Byrom v. Douglas Hosp., Inc.

• Decision Date: 04 October 2016
• Docket Number: A16A0937
• Citation: 338 Ga.App. 768,792 S.E.2d 404
• Parties: Byrom v. Douglas Hospital, Inc.
• Court: Georgia Court of Appeals

338 Ga.App. 768

792 S.E.2d 404

Byrom

v.Douglas Hospital, Inc.

A16A0937

Court of Appeals of Georgia.

October 4, 2016

Donald W. Singleton, Alpharetta; Fried Rogers Goldberg, Michael L. Goldberg, Atlanta, for appellant.

Downey & Cleveland, W. Curtis Anderson, Marietta, Savannah L. Bray, for appellee.

MILLER, Presiding Judge.

Carolyn Byrom sued Douglas Hospital, Inc. ("Douglas Hospital") for negligence, attorney fees, and punitive damages after she sustained injuries in a fall while exiting a wheelchair provided by the hospital. The trial court granted summary judgment to Douglas Hospital, finding that (1) Byrom had asserted professional negligence claims without the required expert affidavit and (2) Byrom had equal or superior knowledge of the risk she faced exiting the wheelchair. Byrom appeals, arguing that she raised ordinary negligence claims against Douglas Hospital. For the following reasons, we find that the trial court erred, and we reverse and remand for proceedings consistent with this opinion.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Agnes Scott College v. Clark , 273 Ga.App. 619, 620, 616 S.E.2d 468 (2005).

So viewed, the record shows that Byrom went to Douglas Hospital on April 16, 2013, for pre-operative testing for a procedure scheduled for the next day. Byrom walked slowly and used a cane to support her knees. After taking Byrom's vitals, a nurse offered to obtain a wheelchair to transport Byrom to the exam room. While Byrom was seated in the wheelchair, she rested her feet on the foot pedals, which were down. A nurse pushed Byrom in the wheelchair, and when they arrived in the exam room Byrom exited the wheelchair independently. When Byrom stood up and sat down for the testing, the foot pedals were not raised up.

As the nurse was pushing Byrom back to the waiting room, they encountered a doorway that was not wide enough to fit the wheelchair. The nurse asked Byrom if she thought she could make it to the waiting room on her own, and Byrom told her that she believed she could. The nurse, however, did not come around to assist Byrom in getting out of the wheelchair. Instead, Byrom held her cane in one hand and used her other hand to push up from the arm of the wheelchair. Byrom knew as she stood up that the foot pedals were still down. As Byrom stepped, her right pant leg caught on the wheelchair's foot pedal and she fell. As a result of this fall, Byrom broke her leg, required surgery, and subsequently stayed in a rehabilitation facility for three months.

Byrom filed suit, alleging that Douglas Hospital was negligent in failing to safely transport her, in failing to maintain a procedure for safely transporting individuals in wheelchairs, and in the hiring, supervision, and training of its employees. Byrom also sought to hold Douglas Hospital vicariously liable for the negligence of its employees and to recover attorney fees and punitive damages.

During discovery, Douglas Hospital acknowledged that patients are at risk of injury when exiting a wheelchair if it is not done safely. The hospital also admitted that its employees should follow manufacturer's instructions and guidelines with regard to the operation of wheelchairs, though Douglas Hospital did not have any specific written policies, procedures, or training programs in place with regard to the safe use of wheelchairs. The instruction on the wheelchair itself stated that the patient should exit the wheelchair by lifting the arm and exiting on the side of the wheelchair, and Douglas Hospital admitted that its employees should have ensured that patients exited wheelchairs in this manner.

At the conclusion of discovery, Douglas Hospital moved for summary judgment on Byrom's complaint on two grounds, which are at issue in this appeal.¹ First, Douglas Hospital argued that Byrom raised professional negligence claims that required her to file an expert affidavit pursuant to OCGA § 9–11–9.1. Second, the hospital argued that, even if Byrom's claims were for ordinary negligence, she could not recover pursuant to OCGA § 51–3–1, the statute that creates a duty for owner/occupiers of property, because Byrom had equal or superior knowledge of the risk the wheelchair foot pedals posed on account of her prior successful exit from the wheelchair with the foot pedals down. The trial court granted summary judgment to Douglas Hospital on these grounds, and Byrom appeals.

1. Byrom argues that she raised ordinary negligence claims, as opposed to claims for professional negligence, and therefore she was not required by OCGA § 9–11–9.1 to file an expert affidavit with her complaint. We agree.

A plaintiff who asserts a claim for medical malpractice against a hospital is required to file an expert affidavit along with her complaint setting forth at least one negligent act or omission and the factual basis for the claim. OCGA § 9–11–9.1. The fact that a patient's injury occurs in a hospital setting or calls into question the actions of a medical professional, however, does not in and of itself mean her claim is for medical malpractice. Brown v. Tift County Hosp. Auth. , 280 Ga.App. 847, 849, 635 S.E.2d 184 (2006). Rather, courts "must look to the substance of an action against a [hospital] in determining whether the action is one for professional or simple negligence." (Citation and punctuation omitted.) Id.

The determination of whether a claim is one for medical negligence and therefore whether it requires expert support at filing is determined on the basis of whether the act or omission was made regarding a medical question. Medical questions have been defined as those concerning highly specialized expert knowledge with respect to which a layman can have no knowledge at all, and the court and jury must be dependent on expert evidence. In cases involving a person's fall while in the care of medical professionals, it can be difficult to distinguish professional negligence from ordinary negligence. This distinction is a question of law for the court.

(Citations, footnotes and punctuation omitted.) Kerr v. OB/GYN Assoc. of Savannah , 314 Ga.App. 40, 41, 723 S.E.2d 302 (2012).

Where the professional's alleged negligence requires the exercise of professional skill and judgment to comply with a standard of conduct within the professional's area of expertise, the action states professional negligence. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence.

(Citations omitted.) Bardo v. Liss , 273 Ga.App. 103, 104, 614 S.E.2d 101 (2005).

Here, the record does not show that only a person with medical training could transport Byrom in the wheelchair or that transporting her involved the exercise of medical judgment. See Strickland v. Hosp. Auth. of Albany/Dougherty County , 241 Ga.App. 1, 3 (1) (a), 525 S.E.2d 724 (1999). Indeed, individuals with no medical training whatsoever often push others around in wheelchairs and assist them in exiting the wheelchairs.

Further, Byrom's claims arise from her allegation that the Douglas Hospital nurse failed to follow the manufacturer's instructions for exiting from the wheelchair—instructions which Douglas Hospital admits should have been followed. Use of equipment that is inconsistent with the manufacturer's instructions, without more, does not constitute a medical malpractice claim. Lamb v. Candler Gen. Hosp. , 262 Ga. 70, 71, 413 S.E.2d 720 (1992) (claim arising from hospital's use of wrong replacement parts in piece of medical equipment did not assert medical malpractice claim); see also Sood v. Smeigh , 259 Ga.App. 490, 494, 578 S.E.2d 158 (2003) (assembly of prosthetic patella backward constituted...