Nat'l Emergency Med. Servs. v. Smith

• Docket Number: A23A0291,A23A0469
• Decision Date: 07 June 2023
• Parties: NATIONAL EMERGENCY MEDICAL SERVICES INC. d/b/a NATIONAL EMS v. SMITH, et al. SMITH, et al. v. NATIONAL EMERGENCY MEDICAL SERVICES, INC.
• Court: Georgia Court of Appeals

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NATIONAL EMERGENCY MEDICAL SERVICES INC. d/b/a NATIONAL EMS v. SMITH, et al.

SMITH, et al. v. NATIONAL EMERGENCY MEDICAL SERVICES, INC.

Nos. A23A0291, A23A0469

Court of Appeals of Georgia, Second Division

June 7, 2023

MILLER, P.J., MERCIER and HODGES, JJ.

HODGES, JUDGE.

These appeals arise in a negligence action filed against National Emergency Medical Services, Inc. ("National EMS") by the estate administrator and the husband of Hannah Smith (collectively, "Smith's Estate" or "the estate").^[1] Smith died of a drug overdose in 2019 after her boyfriend made a 911 call to which National EMS responded. In Case No. A23A0291, we granted National EMS's application for interlocutory review of a trial court order that denies its motion to exclude testimony from one of the estate's expert witnesses, and which also denies, in part, National EMS's motion for summary judgment on the estate's negligence claims. In Case No A23A0469, Smith's Estate cross-appeals from the partial grant of National EMS's motion for summary judgment on the issues of punitive damages and attorney fees. The cases are consolidated for our review. For the reasons that follow, we reverse in Case No. A23A0291 and affirm in Case No. A23A0469.

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). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

(Citations omitted.) Herron v. Hollis, 248 Ga.App. 194, 194-195 (546 S.E.2d 17) (2001).

If a defendant who moves for summary judgment can point out by reference to the affidavits, depositions, and other evidence of record that there is no evidence sufficient to create a jury issue with respect to at least one essential element of the plaintiff's case, viewing all evidence and reasonable inferences therefrom in a light most favorable to the nonmoving party, without the necessity of weighing the evidence or determining the credibility of the witnesses, such defendant is entitled to summary judgment unless the plaintiff can come forward with specific evidence giving rise to a triable issue.

(Citation omitted.) Padgett v. Baxley and Appling County Hosp. Authority, 321 Ga.App. 66, 69-70 (1) (741 S.E.2d 193) (2013).

At 3:38 a.m. on April 19, 2019, Athens-Clarke County Police Dispatch ("Police Dispatch") transferred a 911 call to National EMS dispatcher Ollie Bazemore. Police Dispatch remained on the line while the caller told Bazemore that his girlfriend was "dying in [his] bed" and "needs help." Then the call disconnected. The caller did not reveal the type or cause of the emergency, so Bazemore characterized it as an "unknown problem." Bazemore called the number back, but the call went to voicemail. Because the caller had stated that he did not know his location or address, Police Dispatch used GPS from the call to determine an address and told Bazemore that police were on the way.

Bazemore dispatched National EMS paramedic Josh Willard and emergency medical technician Jacob Hester.

Willard deposed that at the time of dispatch, "there was no confirmed address, there was no confirmed patient, or patient information . . . [a]nd there was no contact with the caller." Willard, Hester, and the police arrived at the scene around the same time, 3:52 a.m. Officer Jonathan Surine of the Athens-Clarke County Police Department came to the window of Willard and Hester's vehicle, which was stopped on the street at the bottom of the steep driveway leading up to the house, and said, "[W]e have history at this address. There's a lawyer that lives here that is very anti-public safety. So you need to stage here, we'll go up and figure out if something's going on, and we'll let you know." Willard deposed that he "took that as an order of you are to stage[,]" and that he typically follows police orders like this, which to him meant, "that you stay away from the scene at a safe distance . . . you don't approach the active scene until cleared to do so by law enforcement."

After telling National EMS to stage at the bottom of the driveway, Surine walked up the steep hill to the house. He deposed that he did not expect the EMS team to walk up the driveway and knock on the doors of the home themselves. He had firsthand knowledge of where in the house Smith lived because he had been there before, responding to a call about her. She was flagged by Police Dispatch records as a "10-96," meaning she had a "mental health flag." During that prior call, Smith had told Surine "not to bang [on the door] real hard if we ever came back out again . . . or be loud, because . . . the rest of the house was where her father lived. And she said that he might get irritated."

Surine went to Smith's door at the back of the house and, over the course of several minutes, knocked five different times and stated, "Hannah, it's the Clarke County Police Department." Another police officer joined him partway through this process. Surine did not knock at the front door or carport side door. Surine's attempts to reach Smith were recorded on his body camera. He twice asked Police Dispatch to try to make phone contact and also shone his flashlight through a window, but further calls to the number got no response. He deposed that he did not observe any "exigent circumstance that would lead me to believe that somebody may have been in danger" to justify a forced entry.

After the second failed attempt at reaching the 911 caller by phone, Surine reported the incident as a "Status 2" - meaning an "unfounded complaint." He told Police Dispatch that he would "10-22" the National EMS team, meaning "quit/cancel, go back in service." He then began walking back down the driveway, where he met Willard, who had walked about two thirds of the way up the driveway to see what was causing the delay. The body camera recording shows Surine telling Willard, "Doesn't want to come to the door, so, let's get out of here." The recording ends at this point. As Surine recalled in his deposition, "I told them that they could 10-22, which means go back, like disregard, cancel."

Willard deposed that the National EMS dispatcher told the crew that Police Dispatch "advised we could cancel" and that he told his dispatcher that the police officer on the scene also had given them a "verbal cancellation." Bazemore, the National EMS dispatcher, deposed that "when police say[] cancel, they, you know, did what they're supposed to do and we don't override PD[,]" and that while either an EMT or law enforcement may cancel a call, "if law enforcement is dispatched, it would be law enforcement." "We had to be told [by the 911 police dispatcher] to cancel the call, which we were, and the call was cancelled." Bazemore then talked to the National EMS team, telling them they "could cancel." About seven minutes elapsed between the time EMS arrived on the scene and the time that the call was cancelled, at 3:59 a.m.

Smith's boyfriend, Dustin Eddy, testified at the coroner's inquest that he and Smith went out to get beer about five times and "drank over a hundred beers that day. I know we did." On the night at issue, he testified, "out of the blue[,] . . . [she] poured a pile [of pills] in her hand and put them on her tongue and I begged her, don't swallow them. When she swallowed them, that's when I grabbed her phone off her bed and called 911[.]" But, he testified, "she grabbed the phone from me, hung up on 911, told me no, they were - the police were not coming to her daddy's house. That was all I could do." Smith took the phone away from him and he did not know what happened to it. Eddy testified that because he was at Smith's house, "[s]he was kind of the boss.... She laid down. She explained to me that she had done this numerous times just to scare people. She had made it, it was no big deal. She laid down. I laid down." He did not hear the police arrive or knock on the door, he did not see lights, and he did not hear the phone ring again.

When Eddy woke the next morning, Smith's "body was really cold." He thought this was because the air conditioning was set to 60 degrees. He covered her up and shook her again. After a few minutes, when she did not wake up, at about 9:00 a.m., he called 911 again. The "Call for Service Report" for Eddy's call reports an "unresponsive female" and a "poss[ible] overdose," and that Eddy told 911 he had tried to call earlier but Smith "took the phone away from him and hid it; no emergency response was ever called for[.]" Senior Police Officer Shawn Denmark responded to the second 911 call, as did a different National EMS crew, whom he met at the bottom of the driveway because he knew it would be hard for them to find Smith's door. When Denmark arrived, fire fighters were already on scene, performing CPR. Smith was pronounced dead at the scene.

The Georgia Bureau of Investigation's Division of Forensic Sciences autopsy report noted a contusion on Smith's lower abdomen, hypertensive cardiovascular disease, postmortem toxicology of "highly elevated concentrations of" Metoprolol and Fluoxetine,^[2] and a "blood alcohol concentration of 0.223 grams per 100 mL." Her death was designated a "suicide."

Case No. A23A0291

1. National EMS argues that the trial court abused its discretion in denying its motion to exclude the opinions proffered by Smith's expert witness, James McCans. McCans provided deposition and affidavit testimony regarding the standard of care for...