Johnson v. Omondi

• Decision Date: 27 November 2012
• Docket Number: No. A12A1347.,A12A1347.
• Parties: JOHNSON et al. v. OMONDI et al.
• Court: Georgia Court of Appeals

318 Ga.App. 787
736 S.E.2d 129

JOHNSON et al.
v.
OMONDI et al.

No. A12A1347.

Court of Appeals of Georgia.

Nov. 27, 2012.

[736 S.E.2d 130]

Thomas G. Sampson, Keith L. Lindsay, Atlanta, for Appellants.

Jeffrey Daniel Braintwain, Atlanta, Michael Geoffrey Frankson, for Appellees.

RAY, Judge.

[318 Ga.App. 787]The parents of Shaquille Johnson sued Price Paul Omondi, M.D., and Southwest Emergency Physicians, P.C. (collectively “Omondi”), for professional malpractice after their son, Shaquille Johnson, died following treatment by Omondi in the emergency department at Phoebe Putney Memorial Hospital. Sheldon Johnson and Thelma Johnson, individually as Shaquille's surviving parents, and Thelma Johnson, as administratrix of his estate (collectively “the Johnsons”), appeal from the trial court's grant of Omondi's motion for summary judgment under OCGA § 51–1–29.5. For the reasons that follow, we affirm the entry of summary judgment to Omondi.

The standard for summary judgment is familiar and settled: “Summary judgment is warranted when any material fact is undisputed as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law.” ¹ So, as we have explained before,

[w]hen a defendant moves for summary judgment as to an element of the case for which the plaintiff ... will bear the burden of proof at trial ... the defendant may show that he [318 Ga.App. 788]is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element.²

[736 S.E.2d 131]

We review an award of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the nonmoving party.³

Viewed in that light, the following facts are undisputed.⁴ Thelma Johnson took Shaquille to the emergency department at Phoebe Putney Memorial Hospital on December 29, 2007. Shaquille had undergone arthroscopic knee surgery, performed by Dr. James Mason, eight days earlier. Shaquille was complaining of pain on the left side of his chest that was worse in a recumbent position. Upon arrival at the emergency department, he was triaged by a nurse and taken to an exam room to be seen by Omondi, the emergency department physician. Omondi spent several minutes in the exam room with Shaquille and his mother, asked Shaquille's mother why she had brought him to the emergency department, and told them he was ordering a chest x-ray and an electrocardiogram (EKG). These tests were performed while Shaquille was in the emergency department. Omondi testified during his deposition that he reviewed the triage nurse's record and findings, inquired about past medical history and family history, including any past diagnoses of pulmonary embolism or pneumonia, and was aware of Shaquille's recent knee surgery and chief complaint.

Although the parties disagree about some aspects of Omondi's examination, it is undisputed that Omondi noted in the record that Shaquille's presentation to the emergency department did not fit neatly into cardiac, pulmonary, or gastrointestinal etiologies and was difficult to catagorize. The medical records reflect that a physical exam was conducted of Shaquille, as well as exams of Shaquille's systems, including his pulmonary, cardiovascular, abdomen and flank, neurologic, dermatologic, lymphatic and vascular, psychiatric and mental status, and musculoskeletal conditions. After the chest x-ray[318 Ga.App. 789]was performed, Omondi interpreted it and found no evidence of an enlarged heart, pneumothorax, pneumonia, or skeletal injury. He also interpreted the EKG and determined it was normal, ruling out heart rhythm disturbances, heart attack, and pericarditis. Omondi specifically testified that the EKG was not suggestive of pulmonary embolism as the cause of the pain Shaquille experienced on the left side of his chest. Regarding pulmonary embolism, Omondi considered that Shaquille did not have shortness of breath, had normal vital signs, and had perfect pulse oximetry, which measures oxygenation of the blood. Omondi further considered that Shaquille responded positively to Toradol, a medication that was administered under Omondi's orders. Because the Toradol completely resolved Shaquille's pain, and because Toradol is an anti-inflammatory that would not treat pain from a pulmonary embolism, Omondi concluded that this was further evidence that there was no blood clot in Shaquille's lungs.

Omondi concluded that Shaquille was suffering from pleurisy, and he prescribed Naprosyn, an anti-inflammatory medication for pain, and discharged Shaquille. The discharge nurse gave Shaquille's mother discharge instructions, including a verbal instruction to return to the emergency room if symptoms continued. Shaquille's mother testified by deposition that when Shaquille was discharged from the hospital, she was satisfied with the care he had received. Two weeks later, on January 13, 2008, Shaquille allegedly complained of chest pain and difficulty breathing, and he was transported by ambulance to Phoebe Putney Memorial Hospital, where he later died from a bilateral pulmonary embolism.

This case really does not involve a dispute regarding the relevant facts. The Johnsons agree that Omondi examined, treated, and provided care to Shaquille. Essentially what is disputed in this case, by opinion evidence,

[736 S.E.2d 132]

is the appropriateness of the care and the treatment provided to Shaquille in the emergency department on December 29, 2007. The Johnsons claim Shaquille's care and treatment deviated from the appropriate standard of care and was thus a proximate cause of Shaquille's death. Taken from the Plaintiffs' Statement of Material Facts as to Which Genuine Issues Exist for Trial, and viewing the disputed facts in the light most favorable to the Johnsons as the non-moving party, the Johnsons and their experts contend that the history taken by Omondi, the physical exam he conducted, and his interpretation of the chest x-ray and EKG were all deviations from the standard of care. Furthermore, the Johnsons contend that Omondi's alleged failure to properly rule out a pulmonary embolism, order a chest CT scan, and order an ultrasound of [318 Ga.App. 790]Shaquille's surgical leg constituted medical negligence and are issues for the jury to decide. Given the circumstances of this case, we must disagree.

This case is governed by OCGA § 51–1–29.5, the emergency medical care statute that was enacted in 2005.⁵ Under that statute,

[i]n 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.⁶

This statute clearly distinguishes the actions of emergency department physicians from other healthcare providers in negligence cases, including medical malpractice cases not involving emergency department care, by mandating (1) a higher evidentiary standard (clear and convincing evidence), and (2) a lower standard of care (gross negligence). The Supreme Court of Georgia has found this statute constitutional, specifically finding that

[p]romoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes. Furthermore, it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings, and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals.⁷

The Supreme Court of Georgia went on to define “gross negligence”:

[G]ross negligence is the absence of even slight diligence, and slight diligence is defined ... as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other [318 Ga.App. 791]words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care, or lack of diligence that even careless men are accustomed to exercise.⁸

That Court has also defined “clear and convincing evidence” as “an intermediate standard of proof, greater than ‘the preponderance of evidence,’ but less than the ‘beyond a reasonable doubt’ standard applicable in criminal cases....” ⁹ It “requires a greater quantum and a high quality of proof in plaintiff's favor” ¹⁰ and is “substantially higher than that generally applicable to civil actions.”

[736 S.E.2d 133]

¹¹ Accordingly, the Johnsons are bound by the evidentiary standard and standard of care dictated by the emergency medical care statute. In order to reach a jury trial, they must demonstrate that a genuine issue of material fact existed not as to whether Omondi exercised ordinary care (e.g., that degree of care and skill exercised by the medical profession generally),¹² but, rather, they must show the existence of “clear and convincing” evidence that Omondi did not exercise even slight care.

There is a paucity of case law on this statute. In fact, there is only one case applicable to the facts of the instant action.¹³ In Pottinger, a patient filed a medical malpractice action against an emergency room physician, seeking to recover damages arising out of emergency medical care provided to him for a leg fracture incurred in a motorcycle accident. The physician moved for summary judgment, asserting she could not be held liable because there was no clear and convincing evidence that her actions in providing emergency medical care to the patient showed gross...