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Houston Hospitals, Inc. v. Felder

Court of Appeals of Georgia, First Division

June 14, 2019

HOUSTON HOSPITALS, INC. et al
v.
FELDER et al. HOUSTON HOSPITALS, INC. et al.
v.
BOWEN et al.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Mercier, Judge.

         In these related appeals, Houston Hospitals, Inc. and Houston Healthcare Systems, Inc. d/b/a Perry Hospital (collectively referred to as the "Hospital") appeal the trial court's orders denying their motions for summary judgment.[1] This appeal arises out of the misconduct of Rachel Repraeger, an employee of the Hospital, who forged patients' mammogram reports. This Court previously affirmed summary judgment to the Hospital regarding similar allegations by different plaintiffs in Jefferson v. Houston Hospitals, 336 Ga.App. 478 (784 S.E.2d 837) (2016), holding that the plaintiffs failed to present sufficient evidence to sustain their claims.[2] Id. at 478-479. For the following reasons, we find that the plaintiffs in this appeal failed to present sufficient evidence to sustain their claims and reverse the denial of the Hospital's motions for summary judgment.

         Summary judgment is appropriate "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[.]" OCGA § 9-11-6 (c). In our de novo review of the grant or 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." Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 S.E.2d 779) (2010) (citation and punctuation omitted).

[T]he rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party's case.

Id. at 623 (1) (a) (citation and punctuation omitted).

         The plaintiffs at issue received mammograms at the Hospital in 2008 or 2009. Repraeger, the lead mammography technologist at the Hospital, was supposed to transmit mammogram images to a radiologist for interpretation. See Jefferson, supra at 479. Instead, she used passwords that she obtained from training to log into the Hospital's mammography record system and create forged reports which stated that the mammograms were normal. Id. The Hospital discovered the forgeries following an investigation, and Repraeger was terminated on April 6, 2010. Id. at 479-480. She was indicted on ten counts of reckless conduct and ten counts of computer forgery; she ultimately pled guilty to ten counts of reckless conduct and one count of computer forgery. Id. at 480. The Hospital refunded all payments made regarding the forged mammograms to the patients' insurance companies and paid for effected patients to undergo another mammogram.

         All of the plaintiffs at issue filed complaints in March of 2012, alleging claims for medical negligence, fraud, RICO, intentional infliction of emotional distress, breach of contract and express warranty, general negligence and negligence per se, conversion, bad faith costs, attorneys fees, and punitive damages. The Hospital filed motions for summary judgment, and the trial court denied the motions as to the plaintiffs' claims, with the exception of the RICO and conversion claims. The trial court reserved ruling on the RICO claims for a more definite statement from the plaintiffs and granted summary judgment to the Hospital on the plaintiffs' conversion claims. The plaintiffs have not appealed these rulings.

         It appears that the trial court issued two separate orders on the Hospital's motions for summary judgment due to the plaintiffs' claim that if the mammograms had been properly analyzed, three of the plaintiffs' mamograms "would have revealed the presence of incipient cancer or other positive findings warranting further diagnostic measures." Those three plaintiffs are the sole appellees in Case No. A19A0422.[3] The other fourteen plaintiffs, none of which claimed that they suffered from breast cancer or any other health condition that the mammogram was likely to detect, are the appellees in Case No. A19A0423.[4] (Unless otherwise indicated, we will refer to the seventeen plaintiffs collectively as the "plaintiffs"). The Hospital appeals the trial court orders, arguing inter alia, that similarly to the plaintiffs in Jefferson, the plaintiffs failed to establish that they suffered physical or emotional injuries or pecuniary loss. We agree.

         1. The Plaintiffs, in their individual complaints, each claim that they suffered physical and emotional injuries and pecuniary loss as a result of the Hospital's medical negligence.

The essential elements of a medical negligence claim are (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.

Hill v. Jackson, 336 Ga.App. 679, 691-692 (4) (a) (783 S.E.2d 719) (2016) (citations and punctuation omitted). "Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had." OCGA § 51-1-27.

         (a) The plaintiffs argue that by submitting to a second mammogram after Repraeger's conduct was discovered, they suffered a physical injury due to "excessive radiation," "soft tissue damage and painful bruising to [their] breast." The plaintiffs do not dispute that they consented to the second mammogram, but they claim that the mammogram itself caused them injury.

         A mammogram however, is an ordinary medical diagnostic procedure. See Jefferson, supra at 486 (3) (a). In fact, the first mammogram report, which was issued by Repraeger, informed the Plaintiffs that "[a] 1 year screening mammogram is recommended." The plaintiffs have failed to establish that they would not have had another mamogram within the year that they had their second mammogram. Furthermore, the plaintiffs have not shown that the second mammogram was negligently performed, such that the radiation or bruising were not typical consequences of a routine mammogram. Without more, we cannot hold that the "injuries" sustained by ...


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