Orr v. SSC Atlanta Operating Co.

• Decision Date: 01 July 2021
• Docket Number: A21A0578
• Citation: 360 Ga.App. 702,860 S.E.2d 217
• Court: Georgia Court of Appeals
• Parties: Stephanie ORR et al. v. SSC ATLANTA OPERATING COMPANY d/b/a Northeast Atlanta Health and Rehabilitation Center.

360 Ga.App. 702

860 S.E.2d 217

Stephanie ORR et al.

v.SSC ATLANTA OPERATING COMPANY d/b/a Northeast Atlanta Health and Rehabilitation Center.

A21A0578

Court of Appeals of Georgia.

July 1, 2021

Reconsideration Denied July 14, 2021

Certiorari Denied January 11, 2022

Warshauer Law Group, Lyle Griffin Warshauer, Michael Eric Perez, Atlanta, for Appellant.

Huff Powell & Bailey, Randolph Page Powell, Jr., Karen Lea Smiley, for Appellee.

McArthur Law Firm, Caleb F. Walker, amicus curiae.

Pipkin, Judge.

In this medical malpractice case, Appellant Stephanie Orr¹ appeals the disqualification of two of her expert witnesses and the grant of summary judgment in favor of Appellee SSC Atlanta Operating Company, LLC d/b/a Northeast Atlanta Health and Rehabilitation Center ("NAHR"). While we conclude that the trial court did not abuse its discretion in disqualifying Orr's expert witnesses, we also conclude that the trial court failed to properly consider the expert testimony of Orr's remaining expert witness when deciding summary judgment; accordingly, we affirm in part and reverse in part.

In February 2014, Rhonda Orr ("decedent"), had surgery to repair the quadriceps tendon

in her right knee. The decedent eventually developed an infection in her knee and was readmitted to the hospital for additional surgical procedures; on June 25, 2014, she was admitted to NAHR by her attending physician, Sam Qingshuang Peng, M.D., for further recovery and convalescence. On July 16, 2014, the decedent became unresponsive after experiencing shortness of breath and a decrease in her oxygen saturation

; she was transported to the hospital and died that same day.

The complaint that followed alleges, as relevant here, that the decedent's cause of death was a pulmonary thromboembolus

resulting from a dislodged deep-vein thrombosis ("DVT"). According to the complaint – which asserts claims of both negligence and wrongful death – Dr. Peng failed to recognize that the decedent's mobility was comprised while at NAHR, putting her at risk for a DVT, and failed to "provide proper prophylaxis against the development of [a] DVT[ ] by prescribing an oral or injectable anticoagulant medication." With respect to NAHR – which is the sole defendant who is party to this appeal – the complaint similarly alleges that the nurses at the facility failed to appreciate the decedent's risk of DVT, failed to report the decedent's immobility to the relevant physicians, and failed to institute a DVT prophylaxis protocol. Attached to the complaint was an affidavit of Richard Bonfiglio, M.D., who opined, in relevant part, that the decedent's care by the NAHR nursing staff "fell below the minimum care and treatment required of nurses generally, under like conditions or similar circumstances." Later, Orr supported her claims by offering deposition testimony from three medical providers, Dr. Bonfiglio, Thomas DeMarini, M.D., and Nurse Ethel Willis, RN, BSN, MSN.

NAHR later moved to disqualify Dr. Bonfiglio and Nurse Willis on the basis that neither witness had "the requisite knowledge of the nursing standard of care under the circumstances at issue" as required by OCGA § 24-7-702 ; NAHR also moved for summary judgment. The trial court granted NAHR's motion to disqualify and granted summary judgment in favor of NAHR, concluding that "without Dr. Bonfiglio's and Nurse Willis’ ... testimony, [Orr was] unable to establish that [NAHR's] nursing employees or agents breached the applicable standard of care." The trial court alternatively concluded that, even considering the testimonies of Dr. Bonfiglio and Nurse Willis, there was "no evidence that NAHR nurses breached any legal duty that proximately caused [the decedent's] damages," namely, that there was nothing in the record to suggest that any act or omission by the NAHR nurses contributed either to Dr. Peng's allegedly negligent course of treatment or could have altered its outcome. Orr now appeals, arguing that it was error for the trial court to disqualify her witnesses and grant summary judgment.

1. We first turn to the trial court's ruling on Orr's expert witnesses, the admissibility of which is controlled by OCGA § 24-7-702 ("Rule 702").

See Dubois v. Brantley , 297 Ga. 575, 580 (2), 775 S.E.2d 512 (2015). At issue here are various portions of subsection (c) of Rule 702, which establish the requirements "for the admission of expert testimony about the applicable standard of care in all professional malpractice cases, including medical malpractice cases." Dubois , 297 Ga. at 580 (2), 775 S.E.2d 512. As relevant here, Rule 702 (c) provides:

(c) [I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:

...

(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; [and]

...

(C) Except as provided in subparagraph (D) of this paragraph:

(i) Is a member of the same profession;

...

(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, ... has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider.

To determine whether an expert is qualified under this provision, Georgia courts examine "both the area of specialty at issue and what procedure or treatment was alleged to have been negligently performed," Anderson v. Mountain Mgmt. Svcs., Inc. , 306 Ga. App. 412, 414 (1), 702 S.E.2d 462 (2010), both of which are dictated by the complaint. Id. See also Dubois , 297 Ga. at 588 (2), 775 S.E.2d 512 (looking to complaint to consider the scope of alleged negligence); Graham v. Reynolds , 343 Ga. App. 274, 278 (2) (b), 807 S.E.2d 39 (2017) (same). The admission of expert testimony is left to the sound discretion of the trial court. Graham , 343 Ga. App. at 276 (2), 807 S.E.2d 39.

With respect to NAHR, the complaint alleges that the care provided by the nurses at that facility

fell below the standard of minimum care and treatment required of nurses in a rehabilitation facility in at least the following respects: (1) failing to recognize that [the decedent's] mobility was compromised by her recent leg surgery, putting her at risk for DVTs; (2) failing to notify the staff physician of [the decedent's] ongoing immobility; and (3) failing to institute a DVT prophylaxis protocol.

Thus, based on the allegations as set out by Orr in her complaint, the question here is what evidence was before the trial court that Dr. Bonfiglio and Nurse Willis were qualified to opine on the standard of care of nurses pertaining to DVT risks in patients at a rehabilitation facility.²

(a) With respect to Dr. Bonfiglio, there is no evidence from either his original affidavit or his deposition testimony that he is a physician who "during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses." Rule 702 (c) (2) (D). While the evidence is plain that Dr. Bonfiglio has extensive knowledge and experience in rehabilitation medicine, and while his deposition testimony references his "interactions" with nurses as a "normal part of medical practice" – as well as some lectures given to nurses – he expressly testified that he had not recently supervised nurses and, in fact, had not done so in over a decade. Even if it could be said that Dr. Bonfiglios's affidavit and deposition create a question concerning his supervision of nurses, the trial court, acting as gate keeper, was authorized to resolve this conflict to conclude that Dr. Bonfiglio's experience was insufficient to satisfy the statutory requirements. See Vaughan v. WellStar Health System, Inc. , 304 Ga. App. 596, 600 (1), 696 S.E.2d 506 (2010), overruled on other grounds, Lee v. Smith , 307 Ga. 815, 823 (2), 838 S.E.2d 870 (2020). See also McKuhen v. TransformHealthRX, Inc. , 338 Ga. App. 354, 360 (1), 790 S.E.2d 122 (2016) (physical precedent only). Thus the trial court did not abuse its discretion with respect to Dr. Bonfiglio.

(b) With respect to Nurse Willis, Orr argues on appeal that she was competent to testify concerning the "management of a rehabilitation patient at risk for DVT" and that Nurse Willis has "experience caring for patients at risk of DVT within 3 of the 5 years prior to 2014." Assuming for the sake of argument that these are accurate characterizations of what is alleged in the complaint – which is questionable – there is no evidence supporting these conclusions.³

While Nurse Willis began working for a long-term care facility around the time of the decedent's death, Nurse Willis’ curriculum vitae and deposition testimony reflect that, in the relevant time frame preceding the incident in this case, Nurse Willis was employed at an outpatient facility working in endocrinology and nephrology. It is true that Nurse Willis’ employment in a different speciality area does not exclude her from consideration here, Dubois , 297 Ga. at 584-586 (2), 775 S.E.2d 512, but there is nothing in either...