Howland v. Wadsworth

• Decision Date: 09 October 2013
• Docket Number: No. A13A0927.,A13A0927.
• Citation: 324 Ga.App. 175,749 S.E.2d 762
• Parties: HOWLAND et al. v. WADSWORTH.
• Court: Georgia Court of Appeals

324 Ga.App. 175

749 S.E.2d 762

HOWLAND et al.

v.WADSWORTH.

No. A13A0927.

Court of Appeals of Georgia.

Oct. 9, 2013.

Certiorari Denied Jan. 27, 2014.

Hunton & Williams, Lawrence Joseph Bracken II, James Donald Humphries IV, Atlanta, for Appellants.

Adams & Jordan, Virgil Louis Adams, Caroline Whitehead Herrington, Tracey Lynn Dellacona, Macon, Adams & Adams, Charles R. Adams III, Gautreaux & Adams, Jarome Emile Gautreaux, for Appellee.

Allen, McCain & O'Mahoney, Hunter S. Allen, Jr., Simuel F. Doster, Jr., Steven Salcedo, amici curiae.

RAY, Judge.

Ellen Rebecca Wadsworth sued Gregory Howland, PA–C, Paul Paustian, M.D., and their employer, Georgia EM–I Medical Services, P.C. (the " defendants"), asserting claims for ordinary negligence and gross negligence, alleging that the defendants failed to provide her with necessary medical treatment while she was in the emergency department of the Houston Medical Center.¹ At trial, the defendants moved for a directed verdict, claiming that OCGA § 51–1–29.5 applied to Wadsworth's claims because her cause of action arose out of the provision of "emergency medical care" in a hospital emergency room and that Wadsworth failed to prove gross negligence by clear and convincing evidence as required by OCGA § 51–1–29.5(c). Wadsworth argued that the statute did not apply because the treatment she received was not "emergency medical care" as defined by OCGA § 51–1–29.5(a)(5) and that, therefore, the jury should be allowed to consider ordinary negligence under the preponderance of evidence standard. The trial court denied the motion for directed verdict, finding that the evidence was sufficient to create a jury issue on gross negligence. The court further found that the evidence created a jury issue as to whether the medical care provided to Wadsworth constituted emergency medical care, which would determine which standard of care and burden of proof would apply. Consequently, the trial court charged the jury on both ordinary negligence and gross negligence, along with the respective burdens of proof. The court further charged the jury on the statutory definition of "emergency medical care" and instructed the jury that their determination as to whether Wadsworth's claims involved the provision of emergency medical care would determine which standard of care and burden of proof to apply. Ultimately, the jury applied the ordinary negligence standard of care and returned a verdict in favor of Wadsworth in the amount of $5,000,000.

The defendants appeal, arguing that the trial court erred: (1) by allowing the jury to determine, as a question of fact, whether Wadsworth's claims arose out of the provision of "emergency medical care" as defined by OCGA § 51–1–29.5(a)(5) ; (2) in failing to decide, as a matter of law, that the medical care provided to Wadsworth constituted emergency medical care; (3) in denying their motion for directed verdict based on Wadsworth's failure to show gross negligence by clear and convincing evidence; and (4) in providing confusing instructions to the jury concerning the applicable standard of care and burden of proof. For the reasons that follow, we affirm.

At the outset, we note that "[t]his Court reviews the judgment entered by the trial court after approval of a jury verdict upon the any evidence test, absent any material error of law." (Citation and punctuation omitted.) Timmons v. Cook, 287 Ga.App. 712, 712, 652 S.E.2d 604 (2007). Additionally, when a question of law is at issue, "we owe no deference to the trial court's ruling and apply a de novo standard of review." (citation omitted.) Artson, LLC v. Hudson, 322 Ga.App. 859, 747 S.E.2d 68 (2013).

So viewed, the evidence shows that sometime in late November 2008, Wadsworth began experiencing pain in her feet which appeared to be getting worse each day. On the morning of November 27, 2008, Wadsworth noticed that her feet were cold and that she was unable to warm them. As the pain in her feet had increased to the extent that she could no longer walk, she decided to call 911.

An ambulance arrived and transported Wadsworth to the Houston Medical Center's emergency room. Prior to arriving at the emergency room, a paramedic had assessed Wadsworth's condition and noted that she had normal vital signs and normal blood circulation in her legs. The paramedic obtained a brief medical history from Wadsworth and noted that she had a history of diabetes

and hypertension. Based on his assessment of Wadsworth's condition, the paramedic determined that she did not require any treatment during her transport to the emergency room.

Upon her arrival at the Houston Medical Center's emergency room, Wadsworth was classified as a "level 4" patient, meaning that her condition was "non-urgent." Wadsworth was assigned a bed in "C-pod," which is an area designated for the examination and treatment of patients who are expected to be "in and out in 90 minutes or less." The nurse who did the initial triage noted that Wadsworth was complaining of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse performed a physical assessment of Wadsworth and noted that her feet were cold to the touch, but that she had "positive" or "palpable" pulses in her feet at the time.

Wadsworth was eventually examined by defendant Gregory Howland, a physician assistant who worked in the emergency room of the Houston Medical Center. Howland noted that Wadsworth was in a "moderate" amount of pain and ordered her morphine

, which succeeded in alleviating some of her pain. Howland considered Wadsworth to be relatively stable during his examination, and he believed that her status had improved while she was in the emergency room. Based on his review of Wadsworth's symptoms and past medical history of diabetes and hypertension, Howland engaged in a differential diagnosis, which included considering the possibilities of acute arterial occlusion (blocked arteries ), deep vein thrombosis (DVT), and cellulitis (infection). Howland ordered Wadsworth to undergo a venous ultrasound examination, which ruled out the possibility of DVT. Howland noted that Wadsworth's feet were cool, rather than cold, and he attributed the coolness of her feet to her diabetes

. Although Howland noted a diminished pulse in Wadsworth's feet, he considered the pulse to be sufficient to rule out an acute arterial occlusion.² However, Howland did not order an arterial ultrasound or any other diagnostic tests to determine whether Wadsworth's diminished pulse was caused by a partial arterial blockage. Based on the results of a blood test which indicated that Wadsworth had an elevated white blood cell count, together with the fact that Wadsworth was exhibiting signs of redness and tenderness in her lower legs and feet, Howland diagnosed Wadsworth as having cellulitis

. Cellulitis can be treated with antibiotics on a nonemergency basis.

Howland discussed his diagnosis and his proposed plan of care with his supervising physician, Dr. Paul Paustian. Dr. Paustian did not speak with or personally examine Wadsworth, but he agreed with Howland's diagnosis and plan of care. Although Wadsworth wanted to be admitted to the hospital for observation, the defendants gave Wadsworth a prescription for antibiotics and pain medication and discharged her. From the time of her arrival to the time of her discharge on November 27, 2008, Wadsworth spent approximately three hours in the emergency room.

In the early morning of November 28, 2008, approximately twelve hours after her discharge, an ambulance responded to an emergency call at Wadsworth's residence. Upon their arrival, paramedics found Wadsworth to be unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, Wadsworth's vital signs improved, and she was again transported by ambulance to Houston Medical Center's emergency room. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest

. Later that afternoon, doctors performed an arteriogram on Wadsworth and determined that the arteries behind both of her knees were completely blocked. Doctors later determined that Wadsworth's lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.

1. In their first enumeration of error, the defendants contend that the trial court erred in allowing the jury to "interpret" OCGA § 51–1–29.5 when it allowed the jury to determine whether the medical care provided to Wadsworth on November 27, 2008, arose out of the provision of "emergency medical care" as defined by OCGA § 51–1–29.5(a)(5). Specifically, the defendants argue that the issue of whether a claim involves emergency medical care is a question of law for the court because it requires interpretation of the statute. We disagree.

OCGA § 51–1–29.5(c) provides, in pertinent part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department ... no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

OCGA § 51–1–29.5(a)(5) defines "emergency medical care" as:

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical

...