Hawkins v. DeKalb Med. Ctr., Inc.

• Decision Date: 06 December 2011
• Docket Number: A11A1007.,Nos. A11A1006,s. A11A1006
• Citation: 11 FCDR 3747,313 Ga.App. 209,721 S.E.2d 131
• Parties: HAWKINS et al. v. DeKALB MEDICAL CENTER, INC. et al.DeKalb Medical Center, Inc. et al. v. Hawkins et al.
• Court: Georgia Court of Appeals

11 FCDR 3747

313 Ga.App. 209

721 S.E.2d 131

HAWKINS et al.

v.DeKALB MEDICAL CENTER, INC. et al.DeKalb Medical Center, Inc. et al.

v.Hawkins et al.

Nos. A11A1006

A11A1007.

Court of Appeals of Georgia.

Nov. 18, 2011.Reconsideration Denied Dec. 6, 2011.

Pope, McGlamry, Kilpatrick, Morrison & Norwood, William Q. Bird, Atlanta, James Darren Summerville, John Watson Crongeyer, M. Gino Brogdon, Columbus, William B. Drummond, Lee T. Wallace, for appellants.

Bendin, Sumrall & Ladner, Timothy H. Bendin, Kristin LeBlanc Hiscutt, Huff, Powell & Bailey, Erica S. Jansen, Daniel James Huff, Atlanta, for appellees.

Glenn P. Hendrix, Arnall, Golden & Gregory, Jason E. Bring, Allen, McCain & O'Mahony, Hunter S. Allen, Jr., Allen, Weathington

& Reeves, Simuel F. Doster, Jr., for amicus curiae.PHIPPS, Presiding Judge.

Tara Hawkins sustained head trauma and was taken by ambulance to the emergency room at DeKalb Medical Center. She was 18 years old, unconscious, intubated, and pregnant. During several months of hospitalization there, Tara Hawkins never regained consciousness and was maintained with life-sustaining treatment, including the support of mechanical ventilation. Eventually, physicians at the hospital advised her mother, Nonnie Hawkins, of their concern that Tara Hawkins had likely suffered brain death; even if Tara Hawkins had, they advised Nonnie Hawkins, medical intervention could possibly preserve the life of the fetus until viability. After the baby was born, testing conducted upon Tara Hawkins confirmed for several treating physicians that she was brain dead. Tara Hawkins was thus pronounced dead; the mechanical ventilation was terminated, and all other life-sustaining treatment was ended. Nonnie Hawkins would later depose, “I never believed she was brain dead” and that “[t]hey just killed my child and told me she was dead.”

This lawsuit was filed by Nonnie Hawkins, as representative of E.H., a minor and sole survivor and child of Tara Hawkins, decedent; and as administrator of the estate of Tara Hawkins. Nonnie Hawkins (hereinafter “Hawkins”) set forth both tort and contract causes of action against numerous health care providers, which claims were premised upon the defendants' conduct during the process that culminated in the termination of mechanical ventilation and all other life-sustaining measures. Pertinent to these appeals are rulings on summary judgment motions. In Case No. A11A1006, we affirm the trial court's grant of partial summary judgment in favor of several defendants (with respect to certain damages); in Case No. A11A1007, we reverse the trial court's denial of summary judgment motions filed by several defendants on the ground that Hawkins had failed to adduce evidence giving rise to a triable issue (with respect to all claims against them).

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ¹ “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” ²

The Evidence

Thus viewed in the light most favorable to Hawkins, the record shows the following. Tara Hawkins was transported to DeKalb Medical Center on November 22, 2003. Because she was unconscious, her mother signed, as her representative, an “Admission Consent Form.” It included in the “Consent to Routine Procedures & Treatments” section:

During the course of my care and treatment, I understand that various types of tests, diagnostic or treatment procedures (“Procedures”) may be necessary. These Procedures may be performed by physicians, nurses, technicians, physician assistants or other healthcare professionals (“Healthcare Professionals”).... The Procedures may include, but are not limited to the following: ... Physical tests, assessments and treatments such as vital signs ... and other similar procedures.... I consent to Health Professionals performing Procedures as they may deem reasonably necessary or desirable in the exercise of their professional judgment, including those Procedures that may be unforeseen or not known to be needed at the time this consent is obtained.

Tara Hawkins's initial physicians were emergency medicine doctor Sean Sue, M.D. and pulmonologist Mark Pollock, M.D. She was soon diagnosed as being in a dense coma. And because Tara Hawkins was experiencing seizures, Dr. Pollock requested a consultation with a neurologist, Marshall Nash, M.D.

On November 23, an electroencephalogram (EEG) was performed, the results of which Dr. Nash interpreted as consistent with a global anoxic brain injury; the neurologist believed at that point that brain death in Tara Hawkins was “probably inevitable.” On November 24, in an effort to stop Tara Hawkins's ongoing seizures, Dr. Nash recommended to Hawkins that the fetus be aborted to allow for more oxygen consumption by Tara Hawkins's brain cells. Hawkins rejected the recommendation.

Meanwhile, radiological studies indicated that Tara Hawkins's clinical status had deteriorated since the initial CT scan. A CT scan taken on November 25 showed “a subarachnoid hemorrhage, which [was] consistent with trauma, cerebral edema presumably secondary to the hemorrhage.” By that date, Dr. Nash had reached the opinion that brain death in Tara Hawkins was “present or imminent,” which he expressed to Hawkins. On November 26, Dr. Nash met with an obstetrician specializing in high-risk pregnancies, who informed him of her opinion that the then–12–week fetus could be maintained through the point of viability. As the obstetrician requested, on about November 29, another EEG was performed on Tara Hawkins; Nash interpreted it on December 1 as demonstrating electrocerebral silence. Within days, Hawkins fired both Dr. Nash and the pulmonologist with whom he had consulted, Dr. Pollock.

Added to Tara Hawkins's medical team the first week of December were neurologist Albert Cook, M.D. and pulmonologists Harold Jackson, M.D. and David Snyder, M.D. During the next three–and–a–half months, Tara Hawkins was subjected to extensive neurological testing by numerous physicians to evaluate whether there was any brain function or brain stem function. According to Dr. Cook, the last part of a brain death evaluation was the performance of an apnea test, which, he described, “involves preoxygenation of the patient and then adjustment of the ventilator, and then observation of monitors and measurement of blood gases.” This remaining test (to confirm or dispel brain death) could not be performed, however, because of its potential harm to the fetus. According to Dr. Cook, patients who “fail” the final apnea test are declared dead.

On March 16, 2004, E.H. was born. No longer posing any threat to the baby's life, more thorough examination of Tara Hawkins could then be performed to assess her clinical status. Dr. Jackson discussed with Hawkins that brain death testing (including apnea testing) would be conducted. That day, March 16, Dr. Cook performed the first of two final neurologic evaluations of Tara Hawkins, which revealed no evidence of any brain activity. That same day, the first of two apnea tests was performed by Dr. Jackson, who deposed that the apnea test did not inflict any harm or injury to Tara Hawkins. Dr. Jackson determined that Tara Hawkins “failed,” having demonstrated no spontaneous respiration. As Dr. Snyder described, during an apnea test, “we take them off the ventilator and put them on blow-by.” ³ Dr. Cook determined that the results of the testing were consistent with brain death. Mechanical ventilation was reimplemented.

The next day, Dr. Jackson discussed with Hawkins that repeat brain death testing would be conducted and that, in the event “[Tara Hawkins] didn't pass the apnea testing,” mechanical ventilation would not be reimplemented. Meanwhile, a final EEG was ordered and interpreted by Dr. Cook; it demonstrated “electrocerebral silence, absence of brain wave activity.” On March 18, Dr. Cook performed the second and final neurologic evaluation of Tara Hawkins, which revealed no evidence of any brain activity. Drs. Snyder and Jackson performed the second and final apnea test; they determined that Tara Hawkins “failed,” again having demonstrated no spontaneous respiration. Dr. Cook deposed that nothing about the apnea testing affected the condition of the brain stem. Based upon the results of the neurologic assessments and the apnea tests on March 16 and March 18, 2004, Dr. Cook determined that Tara Hawkins did not have any brain function or brain stem function and pronounced her dead on March 18. Drs. Snyder and Jackson agreed and decided not to reimplement ventilatory support.

Drs. Cook, Jackson, and Snyder each deposed that, in his professional judgment, the brain death testing and apnea testing conducted on March 16 and March 18 were reasonably necessary under the circumstances to assess the clinical status of Tara Hawkins. Dr. Jackson further deposed that it would have been outside the standard of care not to perform the brain death testing. Moreover, the hospital had a written policy on brain-based determination of death, and Dr. Cook testified that the brain death determination was conducted in accordance therewith.

On March 19, 2004, the county's chief medical examiner performed an autopsy on Tara Hawkins's body. That pathologist noted that the “brain fragmented as attempts were made to remove it” and described a “markedly edematous and near liquified brain” with “severe global encephalomalacia.” He opined that Tara Hawkins had suffered from, inter alia, “[i]schemic/hypoxic/encephalopathy deteriorating to brain death.” Having also reviewed Tara Hawkins's medical records, he further opined that on November 22,...