Giddens v. Med. Ctr. of Cent. Ga.

Decision Date12 February 2020
Docket NumberA19A2439
Parties GIDDENS v. The MEDICAL CENTER OF CENTRAL GEORGIA .
CourtGeorgia Court of Appeals

Shamp Jordan Woodward, Laura M. Shamp, Joshua F. Silk, for appellant. Taylor English Duma, R. Harold Meeks, Jr., Amanda W. Speier, for appellee.

Brown , Judge.

Following a craniotomy

to remove an arachnoid cyst, Kimberly Giddens suffered a brain infection, resulting in permanent neurological injuries. Giddens sued Dr. Hugh F. Smisson III, and The Georgia Neurological Institute, P.C. (’’GNI’’), for professional negligence, and The Medical Center of Central Georgia (’’MCCG’’)for professional and ordinary negligence, alleging that MCCG’s nurses and mid-level providers violated accepted medical practices by not following Smisson’s order to administer a pre-operative antibiotic. The trial court granted summary judgment to MCCG on all claims, concluding that MCCG did not employ the nurse anesthetist and that it was her job to administer the pre-operative antibiotic. Giddens appeals from that order. For the reasons that follow, we affirm the grant of summary judgment to MCCG on Giddens’ ordinary negligence claim, but reverse the grant of summary judgment to MCCG on Giddens’ professional negligence claim.

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).

In reviewing a grant or denial of summary judgment, we owe no deference to the trial court’s ruling and we review de novo both the evidence and the trial court’s legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.

(Citation and punctuation omitted.) Swint v. Alphonse , 348 Ga. App. 199, 200, 820 S.E.2d 312 (2018). So viewed, the evidence shows that on December 16, 2014, Giddens underwent a craniotomy

at MCCG performed by Smisson. Giddens arrived at the hospital at 06:14,1 and was taken to the operating room at 11:36, where she was met by Smisson, anesthesiologist Dr. Alvin Sewell, circulating nurse Tamakia Brooks, scrub nurse Kelly Canez, physician’s assistant Audrey Cabe, and certified registered nurse anesthetist ("CRNA") Susan Anderson. Giddens was prepped for surgery, a process that Smisson and MCCG staff deposed would have taken at least sixty to ninety minutes, and at 12:40, Anderson administered one gram of the antibiotic Ancef

, pursuant to Smisson’s written order dated December 15, 2014, which instructed that Giddens be given one gram of Ancef "within one hour before surgery." On a checklist prepared by Brooks before the start of surgery, Brooks handwrote, "Ancef one gram at 1240." There is some dispute as to when the surgery began. According to one anesthesia record, the "incision time" for Giddens’ surgery was "1305," but another anesthesia record reflects that the time was 12:05.2 And, one of the entries on the medical chart created during the surgery reflects a start time of "12:05:00."

Brooks, however, who was in charge of "charting" or "documenting" Giddens’ electronic medical record during the surgery, deposed that she mistakenly documented the start time of the procedure as 12:05, when it should have been 13:05. Brooks explained that her manager, Rhonda Beeland, alerted her to the error on January 5, 2015, and told her to change the time. At her deposition, Brooks testified that Beeland told her about this lawsuit and that her "belief [from speaking to Beeland] was ... that there was going to be a lawsuit about this particular event." In an errata sheet after her deposition was complete, Brooks clarified that she does not remember Beeland telling her to make the change because of a lawsuit, but "assumed [that fact] because there is now a lawsuit."3 Brooks agreed with Beeland that she had made an error, and changed the start time from 12:05 to 13:05.4 Brooks stated that her decision to change the chart was based upon her "charting," and not because Beeland told her to change the entry. Brooks explained that the chart shows that she updated Giddens’ family at 13:09, something that she does routinely "after incision is made"; she would not wait a whole hour to update the family. Brooks pointed out additional indicators throughout the chart that supported the 13:05 start time, including that she "started charting around 1310" as evidenced by the "first wound

class entry" made at 13:10, as well as a discussion about the patient’s allergies which occurred at 13:11, and the administration of a beta blocker at 13:14. As to the discrepancy in the anesthesia records, an MCCG system analyst averred that the incorrect time of 12:05 entered by Brooks into Giddens’ computer medical chart automatically populated in the demographic bar of the anesthesia record, but that CRNA Anderson already had manually typed into the anesthesia record the correct incision time of 13:05; when Brooks subsequently corrected the incision time, it did not auto-correct in the anesthesia

record because that document already had been finalized. The surgery ended at 14:29, and Giddens was discharged from the hospital the following day.

On January 5, 2015, twenty days after the surgery, Giddens presented to Smisson’s office, complaining of drainage from the surgery wound

, and was told by Smisson that she had a suture abscess. Smisson advised her to use Neosporin and shampoo the site. The same day, Beeland received an e-mail from a quality assurance nurse working with "the anesthesia group," which stated as follows:

Can you please review an incision time on case performed 12/16/14? Kimberly Giddens ... I have spoke[n] with Amy Greene AA and she states that the anesthetist incision time listed as 1305 is correct. The circulator has listed 1205 as the incision time. ... [c]an you please review this as well? Since there are [two] different incision times, we need incision time verification to avoid having an antibiotic failure.5

Giddens returned to Smisson’s office four days later, at which time he admitted her to the hospital, and she underwent a surgical wound cleaning, which included removal of the area of infection. Several days later, Giddens presented with neurological deficits caused by an abscess

, including right-sided paralysis. Smisson performed another operation the following day to remove the abscess from Giddens’ brain.

In her complaint, filed on December 16, 2016, Giddens alleged that she has undergone additional surgeries and therapies, and experienced permanent neurological injuries

, as a result of the brain infection caused by the defendants’ failure to "properly administer prophylaxis before surgery and then identify and treat the resulting infection in a timely manner." As to MCCG, Giddens asserted claims for professional and ordinary negligence, alleging that MCCG’s nurses and mid-level providers violated accepted medical practices and its duty of ordinary care by, among other things, not following the direct order of a physician. With the complaint, Giddens filed the expert affidavit of Michael D. Hawkins, M.D., a medical doctor who regularly performs surgeries and prescribes pre-operative antibiotics to his patients. According to Hawkins, he ’’regularly supervised nurses and mid-levels who are tasked with carrying out the orders of physicians to administer pre-operative antibiotics to surgical patients" and that he is "familiar with the standard of care required of these nurses and mid-levels and other hospital personnel." Hawkins averred that Giddens was not administered Ancef at any time pre-operatively as ordered by Smisson, and that in his opinion,

the nurses and mid-levels providing care to Ms. Giddens violated accepted medical practices by not following [Smisson’s] order to administer preo[-]perative antibiotics to Ms. Giddens[, and] that Dr. Smisson violated accepted medical practices by failing to ensure that his orders were followed by the hospital personnel ... before proceeding with surgery.

According to Hawkins, such acts and omissions fell below the standard of care ordinarily employed by medical professionals under similar conditions.

On March 26, 2019, defendants filed a joint renewed motion for summary judgment, alleging that because the antibiotic was timely administered at 12:40, within one hour of the surgery start time of 13:05, there was no breach of the standard of care. As an additional ground, MCCG separately alleged that even if the antibiotics had not been timely administered, it was Anderson’s responsibility to administer the pre-operative antibiotics, and as set out in her affidavit, she was not an employee of MCCG at the time of Giddens’ surgery.

Accordingly, it argued there is no evidence that any employee of MCCG was negligent. Giddens filed a response to the renewed motion for summary judgment on May 2, 2019. The trial court scheduled a hearing on the motion for May 6, 2019, and, on May 9, 2019, granted summary judgment to MCCG,6 finding that

the evidence is undisputed that MCCG did not employ the CRNA and it is undisputed that it was the CRNA’s job to administer the preoperative antibiotics. The only allegation against MCCG by Plaintiff’s affidavit expert [sic] was that "nurses and mid-levels providing care to Ms. Giddens violated accepted medical practices by not following physician orders to administer pre[-]operative antibiotics to Ms. Giddens." Affidavit of Michael Hawkins, MD., para. 8. Therefore, Plaintiff failed to provide any expert testimony that any employee of MCCG violated the standard of care. Plaintiff could show no basis for liability against MCCG.

Five days after the trial court entered its written order granting summary judgment to MCCG, Giddens moved for reconsideration, arguing that it was a violation of the standard of care for the nurses in the operating room not to assure that the antibiotic had been given prior to surgery. In support of this motion, Giddens...

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