# Lockhart v. Board of Regents of the University System

> Court of Appeals of Georgia · July 11, 2012 · 316 Ga. App. 759

URL: https://www.frixlaw.com/law-library/cases/7877720

## Case

- **Full name:** LOCKHART v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
- **Court:** Court of Appeals of Georgia
- **Decided:** July 11, 2012
- **Citations:** 316 Ga. App. 759; 2012 Fulton County D. Rep. 2389; 730 S.E.2d 475; 2012 Ga. App. LEXIS 647
- **Precedential status:** Published
- **Opinion:** Concurrence by Barnes
- **Judges:** Barnes, Mlkell
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7877720

## How later opinions describe it (automated extraction)

- rejecting theory that medical battery “should only apply in cases where the perpetrator acted with the intent to cause harm”

## Opinion text

BARNES, Presiding Judge,
concurring specially.
I concur in the majority opinion, but in judgment only. The majority opinion thus decides only the issues in this case and may not be cited as binding precedent. Court of Appeals Rule 33 (a). I write *767 separately to voice my concern over application of the assault and battery exception to the conduct of medical professionals under the circumstances presented in this case.
While it may be good public policy to except intentional torts from the State’s waiver of sovereign immunity provided by the Georgia Tort Claims Act, I believe that extending that exception to medical or surgical errors that constitute no more than a technical battery is neither wise nor just. Surely the legislature, in enacting the assault and battery exception to the Act, did not foresee that the exception would encompass what essentially are botched medical procedures rather than intentional wrongful acts.
Nevertheless, our job is to construe statutes as written, and we have repeatedly held that the unqualified use of the terms “assault” and “battery” in OCGA § 50-21-24 (7) encompasses all acts that would constitute those common law torts. See Davis v. Standifer, 275 Ga. App. 769, 774-775 (1), n. 5 ( 621 SE2d 852 ) (2005); Dept. of Human Resources v. Coley, 247 Ga. App. 392, 398 (3) ( 544 SE2d 165 ) (2000), disapproved in part on other grounds by Ga. Dept. of Transp. v. Heller, 285 Ga. 262, 265-266 (1) ( 674 SE2d 914 ) (2009). And, as the majority indicates, it is well-settled that “a physician who undertakes to treat another without express or implied consent of the patient is guilty of at least a technical battery.” Mims v. Boland, 110 Ga. App. 477, 481 (1) (a) ( 138 SE2d 902 ) (1964). See Bailey v. Belinfante, 135 Ga. App. 574, 575-576 (2) ( 218 SE2d 289 ) (1975) (evidence of unauthorized extraction of additional teeth by oral surgeon would support finding that a technical battery occurred). Consequently, I agree with the ultimate result reached by the majority that we must affirm the trial court’s dismissal of Lockhart’s claim relating to the unauthorized grinding down of her lower teeth.
That being said, I believe that the General Assembly should amend the Georgia Tort Claims Act to remove the conduct of medical professionals constituting a mere technical battery from the scope of the assault and battery exception contained in OCGA § 50-21-24 (7). As this Court has pointed out, “[sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity —it is the [Sjtate declaring that it cannot be sued even where it would otherwise be liable.” Coley, 247 Ga. App. at 398 (3). That harshness is only exacerbated by the unqualified use of the terms “assault” and “battery” in OCGA § 50-21-24 (7), which has the effect of extending the statutory exception beyond situations of intentional wrongful conduct to those more in the nature of professional medical malpractice. Because “[o]ur job is to read the statute, not to rewrite it to conform to an equitable result,” Coley, 247 Ga. App. at 398-399 (3), the remedy in this situation lies with the legislature, and I urge it to act.
*768 Decided July 11, 2012.
Frails & Wilson, Edwin A. Wilson, for appellant.
Samuel S. Olens, Attorney General, J. David Stubins, Assistant Attorney General, Trotter Jones, James S. V. Weston, for appellees.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7877720. Public record. Not legal advice.