Dawson v. Fulton-DeKalb Hosp. Authority

• Decision Date: 16 July 1997
• Docket Number: FULTON-D,Nos. A97A0469,A97A0470,s. A97A0469
• Parties: , 97 FCDR 2870 DAWSON et al. v.eKALB HOSPITAL AUTHORITY et al.eKALB HOSPITAL AUTHORITY et al. v. DAWSON et al.
• Court: Georgia Court of Appeals

Page 142

490 S.E.2d 142

227 Ga.App. 715, 97 FCDR 2870

DAWSON et al. v. FULTON-DeKALB HOSPITAL AUTHORITY et al.

FULTON-DeKALB HOSPITAL AUTHORITY et al. v. DAWSON et al.

Nos. A97A0469, A97A0470.

Court of Appeals of Georgia.

July 16, 1997.

Reconsiderations Denied July 29, 1997.

Certiorari Granted Feb. 23, 1998.

Toliver & King, Alvin L. Toliver, Joseph H. King, Jr., James A. Shea, Jr., Atlanta, for appellants.

Alston & Bird, James C. Grant, Robert D. McCallum, Jr., Candace N. Smith, Atlanta, for appellees.

JOHNSON, Judge.

In this medical malpractice case against the Fulton-DeKalb Hospital Authority d/b/a Grady Memorial Hospital, the Georgia Medical Care Foundation ("GMCF"), and Dr. Benjamin White, Sharion Dawson contended the defendants caused the death of her ten-year-old son, Antonio Dawson. The trial court granted summary judgment to GMCF and Dr. White, and the case proceeded to trial against Grady. The jury returned a $26,700 verdict in favor of Dawson against Grady.

In Case No. A97A0469, Dawson appeals, contending the trial court erred in granting summary judgment to GMCF and Dr. White; in admitting evidence at trial tending to show she was negligent in caring for her son; and in denying her motion for new trial, made on the ground the verdict was inadequate. In its cross-appeal, Case No. A97A0470, Grady challenges the trial court's jury instructions on contributory negligence and preexisting conditions.

The evidence in the record before us shows that Antonio Dawson suffered from obstructive sleep apnea, a potentially fatal breathing disorder, caused in his case by morbid obesity and enlarged adenoids. Between April and August 1991, Antonio Dawson was referred to several Grady pediatric clinics, including the neurology clinic, the ear, nose, and throat ("ENT") clinic, the nutrition clinic, and the endocrinology clinic. He was also referred to the Grady pediatric continuity clinic. The function of the continuity clinic was to provide primary care and to coordinate his overall care. Sharion Dawson did not bring her son to appointments with his primary care pediatrician on May 28, 1991; with the nutrition and ENT clinics on June 18, 1991; or with the ENT clinic on June 25, 1991. She did bring the child to several other appointments with the various clinics in the spring and summer of 1991, however, and when he was weighed at a July 11, 1991 appointment, he had lost approximately 24 pounds. After examining the child on July 25, 1991, a Grady doctor determined that the child's enlarged adenoids obstructed the child's airway and were a major contributing factor to his obstructive sleep apnea. This physician scheduled an adenoidectomy for August 14, 1991, to resolve this medical problem and improve the child's breathing.

Antonio Dawson was a Medicaid recipient, and Medicaid would not pay for the adenoidectomy without preapproval. To conduct such preapproval and precertification reviews, the Georgia Department of Medical Assistance had contracted with GMCF. Dr. White was an ENT specialist who served on a panel of physicians employed by defendant GMCF to perform preapproval reviews. In the usual course of GMCF's review process, Dr. White was provided the medical information submitted by Grady in support of its application for preapproval of Antonio Dawson's scheduled adenoidectomy, but never examined the child. Though nothing in the application submitted by Grady indicated that Antonio Dawson's tonsils were either enlarged or were contributing to the obstruction of his airway, and no such enlargement was noted by Grady physicians in either the July 25, 1991 ENT clinic examination or in the August 6 preoperation examination, Dr. White informed GMCF that if Antonio Dawson had true sleep apnea, he needed not only the adenoidectomy, but a tonsillectomy as well. Dr. White intended that GMCF would relay this information to the child's doctors and apparently believed this would be done routinely. While there is some evidence that Dr. White's opinion was passed along to Grady by telephone by the reviewing nurse at GMCF, who had no specific recollection of this case, the written notice sent to Grady by GMCF merely disapproved the adenoidectomy, mentioned nothing regarding Dr. White's opinion, and contained no explanation of the denial other than to say "[b]ased on the information provided it has been determined that the admission/procedure scheduled for 8-14-91 at above-mentioned hospital is not necessary at this time for the treatment of the condition identified. This decision is based on the following: INFORMATION SUBMITTED DOES NOT JUSTIFY THE REQUESTED PROCEDURE." Nothing in the record before us shows that GMCF ever notified Sharion Dawson that the procedure had been denied or provided her any information regarding Dr. White's opinion.

An unidentified person on the Grady staff told Sharion Dawson by telephone on August 13, 1991, the operation had been canceled because Medicaid had refused to pay for it. Dawson understood from this conversation Grady would try again to obtain Medicaid approval. Grady eventually submitted an appeal to GMCF, but it was denied as untimely.

Antonio Dawson received no further treatment for his obstructive sleep apnea. He died in his sleep on May 15, 1992. In an autopsy, the Fulton County Medical Examiner found he weighed 148 pounds at death, and that enlargement of his adenoids as well as his tonsils partially obstructed his nasal and oral airways. The medical examiner concluded Antonio Dawson's death resulted from "cardiac dysrhythmia due to obstructive sleep apnea due to obesity and adenotonsillar hyperplasia."

Dawson's medical expert testified that an adenoidectomy would have saved Antonio Dawson's life. Grady responded by arguing that Sharion Dawson was negligent in caring for her son, and that her negligence contributed to his death. Specifically, Grady contended that between August 1991 and May 1992, Sharion Dawson did not control her son's diet. Grady also introduced evidence she sought no treatment for the child, despite urgings of his school counselor, his school social worker, and a Department of Family & Children Services worker that she seek medical care for him. Dawson contended she had taken the child to Grady in April 1992, but was unable to get anyone to see him because he did not have an appointment.

Case No. A97A0469

Because the trial court did not expressly direct an immediate entry of judgment under OCGA § 9-11-54(b) as to GMCF and Dr. White, Dawson was entitled to wait until after final judgment to appeal from the summary judgment rulings. See Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641 (1978).

1. Dawson claims it was error to grant summary judgment to GMCF and Dr. White. Though GMCF and Dr. White argued multiple grounds in support of their motion, the only reason the trial court gave for its ruling was that it found no physician-patient relationship between Dr. White and Dawson's son.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga.App. 592, 593, 472 S.E.2d 140 (1996).

(a) We note in passing that the peer review immunity established by OCGA § 31-7-132 applies only to individuals, not organizations such as GMCF. For reasons discussed below, it is not necessary for us to reach the issue of whether Dr. White or any other individual associated with GMCF is entitled to this immunity in the situation before us.

(b) Dawson has not argued Dr. White was to blame for GMCF's failure to transmit his medical assessment to her son's doctors. Instead, she contends that by expressing his opinion that the tonsillectomy was needed, with the result that the procedure deemed medically necessary by her son's treating physicians at Grady was not approved, he interfered in the treatment to the extent that he created a physician-patient relationship between himself and Antonio Dawson which subjected him to an action for professional negligence. Though there is some evidence in the record to support a conclusion Dr. White's medical opinion was incorrect and may have contributed to Antonio Dawson's death by delaying or preventing appropriate treatment, ¹ we are constrained to agree with the trial court that Dawson cannot establish that a physician-patient relationship was ever created between Dr. White and Antonio Dawson. Dr. White is therefore entitled to judgment as a matter of law.

This Court has held repeatedly that a doctor-patient relationship must be consensual. Minster v. Pohl, 206 Ga.App. 617, 619(1), 426 S.E.2d 204 (1992). It is undisputed that there was never any contact between Dr. White and either Antonio or Sharion Dawson. Regardless of the opinion he offers, an anonymous physician whose involvement is limited to evaluating a proposed treatment for purposes of Medicaid coverage, who has no contact with the patient or the patient's treating physicians, does not thereby enter into a doctor-patient relationship. See Peace v. Weisman, 186 Ga.App. 697, 698-699(1), 368 S.E.2d 319 (1988), in which there was no doctor-patient relationship even though the defendant physician actually examined the patient. The trial court therefore did not err in granting summary judgment to Dr. White.

(c) While summary judgment was appropriate for Dr. White, we find questions of material fact remain regarding whether GMCF is liable for its own ordinary negligence in failing to send Dawson and Grady a proper notice under 42...