Peterson v. Reeves

McFadden, Judge.

Monisa Reeves and the conservator of her estate sued psychiatrist Mark Peterson for injuries she sustained when she attempted suicide. Peterson moved for summary judgment, arguing that he had no duty to involuntarily commit Reeves, who was participating in voluntary, outpatient mental health care. Because we find that whether Peterson breached duties arising from the psychiatrist-patient relationship is an issue of fact, we affirm the denial of Peterson’s motion for summary judgment.

We decline Peterson’s invitation to establish a rule that, as a matter of law, a psychiatrist’s statutory duty to “bring to the exercise of his profession a reasonable degree of care and skill,” OCGA § 51-1-27, can never be violated by failure to involuntarily commit a patient. Such innovations are the province of the General Assembly.

We likewise decline Peterson’s invitation to add “control” of the patient to the essential elements of medical malpractice in cases of suicide. Again such innovations are for the General Assembly. And the evidence at bar, construed as Reeves, the nonmovant on summary judgment, is entitled to have it construed, shows why judicial creation of such a rule would be improper. The evidence would authorize a jury to find that Peterson shares in the responsibility for a negligent failure to subject Reeves to a suicide or self-injury risk assessment, an *371adequate psychiatric evaluation, and consideration for hospitalization; that he shares in the responsibility for the failure to stabilize Reeves in a proper medication regimen; and that he was negligent in failing to be available for consultation, or to have another psychiatrist available, when she was discharged. And the evidence would authorize a jury to find that those negligent omissions were a proximate cause of the defendant’s lack of control over Reeves at the time of her attempted suicide as well as of the attempted suicide itself.

1. On appeal from the grant or denial of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the non-moving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

Viewed in a light most favorable to Reeves as the nonmovant, the facts show that Reeves has a history of mental illness dating back to December 2001, and she began seeing Peterson at that time. She continued her treatment with Peterson, as well as other mental healthcare providers, until the incident at issue. She has been diagnosed with a schizo-affective disorder, a recurrent major depressive disorder, a bipolar disorder and psychotic disorders related to her other mental illnesses.

On August 5 or 6,2005, Reeves’s brother took her to the Parkridge Valley Hospital emergency room because she exhibited psychotic symptoms and behavior. She was not hospitalized. The next day, she attempted to jump from a balcony into an empty swimming pool. Reeves’s friend called 911, and the police took her to the Hutcheson Medical Center emergency room. Reeves was found to be at high risk of committing suicide and was involuntarily committed to Northwest Georgia Regional Hospital.

Three days later, Reeves’s status was changed from involuntary to voluntary, and on August 15,2005, she was discharged to Horizons *372Crisis Group Home, a voluntary treatment facility. On August 17, 2005, Horizons discharged Reeves at her request.

On August 23, 2005, Reeves’s brother and sister-in-law again brought her to the Hutcheson Medical Center emergency room. Later that evening, she was admitted to Horizons Crisis Group Home. Peterson saw Reeves on August 26, 2005, diagnosed her with severe major depressive disorder with psychosis and bipolar disorder with psychosis, and prescribed medication.

On August 29, 2005, Reeves was discharged from Horizons either at her request or perhaps for unspecified “administrative reasons.” According to the expert affidavit Reeves submitted with her complaint, there was no indication that Reeves was subjected to a suicide or self-injury risk assessment, an adequate psychiatric evaluation, or considered for hospitalization, even though she had been admitted to Horizons because of clinical instability and danger of suicide.

On the evening of August 31, 2005, Reeves poured gasoline over herself and set herself on fire.

Reeves and her conservator filed this action against multiple defendants, seeking damages for Reeves’s pain and suffering, medical expenses, personal injuries and economic losses. Peterson moved for summary judgment. The trial court denied the motion. Peterson moved for reconsideration, and the trial court denied that motion as well. After we granted his application for interlocutory appeal, Peterson filed this appeal.

2. Peterson argues that Georgia law requires a psychiatrist to have control over a patient before he can be held liable for “any resulting harm” and that because he lacked control over Reeves, he had no affirmative duty to prevent her suicide attempt. His authority for that argument is the plurality opinion in Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982).

Bradley Center is not on point. In that case, our Supreme Court, “granted certiorari to consider whether an individual other than the patient can recover for the alleged malpractice of the physician where that person is injured by the criminal conduct of the patient and there is no privity between the injured party and the physician.” 250 Ga. at 200. The court’s “concern... [was] with the first element [of the cause of action for negligence] — specifically, whether a physician can owe a legal duty of care to an injured party who was not his patient.” Id. The court was at pains to make clear that Bradley Center was “not a malpractice case; it [was] an ordinary negligence case in which privity has never been an essential element.” Id. at 203. The Supreme *373Court explained that in

cases [ ] called “classic medical malpractice actions” by the Court of Appeals, doctor-patient privity is essential because it is this “relation which exists between physician and patient which is a result of a consensual transaction” that establishes the legal duty to conform to a standard of conduct. Norton v. Hamilton, 92 Ga. App. 727, 731 [(89 SE2d 809) (1955)].

Id. at 201.

Rather the duty at issue in Bradley Center “ar[ose] out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm.” Id. at 201. Consequently the court found it necessary to address the “general rule [that] there is no duty to control the conduct of third persons to prevent them from causing physical harm to others.” Id. (citing Shockley v. Zayre &c., Inc., 118 Ga. App. 672 (165 SE2d 179) (1968); Restatement of Torts 2d, § 315). The court found applicable one of the exceptions to that rule: “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.” (Punctuation omitted.) Id. at 201-202 (citing Restatement of Torts 2d, § 319; Prosser, Torts, § 56, p. 349). Reeves was Peterson’s patient. So they were in privity. It follows that Bradley Center has no application here.

This court has twice declined to extend Bradley Center to medical malpractice cases — most recently over a dissent joined by Judge Andrews. Purcell v. Breese, 250 Ga. App. 472, 476 (3) (552 SE2d 865) (2001); Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 773-774 (3) (403 SE2d 235) (1991). We now decline that invitation for the third time — and with it we decline the invitation in Judge Andrews’s dissent here to disregard the rationale of Bradley Center and distinguish Purcell on its facts.

3. Peterson next argues that no duty should be placed on a psychiatrist in a voluntary, outpatient facility to involuntarily commit any patient. But the General Assembly has imposed on every physician the duty to “bring to the exercise of his profession a reasonable degree of care and skill.” OCGA § 51-1-27. If the decision whether to involuntarily commit a patient in such circumstances is to be excepted from that statutory duty, it is for the General Assembly to create the exception.

But the General Assembly has taken the opposite course — notwithstanding that it has established a public policy favoring *374treatment of psychiatric patients in the least restrictive appropriate care setting. The chapter setting out that policy contains an immunity provision. Until last year, it read:

Any . . . physician . . . who acts in good faith in compliance with the admission and discharge provisions of this chapter shall be immune from civil or criminal liability for his actions in connection with the admission of a patient to a facility or the discharge of a patient from a facility.

OCGA § 37-3-4. Effective July 1,2011, the GeneralAssembly amended that provision, adding language that reaffirms the long-recognized policy that physicians may be held liable for failing to meet the applicable standard of care: “[N]othing in this Code section shall be construed to relieve any . .. physician ... from liability for failing to meet the applicable standard of care in the provision of treatment to a patient.” See also Brandvain v. Ridgeview Institute, 188 Ga. App. 106, 112 (2) (372 SE2d 265) (1988); OCGA§ 51-1-27. Another statutory provision makes clear that patients receiving treatment for mental illness “shall receive care and treatment that is suited to [their] needs.” OCGA§ 37-3-162 (a).

Although the least-restrictive-placement policy might be relevant to the standard of care, it is not dispositive of whether a particular placement was suited to a particular patient’s needs, and thus whether a medical professional’s choice of that placement met the professional’s duty of care to the patient. In Misfeldt v. Hosp. Auth. &c. of Marietta, 101 Ga. App. 579 (115 SE2d 244) (1960), for example, a woman diagnosed as a probable paranoid schizophrenic was hospitalized. She went into a bathroom and jumped from a third story window, injuring herself. We reversed the defendant’s directed verdict, finding that the reasonableness of the steps taken by the hospital to protect the patient from herself, including placing her in a four-bed room instead of a more restrictive environment, thereby enabling her to jump out of a third-story window and sustain serious injuries, was a disputed issue for the jury. Id. at 583.

Peterson mischaracterizes the trial court’s order when he argues that it creates an affirmative duty to involuntarily commit patients. The duty at issue is not, properly speaking, a duty to involuntarily commit. It is a much broader duty, which may, in particular cases, entail a duty to commit. Reeves alleges breach of the duty to care for her in compliance with the standard of care applicable to psychiatrists and counselors. The trial court’s denial of summary judgment is nothing more than a determination that genuine issues of material *375fact exist and that Peterson is not entitled to judgment as a matter of law. See Benton, 280 Ga. at 470.

Further, as we held in Division 2, while Peterson had no duty to guarantee that Reeves did not attempt suicide, he had a long-recognized duty inherent in the doctor-patient relationship to exercise the applicable degree of care and skill in the treatment of Reeves, his patient. Brandvain v. Ridgeview Institute, 188 Ga. App. at 112 (2). Peterson can be held liable if his treatment of Reeves fell below the requisite standard of care, and this failure proximately caused Reeves’s injury. OCGA § 51-1-27.

Without citing any authority, Judge Andrews says that we should create an exception to this long-standing rule of law and hold that, if a patient is not hospitalized at the time of a suicide attempt, a psychiatrist can never be held liable for the consequences of that suicide attempt — even if the psychiatrist fails to exercise the applicable degree of care and skill in the treatment of the patient. We decline to usurp the authority of the General Assembly in this way. The law is clear: a physician may be held liable “for failing to meet the applicable standard of care in the provision of treatment to a patient.” OCGA § 37-3-4.

Reeves attached to her complaint an expert affidavit in support of her allegations as required by OCGA § 9-11-9.1. The expert opined within a reasonable degree of medical certainty that Peterson did not comply with the requisite standard of care. Accordingly, whether Peterson’s treatment of Reeves violated the standard of care is a question for the factfinder. See Bowling v. Foster, 254 Ga. App. 374, 381 (1) (b) (562 SE2d 776) (2002) (when a claim is based upon the failure of a professional to meet the requisite standards of the subject profession, it is necessary “to establish such standards and the violation thereof by expert testimony for the guidance of the jury”).

Presiding Judge Mikell and Judge Andrews argue that Peterson is entitled to summary judgment on the ground of proximate causation. Judge Andrews contends that Reeves has failed to submit any evidence of causation. On the contrary, Reeves presented the expert testimony of Dr. William Reid that she should have been — but was not — subjected to a suicide or self-injury risk assessment, an adequate psychiatric evaluation, and consideration for hospitalization. And she presented the testimony of Dr. Robert Alpern, who testified that Peterson owed Reeves a duty, “that he was derelict in performing his duties, that there were damages that resulted from his dereliction of duty, and that the burning and the self-immolation was the direct result of his negligent care.” As detailed in Judge *376Dillard’s special concurrence,1 Dr. Alpern also testified that Peterson was negligent in failing to be available for consultation, or to have another psychiatrist available, when Reeves was discharged. It is true, as detailed in Judge Andrews’s dissenting opinion, that there is also evidence pointing in the opposite direction. But it is not our place to weigh the evidence. “[Q]uestions regarding proximate cause are undeniably a jury question and may only be determined by the courts in plain and undisputed cases.” (Citation and punctuation omitted.) Pruette v. Phoebe Putney Mem. Hosp., 295 Ga. App. 335, 338 (1) (671 SE2d 844) (2008). This is not such an undisputed case.

Presiding Judge Mikell would rule that because Reeves attempted suicide five days after Peterson last saw her, her injury is too remote to find that Peterson’s negligence proximately caused it. Acknowledging that Reeves has presented expert testimony on the issue, he nonetheless would remove the case from the jury and instead determine, as a matter of law, an issue that is “undeniably a jury question.” Pruette, 295 Ga. App. at 338 (1). But although such delay may be relevant to the issue of causation, it is not dispositive as a matter of law. Our cases have often recognized a cause of action where there is a delay of months or years between the breach of duty and the resultant harm. See, e.g., Amu v. Barnes, 283 Ga. 549 (662 SE2d 113) (2008) (cancer diagnosed four years after failure to perform a colonoscopy).

“In our de novo review of [the denial of] a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

Proximate cause is that which, in the natural and continuous sequence, unbroken by other causes, produces an event, and without which the event would not have occurred. What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy, and precedent.

*377(Citations and punctuation omitted.) Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003). And “Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.” Id. at 503. Reeves presented expert testimony that Peterson’s breaches of his duty of care directly resulted in the foreseeable harm of Reeves attempting suicide.

Correctly noting that analysis of the issue of proximate cause, as distinguished from cause in fact, entails analysis of the scope of physicians’ duties to patients, see McAuley v. Wills, 251 Ga. 3, 6-7 (5) (303 SE2d 258) (1983), Presiding Judge Mikell would also hold, as a matter of law, that Peterson violated no duty to Reeves. Presiding Judge Mikell reasons that as the “statutes are silent,” it is for this court “to say whether a duty exists or not in the circumstances presented.” So empowered, he would decline to “create” or “ratify,” inter alia, a duty “to perform a ‘suicide or self-injury assessment’ and an ‘adequate psychiatric assessment.’ ” Imposing such duties, he maintains, would constitute ill-considered “rearrangements of the practice of the profession of psychiatry” and are better left to the General Assembly.

But contrary to Presiding Judge Mikell’s position, the statutes are not silent. OCGA § 51-1-27 provides, “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” The statute leaves no room for procedure-by-procedure determinations by the appellate courts as to whether a cause of action should be allowed.

As Presiding Judge Mikell notes, the General Assembly has the authority to conduct committee hearings. So it has the competence, as well as the authority, to decide whether to create exceptions to that general duty. It has not done so. But it has mandated that juries hearing malpractice cases will hear expert testimony. See OCGA § 9-11-9.1. So juries have the competence, as well as the authority, to decide whether that general duty has been violated in particular cases. Appellate judges, although they have the raw power to create exceptions consistent with their policy preferences, have neither the competence nor the legitimate authority to do so, and should therefore exercise self-restraint.

As Judge Dillard aptly writes in his special concurrence, the evidence, when construed against Peterson, supports inferences of a “reasonable apprehension of harm” and is therefore sufficient to withstand Peterson’s summary judgment motion. See Purcell, 250 *378Ga. App. at 475 (1) (the issue of proximate causation was for the jury-in case where patient committed suicide nearly two months after psychiatrist last saw him).

We emphasize that the trial court did not create, and we are not creating, a new “duty to commit.” Rather, we are simply recognizing that, under some circumstances, the failure to commit may constitute a breach of the well-established duty of care physicians owe patients, and that when a fact question has been created on that issue, it is for the jury.

For these reasons, we conclude that the trial court did not err in denying Peterson’s motion for summary judgment.

Judgment affirmed.

Phipps, P. J., concurs. Dillard and Boggs, JJ., concur specially. Barnes, P. J., concurs in judgment only. Mikell, P. J., and Andrews, J., dissent.

Judge Dillard’s special concurrence describes his reasoning as only “slightly different” from ours. His only difference appears to be his concern that our opinion “could be misconstrued as creating an affirmative duty for a mental healthcare professional to involuntarily commit a potentially suicidal patient.” But we cannot avoid the issue of whether a psychiatrist’s decision not to commit a patient can ever amount to a breach of the duty of care. Peterson squarely raises the issue on appeal, and the issue could he dispositive of the case.