Ob-Gyn Associates, P. A. v. Brown

Decision Date23 October 2020
Docket NumberA20A1447
CourtGeorgia Court of Appeals
Parties OB-GYN ASSOCIATES, P. A. et al. v. BROWN et al.

Heather Clark McGrotty, Paul E. Weathington, David Christopher Hanson, Atlanta, for Appellant.

Joseph H. King Jr., Atlanta, Kenneth M. Leivne, for Appellee.

Colvin, Judge.

Kimberly and Onswa Brown, individually and as next friends of K. B., a minor, ("Plaintiffs") filed the instant medical malpractice lawsuit against Ob-Gyn Associates, P. A. and Peggy Register, CNM ("Defendants") for injuries that the newborn sustained during childbirth in the obstetrical unit at Wellstar Kennestone Hospital. Defendants appeal from the trial court's denial of their partial motion for summary judgment regarding the applicable standard of care. This court granted Defendantsapplication for interlocutory appeal. On appeal, Defendants argue that the heightened gross negligence standard set forth in OCGA § 51-1-29.5 (c) applies to all emergency medical care provided in an obstetrical unit. Defendants also argue that the trial court erroneously concluded that an issue of material fact precluded summary judgment on the issue of whether the shoulder dystocia

at issue constituted a medical emergency as defined by OCGA § 51-1-29.5 (a) (5). For the following reasons, we reverse.1

This Court reviews

the grant or denial of summary judgment ... de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Summary judgment is warranted only where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.

(Citations omitted.) Abdel-Samed v. Dailey , 294 Ga. 758, 760 (1), 755 S.E.2d 805 (2014).

So viewed, the record shows that on March 12, 2012, Kimberly Brown presented at Wellstar Kennestone Hospital for labor and delivery. Brown labored at the hospital until nurses notified Peggy Register, the certified nurse midwife, that Brown would deliver soon at 11:04 a.m. and paged her 11:41 a.m. The medical record prepared by Register shows that at 11:51 a.m., a spontaneous vaginal delivery occurred. The delivery note stated that the head was delivered, there was no nuchal cord, and a shoulder dystocia

occurred that was resolved within 40 seconds.2

The delivery summary notes state that during the 40-second shoulder dystocia

, Register performed standard shoulder dystocia alleviation maneuvers, including the McRoberts maneuver, suprapubic pressure, a rotational maneuver of the anterior shoulder, and delivery of the posterior arm. She also utilized lateral traction in the delivery. As a result of the traction used during the delivery, the newborn had a broken clavicle, caput succedaneum, bruising on the forehead and face, and a permanent injury to her right brachial plexus.

Plaintiffs sued Defendants for the newborn's injuries arising from the midwife's handling of the shoulder dystocia

. Plaintiff's complaint alleges that the newborn's injury was due to Register's application of excessive traction during the forty seconds after the shoulder dystocia

was encountered.

Defendants filed for partial summary judgment regarding the applicable standard of care, arguing that the heightened gross negligence standard set forth in OCGA § 51-1-29.5 applies in this case. The trial court denied the motion, finding that the gross negligence standard did not apply because Brown never presented to the hospital's emergency department. The trial court's order further held that an issue of material fact existed as to whether the shoulder dystocia

constituted a medical emergency because Register was able to resolve the shoulder dystocia within forty seconds.

1. Defendants argue that the trial court erred by denying their motion for partial summary judgment regarding the applicable standard of care. For the following reasons, we reverse.

When construing statutory language, our analysis must begin

with familiar and binding canons of construction. First and foremost, in considering the meaning of a statute, our charge as an appellate court is to presume that the legislature meant what it said and said what it meant. And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. In summary, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

(Punctuation and footnotes omitted.) Southwestern Emergency Physicians, P. C. v. Quinney , 347 Ga. App. 410, 420-421 (3), 819 S.E.2d 696 (2018). With these guidelines in mind, we turn to the statutory language at issue.

In 2005, the Georgia General Assembly passed an emergency medical care law reducing the standard of care in cases involving the provision of certain categories of "emergency medical care" from negligence to gross negligence. OCGA § 51-1-29.5. The relevant portion of that statute provides:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department , no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

OCGA § 51-1-29.5 (c).3 If the gross negligence standard of care described in OCGA § 51-1-29.5 (c) applies to the instant case, then the Plaintiffs "would bear the burden at trial of proving by clear and convincing evidence that the [D]efendants were grossly negligent" in their treatment of the shoulder dystocia

. See Abdel-Samed , 294 Ga. at 765 (3), 755 S.E.2d 805.4

Defendants argue that the gross negligence standard set forth in OCGA § 51-1-29.5 applies to Plaintiff's claims because the alleged malpractice occurred while Brown was a patient who received emergency medical care in an obstetrical unit at the hospital. Defendants argue that the limiting phrase "immediately following the evaluation or treatment of a patient in a hospital emergency department" in OCGA § 51-1-29.5 (c) applies only to emergency care provided "in a surgical suite." Plaintiffs, on the other hand, argue that the limiting phrase applies to obstetrical units as well, so that the statute should be read to mean that the gross negligence standard applies only to the "provision of emergency medical care ... in an obstetrical unit ... immediately following the evaluation or treatment of a patient in a hospital emergency department[,]" and not to all emergency medical care rendered in an obstetrical unit.

Applying the plain and ordinary meaning of the statute and rules of grammar, as we must, we note that OCGA § 51-1-29.5 (c) constitutes a list of three locations followed by a limiting clause. In OCGA § 51-1-29.5 (c), the legislature specified three locations within a hospital where a provider of emergency medical care would be subject to the gross negligence standard. The list is twice set apart by the preposition "in." The first use of the preposition "in" creates one category of two locations that are not modified by the limiting phrase – that is: "the hospital emergency department" and "the obstetrical unit." The second use of the preposition "in" creates a second location category that is modified by the limiting phrase: "in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department," which distinguishes this third location from the two identified earlier in the sentence. See OCGA § 51-1-29.5 (c) ("In an action involving a health care liability claim arising out of the provision of emergency medical care [(1) (a)] in a hospital emergency department or [(b)] obstetrical unit or [(2)] in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department ...") (emphasis supplied). The limiting phrase "immediately following the evaluation or treatment of a patient in a hospital emergency department" acts as a spatial and temporal modifier that clearly applies only to care rendered in a surgical suite in an effort to distinguish from routine and planned care provided in a surgical suite. See, e. g., Keaton v. State , 311 Ga. App. 14, 28 (1), 714 S.E.2d 693 (2011) (Blackwell, J. concurring in part and dissenting in part) ("According to the rule of the last antecedent, which is an accepted convention of English grammar, a limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows") (punctuation omitted) (citing Barnhart v. Thomas , 540 U. S. 20, 26 (II), 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) ). Accord Deal v. Coleman , 294 Ga. 170, 173-174 (1) (a), 751 S.E.2d 337 (2013).

Although "[i]t is true that the rule of the last antecedent is not an absolute and can assuredly be overcome by other indicia of meaning," Keaton , 311 Ga. App. at 28, 714 S.E.2d 693, there is no contrary indicia of meaning in OCGA § 51-1-29.5 (c) that suggests the limiting phrase should be construed to either of the other two locations identified in the statute: the "hospital emergency department" and the "obstetrical unit."5 Instead, applying the limiting phrase to all locations in the series would result in the absurd requirement that a heightened standard only apply in "a hospital emergency department [...] immediately following the evaluation or treatment of a...

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