Nowak v. High
| Decision Date | 08 June 1993 |
| Docket Number | No. A93A0129,A93A0129 |
| Citation | 209 Ga.App. 536,433 S.E.2d 602 |
| Parties | NOWAK v. HIGH. |
| Court | Georgia Court of Appeals |
The Koski Firm, Robert C. Koski, Steven I. Goldman, Atlanta, for appellant.
Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Brian R. Neary, Atlanta, for appellee.
Appellant Nowak appeals the dismissal of her complaint in her lawsuit for medical malpractice against Dr. Thomas High.
Most of the facts relevant to this appeal are undisputed. On October 29, 1991, Nowak filed a complaint against Dr. High, alleging that he had directed that she receive an injection of phenergan in the right gluteus because of her complaints of nausea. According to the complaint, High, or his staff, negligently injected the drug into Nowak's lower hip area, as a result of which she sustained injuries. The complaint alleges that High's treatment was negligent in that the injection was made into the lower, instead of upper hip area.
Attached to the complaint was the affidavit of Marilyn Whited, a registered nurse, who had also received a master's degree in nursing. She stated in her affidavit that she had reviewed the medical records and was familiar with the standard of care exercised with regard to the nursing practice. She then stated:
The affiant states that the giving of deep intramuscular injections is common, although it is necessary to avoid giving those injections in areas of high nerve density in order to avoid nerve damage. In Whited's opinion, the injection was given in a dangerous area and should have been given in a higher region of the hip. Whited opines that by giving the injection in the lower hip region, Dr. High's treatment of Nowak fell beneath the standard of care exercised in the medical community and constituted medical negligence.
High filed an answer to the complaint and then a motion to dismiss in which he argued that Whited's affidavit was insufficient under OCGA § 9-11-9.1. He contended that as a nurse, Whited was incompetent to testify against him and that her affidavit contained no proof that the two differing schools of expertise were the same in the area of giving phenergan injections.
In response to the motion, Nowak filed a second affidavit of Whited. In this affidavit, Whited clearly set forth the fact that the practice of giving shots of phenergan is the same for nurses and doctors. High argued that, pursuant to Cheeley v. Henderson, 261 Ga. 498, 405 S.E.2d 865 (1991), the defect in Whited's original affidavit was not curable by amendment.
Citing Milligan v. Manno, 197 Ga.App. 171, 397 S.E.2d 713 (1990), and Sandford v. Howard, 161 Ga.App. 495(4), 288 S.E.2d 739 (1982), the trial court granted the motion to dismiss pursuant to OCGA § 9-11-9.1(a), because of its determination that there was insufficient proof in Whited's affidavit that the method of giving phenergan injections was the same for nurses and physicians. Thus, the trial court concluded, Whited's affidavit was not within the exception to the general rule that a member of a school of practice other than that to which the defendant belongs is not competent to testify against such a defendant. In her sole enumeration of error, Nowak contends that the affidavit was sufficient and that the trial court erred in granting the motion to dismiss.
Our first step in analyzing Nowak's contentions is to scrutinize carefully the complaint's allegations against High. The allegation of negligence was that High, either individually or acting through his servants and staff, negligently injected phenergan into Nowak's right gluteus. The complaint alleges that the administration of the injection was negligent; there is no contention that High's direction that the injection be given in the right gluteus was negligent. 1
We are aware that there are some instances in which a nurse is competent to testify against a doctor. In McCormick v. Avret, 154 Ga.App. 178, 267 S.E.2d 759, aff'd Avret v. McCormick, 246 Ga. 401, 271 S.E.2d 832 (1980), "this court held and our Supreme Court agreed it was error for the trial court not to qualify a nurse as an expert witness concerning what constitutes reasonable care in keeping sterilized a needle used to draw blood from a patient because there was no evidence that the drawing of blood is a medical treatment exclusively within the professional skills of medical doctors." Tye v. Wilson, 208 Ga.App. 253, 254, 430 S.E.2d 129, 130 (1993). In McCormick, the Supreme Court stated: "A nurse may or may not be qualified to state an inference as to a medical or surgical matter according to the extent of his or her training and experience and the subject of the inference." (Citation and punctuation omitted.) Id. at 401, 271 S.E.2d 832. 2 In Tye, supra, this court addressed the opposite situation, and concluded that because of their overlapping expertise, a doctor was competent to give an affidavit against a nurse in a malpractice suit against a nurse, involving the care and treatment of the post-operative, intubated patient.
The question presented here is whether there is sufficient proof of overlapping expertise to establish that nurse Whited was competent to give the affidavit against High, a medical doctor. " 'The general rule is that a member of a school of practice other than that to which the defendant belongs is not competent to testify as an expert in a malpractice case.' " Milligan, supra at 171, 397 S.E.2d 713, citing Sandford, supra. Milligan, supra at 171, 397 S.E.2d 713.
Contrary to the trial court's holding, we conclude that Whited's affidavit was sufficient proof that the methods of treatment for the giving of phenergan injections by nurses and doctors are the same. In her affidavit, Whited clearly states that she is familiar with the standard of care regarding the giving of phenergan injections in both the nursing...
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