Miller v. Polk

• Decision Date: 29 April 2022
• Docket Number: A22A0325
• Citation: 872 S.E.2d 754
• Parties: MILLER v. POLK et al.
• Court: Georgia Court of Appeals

872 S.E.2d 754

MILLER

v.POLK et al.

A22A0325

Court of Appeals of Georgia.

April 29, 2022

Anton Latasius Rowe, Felicia Prudence Rowe, Stone Mountain, for Appellant.

Terrell William Benton III, Sheila Katherine Kazemian, Atlanta, for Appellee.

Phipps, Senior Appellate Judge.

In this action for negligence and related claims, plaintiff Calvin Miller, individually and as the administrator of the estate of his deceased wife Jerline Miller, appeals from the trial court's order granting summary judgment to defendants Marcus Polk, M.D., and Anesthesia Consultants of Georgia, LLC d/b/a Oracle Anesthesia of Georgia ("Oracle," and, with Dr. Polk, the "Oracle Defendants").¹ Calvin raises several challenges to the trial court's summary judgment rulings. For the reasons that follow, we reverse the grant of summary judgment on Calvin's claims for negligent credentialing, punitive damages, and attorney fees; otherwise affirm the trial court's judgment; and remand the case to the trial court for further proceedings consistent with this opinion.

This action concerns Jerline's death on August 29, 2019, following complications she experienced the day before during a visit to Pain Care Center of Georgia ("Pain Care") (which is not a party to this action), for a procedure to alleviate back pain. Calvin's claims largely center on the actions of certified registered nurse anesthetist ("CRNA") Cynthia Hamm, who was on the medical team that treated Jerline at Pain Care on the day in question, but also is not a party to this action.

In 2004, 2014, and 2017, Hamm was the subject of disciplinary actions before the Alabama Board of Nursing (the "Alabama Board"). In the 2004 proceeding, the Alabama Board found that: (i) Hamm failed to disclose a 1998 arrest for driving under the influence ("DUI") when she applied to renew her Alabama nursing license in 1998² ; and (ii) a 2004 pre-employment drug screen returned positive results for cocaine. The parties entered into a consent order under which, as relevant here, Hamm was placed on probation for 24 months. She successfully completed the terms of her probation in 2006.

In the 2014 proceeding, the Alabama Board found that, in 2013, Hamm pleaded guilty to DUI and following too closely and entered a nolo contendere plea to criminal trespass, as a result of which she was denied reinstatement of her Louisiana nursing license in 2013. The parties again entered into a consent order under which Hamm again was placed on probation for 24 months. The terms of her probation contained several requirements regarding prescription drug use, as well as supervision of her work and related reporting requirements. It appears that Hamm was still on probation when the 2017 proceeding took place.

In the 2017 proceeding, the Alabama Board found that Hamm had violated the terms of her 2014 consent order by: (i) obtaining prescriptions from doctors not identified as her primary doctor; (ii) testing positive for a drug that she was not prescribed; and (iii) failing to comply with several work supervision and reporting requirements. The parties again entered into a consent order under which Hamm was placed on probation for 10 months. It appears that Hamm successfully completed the terms of her 2017 probation in March 2018.

As a result of the 2004 and 2014 Alabama Board proceedings, Hamm also was the subject of disciplinary actions before the Georgia Board of Nursing in 2006 and 2016. In the 2006 Georgia proceeding, Hamm entered into a consent order in which she was publically reprimanded. And in the 2016 Georgia proceeding, Hamm again entered into a consent order pursuant to which she was placed on probation, subject to a number of terms and conditions. She successfully completed the terms of that probation on April 18, 2019, approximately four months before Jerline's death.

From 2012 to 2020, Oracle provided anesthesiologists and CRNAs to Pain Care pursuant to a Professional Services Agreement. The Professional Services Agreement explicitly provides that the anesthesiologists and CRNAs whose services were to be provided under the agreement would be acting as "independent contractor[s]." Hamm first began working as a CRNA for Oracle in 2015. Between 2015 and 2019, Oracle assigned Hamm to provide anesthesia services to Pain Care. The contract between Hamm and Oracle in effect in August 2019 designated Hamm as an "independent contractor" of Oracle.³

On August 28, 2019, Jerline was scheduled to undergo a procedure at Pain Care in which Vincent Galan, M.D. (the president of Pain Care, who also is not a party to this action), was to insert a spacer in her spine to alleviate back pain. The medical team for Jerline's procedure included Hamm (who was to administer anesthesia

), another nurse, and one or more other assistants. In anticipation of the procedure, Jerline was administered a sedative (to relax or calm her) and a prophylactic antibiotic.

As she was lying face down on the table on which the procedure was to take place, before any anesthesia

was administered, Jerline began coughing and had trouble breathing. After the medical team turned Jerline over onto her back, she stopped breathing, and CPR was administered. Because her heart rate was slowing, she was administered atropine, after which her heart rate increased slightly; she also was administered epinephrine due to possible bronchospasms. Also during this time, Hamm inserted a laryngeal mask airway to help Jerline breathe. Emergency personnel eventually were summoned and transported Jerline to a hospital. She died at the hospital the next day of acute respiratory failure due to cardiorespiratory arrest.

In August 2020 (before the current case began), Calvin, individually and as administrator of Jerline's estate, entered into a "Settlement Agreement and General Release of All Claims" with Dr. Galan, Hamm, and Pain Care (collectively, the "Releasees"), as well as several insurers. Pursuant to the Settlement Agreement, the Releasees and insurers agreed to pay certain sums to Calvin "in full settlement and discharge of all claims against Releasees which are, or might have been, related to" Jerline's death. In October 2020, Calvin (again individually and as administrator of Jerline's estate) sued the Oracle Defendants (along with a third defendant who is not a party to this appeal) for: (i) negligent selection, hiring, training, credentialing, retention, and supervision of Hamm (all defendants); (ii) professional negligence (medical malpractice) (the Oracle Defendants); (iii) imputed/vicarious liability for the alleged negligence of Pain Care's medical staff, including Hamm (the Oracle Defendants); (iv) corporate negligence (all defendants); (v) negligence per se, based on alleged regulatory violations (the Oracle Defendants); (vi) negligent failure to report Hamm's alleged misconduct (the Oracle Defendants); (vii) punitive damages (all defendants); and (viii) attorney fees and expenses of litigation (all defendants).

The Oracle Defendants moved for summary judgment on the claims against them. They argued, in relevant part, that Calvin's vicarious liability claims fail because Hamm was an independent contractor of Oracle or, alternatively, are barred by the Settlement Agreement. They further maintained that: (i) because neither Dr. Polk nor Oracle was a supervising physician during Jerline's August 2019 visit to Pain Care, neither can be liable for any acts or omissions committed at that time; (ii) there is no evidence that the Oracle Defendants negligently credentialed, hired, or retained Hamm; and (iii) Calvin's malpractice claim fails because Dr. Polk had no doctor-patient relationship with Jerline.

The trial court granted the Oracle Defendants’ motion for summary judgment on the following grounds: (i) the Settlement Agreement bars Calvin's claims against the Oracle Defendants for vicarious, corporate, and imputed liability; (ii) regardless, those claims also fail because Hamm was an independent contractor of Oracle when Jerline was treated at Pain Care in August 2019; (iii) Calvin's claim for professional negligence against Dr. Polk fails because Dr. Polk had no doctor-patient relationship with Jerline; (iv) Calvin's claim for negligent credentialing fails because there is no evidence that Hamm was unqualified to provide medical care in August 2019; (v) Calvin's negligent hiring and retention claims fail because there is no evidence that any acts or omissions by Hamm caused Jerline's death; and (vi) Calvin's claims for punitive damages and attorney fees will not lie absent a viable underlying, substantive claim. This appeal followed.

We review de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant. City of St. Marys v. Reed , 346 Ga. App. 508, 508-509, 816 S.E.2d 471 (2018). 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. Id. at 508, 816 S.E.2d 471 ; see OCGA § 9-11-56 (c). "[T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case." Ellison v. Burger King Corp. , 294 Ga. App. 814, 819 (3) (a), 670 S.E.2d 469 (2008) (citation and punctuation omitted); see OCGA § 9-11-56 (c). If the movants meet this burden, the nonmovant "cannot rest on [his] pleadings, but rather must point to specific evidence giving rise to a triable issue." Ellison , 294 Ga. App. at 819 (3) (a), 670 S.E.2d 469 (citation and punctuation omitted); see OCGA § 9-11-56 (e).

1. We first address Calvin's challenge to the trial court's ruling that Hamm was an independent contractor (and not an employee) of Oracle, as resolution of this issue will impact other claims raised by Calvin on appeal. "In general, an employer is not responsible for the torts of...