Tortious Interference With Employment Relations Georgia
Concealment of a material fact with the intention to deceive and mislead supports an action for fraud. O.C.G.A. 51-6-2 (a).
And when a confidential relationship exists, as between a patient and physician, "a person's silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation." Cleveland v. Albany Urology Clinic, 235 Ga. App. 838, 840 (1) (509 S.E.2d 664) (1998), cert. granted, S99G0600.
J a Harris County deputy sheriff, sued R, M.D., for tortious interference with his employment, invasion of privacy, and fraud, stemming from a conversation Dr. R had with J's employer regarding J's mental state.
Dr. R answered and moved to dismiss the unverified complaint on the ground that J had failed to attach an expert affidavit as required by O.C.G.A. 9-11-9.1.
The trial court granted the motion as to the tortious interference and invasion of privacy claims and later granted summary judgment to R on the fraud claim.
J appeals, arguing that the first two claims did not allege a violation of professional standards that required an expert's supporting affidavit and that issues of fact remained for a jury on the fraud claim.
For the reasons that follow, we reverse the dismissal of the counts alleging invasion of privacy and tortious interference with employment and affirm the grant of summary judgment to defendant R on the fraud count.
1. In his complaint, J alleged that on August 30, 1996, he visited Dr. R, his personal physician, to discuss a physical problem.
After the visit, R contacted J's employer and told him J "should not be allowed to carry a firearm, deal with the public in a stressful situation, or control a motor vehicle under high speed stressful driving situations because he was mentally unfit."
J claimed that R's communication with the sheriff breached his duty to protect J's privacy and constituted tortious interference with J's employment because the allegation that he was not mentally fit was untrue. Dr. R successfully moved to dismiss these two counts, arguing that J's allegations against him arose out of his medical care and treatment, making J's failure to attach an expert affidavit to his complaint fatal to his claim.
J argues on appeal that he did not need to attach an expert affidavit to his complaint because he was not suing Dr. R for the exercise of his medical judgment, but for "independent torts separate and distinct from the tort of medical malpractice."
J claims Dr. R invaded his privacy and tortiously interfered with his employment. These claims are based on R's intentional act of telling J's employer about J's medical condition.
Because J makes no claim against R based on professional negligence, he did not have to attach an expert affidavit to his complaint, and the trial court erred in granting R's motion to dismiss the invasion of privacy and tortious interference with employment claims. See Labovitz, supra.
2. J contends that the trial court erred in granting summary judgment to Dr. R on the fraud count.
The fraud arose, J contends, when R concealed from him the state of his mental condition and that R "was not the appropriate physician to treat a severe mental condition and by failing to refer Plaintiff to a psychiatrist or a psychologist."
J contends that he relied on R's reassurances of good health and that R's concealment of his diagnosis resulted in J being fired. R denied these allegations in his answer.
In his motion for summary judgment, Dr. R argued that the record contains no evidence from which a jury could find each element of fraud.
The first element of fraud is that the defendant made a false representation, and once R pointed to the absence of evidence to support this element of J's fraud claim, J had to come forward with "specific evidence giving rise to a triable issue." Lau's Corp. v. Haskins, supra, 261 Ga. at 491.
He did not do so and in fact presented no evidence at all in response to R's motion for summary judgment. Therefore, the trial court did not err in granting summary judgment to R on J's fraud claim.