DocketNumber: A17A1708, A17A1709
Citation Numbers: 812 S.E.2d 592
Judges: Branch
Filed Date: 3/15/2018
Status: Precedential
Modified Date: 7/29/2022
This is the third appearance of this matter before this Court. In late 2002, Louis Goolsby, M.D., the chief executive officer of The Medical Center of Central Georgia, Inc. ("the Medical Center"), and Angel Cancel, M.D., the chief executive officer of Central Georgia Anesthesia Services, Inc. ("CGAS") learned of apparent billing and medical irregularities by CGAS members working at the hospital. After an investigation and the voluntary dissolution of CGAS, the Medical Center declined to rehire four former CGAS members (including Dr. Cancel), all of whom later brought this action against three of their former colleagues ("the individual defendants") as well as the Medical Center, its president and chief executive officer A. Donald Faulk, and Dr. Goolsby ("the hospital defendants").
In Cancel v. Sewell ,
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.
Lau's Corp. v. Haskins ,
Although we thus view the record in a light favorable to plaintiffs, the relevant facts are not in dispute. In 2000, CGAS entered into a contract to provide the Medical Center with all of its anesthesia services. In the fall of 2002, Dr. Cancel and Dr. Goolsby became aware of potentially fraudulent medical chart documentation by some CGAS members. See Cancel I ,
Shortly before a meeting with Atkinson in early 2003, Dr. Pravin Jain, another CGAS anesthesiologist, showed Dr. Goolsby examples of what Dr. Jain considered to be improper medical chart documentation. Over the next three months, Dr. Jain also uncovered billing irregularities by CGAS members. See Cancel I ,
*596In early May 2003, and after consultation with counsel, the officers of CGAS voted unanimously to terminate its contract with the Medical Center, with the termination effective on August 31, 2003, "so as to avoid earlier termination for cause," with all physician contracts with CGAS to terminate at the same time. Cancel II ,
CGAS anesthesiologist, Atkinson, and a nurse ("the Goolsby panel"), which was charged with evaluating the applications of any CGAS members seeking a position in the restructured department. On June 2, 2003, after an audit conducted off-site and limited to "medical direction review," the Medical Center notified CGAS that in light of the panel's evaluation, eight CGAS members, including individual defendants Alvin Sewell, M.D., Sanjiwan Tarabadkar, M.D., and Miles McDonald, M.D., would be offered positions at the hospital.
In August 2005, the four physicians not re-hired by the Medical Center-Drs. Cancel and Jain, as well as Grace Duque-Dizon, M.D. and Monahja Sanjeev, M.D.-brought this action against the Medical Center, the individual defendants, and the hospital defendants for breach of fiduciary duty, fraud, and other claims. See Cancel I ,
so that the trial court may clarify whether its orders adopting the special master's discovery recommendations further determined that, for purposes of immunity under OCGA § 31-7-132 (a), the [Goolsby] panel was a peer review committee that was evaluating the quality and efficiency of actual medical care services.
Cancel II ,
On April 30, 2015, after the return of the remittitur in Cancel II , the trial court entered an order holding that "[b]ased upon the special master's analysis and conclusion that the [Goolsby] panel was a review organization conducting peer review functions," as well as the trial court's "earlier adoption of the special master's recommendation," the court was "again adopt[ing] the findings of the special master that the panel was in fact a review organization conducting peer review functions[.]" The trial court thus concluded that the hospital defendants were entitled to immunity under OCGA § 31-7-132 (a). After plaintiffs moved for reconsideration of the April 30 order, the trial court held a hearing on June 17 as to the scope of the special master's findings. One issue at that hearing was whether the hospital defendants had acted with malice in terminating and not re-hiring plaintiffs such that the hospital defendants could not claim the benefit of immunity. In the course of the hearing, the trial court noted that because the issue of malice "may be one of several issues" remaining for determination, "a motion needs to come forward as it relates to this issue so that we can decide that before we proceed." Plaintiffs did not object to this procedure. After the hearing, the trial court denied the motion for reconsideration.
In a new motion for summary judgment, filed on June 30, 2015, the hospital defendants *597cited evidence including Dr. Goolsby's deposition testimony, as well as statements in plaintiffs' own brief in Cancel II , and argued that plaintiffs had not adduced any evidence of malice. Plaintiffs filed a 68-page response, including accounts of the 2002-2003 allegations, Atkinson's activities prior to the formation of the Goolsby panel, and the panel's decision not to rehire plaintiffs, with 500 pages of exhibits.
On August 21, 2015, the trial court entered an order granting the hospital defendants' new motion, finding that the law-of-the-case rule did not prevent it from revisiting the peer review issue. The trial court also held that plaintiffs were not authorized to obtain further discovery of Atkinson's sessions of December 2002 and January 2003 because "that information was privileged under the peer review statute" and that plaintiffs were not authorized to "use the lack of evidence in the record to draw an inference of malice" against the hospital defendants, with the result that the hospital defendants were entitled to immunity under OCGA § 31-7-132 (a). On September 17, 2015, plaintiffs filed a notice of appeal from this judgment.
On November 5, 2015, plaintiffs filed a motion to supplement the record on appeal with three documents not previously filed below: a February 2011 email from the initial judge on the case (now retired) to the parties suggesting that a jury issue existed on the question whether any of the hospital records had been falsified; this Court's April 2013 order denying plaintiffs' motion for reconsideration in Cancel I ; and an April 2015 email from the court clerk notifying the parties that the case had been reassigned to a new judge. After the hospital defendants filed a response, the trial court denied the motion to supplement.
Case No. A17A1708
On appeal from the trial court's grant of summary judgment to the hospital defendants, plaintiffs argue that the trial court erred when it concluded that the hospital defendants were entitled to immunity under OCGA § 31-7-132 (a).
1. As to the trial court's grant of summary judgment to the hospital defendants on the ground of immunity, plaintiffs first argue that (a) the trial court's grant of summary judgment is inconsistent with this Court's holding in Cancel II ; (b) plaintiffs have been improperly barred from further discovery as to Atkinson's listening sessions and the Goolsby panel's decisionmaking process; and (c) a jury question remains on the issue of the hospital defendants' malice, and thus their entitlement to immunity under OCGA § 31-7-132 (a). We disagree with these contentions.
(a) We begin by noting that although two of the three judges participating in Cancel II concurred only in the judgment of Division 4, which contained the remand instructions excerpted above, neither plaintiffs nor defendants appealed our ruling to the Supreme Court of Georgia. As a result, the remand instructions remain physical precedent, binding the parties and this Court in these later proceedings as law of the case.
OCGA § 9-11-60 (h) provides that "[a]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be." The only exception to this statutory expression of Georgia's law-of-the-case rule is that a previous appellate decision does not bind subsequent
*598proceedings when the "evidentiary posture" of a case has changed between appeals, as when "a new issue that the appellate court has not addressed is raised by amended pleadings or otherwise," or when "the original evidence submitted is found to be insufficient, and the deficient evidence is later supplemented." Choate Constr. Co. v. Auto-Owners Ins. Co. ,
Although Division 4 (a) of Cancel II held that "[t]he evidence cited [there] does not establish that the [Goolsby] panel, even if a peer review committee, was evaluating the quality and efficiency of 'actual medical care services,' "
(b) Plaintiffs also assert that the trial court erred when it denied further discovery as to the notes of Atkinson's "listening sessions" because those notes were taken before the Goolsby panel was formed. This contention is belied by both the record and the law. OCGA § 31-7-133 provides:
(a) Except in proceedings alleging violation of this article, the proceedings and records of a review organization shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action ; and no person who was in attendance at a meeting of such organization shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings or activities of such organization or as to any findings, recommendations, evaluations, opinions, or other actions of such organization or any members thereof.
Thus "there is, by statute, no discovery relative to medical or peer review proceedings." Emory Clinic v. Houston ,
While [ OCGA § 31-7-133 ] precludes a party from discovering the proceedings and records of a peer review organization, it specifically authorizes a party to seek from original sources documents which the peer review organization examined, and to examine anyone who appeared before or was a member of the peer review organization, so long as the witness is not asked about the peer review proceedings.
Freeman v. Piedmont Hosp .,
*599the fact that a plaintiff seeks to avoid an immunity defense by alleging the applicability of the malice exception does not convert the action into one alleging violation of OCGA §§ 31-7-130 - 133 so as to provide for an exception to the confidentiality mandate. Allowing an allegation of malice to trigger the applicability of the exception to the confidentiality requirement would result in the opportunity for full discovery of peer review material in every such case.
It is undisputed that Atkinson was hired by the Medical Center and that the panel was given the results of her investigation for the purpose of assisting the panel in determining whether and which former CGAS members would be hired. The record also shows that the notes from Atkinsons' "listening sessions" with both the anesthesiologists and the nurses were provided to plaintiffs, who cross-examined Atkinson as to them at her deposition. This production is in accord with Freeman 's distinction between the permissible discovery of documents produced by "original sources," such as Atkinson, and the impermissible discovery of documents generated in the course of the peer review process itself. See Freeman ,
(c) Plaintiffs also assert that they have suffered harm because they "have never been told what conduct, acts, and/or omissions caused the hospital defendants to choose not to select them" for rehiring and that the decision not to rehire them was undertaken with malice.
On this question, OCGA § 31-7-132 (a) provides in relevant part that no professional health care provider "shall be held, by reason of the performance of peer review activities, ... to be civilly liable under any law unless [the provider] was motivated by malice toward any person affected by such activity." Thus "if an organization meets the definition of review organization and is conducting peer review within the meaning of the statute, a health care provider or member of a review organization is immune from criminal or civil liability, provided the health care provider is acting without malice." Fulton-DeKalb Hosp. Auth. v. Dawson ,
As a preliminary matter, we decline to conclude that for purposes of this appeal, OCGA § 31-7-132 (a) is preempted by the federal Health Care Quality Improvement Act of 1986 (HCQIA),
More fundamentally, plaintiffs have cited no evidence on appeal supporting a reasonable inference that any of the hospital defendants acted with malice when they decided not to rehire plaintiffs. Plaintiffs merely ask this Court to authorize an inference of malice from a set of circumstances including the hospital defendants' failure to investigate the nurses' complaints; Dr. Goolsby's cancellation of the ASA visit; Atkinson's hiring by Dr. Goolsby and her later participation in the Goolsby panel, including its rehiring decisions; unspecified inconsistencies between the accounts of all the defendants; and the "use of the peer review privilege" to prevent scrutiny of the decision not to rehire plaintiffs. Such arguments either reframe the requests for access to the details of the peer review process that we have just rejected in Division (1) (b) or ask this Court to supply evidence authorizing a reasonable inference of malice when no such evidence exists in the record. As to Atkinson's notes, we have already observed that she was deposed as to the circumstances under which these were produced, and plaintiffs have cited no other circumstances or statements in this record to support a reasonable inference that any of the hospital defendants were motivated by malice when they made their decision not to rehire plaintiffs. See Obekpa ,
For all these reasons, the trial court did not err when it granted summary judgment to the hospital defendants on the ground that they were entitled to immunity under OCGA § 31-7-132 (a).
2. Plaintiffs also argue that the trial court erred when it granted summary judgment on their claims against the hospital defendants for (a) tortious interference with contractual or business relations, (b) breach of fiduciary duty, and (c) fraud. We disagree.
(a) The record shows that plaintiffs' original claim for tortious interference with business relations was dismissed on April 10, 2006, for failure to state a claim under OCGA § 9-11-12 (b) (6). At that time, the trial court noted that the claim failed because plaintiffs were not strangers to the contracts or business relationships between the Medical Center and CGAS; rather, plaintiffs were "all parties to an interwoven set of contracts." See Galardi v. Steele-Inman ,
The dismissal of plaintiffs' original claim for tortious interference was "a dismissal on the merits and ... with prejudice." Roberson v. Northrup ,
(b) In Cancel II , we reversed the trial court's previous denial of summary judgment as to plaintiffs' claims for breach of fiduciary duty against the individual defendants. We held that CGAS's decision to terminate its contract with the Medical Center "amounted to an exercise of [its individual members'] business judgment, based upon facts available at the time and the advice of counsel," and that plaintiffs had "failed to cite any evidence" that the individual defendants had breached any fiduciary duty "in connection with the termination of [that] contract."
The only argument now asserted by plaintiffs distinctive to the hospital defendants, rather than the individual defendants, is that the Medical Center violated its fiduciary duty when it falsely promised to consider each application for rehiring "fairly, objectively, and on its individual merits." This argument fails for two reasons. First, the relation between the Medical Center and plaintiffs was established by the negotiated contract for services entered into by the Center and CGAS, and plaintiffs have pointed to no evidence suggesting that a fiduciary relationship existed between the Medical Center and any individual member of CGAS. See OCGA § 23-2-58 (a fiduciary duty arises in the context of a contractual relationship only "where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith"). Second, to the extent plaintiffs argue that the Medical Center breached a fiduciary duty owed to plaintiffs in relying on the Goolsby panel's peer review activities, they seek to invade the province of the peer review process, which we reject for the reasons given in Division 1 (b) above.
(c) In Cancel II , we reversed the denial of summary judgment to the individual defendants on plaintiffs' fraud claims on the following basis:
[T]he record shows that when the plaintiffs signed their respective employment agreements with CGAS, they each also executed a resignation document that was held in escrow by CGAS, in which they expressly relinquished upon termination 'all due process rights' under The Medical Center's bylaws. The employment agreements provided that the resignation documents would be tendered to The Medical Center upon termination of the physicians' employment for any reason. As such, plaintiffs were aware of these ramifications when they voted to terminate CGAS's contract with The Medical Center. Because the plaintiffs failed to adduce evidence of any false representation made to them by [the individual defendants, they] were entitled to summary judgment on the claims of fraud.
As to the survival of their fraud claim against the hospital defendants, plaintiffs assert that Faulk's April 2003 letter "made false representations designed to trigger the vote to terminate" CGAS's contract with the Medical Center, but do not specify which statements in that letter were false. To the extent plaintiffs assert that the Medical Center disguised Atkinson's planned or actual function on the Goolsby panel, moreover, we have seen nothing in the record amounting to a false representation on this subject. Further, and to the extent plaintiffs allege that the Medical Center did not consider each plaintiff's application for rehiring "fairly, objectively, and on its individual merits," the same April 2003 letter also stated that the Center "cannot guarantee that any current member of CGAS ... will be offered a contract of employment with the restructured Department of Anesthesiology." Because plaintiffs have not pointed to any evidence tending to show that these statements were false misrepresentations, we affirm the trial *602court's grant of summary judgment as to plaintiffs' fraud claims against the hospital defendants.
Case A17A1709
3. In the companion appeal, plaintiffs assert that the trial court erred when it denied their motion to supplement the record with emails from the former judge, the clerk of the trial court, and our own order in Cancel I . We disagree.
OCGA § 5-6-41 (f) provides: "Where any party contends that the transcript or record does not truly or fully disclose what transpired in the trial court and the parties are unable to agree thereon, the trial court shall set the matter down for a hearing with notice to both parties and resolve the difference so as to make the record conform to the truth." But "[e]vidence never actually admitted at trial cannot properly become a part of the record on appeal pursuant to OCGA § 5-6-41 (f)." Harp v. State ,
This trial court found "no evidence" that the exclusion of the emails from the record below "was a mistake or oversight by the parties or the court," and also found that inclusion of the documents was not necessary in order to make the record "speak [ ] the truth." We have reviewed the documents at issue, and are required to defer to the trial court's factual determination as to them. Harp ,
Judgments affirmed .
McFadden, P.J., and Bethel, J., concur.
In Cancel I, we also dismissed the hospital defendants' cross-appeals as to orders denying summary judgment that were filed after plaintiffs' notice of appeal.
According to Atkinson's notes of the conversations, for example, some group members reported that one doctor was having an affair with one of the other doctors and that used condoms and pornographic materials had been found in his office.
A problem with service caused the trial court to reenter the order denying the motion to supplement on August 18, 2016.
OCGA § 31-7-132 (a) provides that "[n]o professional health care provider nor any individual who serves as a member or employee of a professional health care provider or review organization nor any individual who furnishes counsel or services to a professional health care provider or review organization shall be held, by reason of the performance of peer review activities, to have violated any criminal law or to be civilly liable under any law unless he was motivated by malice toward any person affected by such activity." (Emphasis supplied.)
If it were true, as plaintiffs argue, that our decision in Cancel II settled the issue whether the Goolsby panel had evaluated "the quality and efficiency of actual medical care services" against defendants, remand would have been futile.
Although we noted in Cancel II that "the trial court repeatedly indicated at the summary judgment hearing that there was evidence from which a jury could find malice,"
See, e.g., Obekpa ,