                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                     June 28, 2019




In the Court of Appeals of Georgia
 A19A0215. THE FULTON-DEKALB HOSPITAL AUTHORITY et
     al. v. HICKSON.

      REESE, Judge.

      The Fulton-DeKalb Hospital Authority, o/k/a Grady Memorial Hospital

Corporation, d/b/a Grady Memorial Hospital; Emory Healthcare, Inc.; and Emory

University; Carl Nee-Kofi Mould-Millman, M.D., and Betsy Kinchen, L.C.S.W.

(collectively, “Grady”) seek review of an order of the State Court of DeKalb County,

denying Grady’s motion for summary judgment in this medical malpractice action

filed by Denise Hickson, as Guardian of Maximillian McClain, an Incapacitated

Adult. On appeal, Grady argues that the trial court erred in finding that, as a matter

of law, Grady was not immune from liability for actions it took in good faith
compliance with the discharge provisions of Chapter 3 of Georgia’s Mental Health

Code.1 For the reasons set forth infra, we affirm.

      Construing the evidence in the light most favorable to Hickson, as the

nonmovant,2 the record shows the following facts. In the early morning hours of

January 20, 2013, an ambulance brought McClain to Grady Memorial Hospital’s

Emergency Department (“ED”). McClain had been going door-to-door through his

apartment building, “screaming and banging on doors[.]” 911 was called, and

McClain became combative with the EMS crew, going so far as to punch a police

officer who was helping the crew. McClain also kicked the interior compartment of

the ambulance and attempted to break the ambulance equipment.

      After EMTs administered Versed, a benzodiazepine, to McClain, he managed

to communicate that he was “having a mental break,” and that he could not “control”

himself. McClain also told the EMTs that he had a history of paranoia and bipolar

disorder. McClain arrived at the ED at approximately 3:13 a.m. and was triaged

within five minutes.




      1
          See OCGA § 37-3-1 et seq.
      2
          See Abdel-Samed v. Dailey, 294 Ga. 758, 760 (1) (755 SE2d 805) (2014).

                                          2
      The triage nurse assessed that McClain was a suicide risk due to statements he

made about hurting himself. At 3:30 a.m., a one-on-one sitter was assigned to observe

McClain and document her observations every 15 minutes. At approximately 4:29

a.m., Dr. John H. Lloyd was assigned as McClain’s attending ED physician. An initial

drug screening was negative for drugs and alcohol.

      According to McClain’s medical records, McClain reiterated to Dr. Lloyd that

he had a history of bipolar disorder and panic attacks, and added that he had become

suicidal earlier in the evening and had a plan to end his life. McClain did not

articulate his plan, but said that he had aborted it because it would set off a chain

reaction of other people killing themselves. Instead of going through with the plan,

and even though it was the middle of the night in January, McLain had lain down in

the front yard of his apartment complex.

      At 6:46 a.m., Dr. Lloyd signed a Form 1013 certificate for Involuntary Mental

Health Evaluation (“1013”), secondary to a “[s]uicidal, bipolar/anxiety” diagnosis,

A 6:48 a.m. entry on McClain’s medical chart confirmed that Dr. Lloyd involuntarily

committed McClain for inpatient treatment on Grady’s psychiatric floor. At the shift

change 12 minutes later (7:00 a.m.), Dr. Lloyd’s shift ended, and Dr. Mould-



                                           3
Millman’s shift began. When Dr. Lloyd left, he “did not think that [McClain’s]

mental status would clear up and that he could be discharged.”

      Around the same time as the shift change, McClain was administered a dose

of Ativan, a benzodiazephine that has sedating effects, that Dr. Lloyd had prescribed.

McClain was not transferred to the psychiatric floor; instead Kinchen, a licensed

clinical social worker working for Grady, “intercepted” and reassessed him. Kinchen

found McClain to be stable and recommended to Dr. Mould-Millman that he be

discharged. At 8:01 a.m., Kinchen entered a note on McClain’s chart mentioning her

plan to consult with Dr. Mould-Millman.

      Six minutes later, at 8:07 a.m., Dr. Mould-Millman rescinded the 1013. Dr.

Mould-Millman noted on McClain’s chart that he had “reassessed” McClain and

found that he had no current suicidal or homicidal ideations, that he was calm and

cooperative, and that he was able to be safely discharged. There is no evidence that

either Kinchen or Dr. Mould-Millman contacted Dr. Lloyd before deciding to

discharge McClain. Approximately 11 hours later, McClain attempted to commit

suicide by jumping off a third-floor balcony, severing his carotid artery and suffering

massive brain injuries.



                                          4
      Hickson, as McClain’s guardian, filed suit against Grady and Dr. Lloyd,

alleging claims for medical malpractice against the individual defendants and

vicarious liability against the other defendants. According to the complaint and

supporting affidavits, the individual defendants grossly breached the applicable

standard of care by failing to: perform a thorough psychiatric evaluation, thoroughly

review McClain’s past psychiatric treatment history; consult and/or coordinate care

with McClain’s treating psychiatrist or, alternatively, more experienced psychologists

or psychiatrists; adequately assess McClain’s current psychosocial situation; and

document a safety plan to prevent the recurrence of suicidal thoughts, plans, or

actions.

       The trial court entered a consent order dismissing without prejudice Hickson’s

claims against Dr. Lloyd. Grady moved for summary judgment, arguing that it was

entitled to immunity under OCGA § 37-3-4, because it had discharged McClain in

good faith and in compliance with the statutory requirements of Chapter 3 of Title 37.

      The trial court found that Grady was not entitled to summary judgment in light

of several material issues of fact: whether placing a medical note reflecting McClain’s

discharge constituted good faith compliance with the notice provisions of OCGA §§

37-3-4 and 37-3-43 (c); whether the assessments of McClain by Kinchen and Dr.

                                          5
Mould-Millman were insufficient and inadequate to the extent that any decision made

thereon would not be in good faith; and whether Grady failed to meet the applicable

standard of care in providing treatment to McClain, for which it would not be immune

under OCGA § 37-3-4.

      The trial court entered a certificate of immediate review, and we granted

Grady’s application for interlocutory appeal. This appeal followed.

              [The appellate court’s] review of the grant or denial of summary
      judgment is de novo, and [the appellate court] view[s] the evidence, and
      all reasonable conclusions and inferences drawn from it, in the light
      most favorable to the nonmovant. Summary judgment is warranted only
      where no genuine issue of material fact exists and the movant is entitled
      to judgment as a matter of law.3


      “[I]n construing a statute, we look at its terms, giving words their plain and

ordinary meaning, and where the plain language of a statute is clear and susceptible

of only one reasonable construction, we must construe the statute according to its

terms.”4 “[I]n construing language in any one part of a statute, a court should consider


      3
          Abdel-Samed, 294 Ga. at 760 (1).
      4
       Mahalo Investments III v. First Citizens Bank & Trust Co., 330 Ga. App. 737,
738 (769 SE2d 154) (2015); see also OCGA § 1-3-1 (construction of statutes
generally).

                                           6
the entire scheme of the statute and attempt to gather the legislative intent from the

statute as a whole.”5 Statutory construction is a question of law, which we review de

novo.6

         With these guiding principles in mind, we turn now to Grady’s claims of error.

         1. Grady argues that the trial court erred in concluding that Hickson’s

allegations of negligence were not “actions in connection with” McClain’s discharge,

pursuant to OCGA § 37-3-4, and that the court thus erred in failing to find that Grady

was immune from liability as a matter of law.

         In 2011, House Bill 343, inter alia, “amend[ed] Chapter 3 of Title 37 of the

Official Code of Georgia Annotated, relating to examination and treatment for mental

illness, so as to provide for immunity for hospitals in certain circumstances; to

provide for related matters; to repeal conflicting laws; and for other purposes.”7 The




         5
       Doctors Hosp. of Augusta v. Alicea, 332 Ga. App. 529, 540 (1) (774 SE2d
114) (2015) (citation and punctuation omitted).
         6
             Id.
         7
             Ga. L. 2011, p. 346, § 2.

                                            7
amendment added the emphasized text,8 so that the current version of OCGA § 37-3-4

now provides:

      Any hospital or any physician, psychologist, peace officer, attorney, or
      health official, or any hospital official, agent, or other person employed
      by a private hospital or at a facility operated by the state, by a political
      subdivision of the state, or by a hospital authority created pursuant to
      Article 4 of Chapter 7 of Title 31, who acts in good faith in compliance
      with the admission and discharge provisions of this chapter shall be
      immune from civil or criminal liability for his or her actions in
      connection with the admission of a patient to a facility or the discharge
      of a patient from a facility; provided, however, that nothing in this Code
      section shall be construed to relieve any hospital or any physician,
      psychologist, peace officer, attorney, or health official, or any hospital
      official, agent, or other person employed by a private hospital or at a
      facility operated by the state, by a political subdivision of the state, or
      by a hospital authority created pursuant to Article 4 of Chapter 7 of
      Title 31, from liability for failing to meet the applicable standard of care
      in the provision of treatment to a patient.9


      Thus, while the statute provides immunity for failure to follow the notice

requirements and other procedures involved in admitting and discharging patients,




      8
          See id.
      9
          OCGA § 37-3-4 (emphasis supplied).

                                           8
it does not provide immunity for failure to properly evaluate and/or treat patients

between their arrival and discharge.

      Grady argues that the purpose of the 2011 amendment was to expand the scope

of the immunity protection, not restrict it. According to Grady, “[t]he amendment

added the word ‘hospital’[10] and clarified what was already known, i.e., that

immunity only applies to ‘actions in connection with’ the admission or discharge [of

a patient], not to claims regarding the general ‘provision of treatment to a patient.’”

In fact, the parties appear to agree that the amendment “reaffirm[ed] the

long-recognized policy that physicians may be held liable for failing to meet the

applicable standard of care.”11

      10
         Grady contends that the amendment “explicitly addressed” an issue raised
in a 12-0 decision by this Court, which held: “The plain language of the [pre-2011]
statute extends immunity only to designated individuals and does not evidence a
legislative intent to confer immunity on hospitals or other mental health facilities[.]
Had the General Assembly intended to include hospitals or mental health facilities
within the ambit of the statute, it could have done so expressly.” Krachman v.
Ridgeview Institute, 301 Ga. App. 361, 364 (1) (687 SE2d 627) (2009).
      11
         See Peterson v. Reeves, 315 Ga. App. 370, 374 (3) (727 SE2d 171) (2012)
(physical precedent only); see also Court of Appeals Rule 33.2 (a) (2) (“If an appeal
is decided by this Court sitting en banc, an opinion, or portion of an opinion, in which
a majority of participating judges fully concur is binding precedent. An opinion is
physical precedent only (citable as persuasive, but not binding, authority), however,
with respect to any portion of the published opinion in which concurrences in the
judgment only, special concurrences without a statement of agreement with all that

                                           9
      OCGA § 37-3-1 (17) provides that, as used in Chapter 3 of Title 37,

“‘[t]reatment’ means care, diagnostic and therapeutic services, including the

administration of drugs, and any other service for the treatment of an individual.”12

Thus, considering this broad definition of “treatment,” the plain language of OCGA

§ 37-3-4, and the undisputed evidence in the record, we conclude that the trial court

properly ruled that Grady was not entitled to summary judgment.

      In reaching this conclusion, we note the brief lapse of time between McClain’s

arrival at the ED at 3:13 a.m.; Dr. Lloyd’s “[s]uicidal, bipolar/anxiety” diagnosis at

6:46 a.m.; Kinchen’s interception of McClain before he was transported to the

psychiatric floor; her unsolicited reassessment of McClain and her conclusion that,

despite having recently been given sedatives, he had no current suicidal ideations;

and Dr. Mould-Millman’s concurrence with this assessment.




is said, or dissent result in a full concurrence by fewer than a majority of the
participating judges in that portion of the opinion. The opinion of a case that is
physical precedent shall be marked as such when it is cited.”) (emphasis supplied).
      12
        See also OCGA § 37-3-1 (13) (defining “patient” for purposes of Chapter 3
as “any mentally ill person who seeks treatment under this chapter or any person for
whom such treatment is sought[ ]”).

                                         10
       We hold that the trial court did not err in finding that genuine issues of material

fact exist regarding Grady’s liability for its treatment of McClain. We turn now to

Grady’s immunity from liability for acts it took in discharging McClain.

       2. Grady also argues that the trial court erroneously conflated the distinction

between “good faith” and negligence in determining whether Grady “act[ed] in good

faith in compliance with the admission and discharge provisions” of Chapter 3, thus

“[r]endering OCGA § 37-3-4 [m]eaningless.”

       “OCGA § 37-3-4 provides defendants with ‘an affirmative defense,’ or a shield

against liability.”13 Thus, Grady has the burden of proving that it is immune from

liability.14

       Good faith has been defined as a state of mind indicating honesty and
       lawfulness of purpose; belief that one’s conduct is not unconscionable
       or that known circumstances do not require further investigation.
       Ordinarily, good faith is a question for the jury based on a consideration
       of the facts and circumstances of the case. But summary judgment is


       13
        Curles v. Psychiatric Solutions, 343 Ga. App. 719, 724 (1) (b) (808 SE2d
237) (2017).
       14
        See Doctors Hosp. of Augusta, 332 Ga. App. at 536 (1) (“Immunity under
[OCGA § 31-32-10 (a), for good faith reliance on any direction or decision by a
health care agent,] is an affirmative defense, and thus the [d]efendant[ medical
providers] had the burden of proving that they were immune from liability.”).

                                           11
      appropriate in cases where no evidence supports a finding of lack of
      good faith.15


      Construing the evidence in favor of Hickson, we cannot conclude as a matter

of law that Grady complied in good faith with the discharge provisions of Chapter 3.16

For example, there is evidence that Kinchen knowingly defied an order by an

emergency room attending physician to admit a patient, consulted with another

emergency room attending physician instead of an attending psychiatrist to complete

the reassessment, and acted in violation of Grady’s own policies with respect to her

recommendation to discharge McClain without attempting to corroborate his personal

history from family members and without a documented safety plan. Thus, Grady did

not meet its burden, and we find no error in the trial court’s denial of summary

judgment.

      3. Grady contends that the trial court improperly concluded that a question of

good faith remained for jury resolution as to whether it provided sufficient notice of

discharge to the admitting physician under OCGA § 37-3-43 (c). Grady argues that,



      15
        Purcell v. Breese, 250 Ga. App. 472, 476 (4) (552 SE2d 865) (2001)
(punctuation and footnotes omitted; emphasis supplied).
      16
           See id. at 477 (4).

                                         12
even if Grady’s “constructive notice” failed to fully comply with the notice provision,

Grady substantially complied by writing “rescinded” in McClain’s electronic medical

records. Quoting the decision of the Supreme Court of Georgia in Ga. Dept. of

Human Resources v. Peeks,17 Grady adds that “‘[n]o provision of Chapter 3 of Title

37 expressly prevents or precludes’ constructive notice.”18

      OCGA § 37-3-43 (c) provides, in relevant part, that “[n]otice of any proposed

discharge shall be given to the patient and his representatives; if the patient was

admitted to the facility under subsection (a) of Code Section 37-3-41, to the physician

or psychologist who executed the certificate[.]” The statute does not state what type

of notice must be given in this situation.

      Construing the evidence in the light most favorable to Hickson, we cannot

conclude as a matter of law that Grady acted in good faith in complying with the



      17
        261 Ga. 96, 97 (1) (403 SE2d 36) (1991) (“No provision in Chapter 3 of Title
37 expressly prevents a treating physician from acting as chief medical officer for
purposes of discharging his or her patients. In fact, [OCGA] § 37-3-21, read in pari
materia with [OCGA] § 37-3-1 (1), permits such a designation.”); see also id. at 97
(2) (concluding that the chief medical officer substantially complied with OCGA §
37-3-1 (1), and that his failure to appoint the treating physician in writing did not
create an issue of fact regarding the chief medical officer’s good faith compliance
under OCGA § 37-3-4).
      18
           (Punctuation omitted.)

                                             13
statutory requirement to give notice to Dr. Lloyd of the “proposed” discharge. Dr.

Lloyd’s shift ended at 7:00 a.m., and he estimated that he left the hospital between

7:15 and 8:00 a.m. Dr. Mould-Millman noted at 8:07 a.m. that he was rescinding the

1013; 34 minutes later, at 8:41 a.m., McClain was discharged.

        Grady argues that, “even if [its] ‘constructive notice’[19] in lieu of ‘actual

notice’ expressly failed to ‘fully’ comply with the notice provision, Grady still would

be in substantial compliance with the notice provision.” Relying on Peeks,20 Grady

contends that any technical violation of the notice provision created no harm because,

“had Mould-Millman provided ‘actual notice’ to Dr. Lloyd, Dr. Lloyd would have

agreed with Dr. Mould-Millman’s decision to rescind McClain’s 1013 and discharge

him.”




        19
          According to Grady’s appellate brief, “the trial court acknowledged that
Grady provided ‘constructive notice’ in this case.” We question this characterization
of the trial court’s order. The trial court concluded its order by noting that one of the
issues of fact that remained for the jury was “[w]hether the note placed in McClain’s
medical file after the fact constitute[d] constructive notice.”
        20
             261 Ga. at 97 (2).

                                           14
      Peeks is clearly distinguishable. In that case, the Supreme Court held that the

chief medical officer’s “non-compliance with the writing requirement[21] created no

harm, as the appointment of [the] primary treating physician [to act as the chief

medical officer’s designee] and [the primary treating physician’s] subsequent

discharge of [the patient] pursuant to hospital policy accomplished the same result as

a written appointment.”22

      Dr. Lloyd testified that, “in retrospect[,]” given the notes he had from Kinchen

and Dr. Mould-Millman in front of him at his deposition 45 months later, the decision

“doesn’t seem unreasonable.” However, as shown above, “[w]hen [Dr. Lloyd] left

[McClain], [Dr. Lloyd] did not think that [McClain’s] mental status would clear up

and that he could be discharged.” McClain received a sedative shortly thereafter.

Giving Hickson the benefit of all favorable inferences,23 the evidence does not




      21
         See OCGA § 37-3-1 (1) (“‘Chief medical officer’” means the physician with
overall responsibility for patient treatment at any facility receiving patients under this
chapter or a physician appointed in writing as the designee of such chief medical
officer.”).
      22
           Peeks, 261 Ga. at 97 (2).
      23
        See Hawkins v. DeKalb. Med. Center, 313 Ga. App. 209, 209-210 (721 SE2d
131) (2011).

                                           15
establish that Dr. Lloyd would have agreed with the discharge decision such a short

time after he signed the 1013 certificate.

      Accordingly, the trial court did not err in denying Grady’s motion for summary

judgment.

      Judgment affirmed. Miller, P. J., and Rickman, J., concur.




                                         16
