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Henderson v. Gandy12/1/2005
We granted certiorari to the Court of Appeals in Henderson v. Gandy, 270 Ga. App. 827 (608 SE2d 248) (2004), to consider whether Georgia's Fair Business Practices Act of 1975, OCGA § 10-1-390, et seq. ("FBPA"), the statutory scheme which protects consumers from unfair or deceptive trade practices, applies to a physician in connection with the provision of medical services. Under the circumstances of this case, we hold that plaintiffs failed to state a claim under the FBPA, and we affirm the judgment of the Court of Appeals, but for different reasons.
Appellant Claire M. Henderson's husband, Dr. Herbert Henderson, was admitted by appellee Dr. Winston Gandy, Jr., to Saint Joseph's Hospital for emergency cardiac by-pass surgery. During Dr. Henderson's post-operative convalescence at Saint Joseph's Hospital, he developed a sacral decubitus ulcer (pressure bed sore), which later became necrotic and ultimately resulted in his death several months later. Ms. Henderson filed a medical malpractice action, both individually and as the representative of her husband's estate, naming Dr. Gandy, his professional corporation, Atlanta Cardiology Group, P.C. (collectively "Dr. Gandy"), and Saint Joseph's Hospital of Atlanta as defendants.
It was revealed during discovery that when Dr. Gandy identified the pressure ulcer, he ordered that the patient be treated by hospital nurses who specialize in wound ostomy care. It was also disclosed that these nurses noted in the patient's record that their continuing treatment of Dr. Henderson "was conducted pursuant to Dr. Gandy's verbal or telephone orders," when in fact, "Dr. Gandy did not verbally order the specific treatment noted after his initial consultation with the [nurses]," Henderson, supra at 828 (2). Discovery also revealed that it was the policy of Atlanta Cardiology to allow the ostomy nurses to use their discretion in managing the wound treatment of Atlanta Cardiology's patients.
As a result of these discoveries, Henderson sought to amend her complaint to add claims for fraud, abandonment of care, and violation of the FBPA. Dr. Gandy and Atlanta Cardiology Group, P.C. sought and were granted partial summary judgment with regard to the FBPA claim. The trial court determined that Ms. Henderson failed to demonstrate that the conduct of defendants allegedly giving rise to the FBPA claim "occurred within the public consumer marketplace."
The Court of Appeals affirmed, holding that the nurses' actions, although pursuant to the group's policy, did not fall within the stream of commerce required to maintain a FBPA action. Henderson, supra. We agree with the Court of Appeals that Ms. Henderson's FBPA count does not allege a sufficient cause of action; however, we decide the issue for other reasons which follow. See National Tax Funding v. Harpagon Co., 277 Ga. 41 (586 SE2d 235) (2003) (a judgment of a lower court may be affirmed so long as it is right for any reason).
A private party who suffers injury or damages as a result of " nfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce," may bring an action under the FBPA. OCGA § 10-1-393 (a). "Trade" and "commerce" are defined as "the advertising, distribution, sale, lease, or offering for distribution, sale, or lease of any goods, services, or any property, tangible or intangible, real, personal, or mixed, or any other article, commodity, or thing of value wherever situate and shall include any trade or commerce directly or indirectly affecting the people of the state." OCGA § 10-1-392 (a) (9). Thus, a claim under the FBPA requires proof not only of deceptive misconduct but also of conduct which affect
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