Gilbert v. R.J. Taylor Memorial Hosp., Inc.

• Decision Date: 26 June 1995
• Docket Number: No. S94G1311,S94G1311
• Citation: 265 Ga. 580,458 S.E.2d 341
• Parties: GILBERT v. R.J. TAYLOR MEMORIAL HOSPITAL, INC.
• Court: Georgia Supreme Court

Page 341

458 S.E.2d 341

265 Ga. 580

GILBERT v. R.J. TAYLOR MEMORIAL HOSPITAL, INC.

No. S94G1311.

Supreme Court of Georgia.

June 26, 1995.

Reconsideration Denied July 17, 1995.

Thomas H. Hinson II, Bradley G. Pyles, Westmoreland, Patterson & Moseley, Macon, for Gilbert.

W. Kerry Howell, C. Ashley Royal, Jones, Cork & Miller, Macon, for R.J. Taylor Memorial Hosp., Inc.

THOMPSON, Justice.

A diagnostic breast biopsy was performed on Sharon Gilbert at R.J. Taylor Memorial Hospital ("hospital") to determine the presence of cancer. In this procedure, a one centimeter nodule was removed from the patient's left breast. A hospital employee lost the tissue specimen while transporting it to the pathology laboratory for testing. Because no residual tumor remained for testing, loss of the specimen precluded a histological determination as to whether the nodule was malignant. In view of the lack of diagnostic information, Gilbert's physicians recommended that she undergo cancer treatment, including wider excision of the site of the biopsy (lumpectomy), lymph node dissection, and radiation therapy. These procedures were performed; no evidence of cancer was detected.

Gilbert brought a simple negligence action against the hospital under the doctrine of respondeat superior, seeking damages for her injuries and for emotional distress. The trial court denied summary judgment to the hospital. The Court of Appeals granted interlocutory review and reversed, holding that there was an absence of evidence that the hospital's negligence was the proximate cause of Gilbert's physical injuries and pain and suffering resulting from the additional treatment for cancer, and that the hospital was entitled to summary judgment as to each claim. ¹

We granted certiorari to consider whether the affidavit of Gilbert's expert created a genuine issue of fact precluding the grant of summary judgment. Because Gilbert's evidence as to causation was sufficient to establish a triable issue to survive summary judgment under Lau's Corporation, Inc. v. Haskins, ² we reverse.

The hospital admits that it was negligent in losing the tissue sample and thus breached a duty of care to Gilbert, but it denies liability on the basis that Gilbert failed to establish a legally attributable causal connection between its negligent act and Gilbert's injuries. ³ It satisfied its initial burden of proof as movant on summary judgment as to the element of causation by offering the affidavits of two physicians, both of whom opined that to a reasonable degree of medical certainty Mrs. Gilbert had cancer of the left breast and needed the treatment that she received. ⁴

Gilbert countered with medical opinion testimony to the effect that such a determination cannot be made based on the information available to the hospital's experts. After reviewing the medical records, Gilbert's expert opined: "[O]ther breast diseases ... can be extremely difficult to differentiate from breast cancer without microscopic...