims fail as a matter of law. See
Jefferson, supra at 486-487 (3) (c).
2. “The elements of fraud are a false representation by a defendant, scienter,
intention to induce the plaintiff to act or refrain from acting, justifiable reliance by
plaintiff, and damage to plaintiff.” J. E. Black Constr. v. Ferguson Enterprises, 284
Ga. App. 345, 347 (1) (643 SE2d 852) (2007) (citation and punctuation omitted;
emphasis supplied). The plaintiffs failed to present evidence of damage resulting from
Repraeger’s actions. The Hospital refunded to the patients’ insurance companies all
payments made in connection with the forged mammograms and paid for the patients
to undergo another mammogram. See Jefferson, supra at 486 (3) (b). The plaintiffs do
not claim otherwise in their appellate briefs. Moreover, the plaintiffs have cited to no
other evidence of damage arising from the forged mammogram reports. The Hospital,
therefore, was entitled to summary judgment on the plaintiffs’ fraud claim. See id.
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3. As the plaintiffs have failed to demonstrate on an appeal that they suffered a
physical, emotional or pecuniary injury, the trial court erred in denying the Hospital’s
motion for summary judgment on the plaintiffs’ claims for intentional infliction of
emotional distress, negligence and negligence per se. See id. at 484-486 (2), and 487
(3) (e). Similarly, the plaintiffs’ claims for breach of contract and express warranty fail
as a matter of law. See id. at 478 (3) (e), Lankford v. Trust Co. Bank, 141 Ga. App.
639, 641 (2) (234 SE2d 179) (1977) (affirmed trial court’s grant of summary judgment
regarding the plaintiff’s breach of contract claim as the claimed damages were “too
remote to be the basis of recovery against the wrongdoer”); see also OCGA §
51-12-8.
4. Finally, as stated in Jefferson, “derivative claims of attorney fees and punitive
damages will not lie in the absence of a finding of compensatory damages on an
underlying claim.” Supra at 488 (3) (f). However, as the plaintiffs’ RICO claims are
still pending below, their claims of attorneys fees and punitive damages remain pending
below as to their underlying RICO claims.
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5. As we have reversed the trial court’s orders, we need not rule on the
Hospital’s remaining enumerated errors.
Judgments reversed. Barnes, P. J., and Brown, J., concur.
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