Noyak v. Cobb County Kennestone Hospital Authority

United States Court of Appeals,

Eleventh Circuit.

No. 94-8403.

Gregory Alan NOVAK, individually and by his next friend June
Lowery Novak; June Lowery Novak, individually and on behalf of her
son Gregory Alan Novak, Plaintiffs-Appellants,

v.

COBB COUNTY KENNESTONE HOSPITAL AUTHORITY d/b/a Kennestone
Hospital; Samuel D. Bishop; Bradley E. Henderson; John David
Tucker; Richard G. Gray; W. Grady Pedrick; Jerry A. Landers, Jr.
and Robert D. Ingram, Defendants-Appellees.

Feb. 14, 1996.

Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:90-01316-CV-JEC), Julie E. Carnes,
Judge.

Before TJOFLAT, Chief Judge, COX, Circuit Judge, and WELLFORD*,
Senior Circuit Judge.

TJOFLAT, Chief Judge:

I.

In the early morning hours of June 18, 1989, Gregory Alan

Novak, then sixteen years old, fell asleep at the wheel of his

automobile, crashed into a guard rail on I-575 in Cherokee County,

Georgia, and was seriously injured. Novak was removed from the

scene by ambulance and taken to Kennestone Hospital, a facility

operated by the Cobb County Kennestone Hospital Authority. There,

it was determined that Novak had sustained numerous injuries,

including fractures of both legs and multiple lacerations.

Shortly after arriving at the hospital's emergency room,

Novak, anticipating that a blood transfusion might be needed, told

*
Honorable Harry W. Wellford, Senior U.S. Circuit Judge for
the Sixth Circuit, sitting by designation.
the staff not to give him any blood.1 Novak said that he was a

Jehovah's Witness and that it was against his religious beliefs to

receive blood.

The orthopedic physician handling Novak's case, Dr. Bradley E.

Henderson, concluded that surgery would be needed to repair Novak's

fractured right leg. Novak's father, the only family member on the

scene, consented to the surgery. He did so, however, with the

understanding that Novak be given no blood during the procedure.

(Novak's father was not a Jehovah's Witness, but his mother, in

whose custody Novak had been since his parents' divorce, was.

Novak's father knew that she, as well as his son, would object to

any blood transfusion.) Dr. Henderson believed that Novak could

withstand the surgical procedure without a blood transfusion;

accordingly, in the early morning hours of June 18, he performed

the operation.

Novak lost a considerable amount of blood as a result of his

injuries and the subsequent triage and surgery. By the early

afternoon of June 19, he had become severely anemic. Novak's blood

count and blood pressure were falling at such a rate that Drs.

Henderson and John David Tucker, the general surgeon on the case,

after consulting Dr. Richard G. Gray, a hematologist, were

convinced that, without a blood transfusion, Novak would likely

1
As a minor, however, Novak could not withhold his consent
to medical treatment. See O.C.G.A. § 31-9-7 (1982). The
orthopedic physician treating him noted in Novak's hospital
record that Novak had objected on religious grounds to the
receipt of blood.
die.2 Mrs. Novak and her son knew this; they continued to reject

the physicians' recommendations, however. A transfusion would be

against their religious beliefs.

At this point, Drs. Henderson and Tucker informed the

hospital's management of Novak's condition and of Mrs. Novak's

refusal to allow a transfusion—even if necessary to save Novak's

life. The matter was assigned to Samuel Bishop, the hospital's

Director of Risk Management, and he immediately contacted the law

firm that represented the hospital and explained the situation.3

After consulting with Dr. Henderson and confirming the information

they had received—that without a transfusion, Gregory Novak could

die at any time—attorneys W. Grady Pedrick and Jerry A. Landers,

Jr. decided to petition the Cobb County Superior Court for the

appointment of a guardian ad litem. The person they had in mind

for the appointment was Robert Ingram, a practicing lawyer in Cobb

County. Landers contacted Ingram, advised him of Gregory Novak's

condition and of his and his mother's refusal to allow a blood

transfusion, and asked him whether he would to serve as guardian ad

2
According to Dr. Gray, who was called into the case as a
consultant in the afternoon of June 19, Novak's blood count was
at a "critical" level; without a blood transfusion, Novak could
succumb to death from, among other things, circulatory failure,
renal failure, and liver failure.
3
Bishop, a nonlawyer, knew that under Georgia law, Gregory
Novak, because he was a minor, could not withhold his consent to
the blood transfusion his treating physicians were recommending.
See O.C.G.A. § 31-9-7 (1982). At the same time, he was uncertain
whether Novak or his mother could withhold consent on religious
grounds; in short, he could not reconcile their legal rights
with the principle of Georgia law that a minor is not competent
to decide whether he should live or die. Given these
circumstances, Bishop felt obligated to refer the matter to the
hospital's attorneys.
litem if appointed. Ingram said he would; the assignment would

present no conflict of interest on his part.

They filed their petition in the afternoon of the 19th, at

4:49 p.m. The petition, which sought the appointment of a guardian

ad litem for the sole purpose of determining whether the blood

transfusion the physicians were recommending would be in Gregory

Novak's best interest, was assigned to Judge P. Harris Hines.

Because the petition presented a matter that needed immediate

attention, Judge Hines considered it within minutes, without notice

to Novak or his mother. 4 After hearing from Pedrick and Landers

and reading Dr. Henderson's affidavit, Judge Hines granted the

petition and appointed Ingram guardian ad litem for the limited

purpose described in the petition.

At a little after 9:00 the following morning, June 20, Judge

Hines telephoned Bishop, learned that Novak's condition had

deteriorated during the night, and told Bishop that he was

convening a hearing at the hospital as soon as he could get there.

The hospital's attorneys and Novak's treating physicians were to

attend the hearing.

The hearing began at 9:35 a.m. in the hospital's intensive

care unit where Gregory Novak was confined. Judge Hines handled

the hearing himself in that he, alone, examined the witnesses:

Drs. Henderson and Tucker, Novak's primary treating physicians, and

members of the hospital's staff. The hospital's attorneys, Pedrick

and Landers, simply stood by. The physicians testified that

4
Judge Hines held the hearing without notice to Gregory
Novak or his parents because the petition alleged the need for
immediate emergency relief. See O.C.G.A. § 15-11-32(b).
Novak's condition was continuing to deteriorate and that, without

a blood transfusion, he would probably die.

At the conclusion of the hearing, the guardian ad litem asked

the court to order a transfusion. In response, the court noted for

the record that Mrs. Novak had not changed her position—a blood

transfusion would offend her and her son's religious beliefs—but

held that her wishes could not be imposed on her minor child given

the life or death situation at hand. An order authorizing the

treating physicians to arrange for the blood transfusion was

therefore entered.

The transfusion was promptly carried out; Gregory Novak

received three units of packed red blood cells. His blood count

improved significantly, and he suffered no untoward effects from

the procedure. In due course, he fully recovered from his

injuries.

II.

On June 18, 1990, Gregory Novak and his mother, June Lowrey

Novak, brought this suit. They seek compensatory and punitive

damages from (1) Gregory Novak's treating physicians, Drs.

Henderson and Tucker, (2) Dr. Gray, the hematologist whom Dr.

Henderson consulted on June 19, (3) the governmental authority that

operates the hospital, (4) the hospital's Director of Risk

Management, Samuel Bishop, (5) the attorneys, Grady Pedrick and

Jerry Landers, who petitioned the Cobb County Superior Court for

the appointment of a guardian ad litem, and (6) the guardian ad

litem, Robert Ingram.

The Novaks' amended complaint, which is the pleading before
us, contains eighteen counts; some of the counts, such as count
5
one, assert several discrete causes of action. In the first

twelve counts, Gregory Novak seeks $12,500,000 in compensatory

damages, plus punitive damages; in the remaining counts, June

Novak seeks $6,500,000 in compensatory damages plus punitive

damages. Some of the Novaks' claims allege federal constitutional

violations and are brought under 42 U.S.C. § 1983. The remainder

allege violations of Georgia constitutional, statutory, or common

law rules.

The district court concluded that the Novaks' federal claims

were meritless and gave the defendants summary judgment. Having

disposed of the Novaks' federal claims in this fashion, the court

dismissed their pendent state law claims without prejudice. We

agree with the district court that the Novaks have no valid claim

under the United States Constitution and thus affirm its summary

disposal of their section 1983 claims.6 Given this disposition, we

also affirm the court's dismissal of the Novaks' pendent claims.

III.

In count one of his amended complaint, Gregory Novak alleges

that the administration of the blood transfusion of June 20—over

his mother's and his objection on religious grounds—deprived him of

5
The pleading is a quintessential "shotgun pleading." See
Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir.); cert.
denied, 502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991);
T.D.S. Inc. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n. 14
(11th Cir.1985) (Tjoflat, J., dissenting).
6
The Novaks have not appealed the district court's grant of
summary judgment to the guardian ad litem, Robert Ingram. Our
affirmance therefore runs only to the defendants before us as
appellees.
the following

rights, privileges, and immunities secured to him by the
Constitution of the United States:

(a) His right to be free from the deprivation of life,
liberty, or property without due process of law under the
Fifth Amendment ... made applicable to the States by the
Fourteenth Amendment....

(b) His right to be free from the deprivation of life,
liberty, or property, without due process of law under the
Fourteenth Amendment....

(c) His right of religious freedom under the First
Amendment ..., made applicable to the States by the Fourteenth
Amendment....

(d) His right of personal privacy protected by virtue of
the First, Third, Fourth, Fifth, Ninth, and Fourteenth
Amendments....

(e) His right to equal protection of law under the
Fourteenth Amendment....

(f) His right to freedom of contract, protected by the
Fifth Amendment and/or the Fourteenth Amendment....

(g) His right to have his privileges and immunities as a
citizen of the United States free from abridgement by the
State of Georgia contrary to the Fourteenth Amendment ...;
and

(h) His right to be free from deprivation of his liberty
interest in maintaining his familial relationship with his
mother under the Fourteenth Amendment....

Gregory Novak concedes, as he must, that the constitutional

injuries he allegedly suffered would not have occurred had Judge

Hines not issued the order authorizing the blood transfusion his

physicians administered.7 Moreover, if the issuance of the order

constituted an independent act on the court's part, then it is of

no moment whether, as the plaintiffs allege, Gregory Novak's

7
The Novaks, however, did not join Judge Hines as a
defendant in this case. They apparently felt that a suit against
Judge Hines would be barred by the doctrine of judicial immunity.
physicians erred in believing that their patient's life was in

jeopardy, the hospital and its attorneys erred in deciding to

petition the superior court for the appointment of a guardian, and

the guardian ad litem erred in asking the court to issue the order

in question. On the record of this case, there can be no doubt

that Judge Hines acted independently in issuing the order. Judge

Hines, alone, decided to entertain the attorneys' petition, to

appoint a guardian ad litem, to hold the hearing at the hospital,

to summon and examine the witnesses, and to order the transfusion.

The Novaks' attorneys, anticipating this problem of causation,

sought to avoid the problem by alleging that the transfusion Judge

Hines authorized was the product of a conspiracy. By linking the

defendants to the state actor, Judge Hines, through a conspiracy,

counsel apparently believed that they could satisfy the

requirements of 42 U.S.C. § 1983 and the Fourteenth Amendment. See

Jones v. Preuit & Mauldin, 851 F.2d 1321, 1330 (11th Cir.1988) (en

banc) (Tjoflat, J., specially concurring) (section 1983 requires

proof of an affirmative causal connection between the action taken

by the defendant and the constitutional deprivation), vacated on

other grounds, 489 U.S. 1002, 109 S.Ct. 1105, 103 L.Ed.2d 170

(1989); Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir.1990)

(private defendants can be liable under section 1983 if they act in

concert with state officials in depriving the plaintiff of

constitutional rights), cert. denied, 500 U.S. 932, 111 S.Ct. 2053,

114 L.Ed.2d 459 (1991); see also Dennis v. Sparks, 449 U.S. 24,

27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980) (though a judge

may be immune from suit, private parties who conspire with him act
"under color of state law" for purposes of section 1983). Counsel

did not refer to Judge Hines as one of the conspirators by name;

rather, they did so by implication—by alleging that the named

defendants were either state actors or "private persons who acted

jointly with, willfully participated with, or conspired with state

actors or their agents under color of the statutes ... of the State

of Georgia, and thereby caused Plaintiff Gregory Alan Novak ... to

be subjected to the deprivation of [his constitutional rights]."

(emphasis added).

Thus, in order to have caused Novak to suffer constitutional

injury, the defendants had to have conspired with Judge Hines. At

oral argument, the Novaks' attorneys were asked whether the record

contained any evidence that any of the defendants conspired with

Judge Hines to obtain a court-authorized transfusion. They said it

did not. Having made that concession, the Novaks' counsel argued

that the defendants should be held to have caused the plaintiff's

injury because they obtained the order from a court that the

defendants knew or should have known had no jurisdiction to grant

it. Although the Cobb County Superior Court is a court of general

jurisdiction, counsel contends that the only court with

jurisdiction to authorize the transfusion was the Cobb County

Juvenile Court.

The Novaks' amended complaint nowhere alleges that Judge

Hines lacked jurisdiction to enter the order in question. Their

attorneys concede this point but contend that their allegations

raise the inference that Judge Hines lacked jurisdiction to issue

the order. Drawing such an inference, they argue, would be
consistent with the spirit of notice pleading. We refuse to draw

the inference; we do not consider on appeal claims that are not

presented to the district court. Glenn v. United States Postal

Serv., 939 F.2d 1516, 1523 (11th Cir.1991); Lattimore v. Oman

Constr., 868 F.2d 437, 439 (11th Cir.1989).

Mrs. Novak's federal constitutional claims, which are

contained in count thirteen of the amended complaint, suffer the

same shortcomings. Liability is predicated on the existence of

conspiracy, and there is none.

IV.

In conclusion, we find no cognizable federal constitutional

claims in this record and therefore affirm the district court's

grant of summary judgment. We also affirm the court's dismissal of

the Novaks' pendent state law claims without prejudice. Finally,

because we find this appeal to be frivolous with respect to

appellants' claims against Dr. Gray and the hospital's attorneys,

we award them double costs and reasonable attorney's fees. Those

fees shall be determined by the district court following receipt of

our mandate. See Fed.R.App.P. 38; Pelletier v. Zweifel, 921 F.2d

1465, 1523 (11th Cir.); cert. denied, 502 U.S. 855, 112 S.Ct. 167,

116 L.Ed.2d 131 (1991).

SO ORDERED.