Bonds v. Nesbitt

• Decision Date: 12 July 2013
• Docket Number: No. A13A0348.,A13A0348.
• Citation: 322 Ga.App. 852,747 S.E.2d 40
• Parties: BONDS, et al. v. NESBITT.
• Court: Georgia Court of Appeals

322 Ga.App. 852

747 S.E.2d 40

BONDS, et al.

v.NESBITT.

No. A13A0348.

Court of Appeals of Georgia.

July 12, 2013.

James John Anagnostakis, for Appellant.

Beth Wendy Kanik, Atlanta, for Appellee.

McFADDEN, Judge.

Deborah Bonds sued Dr. Reginald Charles Nesbitt for the death of her husband, alleging that Dr. Nesbitt failed to provide necessary emergency treatment. The trial court granted Dr. Nesbitt partial summary judgment, ruling that OCGA § 51–1–29.5 applies. Under that statute, a plaintiff must prove gross negligence by clear and convincing evidence to recover in medical malpractice actions arising out of the provision of emergency medical services.

Bonds appeals, arguing that the cause of action does not arise out of the provision of emergency services but instead out of Dr. Nesbitt's failure to provide appropriate emergency services. Consequently, she argues, the statute does not apply, she need only prove her case by a preponderance of the evidence, and a jury may hold Dr. Nesbitt liable if it finds that he acted negligently. Bonds also challenges rulings allowing testimony of a defense expert witness, excluding testimony of one of her expert witnesses, and allowing Dr. Nesbitt to depose a plaintiff's expert for a second time.

We find that the trial court correctly ruled that the undisputed evidence shows that at least some of Dr. Nesbitt's treatment of Mr. Bonds arose in the context of the provision of emergency medical services, thereby triggering application of the statute. But the evidence is conflicting on the issue of whether Mr. Bonds at some point became stable and capable of receiving non-emergency medical services, thereby triggering an exception to the statute. Accordingly, we affirm in part and reverse in part the trial court's summary judgment that OCGA § 51–1–29.5 applies to Mrs. Bonds' cause of action. Because the trial court did not abuse its discretion in its expert-witness rulings or its ruling on the deposition issue, we affirm those rulings.

1. OCGA § 51–1–29.5.

We review the grant of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the non-moving party. Cowart v. Widener, 287 Ga. 622, 624(1), 697 S.E.2d 779 (2010). Viewed in this light, the evidence shows that on Friday, January 12, 2007, Billy Curtis Bonds was diagnosed with pneumonia. The following Tuesday evening, he had not improved; he had vomited repeatedly and was experiencing nausea and dizziness. Mrs. Bonds drove her husband to the hospital. They arrived at the hospital at 7:30 p.m., and Mr. Bonds was triaged at 7:35 p.m. He complained of abdominal pain and that he was nauseated, vomiting and dizzy. The triage assessment documentation included a section for the triage nurse to indicate the level of potential threat, giving two applicable choices: “none apparent” and “requires immediate life saving intervention,” which applies, for example, when someone is not breathing or does not have a pulse. The nurse selected “none apparent.” The document also had a section to rate “initial acuity,” with a range from one, meaning the most acute, to five, meaning the least acute. The nurse indicated two, which meant that Mr. Bonds needed to go straight back to the emergency room to see a doctor as soon as possible.

At 7:45 p.m. Mr. Bonds was taken to a room in the emergency department where, within 15 minutes, Dr. Nesbitt had initially evaluated him. Dr. Nesbitt ordered the administration of fluids by IV and multiple pain medications, including Diluadid and morphine. Dr. Nesbitt ordered laboratory blood tests, an EKG, and blood cultures to determine whether Mr. Bonds had a bacterial or yeast infection. Dr. Nesbitt also ordered a CT scan of Mr. Bonds' abdomen.

According to Dr. Nesbitt, Mr. Bonds was still undergoing evaluation in the emergency department at least until 10:30 p.m. Based on Mr. Bonds' symptoms and Dr. Nesbitt's examination, Dr. Nesbitt reached a differential diagnosis that was mainly intra-abdominal, including the possibilities of pancreatitis, cholecystitis, cholelithiasis, gastritis and peptic ulcer disease. At some point, Dr. Nesbitt signed a document to admit Mr. Bonds to the floor, indicating that Mr. Bonds was experiencing acute renal failure and hypertension but that his condition had improved by 11:30 p.m. and that he was stable. While Mr. Bonds was awaiting a room, Dr. Nesbitt continued to treat him at least until 12:44 a.m., when another doctor took over his care. Before he was moved to a room, Mr. Bonds became agitated, tossing on the bed and entangling himself in the wires from the machines. He was moved to a room on the third floor of the hospital at 2:00 a.m. He began thrashing about and complaining that he could not breathe. At 2:41 a.m., Mr. Bonds went into respiratory and cardiac arrest. Mr. Bonds was resuscitated and was moved to the ICU at 3:05 a.m., where he again went into cardiopulmonary arrest. He was pronounced dead at 4:00 a.m.

OCGA § 51–1–29.5(c) provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department ..., no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

OCGA § 51–1–29.5(a)(5) defines “[e]mergency medical care” as

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

Mrs. Bonds argues that whether Dr. Nesbitt provided emergency medical care, and therefore whether the statute applies to her malpractice action against him, is a jury question.

We agree with the trial court that there is no material question of fact that when Dr. Nesbitt began his care of Mr. Bonds, he was providing emergency medical care as defined by OCGA § 51–1–29.5(a)(5). Mr. Bonds was experiencing a medical condition with acute symptoms of sufficient severity, including pain, repeated vomiting, dizziness and nausea, such that the absence of immediate medical attention could reasonably be expected to result in placing his health in serious jeopardy. This expectation is evidenced by the fact that he was triaged with an acuity level of two, that within 15 minutes of his arrival in a room, Dr. Nesbitt had examined him and ordered the administration of fluids by IV and multiple pain medications, including Diluadid and morphine, and that Dr. Nesbitt ordered multiple diagnostic tests, including laboratory blood tests, an EKG, blood cultures and a CT scan.

Mrs. Bonds argues that Dr. Nesbitt's failure to recognize the severity of Mr. Bonds' condition and to provide the necessary care means that the statute does not apply. We disagree. “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly....” OCGA § 1–3–1(a). “The legislative intent is determined from a consideration of the entire statute.” Restina v. Crawford, 205 Ga.App. 887, 888, 424 S.E.2d 79 (1992).

OCGA § 51–1–29.5(a)(7) defines “[h]ealth care” as “any act or treatment performed or furnished, or that should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement.” (Emphasis supplied.) OCGA § 51–1–29.5(a)(9) defines “[h]ealth care liability claim” as “a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, ... which departure from standards proximately results in injury to or death of a claimant.” (Emphasis supplied.) It is clear from these definitions, in the context of the statute as a whole, that the legislature anticipated that a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department, and thus a claim subject to the statute, could include allegations that a physician failed to provide appropriate treatment, thereby violating the accepted standard of medical care.

But OCGA § 51–1–29.5(a)(5) excludes from its definition of emergency medical care “medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient ....” So the services provided by Dr. Nesbitt were “emergency medical care” until such time as Mr. Bonds was stabilized and the absence of such services would not have placed his health in serious jeopardy.

The statute provides that a doctor's conduct becomes subject to the more rigorous ordinary negligence standard of care rather than the gross negligence standard when the patient's condition improves, or at least stabilizes. In other words, the statute provides that the condition of the patient controls, not the opinion of the physician. If a physician or health care provider mistakenly concludes that a patient has become “stabilized”and “capable of receiving medical treatment as a nonemergency patient” and therefore stops providing emergency care to that patient—notwithstanding that the patient still needs emergency care—and if the patient is injured or killed as a result of the withdrawal of emergency care, the physician or health care provider is entitled to claim the protection of the gross negligence standard.

But at least in ...