Lee R. Grogan, William C. Rumer, G. Michael Agnew, Milton D. Jones, for appellees.S. E. Kelley, J. Ronald Mullins, Sidney F. Wheeler, Michael T. Bennett, D. Keith Calhoun, for appellant.
In a matter of first impression the Court of Appeals held that appellant, a private mental health hospital, may be held civilly liable for the murder of appellee's mother by appellees' father, a patient in appellant's facility. Bradley Center v. Wessner, 102 Ga. App. 345
(1) (116 SE2d 243
) (1960). Our concern here is with the first element -- specifically, whether a physician can owe a legal duty of care to an injured party who was not his patient.
Appellant argues that appellees' case must fail because Georgia law strictly requires privity between the plaintiff and physician in a medical malpractice action, citing Buttersworth v. Swint, 92 Ga. App. 727 (89 SE2d 809) (1955)
. It argues that this position in this physician case is supported by our case law requiring professional-client privity for the maintenance of malpractice actions against other professionals. Hughes v. Malone, 146 Ga. App. 341 (247 SE2d 107) (1978)
(attorneys); MacNerland v. Barnes, 129 Ga. App. 367 (199 SE2d 564) (1973)
(accountants); Mauldin v. Sheffer, 113 Ga. App. 874 (150 SE2d 150) (1966)
(engineers). We have reviewed these cases and find that they do not preclude the cause of action set forth by appellees in this case.
The medical malpractice cases cited by appellant stand for the proposition that before a plaintiff may recover on the theory that he received negligent treatment from a defendant physician, the plaintiff must show that a doctor-patient relationship existed between them. In such 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, supra.
The legal duty in this case did not arise out of this "consensual transaction" between doctor and patient, however, so there is no basis for a requirement of privity. The legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm. This has been expressed as follows: ". . . negligence is conduct which falls below the standard established by, law for the protection of others against unreasonable risk of harm." Restatement, Torts, 2d, 282.
We believe the Court of Appeals properly identified the legal duty in this case in that: "where the course of treatment of a mental patient involves an exercise of 'control' over him by a physician who knows or should know that the patient is likely to cause bodily harm to others, an independent duty arises from that relationship and falls upon the physician to exercise that control with such reasonable care as to prevent harm to others at the hands of the patient." Bradley Center v. Wessner, 118 Ga. App. 672 (165 SE2d 179) (1968)
; Restatement, Torts, 2d, 315. We find, however, that one of the exceptions to that rule applies here because of the special relationship which existed between appellant and appellees' father: "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." Restatement, Torts, 2d, 319.  See also Prosser, Handbook of the Law of Torts, 56, p. 349. The jury found appellant hospital failed in this case to exercise reasonable care in the control of appellees' father. As a result, appellees' mother was killed. In such a case, a wrongful death action is proper.
By finding appellant liable we have not created a "new tort," rather we have applied our traditional tort principles of negligence to the facts of this case. We also note that the duty to conform to a standard of conduct in this case is a well-recognized and well-established principle of law in other jurisdictions. See Lipari v. Sears, Roebuck & Co., 497 FSupp. 185 (D. Neb. 1980) (applying Nebraska law); Bellavance v. State, 390 S2d 422 (Fla. App. 1980); Rum River Lumber Co. v. State, 282 NW2d 882 (Sup. Ct. of Minn. 1979); McIntosh v. Milano, 403 A2d 500 (Sup. Ct. N. J. 1979); Homere and Stillman v. State, 370 NYS2d 246 (1975); Tarasoff v. Regents of Univ. of California, 529 P2d 553 (Cal. 1974); Semler v. Psychiatric Inst., 538 F2d 121 (4th Cir. 1976) (applying Virginia law); Hicks v. United States, 511 F2d 407 (D. C. Cir. 1975); Underwood v. United States, 356 F2d 92 (5th Cir. 1966); Fair v. United States, 234 F2d 288 (5th Cir. 1956); Greenberg v. Barbour, 322 FSupp. 745 (E. D. Pa. 1971) (applying Pennsylvania law); Jones v. State, 119 A 577 (Me. 1923).
Appellant argues that this decision abandons our traditional rule that intervening criminal acts of third parties are unforeseeable and cannot give rise to liability, citing McClendon v. C. & S. Nat. Bank, 155 Ga. App. 755 (272 SE2d 592) (1980)
and Henderson v. Dade Coal Co., 211 Ga. 373
, 377 (86 SE2d 311
) (1955). See Warner v. Arnold, 133 Ga. App. 174
, 177 (210 SE2d 350
) (1974); Williams v. Grier, 216 Ga. 467 (117 SE2d 325) (1960)
UPON WITHDRAWAL OF APPELLANT'S MOTION FOR REHEARING, AND
UPON CONSIDERATION OF THE COURT'S OWN MOTION.
(NOVEMBER 23, 1982)
I concur in the judgment affirming the trial court and the jury verdict. However, I disagree with the adoption of a simple negligence standard in cases involving intervening criminal acts, for reason that few are wise enough to foretell the conduct of another, and the imposition of such a standard places upon a prudent man the requirement that he know in advance what another will do.
I would adopt and apply to this case the rule expressed in Truelove v. Wilson, 159 Ga. App. 906
, 908 (285 SE2d 556
) (1981), authorizing recovery for damages which are the direct and proximate result of conduct which evidences a wilful intention to inflict injury or which is so reckless or so charged with indifference to the consequences as to justify the jury in finding a wantonness equivalent in spirit to actual intent.
Because in this case there was no enumeration of error relating to the trial court's charge on simple negligence, the failure of the trial court to charge the rule of Truelove, supra, was not presented for review on appeal, and, as the evidence in this case plainly would support a recovery under the theory of wilful and wanton conduct, the judgment should be affirmed.
I am authorized to state that Justice Clarke and Justice Bell concur herein.
1. Of particular interest here is the second illustration accompanying this Restatement section: "2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C." Restatement, Torts, 2d, 319, Illustration 2.