Wilson v. Inthachak

896 S.E.2d 593

WILSON et al.

v.INTHACHAK et al.

S28A1095

Supreme Court of Georgia.

Decided: December 19, 2023

Superior Court, Coffee County, Robert H. Preston, Judge

Ranse Murphy Partin, William Kent Owens, Jr., James Thomas Cox, Conley Griggs Partin LLP, 4200 Northside Parkway NW, Bldg 1, Suite 300, Atlanta, Georgia 30327, James D. Hudson, James D. Hudson, P.C., P.O. Box 868, Douglas, Georgia 31534-0868, for Appellant.

Jarome Gautreaux, Gautreaux Law, LLC, 778 Mulberry Street, Macon, Georgia 31201, for Amicus Appellant. William Richard Dekle, Sr., Brennan, Wasden & Painter, LLC, 411 East Liberty Street, P.O. Box 8047, Savannah, Georgia 31412, Sandra E. Vinueza Foster, Brennan, Wasden & Painter, LLC, 411 East Liberty Street, Savannah, Georgia 31401, Wiley A. Wasden, III, Brennan & Wasden LLP, 411 East Liberty Street, Savannah, Georgia 31412, for Appellee.

Gregory Gaines Sewell, Bouhan Falligant, LLP, PO Box 2139, Savannah, Georgia 31402, Pamela Newsom Lee, Swift, Currie, McGhee & Hiers LLP, 1420 Peachtree Street, NE, Suite 800, Atlanta, Georgia 30309, Elissa Blache Haynes, Freeman Mathis & Gary, LLP, 100 Galleria Parkway, Suite 1600, Atlanta, Georgia 30339, Patrick N. Silloway, Attorney General, Balch & Bingham, LLP, 30 Ivan Allen Jr. Boulevard, NW, Suite 700, Atlanta, Georgia 30308, Philip C. Thompson, Duane Morris LLP, 1180, West Peachtree Street, Suite, Atlanta, Georgia 30309-3448, for Amicus Appellee.

Warren, Justice.

The Georgia Constitution directs our Court of Appeals to transfer cases to this Court "[i]n the event of an equal division of the judges." Ga. Const. of 1983, Art. VI, Sec. V, Par. V. In this case, the Court of Appeals equally divided on an issue and transferred the case to this Court. We conclude that although the Court of Appeals was equally divided on that one issue within the case, the court was not equally divided on the disposition of the judgment that was appealed. Under our precedent, this case does not fall within our equal division jurisdiction, and we return the case to the Court of Appeals.

1. (a) Factual and Procedural Background

In January 2018, Dorothy Warren, a . patient in the emergency room at Clinch Memorial Hospital, died after Dr. Nirandr Inthachak, working in his office in a different county, allegedly negligently misinterpreted her CT scan. Angela Wilson, Warren’s daughter, sued Dr. Inthachak.

The trial court granted Dr. Inthachak summary judgment on two bases. First, the trial court held that Wilson had shown "no clear and convincing evidence of gross negligence," and that her claim thus failed under OCGA § 51-1-29.5, which requires a plaintiff in "an action involving a healthcare liability claim arising out of the provision of emergency medical care" to prove "gross negligence" by "clear and convincing evidence."¹ The court concluded that OCGA § 51-1-29.5 applied to Wilson’s claim—even though Dr. Inthachak was not physically present in the emergency room—because Dr. Inthachak "interpret[ed] the CT [scan] from the emergency department and fax[ed] his interpretation to the emergency department" where Warren was being treated, and Warren was "emergent," meaning she needed "emergency medical care."² Second, the trial court granted summary judgment in favor of Dr. Inthachak based on causation, concluding that Wilson had not shown that "the outcome would have been different" had Dr. Inthachak provided an allegedly correct interpretation of Warren’s CT scan.

(b) The Court of Appeals Opinions³

Wilson appealed, and all 14 voting members of the Court of Appeals concluded that the trial court’s grant of summary judgment was improper on both OCGA § 51-1-29.5 and causation grounds. As to the first ground, the Court of Appeals divided evenly (7 to 7) on the question of why summary judgment was improper based on OCGA § 51-1-29.5. On one side of the ledger, the putative majority agreed with the trial court that OCGA § 51-1-29.5 could apply in this case even though Dr. Inthachak was not in the emergency room, but then disagreed with the trial court’s conclusion that OCGA § 51-1-29.5 must be applied at the summary judgment stage here and concluded that summary judgment based on OCGA § 51-1-29.5 was improper because a fact question existed as to whether Warren was in need of "emergency medical care." On the other side of the ledger, the putative dissent concluded that summary judgment based on OCGA § 51-1-29.5 was improper because the statute cannot be applied in this case where "Dr. Inthachak examined the CT scans in the relative quiet of his office," rather than in an emergency room.

As to the second ground on which the trial court granted summary judgment, all 14 judges of the Court of Appeals—all 7 in the putative majority and all 7 in the putative dissent—agreed that the trial court erred by concluding that no factual question existed as to causation. Based on the above analysis, the putative majority concluded that the trial court’s order granting summary judgment should be vacated and the case remanded, and the putative dissent concluded that the trial court’s order should be reversed.

The Court of Appeals then transferred the case to this Court, citing our equal-division jurisdiction under Article VI, Section V, Paragraph V of the Georgia Constitution. After careful consideration of the text of the Georgia Constitution, our case law interpreting the Georgia Constitution, and the briefing and argument from the parties, we conclude that we do not have equal-division jurisdiction over this case and we return the case to the Court of Appeals.

2. Georgia’s Constitution says about the Court of Appeals: "In the event of an equal division of the Judges when sitting as a body, the case shall be immediately transmitted to the Supreme Court." Ga. Const, of 1983, Art. VI, Sec. V, Par. V.⁴ Citing this constitutional provision or its predecessors, the Court of Appeals has transferred, and this Court has decided, many cases in which the Court of Appeals was equally divided as to whether the judgment being appealed should be affirmed or reversed. See, e.g., Mitchell v. State, 205 Ga. 532; 532, 54 S.E.2d 395 (1949) (explaining that the case was transferred from the Court of Appeals because the judges "were equally divided, [three judges] being of the opinion that the judgment complained of should be affirmed, and [three judges] being of the opinion that it should be reversed"); Atlanta Newspapers, Inc. v. Grimes, 216 Ga. 74, 75, 114 S.E.2d 421 (1960) ("This case comes to this court because there was an equal division of the Judges of the Court of Appeals as to the judgment that should be rendered, [three judges] being for affirmance, and [three judges] being for reversal."); Ford Motor Co. v. Conley, 294 Ga. 530, 536 & n.5, 757 S.E.2d 20 (2014) (explaining that the Court of Appeals transferred the case because it "divided equally on the disposition of the appeal," with "[f]ive judges vot[ing] to reverse the trial court’s judgment, and a total of five judges vot[ing] to affirm").

But here we do not have an equal division between judges voting to affirm or reverse the appealed judgment Instead, all 14 judges agreed that the trial court’s grant of summary judgment should not be affirmed on either ground given by the trial court for summary judgment. What they disagreed about was why summary judgment was not proper on one of those grounds and whether to "vacate" or to "reverse" the trial court’s judgment. So the question we must answer is whether this type of disagreement invokes our equal-division jurisdiction.

(a) Rodriguez and Related Cases

This Court has never been confronted with precisely this situation before, but our recent discussion about our equal-division jurisdiction in Rodriguez v. State, 295 Ga. 362, 761 S.E.2d 19 (2014), is instructive. In that case, Rodriguez appealed the trial court’s denial of her motion to suppress. Rodriguez, 295 Ga. at 362, 761 S.E.2d 19. The Court of Appeals equally divided on whether the trial court’s judgment should be set aside—"six judges of the Court of Appeals were of the opinion that the denial of the motion to suppress should be affirmed, and six were of the opinion that it should not," id. at 364-365, 761 S.E.2d 19—but did not transfer the case to this Court. When Rodriguez petitioned for certiorari, this Court held that the Court of Appeals should have transferred the case because it invoked our equal-division jurisdiction: "[W]hen the full bench of the Court of Appeals has considered every claim of error that might cause the judgment of the trial court to be set aside, and when the full bench is equally divided about whether that judgment must be set aside, there is an ‘equal division,’ and the case must be transferred to this Court." Id. at 364, 761 S.E.2d 19.

Notably, the six Court of Appeals judges voting against affirming the denial of the motion to suppress disagreed on why and on whether the judgment should be reversed as opposed to vacated: "four were of the opinion that the denial should be reversed entirely, one was of the opinion that it should be vacated and remanded for further proceedings on the motion, and one did not say whether she would reverse or vacate, nor did she say what should happen next in the trial court, only that she dissented from the decision to affirm." Id. at 365, 761 S.E.2d 19. However, Rodriguez explained that "for purposes of the Equal Division clause, differences of opinion in this case about whether the judgment of the trial court should be set aside as ‘reversed’ or instead as ‘vacated’ are not dispositive," id. at 365, 761 S.E.2d 19, and treated the judges voting to reverse the judgment being appealed and the judges voting to vacate the judgment being appealed as votes on the same side of the judgment.⁵ Rodriguez likewise explained that "differences of opinion in this case among the six dissenting judges about what ought to happen next in the trial court [are not] dispositive" for purposes of the Equal...