HOUSTON HOSPITALS, INC. et al
FELDER et al. HOUSTON HOSPITALS, INC. et al.
BOWEN et al.
BARNES, P. J., MERCIER and BROWN, JJ.
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. 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. 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.
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
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
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.
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. 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. (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.
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
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.
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 ...