Graham v. Wellstar Health Sys., Inc.

• Decision Date: 14 July 2016
• Docket Number: A16A1600
• Parties: Graham et al. v. Wellstar Health System, Inc. et al.
• Court: Georgia Court of Appeals

338 Ga.App. 178

789 S.E.2d 369

Graham et al.

v.Wellstar Health System, Inc. et al.

A16A1600

Court of Appeals of Georgia.

July 14, 2016

Laura E. Austin, Woodstock, for Appellant.

William Curtis Anderson, Marietta, for Appellee.

Andrews

, Presiding Judge.

This appeal is from the grant of partial summary judgment in an action arising out of the death of Justin Graham due to liver failure

following his arrest for DUI. The operative facts of the case are fully set forth in a previous appeal and will not be reiterated here. See Graham v. Cobb County , 316 Ga.App. 738, 730 S.E.2d 439 (2012).

Subsequent to that earlier appeal, Graham's family (hereinafter Graham

) filed a third amendment to the complaint withdrawing all remaining claims and instead asserting the following claims: (1) simple negligence as to Dr. Clarence Hendrix as chief medical officer at the Cobb County Adult Detention Infirmary, and as to David Howell as Administrator for Wellstar Health Systems; (2) professional negligence as to Dr. Hendrix; (3) simple negligence as to Wellstar under the doctrine of respondeat superior based on the acts of Dr. Hendrix and David Howell; (4) Negligence per se as to Wellstar; (5) wrongful death as to all defendants; and (6) pain and suffering as to all defendants.

On February 16, 2015, as clarified on reconsideration on February 23, 2015, the trial court granted summary judgment for the defendants on the negligence and wrongful death claims asserted against Wellstar and Howell. This appeal followed.

1. Negligence per se. Graham contends that by contracting with the Cobb County Sheriff's Office to provide medical care for jail detainees, Wellstar owed a duty under OCGA §§ 42–5–2 (a)

, 42–4–4 (a) (2), and 42–4–32 (d) to provide needed medical care for detainees, and breached that duty in its mismanagement of Graham's care. However, as noted by the trial court in its order on February 23, 2015, Graham never pleaded any application and violation of OCGA §§ 42–4–4 (a) (2)

or 42–4–32 (d) against Wellstar in the third amended complaint. The amended complaint did assert a per se violation of OCGA § 42–5–2 (a), but to the extent that statute applied to Wellstar by virtue of its contract with the Cobb County Sheriff's Office, it created an obligation to provide detainees with access to medical care, but did not address the issue of proper medical care. Epps v. Gwinnett County , 231 Ga.App. 664, 670, 499 S.E.2d 657 (1998). As it is undisputed Graham was provided access to medical care, the trial court did not err in concluding OCGA § 42–5–2 (a) provides no basis for a negligence per se claim against Wellstar.

2. Ordinary negligence or professional negligence. The trial court found Graham's ordinary negligence claims actually were claims for professional negligence and granted summary judgment for the defendants on the basis the expert affidavits filed in the case were insufficient to support any such claims. Graham contends the trial court erred in classifying the claims against Wellstar and Howell as professional negligence, but even so, the expert affidavits specifically incorporated in the third amended complaint sufficiently stated specific examples of duty and alleged breach that support claims for professional negligence.

“Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court, regardless of how the plaintiff categorizes it.” (Citation and punctuation omitted.) Grady Gen. Hosp. v. King , 288 Ga.App. 101, 102, 653 S.E.2d 367 (2007)

. Accord, Burke v. Paul , 289 Ga.App. 826, 828, 658 S.E.2d 430 (2008). The court must look at the substance of the action, and if the alleged negligence required exercising professional skill and judgment to comply with a standard of conduct, the action will involve professional negligence. Piedmont Hosp. v. D.M., 335 Ga.App. 442, 445, 779 S.E.2d 36 (2015) ; Burke v. Paul , supra at 828, 658 S.E.2d 430.

The gravamen of the complaint in this case was that the defendants failed to recognize the severity of Graham's condition, failed to monitor his condition, and failed to take appropriate measures to try to forestall the progressive liver failure

. In short, the complaint alleges the defendants, through their inattention, neglected Graham to the point of irreversible liver failure and death. We find the trial court properly determined the complaint stated claims for professional negligence instead of ordinary negligence. However, the trial court erred in...