Everson v. Phoebe Sumter Med. Ctr., Inc.

• Decision Date: 14 March 2017
• Docket Number: A16A1709,A16A1710
• Citation: Everson v. Phoebe Sumter Med. Ctr., Inc., 341 Ga.App. 182, 798 S.E.2d 667 (Ga. App. 2017)
• Parties: EVERSON et al. v. PHOEBE SUMTER MEDICAL CENTER, INC. f/k/a Sumter Regional Hospital, Inc. et al. Jordan v. Everson et al.
• Court: Georgia Court of Appeals

341 Ga.App. 182

798 S.E.2d 667

EVERSON et al.

v.PHOEBE SUMTER MEDICAL CENTER, INC. f/k/a Sumter Regional Hospital, Inc. et al.

Jordan

v.Everson et al.

A16A1709

A16A1710

Court of Appeals of Georgia.

March 14, 2017

Neal Henry Howard, Columbus, Simon Jack Weinstein, for Appellant in A16A1709.

Carl Richard Langley, Charles Knox Wainright II, Eric Jeffrey Frisch, Claire A. Sumner, Atlanta, for Appellee in A16A1709.

Eric Jeffrey Frisch, Claire A. Sumner, Atlanta, for Appellant in A16A1710.

Neal Henry Howard, Columbus, Simon Jack Weinstein, for Appellee in A16A1710.

McFadden, Presiding Judge.

These related appeals arise from the tragic death of 27-year-old Benjamin Everson.On April 29, 2008, Everson went to Sumter Regional Hospital, Inc., now known as Phoebe Sumter Medical Center, Inc.("the hospital"), complaining that he was hallucinating and hearing voices.Dr. Brian Jordan, the emergency room physician who attended to Everson, diagnosed him with Obsessive Compulsive Disorder and discharged him with an appointment to see a mental health care provider two days later at a nearby facility.Instead, Everson's father made an appointment for him with a different facility out of state.On May 1, 2008, en route to that appointment, Everson leapt from a moving car driven by his father and ran in front of another vehicle, which struck and killed him.

Everson's parents, on behalf of themselves, and Everson's estate (collectively, "the plaintiffs") brought this wrongful death action alleging medical malpractice claims against the hospital and Jordan.The trial court granted summary judgment to the hospital and denied summary judgment to Jordan.

In Case No. A16A1709, the plaintiffs appeal from the trial court's order granting summary judgment to the hospital.The plaintiffs argue that the trial court erred in denying their motion to strike the hospital's answer and enter a default judgment against it as a sanction for alleged discovery abuses, but the trial court was authorized to find that the sanction was not appropriate because the hospital did not intentionally falsify its discovery response.The plaintiffs argue that the trial court erred in excluding the opinion testimony of an expert witness, but the trial court did not abuse his discretion in concluding that the expert's opinion did not satisfy the admissibility requirements of OCGA § 24-7-702 (b).Finally, the plaintiffs argue that the trial court should not have granted summary judgment on their claims for ordinary negligence, but the trial court ruled that the statute of limitation and statute of repose barred those claims, and the plaintiffs offer no argument or citation to authority to show that the trial court erred in that ruling.Accordingly, we affirm the judgment in Case No. A16A1709.

In Case No. A16A1710, Jordan appeals from the denial of his motion for summary judgment.We find that genuine issues of material fact preclude summary judgment and, accordingly, we affirm the denial of summary judgment to Jordan.

1.Facts and procedural history.

We review a ruling on a summary judgment motion de novo, "constru[ing] the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences."Doctors Hosp. of Augusta, LLC v. Alicea , 299 Ga. 315 (1), 788 S.E.2d 392(2016)(citation omitted).Consequently, we construe the evidence in both of these cases in the light most favorable towards the plaintiffs.

So viewed, the evidence showed that in late April 2008, Everson, a law school graduate who had been working as a judicial law clerk in Americus, was preparing to move back to his home state of Connecticut, and his mother had arrived to help him.For some time, Everson had been under a physician's care for depression and anxiety, for which he sometimes took medication.In the two weeks preceding his death, Everson had begun hallucinating and hearing voices.For several nights in a row, Everson woke his mother in the middle of the night and spoke to her in a rambling, accelerated manner.On the third such occasion, in the early morning of April 29, 2008, Everson's mother called Everson's father, a medical doctor, and put Everson on the telephone.Everson's father was concerned about the way his son sounded and suggested to Everson's mother that he get a psychiatric evaluation.Everson's father contacted the hospital and spoke with a person he understood to be the hospital's on-call psychiatrist, who recommended that Everson go to the hospital's emergency room to be evaluated.Everson's father also made plans to travel to Georgia.

Consequently, on April 29, 2008, Everson and his mother went to the hospital's emergency room.There, Everson told a hospital triage nurse that he had been hearing voices and experiencing hallucinations and that his head felt "heavy," and the nurse noted much of this information on a triage form.A different emergency room nurse interviewed Everson and made notes in his medical chart about his complaints.

Everson and his mother saw Jordan, a physician who was staffing the emergency room that day as an independent contractor, not a hospital employee.Jordan reviewed the triage form, spoke with Everson, and examined him.Everson appeared somewhat anxious to Jordan, with accelerated, rambling speech, and he had an elevated pulse and blood pressure.Jordan noted Everson's chief complaint to be hallucinating.Everson told Jordan that he was hearing his own voice "rambling inside his head," which confused him, and that his symptoms had begun two weeks earlier.Jordan described Everson as fixated on having racing thoughts about himself.

Jordan discharged Everson from the hospital with a diagnosis of Obsessive Compulsive Disorder ; he also underlined "psychosis" on Everson's paperwork.At the request of Everson's mother, Jordan had another emergency room nurse schedule an appointment for Everson with Middle Flint Behavioral HealthCare ("Middle Flint"), a regional state-run mental health facility.The nurse scheduled that appointment for May 1, 2008, two days later.

Everson and his mother returned to Everson's apartment and his father arrived later that afternoon.His parents decided that, instead of taking Everson to Middle Flint for treatment, they would arrange to have Everson evaluated at a facility associated with Duke University, where one of Everson's brothers attended medical school and where Everson's father had professional connections.

On April 30, Everson and his father began the drive to Duke University, stopping overnight at a hotel near Atlanta and resuming their drive the next morning.While they were traveling on an interstate highway that morning, Everson began fidgeting with the electronic door locks of the car.Then Everson's father, who was driving, noticed that Everson was not wearing his seat belt.Everson put his seat belt back on at his father's request but then, suddenly, he took the seat belt off, opened the car door, and leapt out of the moving car.Everson's father stopped the car and got out to attend to his son, who was lying on the ground, unconscious, next to the highway.Everson regained consciousness and the two men stood up.At that point, Everson appeared to his father to be in "a totally psychotic state."Everson began running down the side of the highway.He ran approximately half a mile, with his father chasing him.He then stepped into the path of a large vehicle, which struck him, killing him instantly.

The plaintiffs brought an action for medical malpractice against the hospital and Jordan, alleging that the defendants failed to properly evaluate and treat Everson's condition when he went to the emergency room, misdiagnosed him, and failed to recognize that he needed a psychiatric evaluation.In support of their action they provided affidavits from two expert witnesses—a psychiatrist and a physician certified in emergency medicine.These witnesses opined that Jordan and two of the hospital nurses had deviated from the applicable standard of care.On November 25, 2015, the plaintiffs filed an amended complaint adding new claims against the hospital, including claims of ordinary negligence.

Both the hospital and Jordan moved for summary judgment.The hospital also moved for the trial court to exclude the testimony of the plaintiffs' expert witnesses regarding the emergency room nurses.The plaintiffs moved for the trial court to strike the hospital's answer and enter a default judgment against it as a sanction for alleged discovery abuses by the hospital.In a series of orders, the trial court denied the plaintiffs' motion for the discovery sanction, granted the hospital's motion to exclude the experts' testimony as to the nurses, granted the hospital's motion for summary judgment, and denied Jordan's motion for summary judgment.The plaintiffs appealed from the rulings in the hospital's favor, and Jordan successfully sought interlocutory review of the ruling in the plaintiffs' favor.In addition to the parties' appellate briefs, the Georgia Trial Lawyers Association filed a brief as amicus curiae addressing specific issues relating to the trial court's discovery sanction and expert witness rulings.

Case No. A16A1709 .

2.Discovery sanction.

The plaintiffs appeal from the trial court's denial of their motion to strike the hospital's answer and enter a default judgment against it for allegedly providing false and misleading responses to some of the plaintiffs' discovery requests.See generallyOCGA § 9-11-37(setting forth sanctions for discovery abuse).The crux of the parties' discovery dispute concerned the nature and extent of psychiatric services offered by the hospital following a 2007 tornado in which the hospital was severely damaged.In their argument on appeal, the plaintiffs focus on what they assert was the

falsity and misleading nature of the hospital's discovery responses concerning: (1) the availability of "on call["] and/or on-staff psychiatrists and other mental

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