concurring specially.
I concur fully in the result but am constrained to make the following comments.
As in the instant case, there was no evidence in Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517 (385 SE2d 436) (1989), that the charges were paid or payable from any secondary source. In the instant case, however, unlike Cutts, there was conflicting evidence, at the time the motion for summary judgment was argued, as to whether decedent would qualify as a “paying patient” and, under Morton v. Savannah Hosp., 148 Ga. 438 (96 SE 887) (1918), would have standing to bring a negligence action,
The evidentiary posture at the time the motion was argued may therefore be summarized as follows:
(1) An agreement, at the time of decedent’s entering the hospital, to pay for services rendered may be implied from the fact that, upon one or the other of his admissions to Grady, decedent told the admissions clerk (or “investigator”) that he had insurance, thus arguably representing that an insurer would pay for his hospital stay and thereby meeting the first prong of the Morton test.
(2) Upon the initial hospital admission decedent told the investigator that he usually earned between $200 and $400 per week (or possibly as much as $1,800 per month); he also stated, however, that during the preceding month he had earned only $500. The investigator then, in accordance with Grady’s policy, tentatively assigned an “X” (full pay) and “40” (has insurance) classification pending verification of income; the verification was apparently not completed. This contradictory evidence was presented in connection with the motion for *561summary judgment; Grady had not yet obtained the income tax evidence (no returns filed for 1980 — 1983; the 1984 return showed income of only $4,545, with one dependent) which it later presented at trial. Had this evidence been available earlier, it might conceivably have affected the result of the motion for summary judgment; we decline to speculate on this, however. Therefore, at the time the trial court denied summary judgment, there existed a genuine issue as to decedent’s ability to pay since his status under the Morton test’s second prong was still in doubt.
As to the third prong, it is undisputed that the $52.45 bill was never paid. The fact that the hospital billed the insurer named by decedent can of course be construed as evidence that the hospital regarded decedent as a paying patient and expected him, or some person acting on his behalf, to pay for the services rendered. This fact might also be construed as evidence under the second prong, supra, that Grady regarded decedent as a paying patient. The seemingly inconsistent fact that, after the insurer declined to pay the bill, the hospital did not then bill the estate might also be construed as evidence on the second prong, that Grady did not regard decedent as a paying patient, contrary to the inference raised by the hospital’s having initially billed the insurer.
Further, as I read the record, it appears that the trial court erred in instructing the jury on the judicially accepted test for determining whether an individual comes within the “paying patient” exception to charitable immunity. According to the record, appellant’s counsel requested that the following charge be given: “. . .1 charge you under the law that a ‘paying’ patient is one who is able to pay, agrees to pay and does pay for the medical care and treatment he receives. If you find that the patient in this case does not meet any of these three requirements, then you must find that he is not a paying patient and that he was entitled to reduced-cost medical care from the defendant.”1 This charge was based on Morton, supra at 441, where the Supreme Court held that “if one is received as a patient at a charitable hospital, is able to pay, and does pay for . . . services, and there is an injury on account of the . . . negligence . . . of a . . . servant of the institution, a petition alleging damages on account of injuries so arising is not subject to demurrer.” Accord Patterson v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 167, 168 (384 SE2d 205) (1989).
The instruction actually given by the trial court, as recorded in the transcript, is as follows: “I charge you . . . that under the laws of *562this State a paying patient is one who is able to pay, either personally or through insurance, and is not the recipient of the hospital’s charity.” Even a cursory comparison of the charge actually given with the Morton prototype, supra, reveals that the discrepancies are such as to be at best confusing and at worst positively misleading, as well as without foundation in established law. The error in the charge was then compounded in the verdict form given to the jurors: “Understanding that the opposite of a charity patient is a paying patient, has Grady carried the burden of proof by a preponderance of the evidence that on June 2nd, 1985, when health care services were rendered to Joseph Fanning, he was a charity patient?” The ambiguity, incompleteness, and inaccuracy of the jury charge, especially as reiterated in the special verdict form, made the charge prejudicial to appellant.
Decided July 12, 1990 Rehearing denied July 30, 1990 — Cert, applied for. Alston & Bird, Robert D. McCallum, Jr., Geoffrey H. Cederholm III, for appellant. William N. Robbins, Joseph A. Maniscalco, Jr., for appellee.We note that although this proposed charge is basically a correct statement of the Morton test, the inclusion in the second sentence of the words “any of’ converts the test, stated in the conjunctive in Morton, into a series of disjunctive criteria and thereby alters the test. Since the charge was not given, this error is of no significance in the instant case.