Bushey v. Atlanta Emergency Group

• Decision Date: 08 July 1986
• Docket Number: No. 71746,71746
• Citation: 179 Ga.App. 827,348 S.E.2d 98
• Parties: BUSHEY et al. v. ATLANTA EMERGENCY GROUP et al.
• Court: Georgia Court of Appeals

Page 98

348 S.E.2d 98

179 Ga.App. 827

BUSHEY et al. v. ATLANTA EMERGENCY GROUP et al.

No. 71746.

Court of Appeals of Georgia.

July 8, 1986.

Rehearing Denied July 23, 1986.

Alford Wall, Douglas T. Noonan, Atlanta, for appellants.

W.H. Duckworth Jr., Penelope B. Rundle, Frederick N. Gleaton, Michael Frick, Laurie E. Demorest, Atlanta, for appellees.

BEASLEY, Judge.

On January 25, 1983, Dr. Davis performed a tonsillectomy and adenoidectomy on five-year-old Donald Bushey at Clayton General Hospital. On the seventh post-operative day, the child suffered a post-tonsillectomy hemorrhage and was rushed by his parents to the hospital's emergency room at approximately 1:00 a.m. The child was in respiratory arrest evidenced by bleeding from the mouth, cyanosis, dilated pupils, unresponsiveness and lack of discernible blood pressure. Dr. Heilman, emergency physician on duty for Atlanta Emergency Group, was in charge of beginning resuscitative efforts. At approximately 1:22 a.m., the child's surgeon arrived at the emergency room and took charge of the patient. An anesthesiologist intubated him at approximately 1:40 a.m. By then the child had gone into cardiac arrest and was not revived until 1:52 a.m. Post-arrest complications included loss of 80% of fine motor control, loss of 20% of gross motor control, and cortical blindness.

On January 23, 1985, the child's father, as next friend and individually, filed suit against Atlanta Emergency Group, P.C., Dr. Heilman, Dr. Davis, and Clayton General Hospital. He alleged in part that if he had been informed of the attendant risks prior to the surgery it would not have been consented to, and that all the defendants and their agents failed to properly attend, care for, treat or use the requisite degree of skill in their treatment of the child, which directly and proximately resulted in his severe and permanent injury.

Defendants Davis, Heilman and Atlanta Emergency Group moved for summary judgment and in support submitted the affidavits of the two defendant physicians. Plaintiff filed affidavits of two other physicians in response and included the hospital records. The depositions of defendant doctors were submitted to record at the hearing and the court considered them also. It granted summary judgment pursuant to OCGA §§ 9-11-56 and 9-11-54(b), having concluded that the affidavits of the two physicians submitted by plaintiff in opposition to the motions were insufficient as a matter of law to create a genuine issue of material fact. The plaintiff father urges that the trial court erred in finding his expert affidavits insufficient to defeat the motions for summary judgment.

Since this is a medical malpractice case, it is the type of case in which "only opinions of experts are admissible," ... "at least one expert's opinion is mandatory," and "the plaintiff must produce expert opinion testimony in order to be entitled to have the case considered by a jury." Howard v. Walker, 242 Ga. 406, 407, 249 S.E.2d 45 (1978). Consequently, when the defendant produces expert opinion evidence in his favor on a motion for summary judgment, even though he need not do so at trial, " '[t]o avoid summary judgment a plaintiff in a malpractice action must counter a defendant's expert affidavit with a contrary expert opinion.' See Howard v. Walker, ..." Messex v. Lynch, 255 Ga. 208, 209, 336 S.E.2d 755 (1985). Otherwise there is no genuine issue to be tried because the only expert evidence in the record as to negligence is to the effect that there was no negligence.

The fact that emergency treatment of the child resulted, in part, unfavorably does not raise a presumption of want of proper care, skill, or diligence on the part of the treating physicians. See Franklin v. Elmer, 174 Ga.App. 839, 841-842(1), 332 S.E.2d 314 (1985). The court as well as the eventual jury must have a standard which is to be used in measuring the acts of the physician in determining whether or not he exercised a reasonable degree of care and skill; the proper standard of measurement must be established by the testimony of those expert in the field of medicine. See Pilgrim v. Landham, 63 Ga.App. 451, 455, 11 S.E.2d 420 (1940).

Here the affidavits of the two defendant physicians recited their professional backgrounds and specifically chronicled their individual involvement with the patient, from their first seeing him until they ceased treating him. Each stated generally what he had done. Also, each stated his opinion that he followed standard procedures used by the medical profession generally under similar conditions and like surrounding circumstances and that he possessed and exercised that degree of care and skill ordinarily exercised by the medical profession generally. The detailed and specific course of resuscitation undertaken by Dr. Heilman was described in his deposition, and the specifics of Dr. Davis' course of treatment were likewise in the record, thus explaining precisely what each had done.

Plaintiff's expert Kowtoniuk stated that he reviewed both depositions as well as the defendant hospital's records and that: "Based on the history, the condition of Donald Bushey, Jr. as reflected in the hospital records upon arrival at Clayton General Hospital and based on the various recordations in the hospital records themselves, it is my opinion that the actions of Dr. M.E. Davis constituted care which fell below the standard in the medical community generally."

Plaintiff's other expert, Vandeleuv, stated that he reviewed Heilman's deposition and affidavit and Davis' deposition and the hospital records. His opinion was verbatim that of Dr. Kowtoniuk except that it related to Heilman.

The question is whether this evidence sufficiently countered the expert opinion offered by defendants so as to create a genuine issue of fact to be resolved by a jury. Was this evidence " 'sufficient to authorize the jury to find that the defendant(s) had in fact failed to use "due care, skill and diligence" in treating the plaintiff[?]' Lawrence v. Gardner, 154 Ga.App. 722, 724 (270 SE2d 9) (1980)." Jackson v. Gershon, 251 Ga. 577, 578, 308 S.E.2d 164) (1983). As can be seen, the problem is not the absence of the "magic words"; they are there, and that is all that is there. There are no facts to back them up. Plaintiff's experts looked at the evidence and simply drew legal conclusions.

That is what makes this case different from Jackson, supra. There, while the "magic words" were absent, the plaintiff's expert had described where and in what regard defendants had gone wrong: "None of the conservative, preventative measures described by appellant's expert were attempted by Dr. Gershon ..." Id. at 579, 308 S.E.2d 164. This created a factual question as to whether what the defendant did was medically necessary, "and this is all that was required to avoid summary judgment on the issue of Dr. Gershon's alleged negligence in treating appellant." Thus it is established that "the facts in the record must be sufficient to meet the legal standard embodied in the magic words." Id. at 579, 308 S.E.2d 164.

Here there are no countering facts. The opinions were merely "explicit conclusory pronouncements." Id. at 579, 308 S.E.2d 164, quoting from Lawrence v. Gardner, 154 Ga.App. 722, 724, 270 S.E.2d 9 (1980). Thus it also differs from the evidence, i.e., the expert's affidavit, in Messex v. Lynch, supra, which stated what should have been done by the defendant physician to avoid the injury and that the injury that occurred was not a common occurrence when the procedure is done with a reasonable degree of care and skill.

To allow the conclusory affidavits here would completely avoid the necessity of counter evidence. Omitting any factual basis, or explicit comparison between what was done and what should have been done, or particulars describing in what manner medical standards were deviated from, a mere naked conclusion of violation would suffice. But meeting factual evidence with a bare conclusion does not create an issue of fact. In a case such as this, of medical malpractice when a motion for summary judgment is made and supported by affidavit which sets forth specific facts about the doctor's performance of the involved medical activity, the plaintiff must offer similar factual evidence in opposition in order to avoid grant of the motion. Swindell v. St. Joseph's Hosp., 161 Ga.App. 290, 292(1), 291 S.E.2d 1 (1982). Also, to meet the defendant's evidence on a motion for summary judgment in a malpractice case, the plaintiff's affidavit must " 'establish the parameters of acceptable professional conduct, a...