Vito J. Bruscato, in his capacity as the guardian of Victor Bruscato, appeals
from the order of the Superior Court of DeKalb County, which granted summary
judgment to Victor Bruscato’s psychiatrist, Derek Johnson O’Brien, M.D., in this
medical malpractice case.1 The superior court concluded that Bruscato’s malpractice
claims were barred either by the application of the “impact rule” or on public policy
grounds. For the following reasons, we reverse.
To prevail at summary judgment under OCGA § 9-11-56, the
moving party must demonstrate that there is no genuine issue of material
fact and that the undisputed facts, viewed in the light most favorable to
the nonmoving party, warrant judgment as a matter of law. On appeal of
a grant of summary judgment, this Court reviews the evidence de novo
to determine whether a genuine issue of material fact exists or whether
the movant is entitled to judgment as a matter of law.
(Citations omitted.) Boggs v. Bosley Med. Institute
, 228 Ga. App. 598, 599 (492 SE2d
1 Judge Andrews notes in his dissent that “[t]his is the second appearance of
this case before us.” The case the dissent refers to, however, was a suit brought byVito Bruscato — who is not the real party plaintiff in interest in this case — againstO’Brien and the Gwinnett-Rockdale-Newton Community Service Board, in GwinnettCounty, for the wrongful death of Vito’s wife. We affirmed the grant of summaryjudgment in that case for reasons that have no application to the instant suit, whichwas brought by a different plaintiff arguing an entirely different theory of recovery.
See Bruscato v. Gwinnett-Rockdale-Newton Community Svc. Bd.
, 290 Ga. App. 638(660 SE2d 440) (2008).
So viewed, the record reveals the following. O’Brien began treating Victor
Bruscato, a then 38-year-old, mentally ill patient with a history of violence, in January
2001. O’Brien reviewed Bruscato’s treatment records, which revealed that Bruscato’s
mental illness manifested in childhood and that he had been diagnosed over the
course of his life with mental retardation, organic mood disorder, pervasive
developmental disorder, schizophrenia, a nonspecified psychotic disorder, pedophilia,
and intermittent explosive disorder. Bruscato had expressed homicidal thoughts
toward his parents, and he had physically assaulted them and others, including a
hospital employee and a young girl. He had also experienced auditory hallucinations
that commanded him to kill people or to molest girls.
When O’Brien began treating Bruscato, Bruscato had been living with his
parents for almost two years. Before that, he had been living in a group home
operated by the Gwinnett-Rockdale-Newton Community Service Board (“CSB”), but
he had been removed from the home because of the risk that he might sexually assault
a girl. Bruscato’s expert witness opined that his elderly parents were ill-equipped to
manage a severely mentally-ill adult and were “strong-armed” into taking him home.
While at home, Bruscato continued receiving outpatient treatment from the CSB.
Bruscato’s expert witness opined that the medications the CSB staff administered to
Bruscato controlled his violent behavior and sexual impulses. O’Brien knew that,
because Bruscato was potentially dangerous, the CSB required his parents to monitor
In late May 2002, O’Brien ordered that two of Bruscato’s medications, Zyprexa
and Luvox, be discontinued for six weeks to rule out the possibility that Bruscato
might be developing neuroleptic malignancy syndrome (“NMS”). O’Brien’s own
expert witness opined that, if Bruscato had NMS, which the expert believed he did
not, the proper procedure would be to hospitalize him. He also opined that
withholding Bruscato’s medications for that period to rule out the possibility of NMS,
which is very rare, was not medically justified.
According to a family friend, about two-and-a-half weeks after Bruscato
stopped taking Zyprexa and Luvox, he began having nightmares, panic attacks, and
bouts of heavy sweating. He also started hearing voices telling him to kill, and he
became increasingly hostile toward his parents. On July 22, O’Brien met with
Bruscato briefly and noted that he spoke rapidly, seemed excited, and was feeling
angry at women. O’Brien, however, did not make any changes to Bruscato’s
treatment plan. On August 11, Bruscato scrawled a “prayer note,” stating: “[I] need
prayer big time devil tormenting me.” O’Brien opined in his deposition that the letter
“could convey psychosis.” On August 14, a friend visiting Bruscato’s home observed
him rocking back and forth on his bed, pleading for the voices in his head to leave
him alone. A nurse, who also visited on the same day, noted that Bruscato was
argumentative, was expressing thoughts about sexual fantasies and dreams, and was
On August 15, Bruscato crushed his mother’s skull with a battery charger and
stabbed her 72 times, killing her. When questioned by the arresting officers, Bruscato
said that he killed his mother and that he knew it was wrong, but that the devil had
told him to do it. After Bruscato was jailed, the assistant director of prison mental
health services wrote Bruscato’s criminal defense attorney. She advised him that,
when Bruscato was arrested, he had been “non-compliant with his anti-psychotic
medications,” and, during his intake assessment, he had reported auditory
hallucinations that were “persecutory in nature,” that he had trouble controlling his
impulses, and that he had very poor insight into his situation, asking “what member
of his family would become his new mother.” Bruscato wondered whether his mother
could be “brought back to life.” After reintroducing Zyprexa into Bruscato’s
medication regimen, the director noted that he became “compliant” and that his
condition “improved steadily.” Although Bruscato was indicted for his mother’s
murder in 2002, he was found to be incompetent to stand trial. As of the date of the
trial court’s summary judgment order in the instant case, Bruscato has been residing
at Central State Hospital, where he had been committed.
Bruscato’s expert witness opined that when O’Brien “abruptly terminated
[Bruscato’s] Zyprexa, not only was this a violation of the standard of care required
of Dr. O’Brien, it resulted in the imposition of chemical changes in [Bruscato’s]
brain. Those chemical changes in turn produced adverse physical responses in
[Bruscato’s] brain and ultimately in his body.” The expert stated that Bruscato’s
mental illness was not merely emotional or behavioral, but neurological — “a medical
disorder.” The expert further opined that the chemical changes that resulted from
withholding medication caused Bruscato to “decompensate” and experience the return
of the most severe symptoms of his medical disorder, including auditory command
hallucinations, agitation, and hostility. The expert concluded that O’Brien’s treatment
“manifested gross negligence and a disregard of the consequences of leaving a
historically violent and potentially psychotic patient unmedicated,” which ultimately
led to Bruscato’s killing his mother while in a psychotic state.
1. Bruscato contends the trial court erred when it granted O’Brien’s motion for
summary judgment based upon a finding that he “failed to establish an injury for
which the law provides recovery,” and entered judgment in favor of O’Brien on all
counts of the complaint. Specifically, Bruscato argues that the court erred in
characterizing his claim for damages arising prior to the attack on his mother as a
claim for “[m]ental distress and anguish” and concluding that, because Bruscato had
suffered no physical injury or pecuniary loss prior to the attack, he was barred from
recovering for the “negligent infliction of emotional distress” by the so-called “impact
“Three elements are essential to establish a medical malpractice claim: the
doctor’s duty to his patient; the doctor’s breach of that duty through the failure to
exercise the requisite degree of skill and care; and an injury proximately caused by
the doctor’s failure.” (Citations omitted.) Haughton v. Canning
, 287 Ga. App. 28 (2)
(650 SE2d 718) (2007). OCGA § 51-1-27, which pertains to actions for medical
malpractice, provides: “A person professing to practice surgery or the administering
for compensation must bring to the exercise of his profession a
reasonable degree of care and skill. Any injury
resulting from a want of such care and
2 A long succession of cases has explained, clarified, distinguished, and limited
the impact rule to prevent a plaintiff from recovering for emotional distress from thenegligence of a defendant when the plaintiff did not suffer either physical injury ormonetary loss as a result of the negligence. See, e.g., Lee v. State Farm &c. Ins. Co.
,272 Ga. 583, 586-588 (II) (533 SE2d 82) (2000).
skill shall be a tort for which a recovery may be had.” (Emphasis supplied.) The
statute clearly provides that a compensable injury may result from a physician’s
failure to properly administer medicine, and we have held that whether drugs were
administered properly is a medical question involving professional judgment and
skill. See Williams v. Alvista Healthcare Center
, 283 Ga. App. 613, 615-616 (1) (a)
(642 SE2d 232) (2007); Shirley v. Hosp. Auth. of Valdosta/Lowndes County
, 263 Ga.
App. 408, 409-410 (1) (587 SE2d 873) (2003).
Bruscato asserts that O’Brien, his psychiatrist, breached his duty of care to him
when he misdiagnosed him with possible NMS, negligently altered his medication
regimen as a result thereof, and negligently monitored his physical, mental, and
emotional status while he withdrew from the medications. Bruscato avers that, as a
result of O’Brien’s medical malpractice, he suffered these injuries: he
“decompensated” to the point where he experienced auditory command hallucinations
telling him to kill, he succumbed “to a state of profound mental confusion . . . to the
extent that [he] was deprived of any ability to control his violent impulses,” he
experienced the “reemergence of his underlying psychosis,” and he suffered a
psychotic break with reality, during which he killed his mother. Further, in opposition
to O’Brien’s motion for summary judgment, Bruscato’s expert witness opined that,
when O’Brien abruptly discontinued Bruscato’s medication, Bruscato experienced
chemical changes in his brain and, ultimately, his body that affected him
Pretermitting whether the injuries that Bruscato alleges he suffered as a result
of O’Brien’s professional negligence were physical, psychological, or both, we
conclude that the question is irrelevant to Bruscato’s medical malpractice claim. We
conclude that the medical malpractice statute, which provides that “any injury”
resulting from the breach of a physician’s duty is a compensable injury, is not limited
by the application of the “impact rule.” In reaching this conclusion, we have
considered the underlying purposes of applying the “impact rule” to causes of action
for the negligent infliction of emotional distress and conclude that there is no rational
basis for applying the rule to causes of action sounding in medical malpractice.
It is beyond dispute that “emotional distress” is a normal, even expected, part
of life and can be caused by an almost infinite array of factors or a combination of
those factors. Further, a person’s perception of his or her “emotional distress” is
subjective and difficult to prove or to disprove, as is the causal connection between
a defendant’s allegedly negligent act or omission and the emotional distress. Thus,
the Supreme Court of Georgia has held that, “[i]n a claim concerning negligent
conduct, a recovery for emotional distress is allowed only where there is some impact
on the plaintiff, and that impact must be a physical injury.” (Citation, punctuation and
footnote omitted.) Lee v. State Farm &c. Ins. Co.
, 272 Ga. 583, 584 (I) (533 SE2d 82)
(2000).3 “[T]he current Georgia impact rule has three elements: (1) a physical impact
to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3)
the physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional
There are three policy reasons traditionally given for having the impact
rule and denying recovery for emotional distress unrelated to physical
injuries. First, there is the fear[ ] that[,] absent impact, there will be a
flood of litigation of claims for emotional distress. Second, [there] is the
concern for fraudulent claims. Third, there is the perception that, absent
impact, there would be difficulty in proving the causal connection
between the defendant’s negligent conduct and claimed damages of
emotional distress. . . . [T]he benefits of an impact rule are plain in that
it provides a brighter line of liability
and a clear relationship between
the plaintiff’s being a victim of the breach of duty
3 We do not address that aspect of the impact rule which allows recovery in
cases involving the negligent infliction of emotional distress when the plaintiff hassuffered a pecuniary loss. For a full discussion of that aspect of the rule, seeNationwide &c. Ins. Co. v. Lam
, 248 Ga. App. 134, 136 (1) (546 SE2d 283) (2001).
(Citations omitted; emphasis supplied.) Id. at 587 (II).4 Consequently, the impact rule
is an appropriate measure to be applied in cases involving the negligent infliction of
emotional distress to bystanders or third parties
who are not physically impacted by
the defendant’s negligence and whose injuries are not a foreseeable result of such
. See id. at 589 (Hunstein, J., concurring specially) (endorsing a
foreseeability rule as preferable to the “regressive” impact rule). Without the impact
rule (or some related concept, such as foreseeability) to limit potential claimants and
to prevent frivolous lawsuits, a defendant’s single act of negligence could result in
4 In Lee
, the Supreme Court ultimately concluded thatthe policy concerns behind our traditional impact rule are not extant in
this case, and there is no meritorious reason in an appropriate and
compelling situation to refuse to extend recovery for emotional distress
to an incident in which the distress is the result of physical injury
negligently inflicted on another. The circumstance of this case is such
an appropriate and compelling situation.
When, as here, a parent and
child sustain a direct physical impact and physical injuries through the
negligence of another, and the child dies as the result of such
negligence, the parent may attempt to recover for serious emotional
distress from witnessing the child’s suffering and death without regard
to whether the emotional trauma arises out of the physical injury to the
(Citations and footnote omitted; emphasis supplied.) Id. at 588 (III).
his or her having to defend against claims by a multitude of bystanders for their
The above-stated policy concerns, however, are not present in medical
malpractice cases, because such cases require
a physician-patient relationship
between the defendant and the plaintiff. See OCGA § 51-1-27; Haughton v. Canning
287 Ga. App. at 28 (2). Consequently, there is no question to be resolved regarding
the emotional impact of the defendant’s alleged negligence on third parties or
bystanders, nor is there concern about a “flood of litigation” arising from such
negligence. Further, the concern about avoiding fraudulent or frivolous lawsuits is
already addressed by the strict pleading requirements of OCGA § 9-11-9.1. See
Bowen v. Adams
, 203 Ga. App. 123, 124 (416 SE2d 102) (1992) (“The purpose of
OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being
filed[.]”) (citation and punctuation omitted).
Finally, once the plaintiff obtains an expert affidavit to support his or her claim
that the defendant violated the applicable professional standards (pursuant to OCGA
§ 9-11-9.1), and presents evidence of “[a]ny injury resulting from a want of such care
and skill” (pursuant to OCGA § 51-1-27), determinations regarding the existence and
extent of the plaintiff’s injuries and whether the defendant’s negligence caused those
injuries are generally questions for the jury to resolve.5 See Pruette v. Phoebe Putney
, 295 Ga. App. 335, 338 (1) (671 SE2d 844) (2008) (“questions regarding
proximate cause are undeniably a jury question and may only be determined by the
courts in plain and undisputed cases. Furthermore, in the summary judgment context,
the nonmoving party is not required to produce evidence demanding judgment for
that party, but only to present evidence which raises a material issue of fact.”)
(citations and punctuation omitted); see also Jones v. Abel
, 209 Ga. App. 889, 895-
896 (3) (434 SE2d 822) (1993) (evidence that the plaintiff was distracted from his
business and suffered from depression as the result of his psychiatrist’s malpractice
was sufficient to send the issue of proximate cause and damages to the jury).
Therefore, the trial court erred in applying the impact rule in this medical malpractice
2. Bruscato contends that the trial court erred in granting summary judgment
to O’Brien on Bruscato’s claims for damages occurring at the time he attacked his
mother and thereafter on the basis that “[t]he public policy of Georgia bars any
recovery for a cause of action by a person who has committed an illegal act, where
5 It follows that it would constitute reversible error to grant summary judgment
to the defendant under such circumstances. See OCGA § 9-11-56 (c) (standard forgranting summary judgment).
the plaintiff depends upon the illegal act to establish his case.” The trial court
characterizes Bruscato’s lawsuit as a “claim brought by a psychiatric patient against
his . . . psychiatrist for failing to prevent the patient from committing murder.”
Finding Bruscato’s conduct “unlawful and wrongful” and assuming that all of
Bruscato’s post-attack damages flowed from his illegal act, the court concluded that,
as a matter of public policy, Bruscato’s claims were “clearly barred.” This was error
Bruscato’s claims for damages are not limited to those which flow from the act
of killing his mother. Bruscato’s complaint seeks damages for medical malpractice,
which is based upon O’Brien’s actions and which encompasses damages flowing
from O’Brien’s alleged negligent medical treatment, including, for example, the
physical and emotional injuries Bruscato experienced as a result of the ongoing
deprivation of his medication. Thus, even if Bruscato is characterized as an
intentional “wrongdoer,” his status as such would not be a bar to his recovering for
those damages that are not attributable to the alleged immoral or illegal act.
Further, under Georgia law, “a person does not become an outlaw and lose all
rights by doing an illegal act.” (Citation, punctuation and emphasis omitted.) Adams
, 129 Ga. App. 850, 852 (3) (201 SE2d 639) (1973). In this case, no court has
adjudicated the issue of Bruscato’s mental competence or sanity at the time he
committed the crime. He was, however, found incompetent to stand trial,6 and he has
yet to be tried for the crime for which he was indicted. Moreover, should Bruscato
later be found competent to stand trial, a jury may yet find him not guilty.7 Because
Bruscato has not been found guilty of the murder of his mother, he is presumed
innocent. OCGA § 16-1-5. Thus, because no court has entered a judgment finding
Bruscato legally responsible for his mother’s murder and because the issue of his
6 In a competency proceeding, the defendant has the burden of proving
incompetency by a preponderance of the evidence. Adams v. State
, 275 Ga. 867,867-868 (3) (572 SE2d 545) (2002). A criminal defendant is incompetent to standtrial if he is incapable of understanding the nature and object of the criminalproceedings and of assisting his attorney with his defense. Id. A finding ofincompetency to stand trial does not address the defendant’s culpability for the crimecharged. Indeed, “a person may be sane enough to be responsible for [a] crime, andyet incapable of making his defense, and on the other hand he may have mentalcapacity to be placed on trial, and yet be insane within the contemplation of the lawas to responsibility for a criminal act.” Brown v. State
, 215 Ga. 784, 786 (1) (113SE2d 618) (1960).
7 Under Georgia law, a person is insane, and shall not be guilty of a crime, if
at the time of the act, omission, or negligence constituting the crime, the person didnot have mental capacity to distinguish between right and wrong in relation to thecriminal act or acted because of a delusional compulsion which overmastered his willto resist committing the crime. OCGA §§ 16-3-2, 16-3-3; Foster v. State
, 283 Ga. 47,48 (656 SE2d 838) (2008).
mental competence at the time of the crime has been disputed, a jury issue exists as
to whether Bruscato had the requisite mental capacity to commit murder.
Moreover, the statutes the trial court and the dissent rely upon as embodying
Georgia’s public policy of prohibiting wrongdoers from profiting from their crimes
only prevent those who “feloniously and intentionally” kill, OCGA § 53-1-5 (a),8 or
those who commit “murder or voluntary manslaughter,” OCGA § 33-25-13,9 from
sharing, respectively, in the decedent’s estate or insurance policy proceeds. Further,
OCGA § 17-14-31 essentially requires those who are buying the media rights to an
accused’s story to place the purchase money into an escrow account for the benefit
of the victim or victims. The money is to be disbursed, however, “only if the accused
person is eventually convicted or enters a plea of guilty[.]” OCGA § 17-14-31 (a) (3).
8 OCGA § 53-1-5 (d) further provides that a “final judgment of conviction or
a guilty plea for murder, felony murder, or voluntary manslaughter is conclusive incivil proceedings under this Code section. In the absence of such a conviction or plea,the felonious and intentional killing must be established by clear and convincingevidence.”
9 This Code section also provides that “[a] plea of guilty or a judicial finding
of guilt not reversed or otherwise set aside as to any of such crimes shall be prima-facie evidence of guilt in determining rights under this Code section.” Absent suchproof, in order to obtain summary judgment under this statute, the undisputedevidence must show as a matter of law that the alleged wrongdoer committed eithermurder or voluntary manslaughter. Cantera v. American Heritage Life Ins. Co.
, 274Ga. App. 307, 310-312 (7) (617 SE2d 259) (2005).
Moreover, this statute makes special provision for disposition of the funds in those
cases where the accused is unable to proceed to trial because of insanity or mental
incompetence to stand trial. OCGA § 17-14-31 (e). Thus, if a public policy may be
gleaned from these statutes, it is a policy that prohibits those who commit murder or
voluntary manslaughter from profiting from the victim’s death. These statutes,
however, do not impair the rights of those who kill by accident or negligence, who
kill in self-defense or pursuant to any other legal justification, or who kill while
legally insane. Simply admitting to having committed a homicide does not make one
10 In fact, we can imagine a number of scenarios where, under the dissents’
analysis, a deserving plaintiff would be denied any recovery. Imagine, for example,a bipolar teenager with no history of violence who, upon receiving the wrongmedication from a medical professional, suffers a hallucinatory, delusional mania —a rare but known side effect of the medication received. While in that delusional state,the child kills her brother, believing that he is a home invader bent on raping andkilling her. While delusional, she perceives her act as one of self-defense. When sherecovers from the effects of the medication, she realizes her mistake and, profoundlytraumatized and remorseful, admits killing her brother. A jury would likely acquit herof murder, if she is even indicted. Yet, under the dissents’ analysis, she is awrongdoer for whom the civil law offers no remedy for the loss of her brother. Thedissent has not only created a class of people who have limited recourse againstnegligent medical professionals, they have stigmatized as immoral those mentally illpeople who, for reasons which may be entirely beyond their control, commit violentacts.
Further, the foreign cases upon which the trial court and the dissents rely for
the proposition that Bruscato is a wrongdoer who is barred from profiting from his
crime on public policy grounds are inapposite. Those cases involved plaintiffs who
had been convicted of the crimes for which they claimed were the result of the
defendants’ negligence11 or who were found to have knowingly and intentionally
participated in the crimes that proximately caused their injuries.12 In each of these
cases, a court found that the plaintiff had the requisite criminal intent to commit the
crime. Moreover, none of those cases stand for the proposition that a psychiatric
patient who kills while lacking the mental capacity to form the requisite criminal
intent for murder or voluntary manslaughter is barred from bringing a medical
malpractice action against his psychiatrist.
See Cole v. Taylor
, 301 NW2d 766 (Iowa 1981) (convicted of murder);
Veverka v. Cash
, 318 NW2d 447 (Iowa 1982) (convicted of murder); Glazier v. Lee
,429 NW2d 857 (Mich. Ct. App. 1988) (convicted of voluntary manslaughter); Mossv. Mid-South Hosp.
, 1989 WL 134666 (Tenn. Ct. App. 1989) (convicted of murder);Feltner v. Casey Family Program
, 902 P2d 206 (Wyo. 1995) (convicted of sexualassault); Burcina v. City of Ketchikan
902 P2d 817 (Alaska 1995) (convicted ofarson); Hines v. Bick
, 566 S2d 455 (La. Ct. App. 1990) (convicted of manslaughter).
12 Barker v. Kallash
, 468 NE2d 39 (N.Y. 1984) (juvenile’s injuries occurred
during his intentional violation of the law prohibiting possessing fireworks); Orzelv. Scott Drug Co.
, 537 NW2d 208 (Mich. 1995) (defendant’s injury was caused, inpart, by his intentional violation of the law prohibiting possession and use ofcontrolled substances).
However, in a series of cases involving negligence suits against psychiatrists
for harm caused by their patients, either to themselves or others, this Court has
recognized that a patient’s psychiatric disorder may prevent him from having the
mental capacity to exercise control over his intentional behavior or, at least, from
exercising a reasonable degree of care in order to prevent himself from harming
others. See Brandvain v. Ridgeview Institute
, 188 Ga. App. 106, 117 (3) (c) (372
SE2d 265) (1988) (“[A] patient may be so mentally ill that, as a matter of law, he is
not held to exercise any degree of care for himself, and, therefore, cannot be
contributorily negligent.”) (citation omitted); Swofford v. Cooper
, 184 Ga. App. 50,
54 (4) (360 SE2d 624) (1987) (Because the plaintiff was psychotic when he stabbed
his father, and had been declared incompetent to stand trial, “he could not have been
held to the exercise of any degree of diligence.”) (citation and punctuation omitted);
Misfeldt v. Hosp. Auth. of Marietta
, 101 Ga. App. 579, 581-584 (115 SE2d 244)
(1960) (It was error for the trial court to direct a verdict in favor of the hospital
because the evidence of the patient’s mental illness and the reasonableness of the
steps taken by the hospital to protect her from herself were disputed and for the jury.);
Emory Univ. v. Lee
, 97 Ga. App. 680, 702 (6) (104 SE2d 234) (1958) (physical
precedent only) (“If the evidence in the case sub judice conclusively proved that the
plaintiff was on the occasion when he was injured entirely bereft of reason, it is
obvious that he could not have been held to the exercise of any degree of diligence.”).
As we explained in Brandvain v. Ridgeview Institute
, the fact that a patient’s
illegal act was volitional does not necessarily mean that it was a rational act for which
the patient alone was responsible or which relieved the physician or the hospital of
its duty to the patient. 188 Ga. App. at 118-119 (3) (c). In this case, Bruscato has not
been convicted of murder, nor has any court entered a judgment finding him mentally
competent at the time of the crime. Further, the evidence below does not establish, as
a matter of law, that Bruscato was mentally competent when he killed his mother.
Bruscato is not a “wrongdoer” whose status as such would be a bar to any of his
claims. Consequently, summary judgment on this issue or any issue relating to
Bruscato’s contributory negligence for causing his mother’s death is not authorized
by the evidence, and, therefore, the trial court erred in granting summary judgment
Judgment reversed. Miller, C. J., Barnes, P. J., and Phipps, P. J., concur.
Johnson and Doyle, JJ., concur specially in part and dissent in part. Andrews, P. J.,
DOYLE, Judge, concurring specially in part and dissenting in part.
I agree fully with Division 1 of the majority opinion. In addition, even though
the impact rule does not apply to Bruscato’s medical malpractice claim, I note that the
expert testimony of Roy Neil Johnston, M.D., that Bruscato suffered a physical injury
upon the discontinuation of his anti-psychotic medication by Dr. O’Brien, would
create a question of fact on this issue.
With respect to Division 2, I dissent in part because in this instance, public
policy13 prohibits Bruscato from recovering for damages arising out of the death of
his mother for the reasons set forth in Division 2 of Presiding Judge Andrews’s
dissent. There is no dispute that Bruscato killed his mother. On May 1, 2003,
that he was mentally incompetent to stand trial, and the trial court
entered a consent order finding him mentally incompetent to stand trial. As pointed
13 Cf. OCGA § 53-1-5 (a) (“An individual who feloniously and intentionally
kills or conspires to kill or procures the killing of another individual forfeits the rightto take an interest from the decedent’s estate and to serve as a personal representativeor trustee of the decedent’s estate or any trust created by the decedent.”); OCGA § 17-14-31 (addressing distribution of profits received as a result of the commission of acrime).
out in Presiding Judge Andrews’s dissent, Bruscato’s defense of mental incompetence
“admits the doing of the act charged.”14
Further, Bruscato admitted in his complaint that because “he was psychotic, out
of touch with reality, and had severely diminished impulse control on August 15,
2002, “when [his] mother . . . attempted to discipline [him] by withholding privileges
. . . [, Bruscato] picked up a battery charger and smashed his mother in the head and
then stabbed her over 70 times with a knife
,” resulting in her death.15 When
questioned by the arresting officers, Bruscato admitted that he initially hid the knife
he used to stab his mother, and he also admitted to killing her, stating that he knew
it was wrong, but that the devil had told him to do it. Bruscato also asked “if a doctor
had taken him off medication, and the act of taking him off the medication had made
him violent, would the doctor or the person who committed the violent act[ ] be
14 (Punctuation omitted.) Brown v. State
, 267 Ga. 350, 351 (2) (478 SE2d 129)
(1996) (“An affirmative defense is a defense that admits the doing of the act chargedbut seeks to justify, excuse or mitigate it.”). See also Kelley v. State
, 235 Ga. App.
177, 179 (1) (509 SE2d 110) (1998) (“A plea of not guilty by reason of insanity is aplea of confession and avoidance — it admits the facts pleaded in the indictment, butavoids conviction because of the condition of insanity of the defendant at the time ofthe offense.”) (punctuation omitted). As Bruscato admitted in his brief in oppositionto summary judgment, he “was charged with murder in his mother’s death but hasbeen repeatedly adjudicated
incompetent to stand trial.” (Emphasis supplied.)
responsible for that act.” Under these facts, it is not necessary to further establish
Bruscato’s responsibility for the death of his mother in order to preclude his recovery
for his mother’s death. In this tort action, there is no and will never be any dispute
As set forth in Bruscato’s complaint, however, his damages include “suffering
through a psychotic break with reality caused by Dr. O’Brien withdrawing
[Bruscato]’s anti-psychotic medication.” These damages are not limited to the time
period prior to Bruscato’s attack on his mother and do not necessarily flow from the
act of killing his mother. Thus, our determination — that public policy bars
Bruscato’s recovery as to any damages that flow from his act of killing his mother —
would not bar his recovery for those damages, if any, that are not attributable to that
act, regardless of timing. Nevertheless, the trial court’s grant of summary judgment
as to his claim seeking to recover for the damages arising from his act of killing his
mother was appropriate and should be affirmed.
I am authorized to state that Judge Johnson joins in this opinion.
ANDREWS, Presiding Judge, dissenting.
This is the second appearance of this case before us. In Bruscato v. Gwinnett-
Rockdale-Newton Community Svc. Bd.
, 290 Ga. App. 638 (660 SE2d 440) (2008),
this Court affirmed a grant of summary judgment in Vito Bruscato’s wrongful death
action against Dr. O’Brien for failing to protect Vito’s wife, also Victor’s mother,
from Victor’s psychosis, the results of which included the mother’s death at her son’s
hand. Today, this majority holds that Dr. O’Brien’s withholding of medication,
resulting in the resurgence of Victor’s preexisting psychosis, amounts to a “physical
injury” sufficient to ground Victor’s own
emotional distress claim. This result
eviscerates the longstanding Georgia rule that a plaintiff seeking damages for
emotional distress caused by a defendant’s negligence must show that he suffered
“physical injury.” The majority also runs afoul of the widely recognized public
policy against rewarding wrongdoers when, under the guise of granting relief for his
“pain and suffering,” it authorizes Victor Bruscato to profit from the killing of his
own mother. For both of these reasons, I dissent.
1. With a single exception marked out by our Supreme Court in Lee v. State
Farm &c. Ins. Co.
, 272 Ga. 583 (533 SE2d 82) (2000), Georgia law has always
rejected any claim for negligent infliction of emotional distress arising from a mere
physical impact. Instead, and for more than a century, Georgia law has required that
a plaintiff claiming emotional distress as a result of a defendant’s negligence,
including medical malpractice
, must show either physical injury or monetary loss.
See, e.g., Chapman v. Western Union Telegraph Co.
, 88 Ga. 763 (15 SE 901) (1892);
OB-GYN Assoc. v. Littleton
, 259 Ga. 663 (386 SE2d 146) (1989) (Littleton II
OB-GYN Assoc. v. Littleton
, 261 Ga. 664 (410 SE2d 121) (1991) (Littleton IV
(mother of child who died shortly after birth could bring claim for only that portion
of her emotional distress caused by her own physical injuries); Owens v. Gateway
., 227 Ga. App. 815, 816 (490 SE2d 501) (1997) (lost wages were
insufficient to ground emotional distress claim).
’s discussion of the impact rule featured its overruling of Christy
Bros. Circus v. Turnage
, 38 Ga. App. 581 (144 SE 680) (1928), which sustained an
emotional distress claim by a woman into whose lap a circus horse had defecated. As
noted, Prosser had singled out Christy Bros.
as an absurd extension of the
impact rule. Littleton II
, 259 Ga. at 666 (2), citing Prosser & Keeton, Law of Torts,
5th ed., § 54, p. 364; see also Prosser, 3d ed., § 51, p. 351 (1964). Likewise, although
was overruled in part by Lee v. State Farm &c. Ins. Co.
, 272 Ga. 583, the
court noted Littleton II
’s overruling of Christy Bros.
with approval. Lee
, 272 Ga.
The import of this line of cases is perfectly clear: neither a mere impact
mere aggravation of some preexisting
mental condition, but only a new physical
, can authorize a claim for mental distress arising from a defendant’s negligent
act. It is nonsensical for this majority to assert that O’Brien’s withholding of
medication from Bruscato could result in any new “physical injury” to him; rather,
O’Brien’s withholding of medication resulted only in the resurgence of Bruscato’s
mental illness, which could never be the legal responsibility of O’Brien
or anyone else. When it thus misapplies the ultra-refined techniques of modern
biochemistry to the clear and venerable legal rule requiring “physical injury” for
emotional distress claims, the majority stages a return to the absurdity of Christy
The majority also exceeds its authority when it argues against the “physical
injury” rule for reasons of policy (the prevention of a flood of litigation, a concern
about fraudulent claims, and the difficulty of proving a causal connection between
negligent conduct and an emotional distress claim) and for a foreseeability rule. As
the Supreme Court held in Lee
, however, “the benefits of an impact rule are plain in
that it provides a brighter line of liability
” as well as “a clear relationship” between
a plaintiff’s status as a victim of negligence and her right to compensation. (Emphasis
supplied.) 272 Ga. at 587 (II). This explicit confirmation of the bright line rule
requiring physical injury should foreclose any
policy discussion of the question by
judge on this Court. Instead, and until further notice, this majority renders any
arguably negligent act causing any
observable change in brain chemistry preceding
catastrophic event which any
plaintiff’s expert later testifies to be the proximate
result of the negligent act as authorizing a jury to award any
amount its enlightened
conscience finds appropriate. I cannot condone this result or the rationale used to
2. Although the issue has not previously arisen in Georgia, the well-developed
rule in other jurisdictions is that public policy bars a wrongdoer’s emotional distress
claim arising from his own immoral act. This is so even when, as in this case, the
wrongdoer does not possess the mens rea to establish legally sufficient culpability for
In the leading case of Cole v. Taylor
, 301 NW2d 766 (Iowa 1981), the Iowa
Supreme Court barred a killer’s action against her treating psychiatrist as follows:
[A] person cannot maintain an action if, in order to establish his cause
of action, he must rely, in whole or in part, on an illegal or immoral
or transaction to which he is a party, or to maintain a claim for damages
based on his own wrong
or caused by his own neglect, . . . or
must base his cause of action, in whole or in part
, on a violation by
himself of the criminal or penal laws.
(Citations and punctuation omitted; emphasis supplied.) Id. at 768 (II). Any of these
categories of wrongfulness, in other words, should be sufficient to bar recovery.
Shortly after Cole
, moreover, a second Iowa decision held that because an arsonist
and felony murderer’s proof of diminished capacity provided no basis for avoiding
rule, a trial court should have granted summary judgment to his doctor
concerning his tort claim. Veverka v. Cash
, 318 NW2d 447, 450-451 (Iowa 1982).
Since then, Cole
has been recognized as the majority American rule among the few
courts to have considered the issue. Feltner v. Casey Family Program
, 902 P2d 206,
208 (Wyo. 1995); see also Glazier v. Lee
, 429 NW2d 857 (Mich. App. 1988)
to bar plaintiff’s claim against his psychiatrist in the wake of
plaintiff’s killing of his girlfriend); Hines v. Bick
, 566 S2d 455, 459-462 (La. App.
It is true that the Cole
and other plaintiffs were found guilty of the murder
before bringing their tort suits, whereas Bruscato has been found mentally
incompetent to stand trial in the killing of his mother. As other courts have held,
however, the Cole
rationale applies even where a plaintiff may not be held criminally
responsible for his conduct
. Thus the New York Court of Appeals barred a claim by
a fifteen-year-old against a nine-year-old for supplying the former with firecrackers,
holding that “[a]lthough the plaintiff may not be held criminally responsible for his
conduct, the fact remains that constructing a bomb is prohibited by law.” Barker v.
, 468 NE2d 39, 42 (N.Y. 1984) (citing Cole
It is also true that “[a]n individual who feloniously and intentionally kills”
another person “forfeits the right to take an interest from the decedent’s estate
(Emphasis supplied.) OCGA § 53-1-5 (a). Although this statute expresses the General
Assembly’s disapproval of a wrongdoer profiting from his wrongful act, the majority
uses it to justify the validity of a tort claim brought by a person who does not possess
the requisite mens rea against a decedent’s estate. The statute has no application to
Bruscato’s garden variety tort claim, however, because that claim is not an inheritable
“interest” under the Probate Code.
In short, even if Bruscato has been legally excused
from the consequences of
his actions, his defense of mental incompetence necessarily “admits the doing of the
act charged.” Brown v. State
, 267 Ga. 350, 351 (478 SE2d 129) (1996). Georgia’s
public policy against allowing wrongdoers to profit from their wrongful acts
expresses the law’s legitimate repugnance at Bruscato’s recovery of any
theory, for his emotional distress claim. As the Cole
court succinctly put
the matter: “We reject plaintiff’s theories of recovery, not because they cannot be
rationalized, but because they cannot be justified.” 301 NW2d at 768 (II).
As previously stated, I also believe that the “physical injury” component of
Georgia’s longstanding impact rule bars recovery for any preexisting mental
condition which reappears as a result of a doctor’s withholding of medication.
Because either of these reasons would be sufficient to affirm the trial court’s grant of
summary judgment, I dissent to both divisions of the majority opinion.
Decided December 1, 2010 -- Reconsideration
denied December 16, 2010 -- Cert. applied for.
Medical malpractice. DeKalb Superior Court. Before Judge Adams.
William G. Quinn III, Jerry D. McCumber, for appellant.
Owen, Gleaton, Egan, Jones & Sweeney, Milton B. Satcher III, Laura C.
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