Mcg Health, Inc. v. Barton

• Decision Date: 25 May 2007
• Docket Number: No. A07A1060.,No. A07A1061.,A07A1060.,A07A1061.
• Parties: MCG HEALTH, INC. v. BARTON. Board of Regents of The University System of Georgia v. Barton.
• Court: Georgia Court of Appeals

285 Ga. App. 577

647 S.E.2d 81

MCG HEALTH, INC. v. BARTON.

Board of Regents of The University System of Georgia v. Barton.

No. A07A1060.

No. A07A1061.

Court of Appeals of Georgia.

May 25, 2007.

Hull, Towill, Norman, Barrett & Salley, James S.V. Weston, Augusta, for appellant (case no. A07A1060).

Thurbert E. Baker, Attorney General, Claude M. Sitton, Assistant Attorney General, for appellant (case no. A07A1061).

Burnside, Wall, Daniel, Ellison & Revell, Thomas R. Burnside III, Mark B. Williamson, Augusta, for appellees.

BLACKBURN, Presiding Judge.

Craig Barton, a minor, by and through his parents Brady Barton and Barbara Barton, as natural guardians and next friends, sued MCG Health, Inc. ("MCGHI") and the Board of Regents of the University System of Georgia d/b/a Medical College of Georgia ("the Board"), alleging that the defendants' professional negligence caused him personal injury. In Case No. A07A1060, MCGHI appeals the trial court's denial of its motion for summary judgment, arguing that Barton failed to establish that any of defendants' actions proximately caused his injury or, in the alternative, that the intervening acts by the Board's physicians precluded any recovery against MCGHI. In Case No. A07A1061, the Board appeals the trial court's denial of its motion to exclude the testimony of Barton's medical expert and for summary judgment, arguing that Barton's expert was not qualified to render opinions regarding whether the Board's physicians deviated from the proper standard of medical care, and that Barton had failed to provide any evidence that the Board's physicians proximately caused his injury. Because these two appeals involve the same set of facts and principles of law, we consolidate them for review. For the reasons set forth below, we affirm the trial court's denial of both MCGHI's and the Board's motions for summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c); Britt v. Kelly & Picerne, Inc.¹ "On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant." McCaskill v. Carillo.²

So construed, the evidence shows that at approximately 5:00 p.m. on December 29, 2003, 16-year-old Craig Barton was playing basketball with some friends on his driveway outside of his home. While playing, one of Barton's friends collided with Barton's left leg, which caused that leg to collapse into his right leg. Barton immediately felt a sharp pain in his testicles and had to stop playing. At approximately 10:00 p.m., Barton was still in pain and also had swelling in his testicles, so his father took him to Eisenhower Army Medical Center ("EAMC" a/k/a DDEAMC). At EAMC, Barton was told that he needed to be examined by a urologist and undergo an ultrasound test, but that the examinations would have to be performed at the Medical College of Georgia Hospital ("MCG"). Consequently, EAMC personnel contacted MCG's Emergency Communication Center ("ECC") specialist, who in turn contacted the chief of urology at MCG. Based on Barton's injury, the chief of urology informed EAMC that Barton would be accepted for admission and evaluated by a urologist upon his arrival at MCG's emergency department. To facilitate this admission, the MCG ECC specialist prepared an ECC referral form, which normally would have been delivered immediately to the emergency department's triage nurse.

Barton and his father arrived at MCG at approximately 12:15 a.m. Upon their arrival, they informed MCG personnel that a referral had been coordinated between EAMC and the ECC specialist on duty, but they were nevertheless sent to the waiting room. Barton was seen by the MCG triage nurse at 1:47 a.m. However, the triage nurse had not received the ECC referral form and was thus unaware that Barton had already been accepted for admission by the chief of urology. Consequently, Barton was classified as "nonurgent" and was again sent back to the waiting room. At 3:05 a.m., Barton was examined by the MCG emergency department's attending physician, who also had not been made aware that Barton had been accepted for admission by the chief of urology. Based on his examination of Barton, the attending physician offered a diagnosis of either testicular fracture, testicular mass,³ or testicular torsion⁴ and ordered urology to be called immediately.

Some time after 4:00 a.m., a urology resident examined Barton, and although she did not rule out torsion, she believed the more likely diagnosis to be testicular mass. Shortly thereafter, the urology resident called the attending urologist at his home to discuss her diagnosis. Without examining Barton, the attending urologist agreed with the resident's assessment and decided that because no ultrasound technician was currently available, Barton should be admitted to the hospital so that he could undergo an ultrasound later that morning once an ultrasound technician arrived. The ultrasound was conducted at 8:15 a.m. and revealed that there was no blood flow to Barton's left testicle. Based on the ultrasound, the attending urologist performed scrotal exploration surgery at 10:10 a.m., at which time, Barton's left testicle was found to be necrotic and was removed. The attending urologist's post-operative diagnosis of Barton's injury was left testicular torsion. The initial pathology report also noted that Barton's injury was consistent with torsion. However, following a urology conference discussing the case, the pathology report was amended to conclude that Barton's injury was more consistent with testicular trauma.

Through his parents, Barton filed a malpractice action against the Board and MCGHI, as employers of the treating physicians and hospital personnel respectively. His complaint alleged that the hospital personnel negligently delayed his admission, and that the physicians negligently delayed necessary medical treatment, resulting in the loss of his testicle. Attached to the complaint was the affidavit of Barton's medical expert, a licensed emergency room physician, who testified that the urologists' failure to properly evaluate Barton's injury "was a departure from the degree of care and skill ordinarily employed by the medical profession under similar conditions and like surrounding circumstances."

Following discovery, MCGHI moved for summary judgment, and the Board moved for the exclusion of the medical expert's testimony and the dismissal of Barton's complaint or, in the alterative, for summary judgment. The trial court denied both motions and certified the case for immediate review. We granted both MCGHI's and the Board's applications for interlocutory appeal.

Case No. A07A1061

1. We first address Case No. A07A1061, in which the Board contends that the trial court erred in denying its motion to exclude the testimony of Barton's medical expert. Specifically, the Board argues that under OCGA § 24-9-67.1(c)(2), Barton's medical expert's testimony should have been excluded because as "a family practitioner with emergency medical treatment experience, [he] has no surgical or urological experience that would qualify him to render an opinion as to whether [the Board's urologists] exercised the requisite urological standard of care in a surgical setting." We disagree.

"The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court's ruling thereon cannot be reversed absent an abuse of discretion."⁵ Cotten v. Phillips, 280 Ga.App. 280, 283, 633 S.E.2d 655 (2006). OCGA § 24-9-67.1(c)(2), the statute at issue here, reads in relevant part:

[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert . . . [,] [i]n the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.

(Emphasis supplied.) In Cotten, this Court held that the statute's plain language "contemplates that the expert may very well have a different area of practice than the defendant doctor. Under the statute, it is the expert's qualifications, rather than the defendant doctor's specialty or area of practice, that controls whether the trial court should allow the expert's testimony." Cotten, supra, 280 Ga.App. at 285, 633 S.E.2d 655. See Canas v. Al-Jabi.⁶ In addition, whether a plaintiff's expert has "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given" under subsection (c)(2), is determined "not by the apparent expertise of the treating physician, but rather by the allegations of the complaint concerning plaintiff's injury." (Punctuation omitted; emphasis in original.) Mays v. Ellis.⁷ See Abramson v. Williams, 281 Ga.App. 617, 619, 636 S.E.2d 765 (2006).

In this matter, Barton's complaint does not allege that the Board's urologists negligently performed the exploratory surgery or that they negligently removed his testicle contrary to urological standards of care. Instead, Barton claims that hospital staff and the urologists negligently failed to timely evaluate and treat his injury, and that this delay resulted in the loss of his left testicle. In support of Barton's claims, his medical expert, a licensed physician with over 20 years of emergency room experience, including experience diagnosing testicular injuries, testified that the Board's urologists who treated Barton deviated from the proper standard of medical care by not taking more immediate measures to determine if Barton's...