FIRST DIVISION
DOYLE, C. J.,
BOGGS and PETERSON, 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
March 29, 2016
In the Court of Appeals of Georgia
A15A1811. JEFFERSON v. HOUSTON HOSPITALS, INC. d/b/a BO-089
PERRY HOSPITAL, et al.
A15A1812. JOHNSON v. HOUSTON HOSPITALS, INC. d/b/a BO-090
PERRY HOSPITAL, et al.
A15A2022. LUMPKIN v. HOUSTON HOSPITALS, INC. d/b/a BO-027
PERRY HOSPITAL, et al.
BOGGS, Judge.
These three cases arise out of the misconduct of an employee of Perry Hospital,
who forged mammography reports instead of giving the images to a radiologist for
review. Patricia Jefferson, Catherine Johnson, and Gaynelle Lumpkin (“appellants”)
received falsified reports stating that their mammograms were normal. After learning
of the employee’s misconduct, appellants brought identical claims against Houston
Hospitals, Inc. and Houston Healthcare Complex MSO, Inc., d/b/a Perry Hospital,
and the Hospital Authority of Houston County (collectively, “the Hospital”), as well
as the employee, several physicians and practices, and a “John Doe” defendant. The
trial court granted the Hospital’s motions for summary judgment, and appellants
appeal. Because appellants have not presented sufficient evidence to sustain their
claims under any asserted cause of action, we affirm the judgments of the trial court.1
“Summary judgment is appropriate when no genuine issues of material fact
remain and the movant is entitled to judgment as a matter of law. On appeal, we
review the grant or denial of summary judgment de novo, construing the evidence and
all inferences in a light most favorable to the nonmoving party.” (Citation and
punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776)
(2015). So viewed, the record shows that all three appellants received routine
mammograms at the Hospital in early 2009. In each case, the mammograms were
performed by Rachael Repraeger, the “lead mammography technologist” at the
Hospital. As part of her duties, Repraeger helped train “locum tenens” – temporary
or visiting radiologists – in the use of the Hospital’s computer-based mammography
record system. She testified that, as a result, she knew “several” of their passwords.
She added that, because the visiting physicians “had a lot on their plate,” her
1
The three appellants are all represented by the same attorney, and appellants’
pleadings and affidavits in the trial court are almost identical, as are their appellate
briefs. We therefore address all three appeals together.
2
supervisor told them to use their last names as a password, so “when they got stuck
or when I would have to show them how to use [the system] for the first few times,
I would know their password.” The system was accessible only from two computer
terminals, one in the mammogram room and the other in the radiologists’ reading
room.
Although Repraeger was supposed to transmit the mammogram images to a
radiologist for interpretation, she testified that instead she used passwords she learned
through her training duties to enter the Hospital’s mammography record system and
created forged reports indicating that the mammograms were normal. Repraeger
testified that she knew that what she was doing was outside the scope of her duties,
that she “knew it was wrong,” and that she told no one what she was doing. Her
superiors testified that neither they nor Repraegers’ coworkers in a “small . . . close
knit department” knew that she was forging reports.
In early April of 2010, the Hospital discovered anomalies during a patient peer
review and began an investigation. During that investigation, Repraeger
acknowledged that she had entered numerous forged reports showing negative
mammogram results, despite the images never having been reviewed by a radiologist.
As a result, Repraeger was terminated on April 6, 2010. She also was indicted on ten
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counts of reckless conduct and ten counts of computer forgery. She pled guilty to ten
counts of reckless conduct and one count of computer forgery and was sentenced to
160-180 days of confinement in a detention center and 10 years of probation, and was
prohibited from holding a job in healthcare.
Shortly after Repraeger’s fraud was discovered, the Hospital contacted
appellants by telephone asking that they return for another mammogram; appellants
allege that the Hospital told them only that it was testing a new machine and did not
reveal Repraeger’s misconduct. On May 10, 2010, the Hospital issued a press release
disclosing that “a radiology employee had processed a number of mammography tests
done in 2009 and early 2010 without obtaining a reading of the tests by a
Radiologist,” apologizing, and detailing its efforts to remedy the situation. At least
one appellant also received a follow-up letter from the Hospital in June of 2010,
stating that it had no record of her returning for a mammogram in 2010, and that it
had “discovered a breach in our quality control process that may have affected the
reliability of the interpretation of your mammogram study. As we can draw no
conclusions about the results from your previous study, it is absolutely critical you
schedule a repeat mammogram in the very near future.” (Emphasis in original.)
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All three appellants received a mammogram in April or May of 2010, and all
three mammograms were normal and showed no abnormalities or signs of breast
cancer. Appellants acknowledge that they do not have and have never had breast
cancer.
Appellants brought these actions on May 31, 2012, asserting identical claims
for fraud, RICO, intentional infliction of emotional distress, breach of contract and
express warranty, general negligence, negligence per se, and conversion. They also
sought bad faith penalties, attorney fees, and punitive damages. After extensive
discovery and briefing, the trial court granted summary judgment in favor of the
Hospital in three virtually identical but lengthy, thoughtful and comprehensive orders,
addressing each of appellants’ claims in detail. From these orders, appellants appeal,
asserting as their sole enumeration of error that the trial court erred in granting the
Hospital’s motions for summary judgment.
The trial court determined that the Hospital was not vicariously liable for
Repraeger’s actions because she did not act within the scope of her employment. It
also determined that appellants had failed to show intentional infliction of emotional
distress. Finally, it held: “Damages are an essential element of all causes of action
alleged by Plaintiff[s]. As a matter of law, the evidence presented as to the alleged
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damages suffered by Plaintiff, under each cause of action claimed, is insufficient to
submit to a jury.” We agree with the trial court that vicarious liability does not arise
here, that appellants have not shown intentional infliction of emotional distress, and
that they have failed to show any actionable damages under any cause of action
asserted.
1. Appellants first contend that the Hospital is responsible for the actions of
Repraeger under a theory of vicarious liability.
This matter is generally governed by OCGA § 51-2-2, which provides
that a master is liable for the torts committed by his servant in the
prosecution and within the scope of his business, whether the same are
committed by negligence or voluntarily. The question is not whether the
master authorized the servant to commit the tort, but whether the servant
was authorized to accomplish a purpose in pursuance of which a wilful
tort is committed. The test is whether the tort was done within the scope
of the actual transaction of the master’s business for accomplishing the
ends of his employment. Whether a servant is acting within the scope of
his employment is usually a jury question, but may be decided by the
court as a matter of law in plain and palpable cases. This is such a case.
(Citations, punctuation, and footnotes omitted.) Rent to Own, Inc. v. Bragg, 248 Ga.
App. 130, 131 (1) (546 SE2d 9) (2001). In Bragg, a store manager was directed by
a company vice-president to swear out a warrant for the arrest of an individual who
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failed to pay for rental appliances. However, he named the wrong person in the
affidavit; that individual was arrested and then sued the company for malicious
prosecution. We held that, in the absence of evidence that the manager acted for
personal reasons, it was undisputed that he “was acting within the scope of the actual
transaction of Rent to Own’s business for accomplishing the ends of his
employment.” (Citations, punctuation, and footnote omitted.) Id. at 132 (1).
Here, in contrast, the undisputed evidence shows that Repraeger was not acting
within the scope of her employment when she improperly accessed the mammography
computer files and forged reports. She testified that it was not part of her duties to
read and interpret the mammogram films, and that she did so not in furtherance of the
Hospital’s business, but because she had become “really careless and lazy for lack of
a better word,” instead of transmitting the films promptly to the radiologists, she
allowed her work to get “so backed up” that she “would just go into the computer like
the doctor would do” and create fraudulent reports.
Our Supreme Court has addressed the issue of a hospital’s vicarious liability
for the acts of an employee in Piedmont Hosp. v. Palladino, 276 Ga. 612 (580 SE2d
215) (2003). There, a nurse was authorized to provide post-surgical treatment to a
patient, including the inspection and cleaning of the patient’s genital area. But
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evidence was presented that the nurse, while providing this treatment, sexually
molested the patient. Id. at 613. The court observed:
Two elements must be present to render a master liable under respondeat
superior: first, the servant must be in furtherance of the master’s
business; and, second, he must be acting within the scope of his master’s
business. If a tort is committed by an employee not by reason of the
employment, but because of matters disconnected therewith, the
employer is not liable. If a tortious act is committed not in furtherance
of the employer’s business, but rather for purely personal reasons
disconnected from the authorized business of the master, the master is
not liable.
(Citations, punctuation, and footnotes omitted; emphasis in original.) Id. at 613-614.
The Supreme Court, reversing this court, found that the hospital could not be held
vicariously liable. Id. Once the nurse deviated from his job duties, “he was no longer
acting within the scope of his employment or furthering the business of [the] hospital.
At that point, [the nurse] was acting not as a hospital employee, but rather purely for
his own personal reasons.” (Citation, punctuation, and footnote omitted.) Id. at 614.
The Supreme Court rejected the idea that a mere physical connection or association
between the employee’s authorized duties and the wrongful act could create vicarious
liability. It held that when the nurse “abandoned the hospital’s interest and began
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pursuing his own personal, morally offensive, agenda . . . . his actions extended
beyond the scope of his employment and were totally unconnected to the Hospital’s
business.” Id. at 615. Moreover, the fact that his employment provided the
“opportunity to commit tortious acts” by placing him alone in a room with an
unconscious or sedated patient did not create vicarious liability. Id. In so holding, the
Supreme Court cited Lucas v. Hosp. Auth., 193 Ga. App. 595 (388 SE2d 871) (1989).
Palladino, supra, 276 Ga. at 615. In Lucas, this court found that summary judgment
was proper when a nurse administered lethal doses of medication to patients “in order
to ‘put them out of their misery’.” 193 Ga. App. at 595 (1). “While [the nurse] may
have been advancing the hospital’s interests in giving authorized injections of
potassium chloride, she clearly abandoned the hospital’s interest and pursued only her
own when she gave the lethal, unauthorized injections. [Cit.]” (Emphasis in original.)
Id.
Similarly, even if Repraeger had access to doctors’ passwords as part of her
training duties, her illicit use of them was not within the scope of her employment,
as appellants contend. When she stepped aside from her job duties and indeed
violated them by forging documents for her own personal convenience, her “actions
took [her] outside the realm of employment and became purely personal in nature.”
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276 Ga. at 616. Moreover, her actions did not “further[] the employer’s business.” Id.
By undertaking responsibilities that she was not charged with or qualified to perform,
Repraeger abandoned the Hospital’s business to serve her own convenience, “not for
any purpose beneficial to” the Hospital. (Citation omitted.) Dowdell v. Krystal Co.,
291 Ga. App. 469, 471 (1) (662 SE2d 150) (2008) (cashier trained to refer customer
complaints to manager and had no responsibility to resolve them; fighting with
complaining customer not for any purpose beneficial to employer; cashier abandoned
employer’s business.)
The cases cited by appellants provide no grounds for holding that Repraeger’s
improper and indeed criminal acts were within the scope of her employment or in
furtherance of the hospital’s business. In Gann v. Mills, 124 Ga. App. 238 (183 SE2d
523) (1971), an apartment manager instructed a maintenance worker to remove
clothing that was left in a common laundry room on the premises. The maintenance
worker did so, but apparently disposed of the clothing. This court affirmed the denial
of the apartment owners’ motion for summary judgment, but not for the reason that
the worker’s act was within the scope of his employment. Rather, we held that in the
absence of admissible testimony concerning the scope of the duties of the
maintenance worker, “the defendants have failed to pierce the allegations” of the
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plaintiff’s complaint. Id. at 240. Similarly, May v. Crane Bros., Inc., 276 Ga. 280
(576 SE2d 286) (2003), does not support appellants’ position. That decision
addresses only the issue of punitive damages after a jury had already found an
employer liable on the basis of respondeat superior. Neither May nor its earlier
appearance in this court, Crane Bros., Inc. v. May, 252 Ga. App. 690 (556 SE2d 865)
(2001), addresses the jury’s earlier verdict that the employer was liable under a theory
of respondeat superior.
The trial court did not err in granting summary judgment on the issue of
vicarious liability.
2. Appellants next argue that the trial court erred in granting summary
judgment on their claims for intentional infliction of emotional distress. This tort has
four elements, all of which must be shown to prevail.
To recover on an intentional infliction of emotional distress claim, a
plaintiff must show evidence that: (1) defendants’ conduct was
intentional or reckless; (2) defendants’ conduct was extreme and
outrageous; (3) a causal connection existed between the wrongful
conduct and the emotional distress; and (4) the emotional harm was
severe. The evidence in this case does not show either extreme and
outrageous conduct or severe emotional harm. It [is] not . . . enough that
the defendant has acted with an intent which is tortious or even criminal,
or that he has intended to inflict emotional distress, or even that his
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conduct has been characterized by malice, or a degree of aggravation
which would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been extreme and
outrageous.
(Citations, footnotes, and punctuation omitted.) Abdul-Malik v. AirTran Airways, 297
Ga. App. 852, 855-856 (1) (678 SE2d 555) (2009). Under the second element,
[e]xtreme and outrageous conduct is that which is so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Whether actions rise to the level of extreme and
outrageous conduct necessary to support a claim of intentional infliction
of emotional distress is generally a question of law.
(Citations, punctuation, and footnotes omitted.) Id. at 856 (1). And under the fourth
element, “[t]he law intervenes only where the distress inflicted is so severe that no
reasonable person could be expected to endure it. Whether severe emotional distress
can be found, based on the evidence presented, is a question for the court to decide.”
(Citations, punctuation, and footnotes omitted.) Id. at 858 (1).
As in Abdul-Malik, here the evidence fails to show “either extreme and
outrageous conduct or severe emotional harm.” Id. Appellants argue that the Hospital
was reckless in its supervision of Repraeger and intentionally concealed the reason
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for the necessity of a repeat mammogram in its initial telephone calls. But any such
conduct by appellees is irrelevant to our analysis, because appellants’ case fails on
the second and fourth elements of the cause of action. Appellants also conflate the
conduct of Repraeger and that of the Hospital in arguing that the Hospital’s acts were
extreme and outrageous. But, as noted in Division 1, supra, the Hospital is not liable
in respondeat superior when the employee’s actions were outside the scope of her
employment and not in furtherance of the Hospital’s business. Therefore, as
appellants acknowledge, under this circumstance the claims here are without merit.
Nor have appellants provided evidence that the distress they suffered was “so
severe that no reasonable person could be expected to endure it.” One appellant
testified in her deposition that she was “disgusted” and “ha[d] anxiety” about
appellees’ conduct. The second testified that “[i]t really upset me at the time,” “for
a short time,” but she “[doesn’t] dwell on it.” The third appellant testified that she was
“[e]motional . . . really upset.” But all three appellants testified that they have not
sought medical treatment or counseling for any emotional distress. Two complained
of transient sleeplessness, but none of the appellants enumerate any specific
psychological symptoms, and certainly not any symptoms rising to the level of
“severe.” Even such physical manifestations as sleeplessness, anxiety, and headaches,
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standing alone, are not “so severe that no reasonable person could be expected to
endure them.” (Citations and footnote omitted.) Abdul-Malik, supra, 297 Ga. App. at
858 (1). See also Jones v. Warner, 301 Ga. App. 39, 43 (3) (686 SE2d 835) (2009)
(“anxiety, nervousness, sleeplessness, and irritability,” with no medical or psychiatric
treatment sought, not sufficiently severe.)
Appellants rely on Sevcech v. Ingles Markets, 222 Ga. App. 221, 223-224 (3)
(474 SE2d 4) (1996), to argue that they need show no evidence of medical treatment.
However, in Abdul-Malik, supra, we expressly distinguished Sevcech. 297 Ga. App.
at 858 n. 20 (1). In that case the appellant was falsely accused of shoplifting by three
employees, who took him to the store office, forced him to submit to a body search,
knocked him to the ground, and then called the police and had him arrested. While
it is true that evidence of medical treatment is not required to establish the existence
of severe emotional distress, it is a factor that is considered in determining the
severity of that distress. But here, appellants cannot show from all of the evidence,
which includes the fact that they obtained no medical treatment, that their distress was
“so severe that no reasonable person could be expected to endure it.” (Citations,
punctuation, and footnote omitted.) Id. at 858.
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The trial court did not err in granting summary judgment on appellants’ claims
of intentional infliction of emotional distress.
3. We next address appellants’ contention that the trial court erred in finding
that they had failed to show damages with respect to their remaining claims.
(a) First, appellants cannot demonstrate any physical injury attributable to the
Hospital’s conduct. Most significantly, none of the appellants 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.
Appellants argue that the 2010 mammography procedures involved “additional
harmful radiation” and that during that procedure their breasts were “squeezed,
pushed, and physically manipulated by [the Hospital’s] staff for the repeat
mammogram[s].” But all appellants regularly obtained a mammogram on an annual
basis, and they would have been due for annual mammograms on or about the time
the “repeat mammograms” were performed. Even if we assume that an ordinary
medical diagnostic procedure by which the Hospital attempted to cure an employee’s
misconduct could be construed as an injury, appellants have failed to show that the
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physical contact, to which they consented, would not have occurred in any event at
the time of their regularly scheduled mammograms.
(b) Appellants also contend that they suffered monetary damages, because their
health insurance was billed for the unread mammograms and was not reimbursed for
two years. But the Hospital reimbursed appellants’ health insurers for the cost of the
2009 mammograms, and did not bill them for the 2010 mammograms.
(c) In the absence of physical injury or pecuniary loss, appellants cannot show
damages for emotional distress. “If ‘mental pain and suffering’ is not accompanied
by physical injury or pecuniary loss, recovery is allowed only if the conduct
complained of was ‘malicious, wilful, or wanton.’” (Citations and punctuation
omitted.) Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992). Since we
have found in Division 1 that the Hospital is not vicariously liable for the conduct of
Repraeger, appellants have failed to show such conduct on the part of the Hospital.
Moreover, as noted above, appellants have never been diagnosed with breast
cancer, and any emotional distress attributable to mistrust of the mammogram
procedure or fear of a misdiagnosis in the future is not cognizable in damages.
It is axiomatic that for recovery, there must be some reasonable
connection between the act or omission of a defendant and the damages
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which a plaintiff has suffered. Without factual evidence of a causal
connection between the alleged breach of duty and the purported
damages, the damages must be considered whimsical, fanciful and above
all too speculative to form the basis of recovery under OCGA § 51-12-8.
As in any negligence case, the [plaintiffs] had to show both cause in fact
and legal cause. . . .
(Citation omitted.) Russaw v. Martin, 221 Ga. App. 683, 686 (1) (472 SE2d 508)
(1996). In Russaw, a hospital patient incurred an accidental needle stick from a needle
that had been used to administer another patient’s medication. The patient and her
husband asserted damages for emotional injuries and mental anguish due to their fears
that she had been exposed to hepatitis or AIDS, despite multiple tests over several
months with negative results for the patient, her husband, and the other patient. Id.
at 684. Even with an actual physical injury from the needle stick, we held that,
because the plaintiffs “offered no evidence of actual exposure to HIV or AIDS or
hepatitis and no evidence of a channel of communication of disease, we hold that
their recovery for fear and mental anguish is per se unreasonable as a matter of law.”
Id. at 687 (1). In so holding, we specifically rejected the “window of anxiety”
approach to emotional injuries during the “time lag” between the allegedly harmful
event and the receipt of definitive negative test results. Id. at 685-686 (1). See also
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Johnson v. American Nat. Red Cross, 276 Ga. 270, 272-273 (1) (578 SE2d 106)
(2003) (merely theoretical exposure to undetectable strain of HIV through blood
transfusion insufficient to support claim for damages.)
(d) In the absence of any cognizable physical, pecuniary, or emotional injury,
the trial court properly granted summary judgment on appellants’ RICO claims. See,
e.g., Schoenbaum Ltd. v. Lenox Pines, LLC, 262 Ga. App. 457, 470 (8) (c) (585 SE2d
643) (2003) (private RICO plaintiff “must show that one of the predicate acts directly
harmed it, not a third party.” (Citations, punctuation, and footnote omitted); Sevcech,
supra, 222 Ga. App. at 221-222 (1) (RICO requires “motive or effect . . . to derive
pecuniary gain.”)
(e) Similarly, based upon their failure to show damages, the trial court properly
granted summary judgment on appellants’ negligence and breach of contract claims
against the Hospital based on its own conduct.
(f) Finally, appellants’ “derivative claims of attorney fees and punitive damages
will not lie in the absence of a finding of compensatory damages on an underlying
claim. [Cit.]” D. G. Jenkins Homes, Inc. v. Wood, 261 Ga. App. 322, 325 (3) (582
SE2d 478) (2003).
Judgments affirmed. Doyle, C. J. and Peterson, J., concur.
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