Janet Lee Graham Stanley v. Floyd P. Garrett

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, 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.
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September 17, 2020

In the Court of Appeals of Georgia
A20A0894. JANET LEE GRAHAM STANLEY et al. v. FLOYD P.
GARRETT et al.

DILLARD, Presiding Judge.

While driving under the influence of alcohol and prescription drugs, Jeffrey

Fettig struck a vehicle driven by Thomas Stanley, resulting in Stanley’s death.

Thereafter, Janet Stanley, Thomas’s wife, filed a lawsuit against Dr. Floyd Garrett,

the psychiatrist who had been treating Fettig for alcoholism.1 Specifically, Janet

alleged that Garrett’s negligence in treating Fettig and failure to prevent him from

driving—despite meeting with him a few hours prior to the accident—led to the fatal

collision. Garrett successfully moved to dismiss Stanley’s professional-negligence

claim and, later, successfully moved for summary judgment as to her ordinary-

1
For the sake of simplicity, we refer to Garrett and his medical practice
collectively as “Garrett” throughout this opinion.
negligence claim. On appeal, Stanley argues that the trial court erred in granting

Garrett’s motion for summary judgment and his motion to dismiss. She further

contends that the trial court erred in partially denying her motion to exclude expert

testimony and partially granting Garrett’s similar motion. For the reasons set forth

infra, we affirm.2

Viewed in the light most favorable to Stanley (i.e., the nonmoving party),3 the

record shows that in September 2014, Fettig began seeing Garrett—a psychiatrist

with extensive experience in treating alcohol and drug addiction—on an outpatient

basis for treatment of his alcoholism and depression. At their first session, Garrett

prescribed Lorazepam—an anti-anxiety medication—to help Fettig during the

alcohol-withdrawal process. Then, over the course of the next month, Fettig met with

2
Oral argument was held in this case on May 5, 2020, and is currently archived
on the Court's website for public viewing. See Court of Appeals of Georgia, Oral
Argument, Case No. A20A00894 (May 5, 2020), available at
https://www.gaappeals.us/oav/A20A0894.php
3
See, e.g., Swanson v. Tackling, 335 Ga. App. 810, 810 (783 SE2d 167) (2016)
(noting that in reviewing a grant of summary judgment, we view all evidence in the
light most favorable to the nonmovant). We similarly review a trial court’s ruling on
a motion to dismiss for failure to state a claim. See Zephaniah v. Ga. Clinic, P.C., 350
Ga. App. 408, 410 (829 SE2d 448) (2019) (noting that in reviewing a motion to
dismiss for failure to state a claim, we construe the pleadings in “the light most
favorable to the plaintiff with all doubts resolved in the plaintiff’s favor” (punctuation
omitted)).

2
Garrett for several more sessions, ending his treatment on October 6, 2014. And for

the next four months, Fettig managed to remain sober. But in late February 2015,

while on a business trip in Colorado, Fettig relapsed. As a result, he cut his trip short

and returned to Atlanta on February 26, 2015. Once he arrived home, Fettig’s wife

contacted Garrett’s assistant and scheduled an emergency session for noon on

Saturday, February 28, 2015, at Garrett’s Buckhead office.

Although Fettig could not recall when, at some point on February 28, 2015, he

took one of the Lorazepam that Garrett previously prescribed. At 9:00 a.m. that day,

he attended an Alcoholics Anonymous meeting. Then, after the meeting concluded,

Fettig went to a tavern, arriving when it opened at 11:00 a.m. And during the forty

minutes he was there, Fettig drank five beers. He then drove nearly two miles down

the street to Garrett’s office to attend his emergency session. Although Fettig later

speculated that he must have been intoxicated, he apparently attended the session

without incident. Following the session, Fettig drove back up the street—again nearly

two miles—to a neighborhood pub that he frequented when he previously lived in the

area. At the pub, he drank a few more beers before driving to a burger restaurant in

Marietta not far from his home. Once there, he drank two more beers before the

bartender stopped serving him. Fettig then left the restaurant, and, shortly thereafter,

3
his vehicle collided with Thomas Stanley’s vehicle, resulting in Thomas’s death. At

the hospital, blood taken from Fettig indicated a blood-alcohol content of 0.192

percent and a Lorazepam concentration of 36 micrograms per liter.

Following her husband’s death, Janet Stanley filed a lawsuit against Garrett and

his medical practice, alleging that Garrett’s negligence in both his treatment of Fettig

and his failure to prevent Fettig from driving—despite meeting with him a few hours

prior to the accident—led to the fatal collision. And filed with Stanley’s complaint

was an affidavit from a psychiatrist, who averred that Garrett’s treatment of Fettig

deviated from the standard of care for such patients. Garrett filed an answer and a

motion to dismiss for failure to state a claim, arguing that Stanley could not recover

for any professional negligence related to his treatment of Fettig because physician-

patient privity was required to maintain such a claim. Stanley responded, but the trial

court granted Garrett’s motion and dismissed Stanley’s professional-negligence

claim.

After discovery concluded, Garrett filed a motion for summary judgment as to

Stanley’s remaining claim of ordinary negligence. And prior to responding to

Garrett’s motion, Stanley filed a motion to exclude one of Garrett’s expert witnesses.

Garrett responded and filed his own motion to exclude certain testimony of one of

4
Stanley’s expert witnesses. Subsequently, Stanley filed her response to Garrett’s

motion for summary judgment. Then, after holding a hearing on the matter, the trial

court granted Garrett’s motion for summary judgment, finding, inter alia, that Garrett

had no duty to exercise control over Fettig to prevent him from harming others. In the

same order, the trial court denied both parties’ motions to exclude expert testimony,

finding them moot; but in a footnote, the court added that if its order on summary

judgment were reversed, it would grant both motions in part and deny them in part.

This appeal follows.

1. Stanley first contends that the trial court erred in granting Garrett summary

judgment as to her ordinary-negligence claim, arguing that genuine issues of material

fact exist as to whether Garrett had a duty to exercise control over Fettig to prevent

him from harming others. We disagree.

Summary judgment is proper 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.”4 If summary judgment is granted, it enjoys no

presumption of correctness on appeal, and an appellate court must satisfy itself that

4
OCGA § 9-11-56 (c).

5
the requirements of OCGA § 9-11-56 (c) have been met.5 In conducting this de novo

review, we are charged with “viewing the evidence, and all reasonable conclusions

and inferences drawn from the evidence in the light most favorable to the

nonmovant.”6 Bearing these guiding principles in mind, we turn to Stanley’s specific

claims of error.

Stanley contends that the trial court erred in granting summary judgment as to

her ordinary-negligence claim on the ground that, as a matter of law, Garrett had no

duty to exercise control over Fettig to prevent him from harming others. In order to

have a viable negligence action, a plaintiff “must satisfy the elements of the tort,

namely, the existence of a duty on the part of the defendant, a breach of that duty,

causation of the alleged injury, and damages resulting from the alleged breach of the

duty.”7 Specifically, a “legal duty” is the “obligation to conform to a standard of

5
See Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010)
(“Summary judgments enjoy no presumption of correctness on appeal, and an
appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56
(c) have been met.”).
6
Benefield v. Tominich, 308 Ga. App. 605, 607 (1) (708 SE2d 563) (2011)
(punctuation omitted); accord Swanson, 335 Ga. App. at 810.
7
Rasnick v. Krishna Hospitality, Inc., 289 Ga. 565, 566 (713 SE2d 835)
(2011); accord John Crane, Inc. v. Jones, 278 Ga. 747, 751 (604 SE2d 822) (2004).

6
conduct under the law for the protection of others against unreasonable risks of

harm.”8 But the innocence of the plaintiff is

immaterial to the existence of the legal duty on the part of the defendant
in that the plaintiff will not be entitled to recover unless the defendant
did something that it should not have done, i.e., an action, or failed to do
something that it should have done, i.e., an omission, pursuant to the
duty owed the plaintiff under the law.9

And such a duty can arise either from “a valid legislative enactment, that is, by

statute, or be imposed by a common law principle recognized in the caselaw.”10

Nevertheless, as the Supreme Court of Georgia has recently held, there is no general

legal duty to all the world not to subject others to an unreasonable risk of harm.11

8
Rasnick, 289 Ga. at 566.
9
Id.
10
Id. at 566-67; accord Murray v. Ga. Dept. of Transp., 284 Ga. App. 263, 272
(4) (644 SE2d 290) (2007).
11
See Ga. Dept. of Labor v. McConnell, 305 Ga. 812, 816 (3) (a) (828 SE2d
352) (2019) (disapproving of Bradley Center v. Wessner, 250 Ga. 199, 201 (296
SE2d 693) (1982), to the extent that it created a general legal duty “to all the world
not to subject [others] to an unreasonable risk of harm” (punctuation omitted)).

7
Finally, and importantly with regard to reviewing a grant of summary judgment,

“[t]he existence of a legal duty is a question of law for the court.”12

As a general rule, there is no duty to “control the conduct of third persons to

prevent them from causing physical harm to others.”13 And specifically, a

doctor—like any actor—generally has “no duty to exercise control over third persons

to prevent them from harming others.”14 But the two exceptions to this rule are when

“a special relationship exists between the actor and another imposing a duty on the

actor to control such person’s conduct for the benefit of third persons, or a special

12
Rasnick, 289 Ga. at 567; see Sheaffer v. Marriott Int’l, Inc., 349 Ga. App.
338, 340 (1) (826 SE2d 185) (2019) (holding that whether the defendant owes
plaintiff a legal duty is a question of law).
13
Shortnacy v. N. Atlanta Internal Medicine, P.C., 252 Ga. App. 321, 325 (2)
(556 SE2d 209) (2001); see SecureAlert, Inc. v. Boggs, 345 Ga. App. 812, 816 (815
SE2d 156) (2018) (noting that as a general rule, under Georgia law, there is no duty
to control the conduct of third persons to prevent them from causing physical harm
to others).
14
Gilhuly v. Dockery, 273 Ga. App. 418, 419 (615 SE2d 237) (2005); accord
Bruscato v. Gwinnett-Rockdale-Newton Comm. Svc. Bd., 290 Ga. App. 638, 639 (1)
(660 SE2d 440) (2008).

8
relationship exists between the actor and another giving such person a right to

protection.”15

Turning to the issue before us, Stanley argues that Garrett owed a duty under

the first exception as outlined in Bradley Center v. Wessner.16 In that case, a voluntary

inpatient in a mental hospital shot and killed his wife while out on an unrestricted

weekend pass, despite previously making numerous statements to hospital staff

indicating his intention to harm his wife.17 Furthermore, although the patient had been

admitted to the private hospital on a voluntary basis, by the terms of his admission,

the hospital was authorized to detain him for 48 hours in the event he sought

discharge against medical advice.18 Given these circumstances, in affirming a jury

verdict in favor of the victim’s child’s negligence claim against the hospital, our

Supreme Court held that

when the course of treatment of a mental patient involves an exercise of
‘control’ over him by a physician who knows or should know that the

15
Houston v. Bedgood, 263 Ga. App. 139, 142 (2) (588 SE2d 437) (2003);
accord Gilhuly, 273 Ga. App. at 419-20.
16
250 Ga. 199.
17
See id. at 199-200.
18
See id.

9
 patient is likely to cause bodily harm to others, an independent duty
arises from that relationship and falls upon the physician to exercise that
control with such reasonable care as to prevent harm to others at the
hands of the patient.19

Consequently, Bradley Center essentially established a two-part test for determining

the circumstances under which a physician may be liable to a third party: “(1) the

physician must have control over the mental patient; and (2) the physician must have

known or reasonably should have known that the patient was likely to cause bodily

harm to others.”20 But critically, “absent legal authority in the physician to place

restraints on the liberty of his patient, the duty to control does not arise.”21 And here,

it is undisputed that—unlike the hospitalized inpatient in Bradley Center—Fettig was

19
Id. at 201 (1) (punctuation omitted).
20
Ermutlu v. McCorkle, 203 Ga. App. 335, 336 (1) (416 SE2d 792) (1992); see
Bradley Center, 250 Ga. at 201-02 (1) (holding that one who takes charge of a third
person whom he knows or should know to be likely to cause bodily harm to others
if not controlled is under a duty to exercise reasonable care to control the third person
to prevent him from doing such harm); Shortnacy, 252 Ga. App. at 326 (2) (same).
21
Houston, 263 Ga. App. at 142 (2) (a); see Bradley Center, 250 Ga. at 201 (1)
(explaining the importance of control in determining if physician has duty);
Shortnacy, 252 Ga. App. at 326 (2) (a) (noting that the “emphasis on control over the
patient as the touchstone for imposing this duty to third parties for the criminal acts
of the patient has been repeatedly stated”).

10
a voluntary outpatient over whom Garrett had no legal authority to confine or

restrain.22

Nevertheless, Stanley maintains that Garrett could have exercised control over

Fettig by committing him to involuntary treatment under OCGA § 37-7-41 (a), which,

in part, provides: “Any physician within this state may execute a certificate stating

that he has personally examined a person within the preceding 48 hours and found

that, based upon observations set forth in the certificate, the person appears to be an

alcoholic, a drug dependent individual, or a drug abuser requiring involuntary

treatment.” But Stanley cites no authority to support her implicit contention that a

22
See Gilhuly, 273 Ga. App. at 419 (holding that emergency-room physician
who prescribed patient medication that could cause drowsiness had no duty to
exercise control over patient and, thus, was not liable for injuries to plaintiffs suffered
as a result of patient causing an automobile accident); Houston, 263 Ga. App. at 142
(2) (a) (concluding that physician who issued DOT certificate declaring truck driver
as fit to drive and free of current heart disease did not have duty to control driver for
the protection of motorist killed in collision when truck driver apparently died of
heart failure while driving); Shortnacy, 252 Ga. App. at 326 (2) (a) (holding that
physician had no duty to control patient he treated on an outpatient basis, who
collided with another car after receiving an injection of a narcotic analgesic);
Ermutlu, 203 Ga. App. at 337 (1) (holding that psychiatrist of manic depressive
outpatient had no duty to third parties who were killed in motor-vehicle accident
caused by patient); Baldwin v. Hosp. Auth. of Fulton Cty, 191 Ga. App. 787, 789 (2)
(383 SE2d 154) (1989) (finding that physicians who treated patient after he attempted
suicide one day before he killed his wife had no duty to wife because they had no
ability to control, i.e., no legal authority to confine or restrain patient against his will).

11
physician is required by this statute to initiate involuntary treatment on a patient any

time he or she has reason to believe the patient is under the influence of alcohol.

Implicitly, Stanley asserts that we should construe this statute as analogous to a dram-

shop act for physicians, but previously “we have expressly declined to find that the

duty of a health care provider to the public at large is similar to the duty imposed on

providers of alcohol [under] OCGA §§ 51-1-40 and 3-3-22.”23 Accordingly, the trial

court did not err in granting summary judgment to Garrett as to Stanley’s ordinary-

negligence claim.

2. Stanley also contends that the trial court erred in granting Garrett’s motion

to dismiss her professional-negligence claim. Again, we disagree.

In her complaint, Stanley claims that Garrett breached the standard of care in

his treatment of Fettig and that such professional negligence ultimately led to the

death of her husband. And indeed, Stanley included with her complaint an affidavit

from a psychiatrist, who averred that Garrett’s treatment of Fettig deviated from the

standard of care for patients such as Fettig. But Georgia law is clear that

23
Houston, 263 Ga. App. at 143 (2) (c); see Shortnacy, 252 Ga. App. at 327 (2)
(c) (noting that to expand a dram-shop duty of health care providers to the public at
large would be inconsistent with the physician-patient relationship and contrary to
public policy).

12
physician-patient privity is “an absolute requirement for the maintenance of a

professional malpractice action.”24 Indeed, it is a well-settled principle of Georgia law

that “there can be no liability for malpractice in the absence of a physician-patient

relationship.”25 And here, it is undisputed that neither Stanley nor her husband were

Garrett’s patient. As a result, the trial court did not err in granting Garrett’s motion

to dismiss Stanley’s professional-negligence claim.

3. Stanley further contends that the trial court erred in partially denying her

motion to exclude expert testimony and partially granting Garrett’s similar motion.

But given our holdings in Divisions 1 and 2, supra, affirming the trial court’s

dismissal of all of Stanley’s claims, we agree with the trial court that these issues are

moot. Accordingly, we need not address them.

24
Gilhuly, 273 Ga. App. at 419 (punctuation omitted); accord Boston Men’s
Health Ctr., Inc. v. Howard, 311 Ga. App. 217, 222 (1) (715 SE2d 704) (2011).
25
Boston Men’s Health Ctr., Inc., 311 Ga. App. at 222 (1) (punctuation
omitted); see Herrington v. Gaulden, 294 Ga. 285, 286 (751 SE2d 813) (2013)
(noting that “[t]o make out a case of medical malpractice, the plaintiff usually must
prove that she was, in fact, a patient of the defendant-physician”); Med. Ctr. of
Central Ga., Inc. v. Landers, 274 Ga. App. 78, 84 (1) (b) (616 SE2d 808) (2005)
(“Georgia law is clear that physician-patient privity is an absolute requirement for the
maintenance of a professional malpractice action.” (punctuation omitted)).

13
 For all these reasons, we affirm the trial court’s grant of Garrett’s motion for

summary judgment and motion to dismiss for failure to state a claim.

Judgment affirmed. Rickman and Brown, JJ., concur.

14