 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bauer v. North Fulton Medical Center12/16/1999
FOURTH DIVISION
In this action regarding the alleged removal of eye tissue from a corpse without permission, Rosemary Bauer, in her individual capacity and as administratrix of the estate of Joseph Bauer, appeals the trial court's dismissal of her claims against North Fulton Medical Center, Inc. for breach of contract, fraud, intentional infliction of emotional distress, property damage to a corpse, and violation of OCGA § 31-23-6. The trial court determined that all of Mrs. Bauer's claims were barred by the statute of limitation for medical malpractice actions and personal injury actions. OCGA §§ 9-3-33; 9-3-71. We find that: (1) the statute of limitation for medical malpractice actions is not applicable to Bauer's claims; (2) to the extent Mrs. Bauer's claims seek redress for personal injury , they were properly dismissed by the trial court pursuant to OCGA § 9-3-33; (3) Mrs. Bauer's claims for breach of contract and property damage should not have been dismissed, although Mrs. Bauer's measure of recovery is restricted due to the limited nature of her quasi-property right in her husband's corpse; (4) Mrs. Bauer has not alleged an actionable claim of fraud against North Fulton Hospital; and (5) Mrs. Bauer does not have a separate cause of action against North Fulton Hospital pursuant to OCGA § 31-23-6.
The record shows that Joseph Bauer was taken to North Fulton Hospital while having a heart attack. Mr. Bauer died at the hospital, and Mrs. Bauer was asked whether she wanted to make a donation of any of Mr. Bauer's organs, including his eyes. Mrs. Bauer declined. The parties dispute whether or not some other family members may have verbally consented. No organ donation form was signed by any of Mr. Bauer's relatives. Nevertheless, Mr. Bauer's corneal tissue was later removed by Georgia Eye Bank, Inc., an organ harvesting company.
More than two but less than four years later, Mrs. Bauer sued North Fulton Hospital and Georgia Eye Bank for the unauthorized removal of eye tissue from her husband's corpse. North Fulton Hospital subsequently moved to dismiss Bauer's claims, contending that they had been made outside the period allowed by the applicable statute of limitation for medical malpractice and personal injury actions. The trial court granted North Fulton Hospital's motion, and Bauer appeals from this order.
1. The trial court determined that the bulk of Bauer's claims fell under the aegis of the medical malpractice statute. See OCGA § 9-3-70. This statute, however, governs medical procedures and services offered to living patients, and it is therefore not applicable in this case, which involves no issue of medical services provided to such a patient.
In relevant part, OCGA § 9-3-70 defines an action for medical malpractice as:
any claim for damages resulting from the death of or injury to any person arising out of . . . are or service rendered by any . . . private hospital . . . or by any officer, agent, or employee thereof acting within the scope of his employment. (Emphasis supplied.)
On its face, this provision is inapplicable to procedures performed on a corpse. The statute clearly deals with improper care or services rendered to living patients, as it is an impossibility to kill or injure someone who is already deceased. What is involved here is injury to a corpse, not a person. Otherwise, the unauthorized invasion of a corpse would constitute a battery. Moreover, since Bauer has not asserted any medical malpractice claims, OCGA § 9-3- 70 cannot govern her case.
2. The trial court also found, in the alternative, that Mrs. Bauer's claims fell within the purview of the two-year statute of limitation for
Page 1 2 3 4 5 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|