Cutts v. Fulton-DeKalb Hospital Authority , 192 Ga. App. 517 ( 1989 )

Carley, Chief Judge.

The minor appellant-plaintiff, by next friend, filed suit against appellee-defendants Fulton-DeKalb Hospital Authority (Hospital), Dr. Daly and Dr. Russell. The complaint sought damages for the alleged medical malpractice of appellees Dr. Daly and Dr. Russell occurring during appellant’s delivery at appellee Hospital. The case was tried before a jury but, when a verdict could not be reached, the trial court declared a mistrial. Appellees then moved for judgment notwithstanding mistrial, relying upon the doctrine of charitable immunity. The trial court granted appellees’ motion for judgment notwithstanding the mistrial and appellant appeals from that order.

1. “It has long been the rule in Georgia that ‘an incorporated hospital, primarily maintained as a charitable institution, is not liable for the negligence of its officers and employees, unless it fails to exercise ordinary care in the selection of competent officers and servants, or fails to exercise ordinary care in retaining such officers and employees.’ [Cit.]” Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833, 834 (1) (353 SE2d 515) (1987). There is, however, an exception to the doctrine of charitable immunity. “Where a patient in such an institution is not the recipient of its charity, but is able to pay and does pay for the services, and is injured on account of carelessness, negligence, or incompetence of an officer or employee of the institution, the corporation is liable therefor. . . .” Morton v. Savannah Hosp., 148 Ga. 438 (5) (96 SE 887) (1918). The undisputed evidence of record shows that appellant was the recipient of appellee Hospital’s charity and that the doctrine of charitable immunity is, therefore, viable and controlling as to appellee Hospital.

It is undisputed that the “out-patient” medical expenses of appellant’s mother were in excess of $100. Based upon her financial situation, however, appellee Hospital agreed to charge her only $7 for these services. Accordingly, in providing these services to appellant’s mother, appellee Hospital extended its charity to the extent of at least $93. It is also undisputed that the “in-patient” medical expenses of both appellant and her mother were $997.52. Although a bill for these services was never submitted, it is undisputed that appellee Hospital’s maximum charge to appellant for those services would be $30. Accordingly, as to the “in-patient” medical expenses, appellee Hospital extended its charity to the extent of at least $967.52. There was no evidence that the $93 and the $967.52 was paid or payable from any secondary source and was not charitably absorbed by appel-lee Hospital. This case was not decided on summary judgment, but after a jury trial. Compare Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167 (384 SE2d 205) (1989). After appellee Hospital produced evidence that it had extended its charity to appellant, the burden shifted to appellant to produce evidence showing that she came within the exception to the charitable immunity doctrine and that, contrary to the evidence showing appellee Hospital’s agreement to bill only $37 for the more than $1,100 in medical services rendered to her and her mother, she was nevertheless a “paying patient” with a secondary source for paying the balance. Because the undisputed evidence of record discloses that, based upon the financial situation of appellant’s mother, appellee Hospital did extend its charity to the extent of more than $1,000, the trial court correctly granted judgment notwithstanding mistrial in favor of appellee Hospital.

2. Appellee Hospital has not waived its charitable immunity by creating a self-insurance plan. See Ponder v. Fulton-DeKalb Hosp. Auth., supra at 835 (2). Appellant’s attempts to distinguish Ponder have been considered and found to be without merit.

3. Appellant urges that the doctrine of charitable immunity was erroneously extended to appellees Dr. Daly and Dr. Russell.

Appellees Dr. Daly and Dr. Russell had a duty to exercise a reasonable degree of care and skill in providing medical services to appellant. See OCGA § 51-1-27. Insulating them from liability for breaching this duty simply because they were employed by a charitable hospital would not further the purpose of the charitable immunity doctrine. “By design the charitable immunity doctrine protects the funds of the charitable institution from depletion in order that these funds may be [preserved] to carry out the charitable purpose of the institution for the benefit of its beneficiaries.” (Emphasis supplied.) Ponder v. Fulton-DeKalb Hosp. Auth., supra at 834 (1). To extend the doctrine of charitable immunity to physicians who are employed by charitable hospitals would only serve to insulate the resources of those physicians from the claims of patients who were injured as a result of alleged medical malpractice. Accordingly, we hold that the trial court erred in extending the doctrine of charitable immunity to appellees Dr. Daly and Dr. Russell and erred, therefore, in granting their motion for judgment notwithstanding the mistrial. Swofford v. Cooper, 184 Ga. App. 50, 53 (2) (360 SE2d 624) (1987) aff’d 258 Ga. 143 (368 SE2d 518) (1988); Jackson v. Miller, 176 Ga. App. 220 (1) (335 SE2d 438) (1985). See also Davis v. Stover, 258 Ga. 156 (366 SE2d 670) (1988).

4. The judgment is affirmed as to appellee Hospital and reversed as to appellees Dr. Daly and Dr. Russell.

Judgment affirmed in part and reversed in part.

Deen, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur. McMurray, P. J., concurs in part and dissents in part.