MCCAFFERTY et al. v. MEDICAL COLLEGE OF GEORGIA et al., 249 Ga. 62, 287 S.E.2.d 171
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Judgment affirmed in part; reversed in part. All the Justices concur, except Gregory, J., who concurs specially, and Jordan C. J., Marshall and Weltner, JJ., who dissent.
Summary
Judgment affirmed in part; reversed in part. All the Justices concur, except Gregory, J., who concurs specially, and Jordan C. J., Marshall and Weltner, JJ., who dissent.
Text
Don C. Keenan, James E. Butler, Jr., E. Marcus Davis, William F. Braziel, Jr., Charles H. Ivy, Arlene L. Coleman, Cynthia J. Ringo, amici curiae.Michael J. Bowers, Attorney General, Patrick W. McKee, Staff Assistant Attorney General, for appellees.Burnside & Wall, James B. Wall, Thomas R. Burnside, Jr., for appellant.
According to the complaint, Jessica McCafferty was born two months prematurely on April 6, 1979, at a private hospital in Augusta. Because of a possible abdominal obstruction she was transferred the next day to Eugene Talmadge Memorial Hospital as a paying patient. At Talmadge Memorial she was placed in neonatal intensive care and given normal saline solutions intravenously until she would be able to undergo abdominal surgery. On April 14, 1979, a concentrated intravenous saline solution, inappropriate for direct administration without dilution, allegedly was injected into the infant by hospital personnel.
When her parents saw her, they found that Jessica's fontanel (the soft spot in an infant's head) was greatly depressed. She had become severely dehydrated because of the abnormal amount of salts administered to her and, as a result, she suffered from electrolyte imbalance and intracranial hemorrhaging. Thus the child's physical and mental development were retarded and she is partially blind and suffers from seizures. The complaint alleges that she is permanently disabled and lacks the ability to control her movements and bodily functions.
Jessica and her parents sued the Medical College of Georgia, the Board of Regents of the University System of Georgia and the Regents of the University System of Georgia because the hospital at which the alleged malpractice occurred is the teaching hospital of the Medical College, a branch of the University System of Georgia governed by the Board of Regents. See Code Ann. 32-103. Jessica's mother, as next friend, seeks damages for her permanent injuries and the parents seek to recoup their medical expenses alleged to exceed $19,000. [1]
By motion to dismiss, all three defendants raised sovereign immunity as a defense. The trial court granted their motion, leading to this appeal by the McCaffertys. The defendants rely upon Ga. L. 1976, p. 452; Code Ann. 32-101.1, defining and reaffirming the applicability of the doctrine of sovereign immunity to the Board of Regents of the University System of Georgia. The McCaffertys challenge the constitutionality of the 1976 act under the 1945 and 1976 Constitutions. They also challenge the constitutionality of the 1976 act and the doctrine of sovereign immunity itself under the due process and equal protection provisions of the Georgia and U. S. Constitutions.
1. Enumerations of error 1 and 3 raise the issue of sovereign immunity as to the Medical College and the Board of Regents, respectively. The Eugene Talmadge Memorial Hospital, where the injury occurred, was established by the Board of Regents under the authority of Ga. L. 1945, p. 453, as amended, Ga. L. 1953, p. 117: "The Board of Regents of the University System of Georgia in the exercise of its public and governmental functions shall have power and is hereby authorized to lease, buy, build, construct, establish, contract for the use of, maintain and operate a general non-profit teaching hospital at Augusta, Georgia, which said hospital may be that hospital known as the Eugene Talmadge Memorial Hospital now under construction, to be operated in conjunction with the Medical College of Georgia for the benefit of indigent, near indigent and pay patients. . . ." Id. at pp. 117, 118. Thus, since the Eugene Talmadge Memorial Hospital is run in conjunction with the Medical College, which is a branch of the University System of Georgia, governed by the Board of Regents, the defendants contend that Ga. L. 1976, p. 452, granting sovereign immunity to the Regents and Board of Regents, controls this litigation. We must first examine the history of the Medical College of Georgia to determine whether the 1976 act also applies to the Medical College of Georgia.
The Medical College of Georgia was founded by an 1828 act creating "a body corporate, by the name and style of the trustees of the Medical Academy of Georgia." Ga. L. 1828, p. 111. [2] The trustees were authorized to establish a medical school and had the authority "by their corporate name, to sue and be sued, plead and be impleaded;, answer and be answered unto, in any court of law or equity. . . ." In the 1895 Code the Medical College and several other colleges were designated "branches of the University of Georgia. . . governed in the manner prescribed in the respective acts incorporating the same. 1895 Political Code 1300.
The Court of Appeals, in Medical College of Ga. v. Rushing,
How to treat this doctrine and its inequitable problems has plagued this Court for generations. In many opinions of this Court and the Court of Appeals it was pointed out that the doctrine was outmoded and unreasonable. While judicially created, and therefore subject to judicial abrogation, the Courts importuned the General Assembly, as the policy-making body of State government, to take the necessary corrective action.
The General Assembly responded in 1973 by proposing a constitutional amendment which was ratified by the people in 1974. This amendment authorized the General Assembly to create a Court of Claims to dispose of claims against the State and its agencies involving injury (tort) or damage (contract). As to the doctrine of sovereign immunity, the amendment provided that it "is expressly reserved" unless there was a constitutional or statutory waiver. Code Ann. 2-3401.
It was hoped that this action by the General Assembly and the people settled the matter once and for all.
However, questions concerning the doctrine continued to arise and the matter was once again before this court. In "reassessing the rule of immunity" after the adoption of this amendment, this Court clearly held that the doctrine was now a part of our Constitution, that it could not be abrogated or modified by the Court, and that "solutions to the inequitable problems that it has posed and continues to pose must now be effected by the General Assembly." Azizi, supra.
This simple and erudite construction of the 1974 amendment was adhered to in Revels v. Tift County,
The General Assembly failed to establish such a Court and the question again came back to this Court in Busbee, supra. The Board of Regents and other officials had been sued to enforce its contracts with its teachers. The majority of this Court, taking what former Justice Hall called "a formalistic canter back through the peculiar history of the Board of Regents and embraces what it finds to be talismanic words in the 1785 statute. . .", held that the Board was subject to suit on the contracts because there had been an express waiver of sovereign immunity by the 1785 statute.
Reacting to the Busbee decision, the General Assembly in 1976 expressly repealed the Act of 1785 relied upon by the Busbee court and made clear its intention that the Board of Regents was clothed with immunity from suit. Ga. L. 1976, p. 452 (Code Ann. 32-101.1). Nothing in the 1976 Constitution conflicts with this clear expression of legislative intent.
However, the ghost of Banquo will not down. The question arises again, in this case, on a tort action against the Board of Regents. Now the Court reasons that a 1943 amendment to the Constitution gave constitutional status to the powers and duties of the Board, including the right to sue and be sued, that this provision was carried forward in the 1945 and 1976 Constitutions, thus making the 1976 statute dealing with the sovereign immunity of the Board in conflict with the Constitution.
The words authorizing a state agency to "sue and be sued" cannot be construed as a general waiver of sovereign immunity as to the State or any of its Departments. This Court clearly so stated in Tounsel v. State Hwy. Dept. of Ga.,
We have not located within the Constitution or Acts of the General Assembly any specific authorization for a breach of contract or tort negligence claim to be maintained against the Board of Regents of the University System of Georgia. To the contrary, the 1974 Amendment to our Constitution expressly reserved and preserved the doctrine of sovereign immunity unless expressly waived by the General Assembly. Instead of waiving this immunity the General Assembly in 1976 made clear its intention that the Board of Regents was clothed with immunity from suit.
The reasoning of this Court in Busbee and in the present case makes it clear that a majority of this Court wishes to abolish the doctrine of sovereign immunity as it relates to the Board of Regents as to both contract and tort actions. In my opinion, we have used bad facts in both cases to make bad law.
The people of Georgia are entitled to know whether the doctrine is still viable in Georgia. It either exists or it does not.
We are now holding that sometimes it does, sometimes it does not. Under the majority opinion the doctrine has been eviscerated as to the Board of Regents but is still a viable defense as to other departments of the State. See National Dist. Co. v. DOT supra. One is now entitled to sue the State provided you are injured by the "right" department. This is an anomalous situation which should not exist.
I am in full agreement that a citizen damaged by the sovereign either in tort or contract should have the right to redress. However, as we clearly stated in Azizi, the people in 1974 took the matter out of the hands of the Court and placed it in the General Assembly. The General Assembly has refused to take the steps necessary to afford injured citizens the right to be made whole. This Court, in B us bee and in this case, is apparently showing its frustration and disappointment over the failure of the General Assembly to act. In so doing we have resorted in both cases to strained reasoning. We are attempting to slay a dragon which is now impervious to the arrows of this Court.
In my opinion the trial court correctly dismissed the petition for failure to state a claim as to any of the defendants.
I am authorized to state that Justice Marshall and Justice Weltner concur in this dissent.
ON MOTION FOR REHEARING.
On motion for rehearing, the Board of Regents does not disagree that its powers and duties as they existed in 1943 are preserved in the Constitution. The Board does contend that in 1943 it had sovereign immunity because Tounsel v. State Hwy. Dept.,
Tounsel did not overrule First District Agricultural &c. School v. Reynolds or Medical College of Ga. v. Rushing, supra.
Motion for rehearing denied. All the Justices concur, except Jordan, C. J., Marshall and Weltner, JJ., who dissent.
1982
Notes:
1. The allegations of the complaint are accepted as true only for the purpose of deciding this appeal.
2. The name was changed to the Medical Institute of the State of Georgia by Ga. L. 1829, p. 107, and to the Medical College of Georgia by Ga. L. 1833, p. 130.
3. The 1935 act, Ga. L. 1935, pp. 171, 172, enacted in response to the Regents' efforts to issue bonds, see State of Ga. v. Regents, University System,
The McCaffertys also argue that since the Board of Regents did not have sovereign immunity in 1975, Busbee, supra, the 1976 act "reaffirmed" nothing.
5. It may be interesting to note that Jessica McCafferty was hospitalized at the Eugene Talmadge Memorial Hospital when the undiluted saline solution allegedly was administered to her.
6. Anything to the contrary in C. F. L Const. Co. v. Board of Regents of University System,
7. Amicus James T. Cook raises the invalidity of this constitutional amendment because of improper advertising. However, inasmuch as we hold that this amendment is inapplicable here and because he has raised that issue in a pending case, we do not reach the merits of his argument.
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This document cites
- Supreme Court of Georgia - NATIONAL DISTRIBUTING COMPANY INC. et al. v. DEPARTMENT OF TRANSPORTATION., 248 Ga. 451, 283 S.E.2.d 470 (1981)
- Supreme Court of Georgia - SIKES v. CANDLER COUNTY et al., 247 Ga. 115, 274 S.E.2.d 464 (1981)
- Supreme Court of Georgia - GRIGGS v. GRIGGS., 242 Ga. 96, 249 S.E.2.d 566 (1978)
- Supreme Court of Georgia - REVELS v. TIFT COUNTY, GEORGIA et al. (two cases)., 235 Ga. 333, 219 S.E.2.d 445
- Supreme Court of Georgia - AZIZI v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al., 233 Ga. 487, 212 S.E.2.d 627 (1974)
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