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In Elberton-Elbert County Hospital Authority v. Watson, 121 Ga. App. 550 (3) (174 S.E.2d 470), this court held that the discretion is very broad, and affirmed a trial judge in failing to impose sanctions where the answers were filed seven days late.
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44858.
ARGUED NOVEMBER 4, 1969.
DECIDED FEBRUARY 11, 1970. REHEARING DENIED APRIL 1, 1970.
Action for damages. Elbert Superior Court. Before Judge Williford.
Grant Matthews, William F. Grant, Eugene T. Harper, for appellant.
Telford, Wayne Stewart, Jeff C. Wayne, J. Cleve Miller, Charles W. Stephens, for appellees.
1. The depositions and affidavits submitted on motion for summary judgment fail to demand a judgment in favor of the movant, but, on the contrary, set forth numerous and various conflicts as to the cause of the fire and the proximate cause of the injuries received when the plaintiff-husband was burned in the defendant's hospital. The record shows that he was a coronary patient who did not remember going to the hospital after he became sick, who had been under sedation, and was under heavy sedation at the time of the fire, was in an extremely weakened condition, and remembered only vague instances in regard thereto such as the flash of the fire. He testified that he was not instructed not to smoke (although a nurse deposed to the contrary); that he did not smoke in the hospital within his knowledge, and knew it was dangerous to smoke around oxygen, but that he did not recall what had happened except he saw "something just disappear from his face"; that he "fell from the bed" as he remembered "falling"; but that the only thing he knew was that he "got burned." The wife testified the oxygen machine was extremely noisy, vibrated, and would run hot, and that he had been under oxygen for more than seven days; that the machine was hot enough to burn your feet, yet cold around the patient's head. While the opinion of the experts was that the machine was working perfectly and they could find no fault with it after the fire, yet on motion for summary judgment, this testimony cannot be the basis for granting judgment since a jury may completely discount it. See Ginn v. Morgan, 225 Ga. 192 ( 167 S.E.2d 393); Harrison v. Tuggle, 225 Ga. 211 ( 167 S.E.2d 395); Truluck v. Funderburk, 119 Ga. App. 734 ( 168 S.E.2d 657). But it has been held that opinion evidence may be sufficient to preclude the granting of a summary judgment. Word v. Henderson, 220 Ga. 846 ( 142 S.E.2d 244); Harrison v. Tuggle, 225 Ga. 211, supra. Thus, the cause of the fire and the proximate cause of the injuries remain in dispute, and in truth, even if the patient had set fire to himself by striking a match, it could be that the hospital was negligent in failing to properly observe the patient while under oxygen therapy. See Emory University v. Shadburn, 47 Ga. App. 643 ( 171 S.E. 192); Tate v. McCall Hospital, 57 Ga. App. 824 ( 196 S.E. 906); Piedmont Hospital v. Anderson, 65 Ga. App. 491 (3) ( 16 S.E.2d 90); Hospital Authority of Hall County v. Adams, 110 Ga. App. 848, 852 ( 140 S.E.2d 139); Macon Coca-Cola Bottling Co. v. Chancey, 216 Ga. 61, 64 ( 114 S.E.2d 517).
2. But it is also shown by affidavits of the party opposing the motion that he has an investigation under way which has not been completed, and he cannot present "by affidavit facts essential to justify his opposition," in which event the court is empowered to grant a continuance or may render such order as is just. Code Ann. § 81A-156 (f). However, since these affidavits and other testimony would be and are based on the opinions of experts, the court felt that it was unnecessary to wait thereon, hence the motion was denied on the evidence already submitted. The court did not err in denying the motion to strike these affidavits since it stated in a special order that it did not consider any irrelevant matter contained therein "which would not be admissible in evidence." The enumerations of error complaining of the denial of the motions to strike are not meritorious.
3. Judgments dismissing the main petition, or other sanctions, are authorized by the Civil Practice Act ( Code Ann. § 81A-137; Ga. L. 1966, pp. 609, 650; 1967, pp. 226, 235); but the trial judge is given a broad discretion in applying sanctions to assure compliance. See Williamson v. Lunsford, 119 Ga. App. 240 ( 166 S.E.2d 622). However, with the compliance within seven days after the request for sanctions, the court apparently felt it unnecessary to grant them, and this court will not interfere with the broad discretion of the trial court in handling such matters. The enumeration of error based thereon is not meritorious. Compare Hobbs v. New England Ins. Co., 212 Ga. 513 (2) ( 93 S.E.2d 653).
4. The motion to make the order more definite contains requests for information already obtained by depositions, other irrelevant, immaterial and argumentative matter, and other matter which is within the knowledge of the defendant. Hence the court did not err in denying said motion. In addition, the pre-trial hearing will afford defendant an opportunity for a determination of and simplification of the issues as to specific acts of negligence and the doctrine of res ipsa loquitur, on which plaintiffs are allegedly proceeding, if such be necessary. We find no merit in this enumeration of error complaining of the denial of this motion.
5. The petition as amended states a claim for the relief sought, and it was not subject to the motion to dismiss. Emory University v. Shadburn, 47 Ga. App. 643, supra; Stansfield v. Gardner, 56 Ga. App. 634 ( 193 S.E. 375).
Judgment affirmed. Jordan, P.J., and Whitman, J., concur.
ARGUED NOVEMBER 4, 1969 — DECIDED FEBRUARY 11, 1970 — REHEARING DENIED APRIL 1, 1970.
This is an action for personal injuries allegedly inflicted upon the plaintiff by the agents and employees of the defendant Hospital Authority. In a separate count in the same suit, his wife, also as plaintiff, seeks to recover for alleged loss of affection, consortium, society and companionship. By amendment the suit was divided into a number of counts. The complaint alleges, in the main, that injury occurred in that the defendant by and through its agents, unknown to the plaintiff severely burned him and "carelessly and negligently allowed horrible burns to be inflicted upon a large part of his body" while a patient in defendant's hospital. By amendment, in separate counts, he alleges that such injuries as he received do not occur in the absence of someone's negligence, but that he was under heavy sedation and unable to protect himself when he was burned and the defendant was well aware of his condition. After answering the complaint, denying negligence, the defendant filed a motion for summary judgment, attaching thereto certain depositions and affidavits which it alleges "unequivocally showed no act of the defendant caused the alleged damages to either plaintiff." In addition to the denial of the motion for summary judgment, the defendant appeals from the denial of a motion to dismiss; motion to dismiss for failure to answer interrogatories; motion to make the petition more definite; and motions to strike certain affidavits submitted on behalf of the petitioner. Within ten days of the denial of the above motions the court, pursuant to Code Ann. § 81A-156 (h) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238) and Code Ann. § 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073) certified said denials to be subject to direct immediate appeal and that said orders "are of such importance to the case that immediate review should be had."
The evidence in the record shows the plaintiff was a patient in the defendant's hospital where he was being treated for a coronary disorder. As a part of the treatment prescribed by his physician he was in an oxygen tent, receiving oxygen therapy. He had a special nurse who became sick, so his wife stayed with him for several days. On the day on which he was burned he had shown some improvement and the doctor suggested that since the wife was tired, it would not be necessary for her to stay up with him that night. Shortly after a nurse looked in upon him, a flash fire occurred. As a result of the fire he was burned upon his head, neck, chest and upper extremities. In a shirt pocket a cigarette pack was found and a cigarette and a box of matches were discovered on the floor of his hospital room. Pinched-off cigarette butts were also found on the bedside table. A motion for summary judgment was supported by the affidavits of the hospital engineer and an oxygen therapy equipment specialist, to the effect that the oxygen machine and tent were working perfectly at the time of the fire, and no burned marks on the electrical wiring, motor or refrigeration system could be found to indicate the fire started in this area.
The plaintiffs failed to answer interrogatories propounded to them as required by Code Ann. § 81A-133, and pursuant to Code Ann. § 81-137 (d) a motion to dismiss the petition for failure to answer the interrogatories was made. Whereupon the plaintiffs answered the interrogatories seven days late. At the hearing of the motion for summary judgment one of the plaintiffs' counsel submitted his affidavit in which he stated a team of experts, consisting of chemical and mechanical engineers, had been employed to determine the cause of the fire and that they had examined the oxygen equipment being used in the plaintiff's room at the time he was burned, and at the present time the information had not been obtained and would not be available until the team of experts had completed their investigation. The affidavit of one of the members of the team testified that he examined the equipment and that it had been determined with a reasonable degree of certainty that a number of things may have caused the fire in question, such as: (1) the methods of using the equipment, which were listed; (2) the combustible material being utilized for the oxygen tent; and (3) the inconsistent use of the equipment in a way inconsistent with the manufacturer's instructions and recommendations. A motion to strike these affidavits was made and its denial is likewise enumerated as error.