Ford v. Saint Francis Hospital, Inc.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because, in my view, the trial court erred in directing a verdict for the Hospital on the Fords’ fraud and Georgia Fair Business Practices Act claims. I also believe the trial court erred in excluding the possibility of recovery on the Fords’ negligence per se claim. Although the trial court denied the Fords’ motion for directed verdict with regard to this claim, the trial court’s ruling excluding recovery based on negligence per se was the same as if the trial court had directed a verdict for the Hospital on the Fords’ negligence per se claim. “ ‘A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.’ Carver v. Jones, 166 Ga. App. 197, 199 (3) (303 SE2d 529) (1983). Even ‘slight’ evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm &c. Ins. Co., [174 Ga. App. 194 (330 SE2d 1)]. Where there is ‘some evidence,’ or ‘any evidence’ supporting the respondent’s assertions, disputed issues are created which are for jury resolution. United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131) (1983).” Grabowski v. Radiology Assoc., P.A., 181 Ga. App. 298, 301 (3) (352 SE2d 185).

Negligence Per Se. The majority excludes any possibility that the Hospital was not in compliance with state and federal infection control regulations at the time of Mr. Ford’s surgery on November 1, 1993, because a month and a half before the surgery (September 15, 1993) the Hospital passed DHR’s surprise infection control inspection. This inspection, however, was not a final testimonial of the Hospital’s inspection control practices; it was simply to ensure the Hospital’s compliance with a plan that was specifically designed to correct the Hospital’s already determined inadequate infection control practices. Just because the Hospital passed this surprise inspection (a month and a half before Mr. Ford’s surgery) does not mean, as a *830matter of law, the Hospital was in compliance with the applicable state and federal infection control regulations at the time of Mr. Ford’s surgery. In my view, proof that the Hospital was under DHR scrutiny shortly before Mr. Ford’s surgery for regulatory infection control violations, that Mr. Ford contracted a serious infection the applicable regulations were designed to prevent, and that several other patients at the Hospital had been similarly infected raises genuine issues of material fact as to the Hospital’s compliance with the applicable state and federal infection control regulations. I therefore believe the trial court erred in excluding the possibility of recovery on the Fords’ negligence per se claim.

Decided July 11, 1997 Reconsideration denied July 31, 1997 Pope, McGlamry, Kilpatrick & Morrison, Charles N. Pope, Paul Kilpatrick, Jr., William U. Norwood III, Teresa P. Majors, Samuel W. Oates, Jr., for appellants. Allen & Peters, Paul E. Weathington, Gary R. McCain, Michael D. Flint, Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Robert C. Martin, Jr., for appelleé.

Fraud and Fair Business Practices Act.' Affirming the trial court’s directed verdict on these claims, the majority reasons only that the essential element of the Fords’ reliance on the Hospital’s quality assurances is missing because Mr. Ford’s physician, not the Fords, chose the venue of Mr. Ford’s surgery. This logic may appear wide but, in my view, is not very deep. For instance, the jury may well have concluded that the Hospital’s public assurances regarding its high quality of care influenced Mr. Ford’s physician (his agent) as well as the Fords’ decision to proceed with surgery at the Hospital. I believe the jury should have been given a chance to measure these alleged reliances.

I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.