Anderson v. Mountain Mgmt. Serv., Inc.

• Decision Date: 13 October 2010
• Docket Number: No. A10A1005.,A10A1005.
• Citation: 702 S.E.2d 462,306 Ga.App. 412,10 FCDR 3362
• Parties: ANDERSON et al. v. MOUNTAIN MANAGEMENT SERVICES, INC.
• Court: Georgia Court of Appeals

702 S.E.2d 462
306 Ga.App. 412
10 FCDR 3362

ANDERSON et al.
v.
MOUNTAIN MANAGEMENT SERVICES, INC.

No. A10A1005.

Court of Appeals of Georgia.

Oct. 13, 2010.

702 S.E.2d 463

Clifton M. Patty, Jr., Ringgold, for appellants.

Spears, Moore, Rebman & Williams, Sharel L. Van Sandt, Chattanooga, TN, for appellee.

ADAMS, Judge.

306 Ga.App. 412

In this nursing malpractice case, the trial court granted the defendant's motions to exclude the plaintiffs' two expert witnesses—a doctor and a nurse. We granted interlocutory review and reverse with regard to the nurse.

The record shows that on September 6, 2002, 77-year-old Sarah Anderson, accompanied by her husband Grady, went to see a doctor at her regular family practice clinic in LaFayette, which she had visited on numerous occasions over the prior six years. She was greeted by Nurse Kimi Crump, LPN, who led Anderson to the scales to be weighed. Sarah's medical file showed that she had several risk factors for falling such as complaints of dizziness, a history of vertigo, obesity, gait disorder, prescription drug use, and other problems. Anderson asserts that, nevertheless, Crump failed to assess Sarah's current condition or discuss with Sarah how she was feeling or what Sarah's complaints were that brought her to her doctor's office. When Anderson stepped on the scale, Crump was holding a pen in one hand and Sarah's purse and her medical chart in the other hand. As Crump weighed Sarah, Sarah stepped off the scale, fell, and broke her hip in four places. Crump saw Anderson fall.

Sarah and Grady Anderson brought suit against several defendants including Mountain Management Services, Inc.—Crump's employer.¹ In the complaint, the Andersons alleged the defendants knew that Sarah had various ailments that were well known by the medical and nursing profession to increase the risk of falling; that her medical chart indicated risk factors of falling; that Sarah gave a medical history of dizziness when she arrived for treatment; that she was not properly attended while standing on the scale; and that the failure to properly attend her, which allowed her to fall, was a breach of the standard of care of nurses. The complaint specifically alleges that based on their knowledge of Sarah's condition, the defendants "should have taken action to prevent the plaintiff Sarah Anderson from falling from the scale while she was under the care and treatment of the defendants." ²

Attached to the complaint, the Andersons offered the affidavit of Beverly I. Pruitt, LPN, and Dr. Robert Pieroni. Pruitt averred that Crump was negligent in failing to make an evaluation and assessment

306 Ga.App. 413

of Sarah's ability to stand, walk and step on the scale and in failing to provide appropriate

702 S.E.2d 464

supervision and control of her patient as she was getting on and off the scale. Dr. Pieroni averred that Crump knew or should have known that Sarah had several risk factors of falling and that she should have taken action to prevent Sarah from falling when being weighed. Both Pruitt and Dr. Pieroni offered these same opinions in their depositions.

Sarah died on January 16, 2008, and Grady Anderson was appointed as executor of her estate and added to the suit in that capacity.

During the litigation, Mountain moved to disqualify Dr. Pieroni on the ground that he had no recent experience or professional knowledge about the standard of care applicable to a nurse weighing a patient. Mountain later moved in limine to exclude Pruitt's testimony on the ground that she had not "rendered the treatment at issue" sufficiently during three of the five years before the alleged malpractice. Mountain asserted that the "treatment at issue" was "weighing patients in a family practice setting." On May 11, 2009, the trial court granted both of Mountain's motions.

"In determining the admissibility of expert testimony, the trial court acts as a gatekeeper, assessing both the witness' qualifications to testify in a particular area of expertise and the relevancy and reliability of the proffered testimony. [Cit.]" HNTB Ga. v. Hamilton-King, 287 Ga. 641, 642(1), 697 S.E.2d 770 (2010). "The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion." Cotten v. Phillips, 280 Ga.App. 280, 283, 633 S.E.2d 655 (2006).

1. Under Georgia law, Pruitt's expert testimony is admissible in a medical malpractice action if at the time of the alleged malpractice, in addition to being a licensed professional, she had relevant knowledge and experience in " the area of practice or specialty in which the opinion is to be given":

[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert: ... (2) ... had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given....

(Emphasis supplied.) OCGA § 24-9-67.1(c). The subsection goes on

306 Ga.App. 414

to explain one way ³ that sufficient actual knowledge and experience may be shown: that is, the purported expert must be shown to

hav[e] been regularly engaged in ... [t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as

...