# Culberson v. Fulton-DeKalb Hospital Authority

> Court of Appeals of Georgia · September 9, 1991 · 201 Ga. App. 347

URL: https://www.frixlaw.com/law-library/cases/9582558

## Case

- **Full name:** CULBERSON Et Al. v. FULTON-DeKALB HOSPITAL AUTHORITY; And Vice Versa; McMICHAEL v. CULBERSON Et Al.
- **Court:** Court of Appeals of Georgia
- **Decided:** September 9, 1991
- **Citations:** 201 Ga. App. 347; 411 S.E.2d 75
- **Precedential status:** Published
- **Opinion:** Concurrence by Pope
- **Judges:** Birdsong, Cooper, Pope
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Lemonds v. Walton County Hospital Authority, 212 Ga. App. 369 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9582558

## Opinion text

Pope, Judge,
concurring specially.
I concur in the holding in Case Nos. A91A1277 and A91A1278. I concur in the judgment only in Case No. A91A1276, in which the majority holds appellee Fulton-DeKalb Hospital Authority is entitled to governmental immunity from appellants’ suit.
For the reasons set forth in the dissenting opinion in Hospital Auth. of Fulton County v. Litterilla, 199 Ga. App. 345, 351 ( 404 SE2d 796 ) (1991) (Carley, J., dissenting), I do not agree that Self v. City of Atlanta, 259 Ga. 78 ( 377 SE2d 674 ) (1989), in which the Georgia Supreme Court held that the “sue and be sued” language of OCGA § 31-7-75 (1) does not signify a waiver of governmental immunity from suit, should be applied retroactively to this case in which the cause of action arose prior to the change of law announced in the Self opinion. However, because the Georgia Supreme Court has held the self-insurance plan for Grady Hospital does not serve to waive the hospital’s defense of charitable immunity, see Ponder v. Fulton-DeKalb Hosp. Auth., 256 Ga. 833 (2) ( 353 SE2d 515 ) (1987), I agree that the trial *351 court properly granted summary judgment to the hospital in this case.
Decided September 9, 1991
Reconsideration denied September 30, 1991
William Q. Bird, for Culberson.
Alston & Bird, Robert D. McCallum, Jr., Robert P. Riordan, James C. Grant, for Fulton-DeKalb Hospital Authority.
Harman, Owen, Saunders & Sweeney, H. Andrew Owen, for McMichael.
On Motion for Reconsideration.
Appellee Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital has attached certain documents to its brief in support of motion for reconsideration. Two of these documents are affidavits duly contained within the trial transcript and previously considered by this court. We have re-examined and reconsidered these documents, as well as the relevant contents of the entire record, in the disposition of this motion. Another document, however, contains only selected portions of a deposition by Dr. Julia McMichael. The deposition of Dr. McMichael is not listed in either the index of the record or of the supplemental record, and cannot be found by a thorough culling of the record and supplemental record which were forwarded to this court for appellate review by the parties. We must take our evidence from the record and not from the briefs of the parties. Thus, it is well settled that a brief or an attachment thereto cannot be used as a procedural vehicle for adding to the record. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 ( 392 SE2d 33 ). Moreover, a motion for reconsideration or attachment thereto, like a brief, cannot be used as a procedural vehicle for adding evidence or fact representations to the record. Norman v. State, 197 Ga. App. 333, 337 ( 398 SE2d 395 ). Further, an examination of the partial deposition of Dr. McMichael reflects that nothing contained therein would require the granting of the motion for reconsideration in this case.
Motion for reconsideration denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9582558. Public record. Not legal advice.