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Smith v. Vencare Inc.6/23/1999
In the Court of Appeals of Georgia
EL-020
Portia Gardner Smith, wife of plaintiff-appellant Delarett Smith, suffered from a progressive neurological disease and had to have a tracheotomy that left her unable to speak, because she was on a ventilator. Communications were made by eye movement; however, on April 20, 1995, Glenda Ward, a respiratory therapist, placed a Passey-Muir valve into Mrs. Smith's tracheotomy tube, allowing her to speak after a fashion when the respirator was not in use. Thereafter, communication was by verbal "yes" or "no" responses to leading questions, by counting one to four for "no" and five to eight for "yes", or by eye movement.
In January of 1995, Mrs. Smith was admitted to Vencor Hospital Atlanta ("Vencor Hosp."). Vencor Hosp. was owned and operated by Vencor, Inc. Vencare, Inc. is a separate and distinct legal entity from Vencor, Inc. No employees or agents of Vencare, Inc. were involved with Mrs. Smith or the plaintiff. On April 20, 1995, and until May 31, 1995, Vencor Hosp. refused to allow plaintiff to see his wife.
Ms. Ward testified that, when Mrs. Smith could speak for the first time, Mrs. Smith told her that plaintiff had hurt her in the past, he was trying to kill her, and she was afraid of him and did not want him to visit her. Mrs. Smith asked for Hank Selinger, the hospital Social Worker , and told him the same things about plaintiff in Ms. Ward's presence. Selinger, in Ms. Ward's and Hospital Security/Safety Manager Ernest Carter's presence, heard Mrs. Smith respond "no" to the question did she want the plaintiff to visit her and "yes" to the questions was she afraid of plaintiff and did she want Adult Protective Services contacted regarding plaintiff. On April 20, 1995, Dr. David N. DeRuyter, Mrs. Smith's attending pulmonary therapist, who had a problem with the plaintiff regarding the manipulation of his wife's shoulder, learned through communication with Mrs. Smith that she was afraid of the plaintiff and that she did not want to be alone with him.
The psychologist evaluating Mrs. Smith for the Probate Court of Fulton County found that she had an undeterminable, residual mental status and that she was "unable to formulate and communicate rational, informed decisions concerning her person or property." On April 20, 1995, when Mrs. Smith was evaluated as to mental status, she responded that her name was Portia Smith; that the year was 1991, but with prompting 1994; and that her location was the hospital.On April 21, 1995, Selinger talked to Mrs. Smith again, and she told him the names of her brother, Harvey Gardner, who lived in East St. Louis, Illinois and her sister, Harriett Lacy. On the same day, Selinger contacted Gardner and Lacy and told them what Mrs. Smith told him about plaintiff. Selinger claimed that Gardner and Lacy told him that they did not trust the plaintiff and that plaintiff may have poisoned their sister.
Selinger reported Mrs. Smith's statements and fears to Skip Wright, the hospital administrator. To protect Mrs. Smith and at her specific request, plaintiff's visiting rights were suspended. Selinger also told others who cared for and protected Mrs. Smith of the concerns raised by Mrs. Smith and Mrs. Smith's siblings.
Mercedes Murrell, the court-appointed guardian, testified that "Vencor Hospital employees who were present in the room when I went to visit Portia Smith told me that they believed Delarett Smith [plaintiff] was abusing his wife and that he had attempted to kill her by putting rat poison in her feeding tube. However, when I asked them if they had performed any tests to determine if Portia Smith had in fact been poisoned, they responded `No.'"
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