McKuhen v. TransformHealthRX, Inc.

• Decision Date: 15 July 2016
• Docket Number: A16A0176
• Citation: 790 S.E.2d 122,338 Ga.App. 354
• Parties: McKuhen, et al. v. TransformHealthRX, Inc., et al.
• Court: Georgia Court of Appeals

338 Ga.App. 354

790 S.E.2d 122

McKuhen, et al.

v.TransformHealthRX, Inc., et al.

A16A0176

Court of Appeals of Georgia.

July 15, 2016

Reconsideration Denied July 28, 2016

Ronald Joseph Poirier, Thomas A. Withers, for Appellant.

Steven Paul Bristol, Brunswick, Mary Beth Boone, Benjamin Mason Perkins, Savannah, Madeline Jane Mitchell, Atlanta, Colin Sammon, for Appellee.

Miller

, Presiding Judge.

On January 23, 2012, Carol McKuhen was arrested and jailed in Effingham County on a probation violation. At 1:30 a.m. on January 30, she was found dead in her isolation cell. An autopsy determined that she died of chronic ethanolism with hypertensive heart disease

.

Toney McKuhen,¹ Carol's surviving spouse, and Tori and Taylor McKuhen, as co-administrators of Carol's estate, filed a civil action under 42 U.S.C. § 1983

against jail personnel Merlin Ward, John Reinhart, William Gibson, and Sheriff Jimmy McDuffie,² (collectively “Jail Defendants”). The McKuhens also named as defendants TransformHealthRX, Inc. (“THRX”),³ the service that contracted with Effingham County to provide medical care to inmates, and THRX employees Dr. Myra Pope, nurse Wanda Brady, and Rhonda Brown (collectively “Medical Defendants”).⁴ The McKuhens alleged that the Medical Defendants committed malpractice and that all defendants were deliberately indifferent to Carol's medical needs, in violation of the Fourteenth Amendment. The trial court granted summary judgment to all of the defendants on all claims, and the McKuhens now appeal, arguing that (1) the trial court improperly excluded their expert affidavit in support of their medical malpractice claims; (2) the Medical Defendants were not entitled to summary judgment on the medical malpractice claims; (3) none of the defendants were entitled to summary judgment on the deliberate-indifference claims; and (4) the trial court erred in denying their motion for spoliation sanctions. Although we find Carol's death to be a tragic event, and one that should not have occurred while in the care of medical and jail staff under these circumstances, after a thorough review of the record, we conclude that the trial did not abuse its discretion by excluding the expert's affidavit, and therefore, the trial court properly granted summary judgment to the Medical Defendants on the malpractice claims. We also must affirm the trial court's grant of summary judgment on the § 1983 claims to all defendants except Dr. Pope. Finally, we reverse the trial court's denial of spoliation sanctions as to the medical records, and remand the case for the trial court to reconsider the spoliation issue in light of the Supreme Court of Georgia's opinion in Phillips v. Harmon , 297 Ga. 386, 393–94, 774 S.E.2d 596 (2015)

, as well as for further proceedings on the

§ 1983

claim against Dr. Pope.

“On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.” (Citation omitted.) Richard Bowers & Co. v. Creel , 280 Ga.App. 199, 200, 633 S.E.2d 555 (2006)

.

So viewed, the evidence shows that Carol was arrested on a probation violation on January 23, 2012, and booked into the Effingham County jail. The jailer on duty completed a medical questionnaire, noting that Carol was exhibiting signs of alcohol withdrawal and had experienced seizures in the past. Shortly after Carol's arrival, Defendant Wanda Brady, the THRX nurse assigned to provide medical services during the week, conducted an intake evaluation. Nurse Brady noted that Carol had injured her foot, and she vomited on intake. Brady also noted that Carol was an alcoholic who drank 12 to 18 beers a day, she had emphysema

, she had a history of alcohol-related seizures, and she was taking Dilantin for seizures. Carol was placed in an isolation cell in the section of the jail called the “horseshoe” so that the defendants could monitor her for any signs of detoxification. Nurse Brady also referred Carol to mental health services, and alerted THRX's assigned physician, Defendant Myra Pope, by phone.

The next day, January 24, 2012, Nurse Brady examined Carol and took her vitals signs. That same day, Dr. Pope wrote a progress note indicating that Carol was starting to sober up and would need to begin detoxing medications “because of impending DTs.”⁵ Pope instructed the THRX medical staff to order the detoxing medications so that they would be available when Carol was in need. Pope, however, did not prescribe Dilantin

or any other seizure medication for Carol, and she did not personally examine or observe Carol, even though she was in the facility at that time.

Carol refused to take any medications on January 24, and again on January 25.⁶ When Nurse Brady observed Carol during her rounds, she noted that Carol was pacing and refusing to communicate with staff. On January 26, Carol again refused to take her medication, and Brady noted that Carol was speaking loudly and had refused lunch. That same day, Defendant Rhonda Brown, who was hired by THRX to do administrative tasks and distribute medications over the weekend, observed Carol beating her head and shoes against the window of her cell. Brown spoke with her supervisor at THRX and, based on this discussion, Brown ordered that everything be removed from Carol's cell for her own safety. Carol was given only a paper gown and a mattress.

On Friday, January 27, Nurse Brady observed Carol pacing in her cell and talking to herself. She notified Dr. Pope that Carol refused medications again, and as a result, Pope discontinued Carol's medications. Carol refused dinner that evening.

Nursing staff was not in the facility over the weekends, but Brown was on site to distribute medications. Although Carol was not receiving any medications at that point, Brown nevertheless checked on Carol over the weekend. On Saturday, January 28, Brown observed Carol in her cell in no apparent distress, and Carol again refused her meals.

The following day, Brown observed Carol walking around her cell, and noted that Carol was not speaking. Jail staff monitoring Carol noted that she was sitting or standing throughout the morning. That afternoon, Brown noted that Carol was standing in a corner of the cell, and Carol refused to acknowledge or respond when others spoke to her.

Beginning at 5 p.m. on Sunday, January 29, officers Merlin Ward, John Reinhart, and William Gibson were on duty. Gibson was assigned to the horseshoe unit and was responsible for checking on Carol. Gibson marked his observations on a visual check sheet posted on Carol's door, and he checked on Carol by glancing through the slit window in the door to her cell, but he did not mark down all of his observations. From 8:45 p.m. until 10:45 p.m., Gibson did not enter any observations. At 10:45 p.m., Gibson noted that Carol was quiet and sitting on the floor. Gibson also observed that Carol was naked and shivering, and he witnessed her hand shake as she reached out to touch the wall, but he did not alert anyone to Carol's condition. Gibson further noted that the cell was dirty and smelled of body odor.

At about 11:30 p.m., Gibson moved to the control room. From there, he observed Carol from a window that looked down into her cell. At about 1:30 a.m., Gibson suggested that a female guard take Carol for a shower, which would enable staff to clean the cell. When the female guard approached Carol's cell, Carol was naked and slumped over. The guard called Carol's name several times, with no response. The guard and another officer then entered the cell and, when the female guard reached for Carol, she found that Carol's entire body was stiff, Carol had no pulse, and Carol's lips were turning blue. None of the guards performed CPR, and Carol was pronounced dead at 2:15 a.m. The medical examiner concluded that the cause of death was cardiac arrest

, chronic ethanolism, hypertensive heart disease, and coronary vascular disease.

1. The McKuhens first argue that the trial court erred in finding that their expert witness, Dr. Donald Kern, was not sufficiently qualified to render an expert opinion in support of their medical malpractice claims. After a thorough review of the record, we are constrained to agree with the trial court's conclusion.

The law in Georgia regarding affidavits in medical malpractice cases is at this moment crystal clear. One set of rules applies when the expert's competency is challenged and a hearing is held; a different set of rules governs the trial court's evaluation of the affidavit when the expert's competency is challenged and no hearing is held. Similarly, the standard of appellate review differs depending on whether the trial court had a hearing on the issue of the expert's competency. It is irrelevant whether or not evidence was offered at the hearing. If there is a hearing on the expert's competence, the trial judge weighs the evidence in the plaintiff's witness's affidavit, or in the competing affidavits, and decides whether the witness qualifies as an expert and whether the expert's testimony satisfies the requirements of [OCGA § 24–7–702 (c)

]. When such a hearing has taken place, the trial court's decision is reviewed on appeal for abuse of discretion.

(Punctuation and footnotes omitted.) Craigo v. Azizi , 301 Ga.App. 181, 183, 687 S.E.2d 198 (2009)

.

In order to survive the Medical Defendants' motion to dismiss or for summary judgment on the medical malpractice claims, the McKuhens had to present expert testimony that the Medical Defendants deviated from the applicable standard of care and that such deviation was the proximate cause of the injury. See MCG Health v. Barton , 285 Ga.App. 577, 582, 647 S.E.2d 81 (2007)

. OCGA § 24–7–702 (c) sets forth the statutory criteria for the qualification of experts in medical malpractice cases. Among other...