Estate of Patterson v. FULTON-DeKALB HOSP., A98A1759.

• Decision Date: 30 July 1998
• Docket Number: No. A98A1759.,A98A1759.
• Citation: 505 S.E.2d 232,233 Ga. App. 706
• Parties: ESTATE OF Roddy Lee PATTERSON et al. v. FULTON-DeKALB HOSPITAL AUTHORITY.
• Court: Georgia Court of Appeals

505 S.E.2d 232

233 Ga. App. 706

ESTATE OF Roddy Lee PATTERSON et al. v. FULTON-DeKALB HOSPITAL AUTHORITY.

No. A98A1759.

Court of Appeals of Georgia.

July 30, 1998.

Debra A. Rickles, Stone Mountain, for appellants.

Alston & Bird, Clifton M. Iler, Bernard Taylor, Atlanta, for appellee.

ELDRIDGE, Judge.

The estate of Roddy Lee Patterson appeals the Fulton County Superior Court's grant of summary judgment to the defendant-appellee Fulton-DeKalb Hospital Authority ("Hospital Authority") in this medical malpractice action. We affirm.

The evidence shows that, on June 30, 1994, decedent Patterson presented himself to Grady Memorial Hospital, which is operated by the Hospital Authority. Patterson was 46 years old and complained of weakness on his left side; he reported that he had suffered a blow to his head two weeks earlier. Patterson's health history indicated that he had been taking aspirin for pain, was a long-term smoker, and had a history of heavy alcohol consumption. The neurology attending physician directed a resident physician to administer Heparin, a blood-thinning agent. Later the same day, Patterson developed an intracerebral hemorrhage and died.

Patterson's estate and the legal guardian of his two minor children ("the Pattersons") filed suit against the hospital on June 20, 1996, alleging that the administration of Heparin deviated from a minimal standard of care and caused Patterson's death. Attached to the complaint was an affidavit from Richard D. Franco, M.D., a neurologist, who stated that he had reviewed Patterson's medical file; such files were not attached to the affidavit and are not included in the record. However, based solely upon his review of the medical files, Dr. Franco concluded that the use of Heparin "may have contributed" to Patterson's death.

The Hospital Authority moved for summary judgment on June 10, 1997, asserting that the Pattersons had failed to present evidence that any alleged negligence on the part of the Hospital Authority or its agents was the proximate cause of the decedent's death. The Hospital Authority attached to its motion an affidavit from the attending physician which affirmatively stated that the administration of Heparin was consistent with the standard of care ordinarily exercised by physicians under similar conditions and, further, that such administration did not proximately cause or contribute to Patterson's death. Finally, the Hospital Authority also claimed that Dr. Franco's affidavit was without probative value on a motion for summary judgment, as the medical records upon which his conclusions were based were not attached to the affidavit, as required by OCGA § 9-11-56(e).

In response, the Pattersons relied upon their pleadings and Dr. Franco's affidavit and did not submit any additional evidence for consideration. On January 15, 1998, the trial court granted summary judgment to the Hospital Authority, finding that the Pattersons had failed to establish the required element of causation. This appeal followed. Held:

1. In the first enumeration of error, the Pattersons assert that the trial court erred in failing to consider Dr. Franco's affidavit when ruling upon the summary judgment motion. This enumeration lacks merit. As shown in Division 2, infra, it is clear from the order that the trial court did, in fact, consider the affidavit in reaching its conclusion that the Pattersons had failed to establish causation. Accordingly, there was no error.

However, this Court notes that the medical records upon which Dr. Franco reached his conclusions were not attached to his affidavit or included in the record. Therefore, even though the affidavit may have been sufficient for pleading purposes under OCGA § 9-11-9.1(a), the affidavit was insufficient under OCGA § 9-11-56(e) to meet the evidentiary standards on a motion for summary judgment and, as a matter of law, lacked any probative value. See Goring v. Martinez, 224 Ga.App. 137, 139(2)(b)(ii), 479 S.E.2d 432 (1996); Vitner v. Miller, 223 Ga.App. 692, 693(2), 479 S.E.2d 1 (1996); Williams v. Hajosy, 210 Ga.App. 637, 638(1), (2), 436 S.E.2d 716 (1993).

2. In the remaining enumerations of error, the Pattersons assert that the trial court misinterpreted this Court's holding in Abdul-Majeed v. Emory Univ. Hosp., 225 Ga.App. 608, 484 S.E.2d 257 (1997) ("Abdul-Majeed "), and, thus, misapplied the standard for demonstrating causation in this case. We disagree with both assertions.

"In order for a plaintiff to recover for malpractice, there must be sufficient evidence that the physician's alleged failure to use the requisite degree of skill and diligence in treatment either proximately caused or contributed to plaintiff's injury. [Cit.]" McClure v. Clayton County Hosp. Auth., 176 Ga.App. 414, 417(3), 336 S.E.2d 268 (1985); Jobson v. Dooley, 164 Ga.App. 440, 442, 296 S.E.2d 388 (1982).

The standard of proof in a civil case, even a medical malpractice action, is by a preponderance of the evidence. OCGA §§ 24-1-1; 24-4-3; Life Ins. Co. of Ga. v. Lawler, 211 Ga. 246, 251(1), 85 S.E.2d 1 (1954); Supreme Conclave Knights of Damon v. Wood, 120 Ga. 328, 47 S.E. 940 (1904). Preponderance of evidence means "that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other." OCGA § 24-1-1(5); Patillo v. Thompson, 106 Ga. App. 808, 128 S.E.2d 656 (1962); Masonic Relief Assn. v. Hicks, 47 Ga.App. 499, 171 S.E. 215 (1933).

Thus, "reasonable medical probability" has no greater meaning than a preponderance of the evidence, and the standard of proof is preponderance of the evidence as to medical causation. "Moreover, we note that although we have frequently used the phrase `reasonable medical certainty,' [cit.], it is neither magic nor particularly helpful. [Cit.] What courts and juries need from medical experts is not a simple recitation of these words, but a realistic assessment of the likelihood that the alleged negligence caused the injury or death." Abdul-Majeed, supra at 609, 484 S.E.2d 257. See also Ga. Cas., etc., Co. v. Jernigan, 166 Ga.App. 872, 877-878(5), 305 S.E.2d 611 (1983).

"The above medical evidence is sufficient to establish the possibility of a causal relation, even if it falls short of showing probability. The cases requiring affirmative medical evidence of probability, [cits.], are distinguishable in that they involved issues of causation which, by the nature of the situation, could be resolved solely by expert medical evidence standing alone, in which cases the evidence must naturally be based at least on reasonable probability. `It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation.' 135 ALR 517. (Emphasis supplied.) The medical testimony in the present case is not standing alone, however, but is supplemented by other, non-expert evidence. `There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.' 135 ALR 516, 532. See also 2 ALR3d 384, 387." Nat. Dairy, etc., Corp. v. Durham, 115 Ga.App. 420, 422-423, 154 S.E.2d 752 (1967). Accord Kent v. Peters, 211 Ga.App. 698, 699(3), 440 S.E.2d 87 (1994); Jacobs v. Pilgrim, 186 Ga.App. 260, 262(1), 367 S.E.2d 49 (1988); Maurer v. Chyatte, 173 Ga.App. 343, 344-345(3), 326 S.E.2d 543 (1985); Ga. Cas., etc., Co. v. Jernigan, supra.

There is an often cited quotation "`that a physician may have been negligent is not sufficient to render him liable, and the complaining patient must prove that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.' 61 AmJur2d 348,...