CARDIO TVP SURGICAL ASSOCIATES v. Gillis

Decision Date01 May 2000
Docket NumberNo. S99G1712.,S99G1712.
Citation272 Ga. 404,528 S.E.2d 785
PartiesCARDIO TVP SURGICAL ASSOCIATES, P.C. et al. v. GILLIS.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Martin, Snow, Grant & Napier, John C. Edwards, Blair K. Cleveland, Macon, for appellant.

Berrien L. Sutton, Homerville, Keith H. Solomon, Douglas, Ronald W. Hallman, Claxton, Sell & Melton, Mitchel P. House, Jr., Macon, for appellee.

Vincent, Berg, Stalzer & Menendez, Kenneth G. Menendez, Sidney N. Summers, David A. Cook, Atlanta, for amici curiae.

HUNSTEIN, Justice.

We granted certiorari to consider the Court of Appeals' ruling on Lonnie Gillis's battery claim against Cardio TVP Surgical Associates, P.C., Dr. I.J. Shaker, and Jay Livingston. Gillis v. Cardio TVP Surgical Assoc., 239 Ga.App. 350(1), 520 S.E.2d 767 (1999). That claim arose out of coronary artery bypass surgery Gillis underwent during which Livingston, a physician's assistant under the direct orders of Dr. Shaker, performed a procedure to remove ("harvest") a vein from Gillis's leg for use in the bypass procedure. The trial court granted partial summary judgment to the defendants on the battery claim, but the Court of Appeals reversed, holding that fact questions remained regarding Livingston's authority to perform the procedure and Gillis's consent to the surgery. Finding that the trial court's grant of partial summary judgment was correct as a matter of law, we reverse.

1. The General Assembly enacted the Physician's Assistant Act, OCGA § 43-34-100 et seq., "to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to [physician's assistants] where such delegation is consistent with the patient's health and welfare." OCGA § 43-34-101(b). Under this Act, a physician's assistant ("PA") may be licensed to perform patients' services for which the PA has been found qualified to perform by academic and practical training. OCGA §§ 43-34-102(5), 43-34-103(a). The Act establishes an application procedure to be followed to obtain approval by the Composite State Board of Medical Examiners, the board charged with overseeing PAs, for the performance of specific medical tasks set forth in the proposed PA's job description. A PA is limited to those tasks set forth in the job description except when the task "is performed under the direct supervision and in the presence of the physician utilizing [the PA]," OCGA § 43-34-105, "in which case the [PA] may perform any work authorized for physicians that the assistant is competent to do." Beall v. Curtis, 603 F.Supp. 1563, 1573 (M.D.Ga.1985).

The Court of Appeals concluded that absent an express reference to the harvesting of veins in his job description, Livingston had no authority to perform this medical task. Assuming, arguendo, that such specificity is required by the Act, we agree with the Court of Appeals that OCGA § 43-34-105 is applicable here, since it is uncontroverted that Livingston harvested Gillis's vein under the direct supervision and in the presence of Dr. Shaker. The Court of Appeals, however, concerned that the language of OCGA § 43-34-105 would "allow a brain surgeon to delegate brain surgery" to a PA, held that it was a fact question for the jury to decide "whether a particular physician's assistant has the requisite skill level and training to perform a task not specifically approved by the Board." Gillis, supra at 353(1)(b), 520 S.E.2d 767.

Our review of the Act establishes that it is a matter strictly for the Composite State Board of Medical Examiners to determine the nature and scope of the medical tasks for which any PA may be qualified to perform. The Act gives the Board the authority to approve the training programs PAs must satisfactorily complete, OCGA § 43-34-103(a)(2)(A); to approve the qualifications of the evaluation agencies charged with determining the ability of a proposed PA to perform the tasks in the job description, id. at (2)(B), and ascertain that the agencies possess appropriate personnel, equipment, and health care expertise to enable the agencies "to make an objective appraisal, in a manner prescribed by the board, of the proposed [PA's] qualifications," OCGA § 43-34-102(3); to approve or disapprove a proposed PA's application and issue licenses authorizing a PA to perform medical tasks under the direction and supervision of the utilizing physician, with the strict statutory mandate to not approve an application unless the Board finds that the proposed PA is "fully qualified," OCGA § 43-34-104(b); and to terminate its approval and revoke the license of any PA who is found to be incompetent or to have committed unethical or immoral acts. OCGA § 43-34-107(a).

Given the comprehensive statutory scheme created by the General Assembly and the all-inclusive role played by the Composite State Board of Medical Examiners in the regulation of PAs, we reject as contrary to the purposes and intent of the Act the idea that any entity other than the Board can determine whether it is appropriate for a PA to perform any specific type of procedure, whether or not the procedure is contained within the PA's job description. The Court of Appeals' holding that a jury should make this determination is accordingly reversed.

In the case before us, Gillis adduced no evidence that the Composite State Board of Medical Examiners deems the harvesting of veins to be a medical task PAs are not competent to perform. Gillis has thus presented no evidence to rebut the testimony introduced by appellants from the executive director of the Board that the harvesting of saphenous veins from the legs of patients during coronary bypass surgery under the supervision of the attending physician is considered a routine medical task capable of being performed by PAs. Because no question remains as to the authority of PAs under the Act to perform this medical procedure, the Court of Appeals erred when it reversed the trial court's grant of partial summary judgment to appellants on this basis.

2. The evidence is uncontroverted that prior to the surgery, Gillis was provided with a consent form which disclosed all the information required in OCGA § 31-9-6.1(a)(1)-(6), was duly evidenced in writing, and was signed by Gillis, a lucid adult capable of consenting to his surgery. Thus, a rebuttable presumption arose that Gillis validly consented to the surgery. Id. at (b)(2). See also Lloyd v. Kramer, 233 Ga.App. 372, 375, 503 S.E.2d 632 (1998). Gillis contends that the consent he gave did not negate his claim for battery because the form did not reflect that any part of the surgical procedure would be performed by a physician's assistant.1 However, this argument overlooks...

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9 cases
  • Church v Perales
    • United States
    • Tennessee Court of Appeals
    • 22 de agosto de 2000
    ...has been codified in many states. See, e.g., Parikh v. Cunningham, 493 So. 2d 999, 1001 (Fla. 1986); Cardio TVP Surgical Assocs. v. Gillis, 528 S.E.2d 785, 787 (Ga. 2000); Shahinaw v. Brown, 963 P.2d 1184, 1188 (Idaho 1998); Earl v. Ratliff, 998 S.W.2d 882, 891 (Tex. 1999). Thus, the existe......
  • Wong v. Chappell, A15A0345.
    • United States
    • Georgia Court of Appeals
    • 13 de julho de 2015
    ...Whether it was appropriate for Gephart to perform these medical tasks is a question for the jury. Cf. Cardio TVP Surgical Assocs. v. Gillis, 272 Ga. 404, 406(1), 528 S.E.2d 785 (2000) (because physician assistants, unlike medical assistants, are so heavily regulated by the Composite State B......
  • Hoofnel v. Segal, 2004-SC-0381-DG.
    • United States
    • United States State Supreme Court — District of Kentucky
    • 15 de junho de 2006
    ...in the absence of a valid collateral challenge. See Parikh v. Cunningham, 493 So.2d 999, 1001 (Fla.1986); Cardio TVP Surgical Assoc. v. Gillis, 272 Ga. 404, 528 S.E.2d 785, 787 (2000); Snyder v. Ash, 72 Ohio App.3d 795, 596 N.E.2d 518 (1991); Lugenbuhl v. Dowling, 701 So.2d 447, 450 (La.199......
  • DeKalb County v. Adams, S00A0517.
    • United States
    • Georgia Supreme Court
    • 1 de maio de 2000
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