Nisbet v. Davis

• Decision Date: 12 June 2014
• Docket Number: No. A14A0261.,A14A0261.
• Citation: 327 Ga.App. 559,760 S.E.2d 179
• Court: Georgia Court of Appeals
• Parties: NISBET, et al. v. DAVIS.

327 Ga.App. 559

760 S.E.2d 179

NISBET, et al.

v.DAVIS.

No. A14A0261.

Court of Appeals of Georgia.

June 12, 2014.

Melissa R. Phillips Reading, Rolfe Millar Martin, Atlanta, for Appellant, et al.

J. Marcus Edward Howard, for Appellee.

BARNES, Presiding Judge.

Johnny J. Davis, as the surviving spouse of Brenda Davis, sued Dr. Rachel Nisbet and Gwinnett Pulmonary Group, P.C. for wrongful death, contending that the defendants failed to properly diagnose and treat Mrs. Davis for a bowel perforation at the Gwinnett Medical Center. Moving for summary judgment, the defendants argued that the plaintiff's claim arose out of the provision of “emergency medical care in a hospital emergency department” under Georgia's emergency medical care statute, OCGA § 51–1–29.5. Consequently, the defendants argued that the plaintiff was required to meet the heightened evidentiary burden of that statute and show by clear and convincing evidence that Dr. Nisbet was grossly negligent in her care and treatment of Mrs. Davis. According to the defendants, the plaintiff failed to make such a showing.

The trial court denied summary judgment to the defendants, finding that OCGA § 51–1–29.5 did not apply because Mrs. Davis was not “in a hospital emergency department” when she was under the care of Dr. Nisbet. However, the trial court granted a certificate of immediate review to the defendants, and we granted their application for interlocutory appeal. This appeal followed in which we must determine whether the trial court erred in denying the defendants' motion for summary judgment under OCGA § 51–1–29.5.

For the reasons discussed below, we conclude that the trial court erred in determining that OCGA § 51–1–29.5 did not apply in this case. Nevertheless, we affirm the trial court's denial of summary judgment to the defendants because a question of fact exists as to whether the plaintiff demonstrated by clear and convincing evidence that Dr. Nisbet was grossly negligent.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9–11–56(c). On appeal from the denial of summary judgment, our review is de novo, and we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. Bank of North Ga. v. Windermere Dev., 316 Ga.App. 33, 34, 728 S.E.2d 714 (2012). “Moreover, we will affirm a trial court's denial of a motion for summary judgment if it is right for any reason.” Lowry v. Cochran, 305 Ga.App. 240, 241, 699 S.E.2d 325 (2010).

Construed in favor of the plaintiff, the evidence showed that on the morning of September 10, 2009, Mrs. Davis, who was 64 years old, underwent laparoscopic surgery at DeKalb Medical Center to address an ovarian cyst and pelvic pain. The surgical procedure was performed under general anesthesia and included the removal of Mrs. Davis's right ovary and fallopian tube, as well as the lysis of adhesions found on her abdominal wall. During the course of the laparoscopic procedure, the surgeon inadvertently perforated Mrs. Davis's bowel twice. However, neither the surgeon nor the other medical personnel discovered the perforation, and Mrs. Davis was discharged from the hospital around noon.

In the early afternoon of September 11, 2009, Mrs. Davis felt unwell and became short of breath. Mrs. Davis and her husband attempted to return to DeKalb Medical Center, but they diverted to Gwinnett Medical Center, which was closer to their home, because Mrs. Davis felt like she could not breathe at all.

Mrs. Davis and her husband arrived at the Gwinnett Medical Center emergency department at around 4 p.m. Following her arrival at the emergency department, Mrs. Davis complained of difficulty breathing. She had very low blood pressure, to the point where a triage nurse was unable to read her blood pressure using two separate machines. According to an assessment sheet filled out by a different nurse, Mrs. Davis had labored breathing and was “moaning [with] every breath.” In light of her symptoms and appearance, Mrs. Davis's acuity level was assessed by the triage nurse as “emergent.” One of the plaintiff's medical experts later opined that when Mrs. Davis arrived at the emergency department, she was already suffering from septic shock from the bowel perforation and needed immediate surgery to save her life.

At 4:40 p.m., Dr. Keith Buchanan, an emergency department physician, examined Mrs. Davis. Mrs. Davis told Dr. Buchanan about her recent surgery and informed him that she was having difficulty breathing and that her abdomen felt “tight.” After conducting a physical examination, Dr. Buchanan developed a differential diagnosis of pulmonary embolism, aspiration pneumonia, or intra-abdominal bleeding. He ordered a chest x-ray, abdominal ultrasound, and laboratory cultures.

At 5:49 p.m., Mrs. Davis began vomiting a green substance while waiting in the emergency department. Subsequently, at 7:45 p.m., an emergency department nurse noted on her assessment sheet that Mrs. Davis's abdomen was “firm and distended” and was “tender to touch.” The nurse informed Dr. Buchanan, who paged Dr. Rachel Nisbet at 7:45 p.m. and asked her to come to the emergency department to evaluate Mrs. Davis because of her “critical status.”

Dr. Nisbet is a physician with the Gwinnett Pulmonary Group and is board certified in internal medicine, pulmonology, and critical care. The Gwinnett Pulmonary Group manages patients in the Intensive Care Unit (“ICU”) at Gwinnett Medical Center, although its physicians also serve as consultants in the emergency department and often evaluate critically ill patients there before they are admitted to the ICU. Dr. Nisbet was the on-call physician for the Gwinnett Pulmonary Group starting at 5:00 p.m. on Friday, September 11 until 7:00 a.m. on Saturday, September 12.

Dr. Nisbet first saw Mrs. Davis in the emergency department at 8:51 p.m., according to medical records produced by the hospital. Dr. Nisbet spoke with the nurses and Dr. Buchanan, evaluated the x-ray and ultrasound results, and spoke with Mrs. Davis and her husband about her medical history, including her recent surgery. Mrs. Davis was able to communicate to Dr. Nisbet that she was unable to breathe, that she was scared, and that her post-operative abdominal pain was slightly worse than the previous day. Dr. Nisbet conducted a physical exam and noted in her progress notes that Mrs. Davis's abdomen was “[d]istended with tenderness in both the left and right lower quadrant her incision site.” She also noted that Mrs. Davis had diminished breath sounds, a blood pressure of only “80/42,” and tachycardia (an elevated heart rate). Mrs. Davis's blood work further indicated that she was in acute renal failure.

Following her examination of Mrs. Davis, Dr. Nisbet ordered that she be admitted into the ICU under her care at approximately 9:00 p.m. Based on her physical exam and review of the tests ordered by Dr. Buchanan, Dr. Nisbet concluded that Mrs. Davis was in septic shock caused by aspiration pneumonia in light of her recent surgery. She decided not to order an abdominal CT scan because she believed that Mrs. Davis's condition was too precarious to permit moving her to the radiology department to obtain the scan. Despite the temporal connection between Mrs. Davis's surgery and the onset of her symptoms and the inability to obtain a CT scan, Dr. Nisbet chose not to order a surgical consult to rule out whether Mrs. Davis had a bowel perforation or other complication causing her sepsis that would require emergency surgery to correct.

Although Mrs. Davis was unstable and her life-threatening condition was deteriorating, Dr. Nisbet went home after her initial examination of Mrs. Davis. Mrs. Davis was the only patient that Dr. Nisbet had to treat during the rest of her on-call shift.

Mrs. Davis remained in the emergency department for the next several hours, despite the order entered by Dr. Nisbet to have her admitted to the ICU. While Dr. Nisbet believed that Mrs. Davis needed to be transferred immediately to the ICU, she did not follow up with the ICU to facilitate the transfer and was unaware of the delay.

Around midnight, when Mrs. Davis was still in the emergency department, another physician called Dr. Nisbet and informed her that he had been unsuccessful at placing a central line in Mrs. Davis and was still having to rely on two peripheral IV lines already in place. Although Dr. Nisbet could have placed the central line herself, she decided “that it was okay for now and that [she] would consult vascular surgery for placement of a central line.” However, Dr. Nisbet remained at home and chose not to consult vascular surgery at that time.

At 12:26 a.m., Dr. Nisbet was notified by an emergency department nurse that Mrs. Davis's heart rate was in the 150s and that she had decreased urinary output. Dr. Nisbet changed her medications over the phone but did not return to the hospital.

Shortly after 1:00 a.m., Mrs. Davis was transported to the ICU. On the way to the ICU, one of Mrs. Davis's peripheral IV lines came out. Mrs. Davis's remaining peripheral IV line infiltrated a few hours later. Dr. Nisbet was informed and ordered another medication over the phone to counteract the infiltration.

Dr. Nisbet returned to the hospital at 4:00 a.m. to place the central line herself and reevaluate Mrs. Davis. Upon conducting an abdominal exam on Mrs. Davis, Dr. Nisbet became concerned that Mrs. Davis was suffering from an “acute” or “surgical” abdomen, meaning an acute intra-abdominal condition that can be caused by, among other things, bleeding or perforation, and that usually requires surgical intervention. Around 6:00 a.m., Dr. Nisbet wrote orders for a surgical consult to evaluate Mrs. Davis's abdomen.

Around 6:30 a.m., Dr. William McGann, another physician with the Gwinnett...