Padgett v. Baxley and Appling County Hospital Authority, A12A1902.

• Decision Date: 29 March 2013
• Docket Number: No. A12A1902.,A12A1902.
• Parties: PADGETT v. BAXLEY AND APPLING COUNTY HOSPITAL AUTHORITY.
• Court: Georgia Court of Appeals

321 Ga.App. 66

741 S.E.2d 193

PADGETT

v.BAXLEY AND APPLING COUNTY HOSPITAL AUTHORITY.

No. A12A1902.

Court of Appeals of Georgia.

March 29, 2013.

Buzzell, Graham & Welsh, Neal B. Graham, Macon, for Appellant.

Erica S. Jansen, Atlanta, Huff, Powell & Bailey, Randolph Page Powell, Jr., for Appellee.

McFADDEN, Judge.

Nelda F. Padgett's mother was an Alzheimer's patient at a nursing home when she fell from her shower chair, suffered serious injuries, and died a week later. Padgett sued the nursing home ¹ on behalf of her mother's estate for pain and suffering and as next of kin for wrongful death damages, alleging that her mother's injuries and death were caused by professional negligence, ordinary negligence, and breach of contract, and also on the theory that her mother's statutory rights as a nursing home patient under the “Bill of Rights for Residents of Long-term Care Facilities,” OCGA § 31–8–100 et seq., had been violated. The trial court granted the nursing home's motion for summary judgment on all grounds and Padgett appeals. As detailed below, we find no genuine issues of material fact as to the claims for professional negligence, breach of contract, or breach of a duty under OCGA § 31–8–100 et seq., and we affirm the grant of summary judgment on those claims. We find, however, that genuine issues of material fact exist as to the claim for ordinary negligence, and we reverse the grant of summary judgment as to that claim.

“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.” (Citations and punctuation omitted.) Walker v. Gwinnett Hosp. System, 263 Ga.App. 554, 555, 588 S.E.2d 441 (2003). A trial court's grant of summary judgment is reviewed de novo on appeal, construing the evidence in the light most favorable to the nonmovant. Ethridge v. Davis, 243 Ga.App. 11, 12, 530 S.E.2d 477 (2000). Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga.App. 174, 390 S.E.2d 87 (1990).

So viewed, the record establishes that Padgett's mother, Juanita Walls, became a patient at the Appling Nursing and Rehabilitation Pavilion in March 2006. On November 22, 2008, a certified nursing assistant (“CNA”) and another employee at the facility placed Walls in a shower chair so the CNA could bathe her. The CNA removed Walls' underwear, turned around and placed it in a plastic bag, and then she turned back around to see Walls on the shower floor. Walls suffered multiple injuries and underwent surgery the next day. She was transferred to hospice care the day after that, and died on November 29, 2008, a week after the fall.

Padgett filed the underlying action alleging that the nursing home was negligent in

failing to follow proper fall prevention protocol for [Walls] by leaving her unattended in the shower room; by failing to use proper restraints to insure that she did not fall out of the shower chair; ... and for violating the standards and duties of providing that reasonable care and skill applicable to nurses, doctors and staff in a nursing home environment.

Padgett also asserted that the nursing home “failed to exercise that degree of skill and care required of medical professionals and nursing professionals generally and under similar conditions and like surrounding circumstances in a nursing home setting.” She attached two affidavits to her complaint, one from an internal medicine physician (“Dr. Jones”), and one from a registered nurse (“Nurse Smith”). Both health care professionals averred that they made their affidavits pursuant to OCGA § 9–11–9.1 in support of Padgett's professional negligence claim. In essentially identical affidavits, the affiants averred that Walls was at high risk for falls and that the nursing home was “negligent by failing to properly follow fall protocol[,] by leaving the patient unattended, ... by failing to properly supervise staff; and by failing to provide an adequate shower chair with proper restraints.” Dr. Jones said the nursing home was also negligent for “failing to write correct orders to ensure [Walls'] safety,” and Nurse Smith said the nursing home was negligent for “failing to follow or request orders to ensure [Walls'] safety.”

The nursing home moved for summary judgment, asserting that Padgett had submitted no competent expert testimony to support her claims. It maintained that Padgett's affidavits were insufficient to establish any genuine issues of material fact because the affiants' opinions were not based on personal knowledge, and because certified copies of the medical records on which the opinions were based were not attached to the affidavits. Further, the nursing home argued that the affidavits did not contain the necessary information required by former OCGA § 24–9–67.1 to establish the affiants' expert qualifications.

In response to the nursing home's motion, Padgett argued that the nursing home had failed to submit an expert's affidavit that pierced the allegations in her complaint. She further contended that the affidavits attached to her complaint constituted sufficient evidence to create a jury issue, and also submitted the affidavit of Ellen Lewis, a registered nurse. Lewis averred that the medical care and treatment the nursing home provided to Walls, “in particular by her attending nurses, certified nursing assistants (CNAs) and staff fell below that degree of care and skill ordinarily employed ... in general and under like conditions and similar circumstances.” She specifically averred that the CNA left Ms. Walls unattended, even if only briefly, failed to request a proper fall and risk assessment before attending to Ms. Walls, or to request correct orders to insure her safety; or to properly supervisor [sic] her while preparing to give her a shower. In addition, they were negligent by placing her in an ill-fitting shower chair without proper restraint or other precautions taken to prevent her from falling out of the chair, or prevent her from pushing herself out.

Finally, Padgett also argued that genuine issues existed regarding her ordinary negligence, breach of contract, and statutory claims.

The trial court granted the nursing home's motion for summary judgment. The court found that the affidavits of Dr. Jones and Nurse Smith that were attached to Padgett's complaint were insufficient to establish a genuine issue of material fact because they were based on the unsupported assumptions that Walls was alone on an ill-fitting shower chair when she fell, and “[did] not relate to the standard of care to be exercised by persons who are attending impaired residents while they shower, which is the determinative issue.” ²

The trial court found that “[t]he affidavit of Ellen Lewis, R.N. is therefore the sole expert evidence presented” to establish that an issue of material fact existed about whether the nursing home breached the professional standard of care, but held that Lewis' affidavit was insufficient because Lewis relied on medical records that were not included with the affidavit.

The trial court further concluded that Padgett could not maintain a cause of action for damages based on the “Bill of Rights for Residents of Long-term Care Facilities,” OCGA § 31–8–100 et seq., because the alleged tort involved professional negligence, and that she could not prevail on her remaining claims based on the evidence of record.

1. Padgett first contends that the trial court erred in granting the nursing home's motion for summary judgment, arguing that the record contains evidence establishing the existence of genuine issues of material fact in her professional negligence claim. She asserts that in each of her affidavits, the medical professional testified with specificity about each element required to demonstrate that the conduct of the nursing home staff fell below the applicable standard of care, and that the nursing home presented no evidence that its conduct met the standard of care. She also argues that the nursing home failed to pierce her pleadings by pointing to the absence of particular facts that would entitle it to summary judgment.

However, a defendant need not present expert testimony, or any testimony, to prevail on summary judgment. A defendant need only assert that the plaintiff has not presented evidence sufficient to establish genuine issue of facts on all the elements of the claim for the burden to shift to the plaintiff to establish the existence of jury issues.

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 and punctuation omitted.) Meli v. Hicks, 300 Ga.App. 894, 896, 686 S.E.2d 489 (2009).

In this case, although Padgett presented the affidavits of three health care professionals, none of them included certified copies of the medical records on which the affiants relied.

To be sufficient to controvert the defendant's expert opinion and [to] create an issue of fact, the plaintiff's expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state the particulars in which the defendant's treatment of the plaintiff was negligent.

(Punctuation omitted.) Hailey v. Blalock, 209 Ga.App. 345, 347(2), ...