Pendley v. Southern Reg'l Health System Inc.

• Decision Date: 24 November 2010
• Docket Number: No. A10A0869.,A10A0869.
• Citation: 704 S.E.2d 198,307 Ga.App. 82
• Parties: PENDLEY et al.v.SOUTHERN REGIONAL HEALTH SYSTEM, INC.
• Court: Georgia Court of Appeals

307 Ga.App. 82

704 S.E.2d 198

10 FCDR 3987

PENDLEY et al.

v.SOUTHERN REGIONAL HEALTH SYSTEM, INC.

No. A10A0869.

Court of Appeals of Georgia.

Nov. 24, 2010.

Donald W. Johnson, for appellant.Greenberg Traurig, Lori G. Cohen, R. Scott Campbell, Paul E. Weathington, Atlanta, and Stanley Paul Riepe, for appellee.DOYLE, Judge.

Linda Pendley, individually and on behalf of the estate of Mark Pendley, her son, brought the instant medical malpractice action against various parties, including Southern Regional Health System, Inc., d/b/a Southern Regional Medical Center (“Southern Regional”). Pendley appeals the trial court's order granting summary judgment to Southern Regional as well as the trial court's order granting Southern Regional's motion in limine to exclude expert testimony of Dr. Jonathan Ilowide. For the reasons that follow, we affirm.

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. OCGA § 9–11–56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. ¹

Furthermore,

the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. ²

So viewed, the evidence establishes that decedent Mark Pendley arrived at the emergency room of Southern Regional on November 29, 2003, complaining of nausea and abdominal pain. Mark was examined by Dr. William Watkins, who deposed that Mark's blood sodium level was very low, close to the point at which seizures could occur, and he had exhibited tachycardia and hypotension, but Dr. Watkins's evaluations had not produced a diagnosis for the cause of the symptoms. Dr. Watkins also ordered a series of further tests in an attempt to discover the cause of Mark's abdominal pain, and in the early morning of November 30, Dr. Watkins determined that Mark should be admitted to the telemetry floor.

That morning, Dr. Watkins discussed Mark's case with Dr. Cashmir C. Okoro, and Dr. Watkins's order for admission stated “Admit to telemetry. Diagnosis: Abdominal pain, hypotension, electrolyte imbalance. Attending Dr. Okoro. Condition: Fair.... Call Dr. Okoro on arrival of the patient to the floor for further orders.” After Dr. Watkins's discussion with Dr. Okoro some time after 6:20 a.m. on November 30, an emergency room nurse noted in the Intra–Hospital Transfer section of the emergency room records that Mark's blood pressure was 79/49; the Transfer section states that it is to be completed (including recording various vital signs such as blood pressure of the patient) within 30 minutes of a patient's transfer, which occurred in this case at 8:00 a.m. on November 30. Dr. Okoro deposed that he reviewed these records prior to examining Mark. The nurse's notes do not indicate whether this blood pressure reading was orally communicated to any physician.

On the afternoon of December 1, Dr. Okoro examined Mark. Early on the morning of December 2, Mark's condition deteriorated, and he passed away.

Dr. Ilowide, who practices in pulmonary and critical care and who testified as Pendley's expert witness, deposed that his practice employs two registered nurses and a nurse practitioner. Dr. Ilowide deposed that he annually conducted continuing education classes for nurses at Winthrop University Hospital. Dr. Ilowide also specifically deposed that he (1) never trained or practiced as a nurse, (2) did not regularly train or supervise nurses outside of writing orders that nurses then carried out, (3) was not an expert in the nursing field, and (4) was not an expert as to the standard of care of nurses. Dr. Ilowide deposed that based on the medical record, his education and experience, and Dr. Okoro's deposition, he believed Mark died after suffering from sepsis or an idiopathic problem, which led to acute respiratory distress syndrome, which was apparent while he was still in the emergency room and escalated into the full-blown syndrome while he was in telemetry. He concluded that an “institutional failure” occurred when Mark was not admitted to the intensive care unit (“ICU”) because of his deterioration during his emergency room stay, and had Mark been admitted to the ICU, he likely would have survived.

Dr. Ilowide deposed that he did not “have [any] specific criticisms” of the nursing care provided to Mark; he also deposed that the nurse who noted in Mark's records the blood pressure reading of 79/49 should have orally communicated the reading to the treating physician because it was so abnormal, but he agreed with defense counsel's statement that he could not say any particular failure on the part of a nurse involved in Mark's care was a breach of the standard of care. Dr. Ilowide also deposed that Dr. Okoro breached the standard of care by allowing Mark to be admitted to telemetry instead of the ICU and by not transferring Mark from telemetry to the ICU while Dr. Okoro treated him during the following hours.

Southern Regional submitted the affidavit of Susan A. Nemchik, director of risk management, which stated that (1) Dr. Okoro does not have an employment contract with Southern Regional; (2) Southern Regional did not exercise control over the manner in which Dr. Okoro rendered care for his patients; (3) Southern Regional did not provide medical malpractice insurance for Dr. Okoro; (4) Southern Regional did not directly compensate Dr. Okoro for services rendered to Mark; and (5) Southern Regional did not bill for Dr. Okoro's services. Dr. Okoro's affidavit provided that at the time of Mark's death, Dr. Okoro was a shareholder, member, and employee of Southside Internal Medicine, P.C. In addition to stating that he maintained a separate practice from Southern Regional, Dr. Okoro's affidavit stated that he (1) maintained his own insurance and (2) billed patients separately from Southern Regional for services rendered at the hospital. Dr. Okoro's affidavit maintains that he never stated to Pendley or Mark that he was an employee of Southern Regional. Moreover, Pendley, on behalf of Mark, signed two documents, a “General Consent for Treatment” and a “Routine Consent,” each of which stated that all physicians providing treatment at Southern Regional were independent contractors and not employees of Southern Regional.

In its order, the trial court determined that Dr. Okoro was not an employee of Southern Regional, and Pendley had no reason at the time of Mark's admission to believe that Dr. Okoro was employed at Southern Regional. Additionally, the trial court concluded that Dr. Ilowide's testimony should be excluded as to the standard of care of nurses because he did not meet the requirements of OCGA § 24–9–67.1(c)(2)(D). The trial court also concluded that, even if Dr. Ilowide's testimony was admissible, Pendley had failed to present evidence that any alleged breach of the standard of care of the nurses treating Mark was the proximate cause of Mark's death. Based on those findings, the trial court granted summary judgment on Pendley's claims to Southern Regional.

1. Pendley argues that the trial court erred by granting summary judgment to Southern Regional based on the alleged negligence of Dr. Okoro.

(a) First, Pendley argues that the trial court erred by granting Southern Regional's motion for summary judgment on its finding that Dr. Okoro was not an employee of Southern Regional.

[F]or the hospital to be held liable [for the acts of a doctor,] it must be shown that the doctor was an employee of the hospital and not an independent contractor. The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner [,] and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.³

Because the cause of action here arose prior to February 16, 2005, we apply the factors set forth in Cooper v. Binion,⁴ in order to determine whether Pendley has submitted sufficient evidence to show that there is a question of fact as to whether Dr. Okoro was an employee of Southern Regional. These factors are:

(a) The right to direct the physician's work step-by-step[;] ... (b) Contracts to perform a service rather than accomplish a task[;] ... (c) The right of the hospital to inspect the physician's work[;] ... (d) The supplier of the equipment[;] ... (e) The nature or skill of the physician's work [;] ... (f) The hospital's right to control the physician's time[;] ... (g) The method of payment[;] ... (h) [The r]ight to choose which patients to treat [;] ... (i) Physician spends all working hours at hospital[;] ... (j) The method of billing the patients[; and] ... (k) Payments for medical malpractice insurance.⁵

Specifically, Pendley contends that the trial court erred by granting summary judgment on the question of whether Dr. Okoro was an employee because (1) Southern Regional exercised control over Dr. Okoro's time and schedule for working at the hospital, and (2) Southern Regional supplied equipment to Dr. Okoro. Dr. Okoro deposed that at the time he treated Mark, he had been on call for Southern Regional for the preceding 24 hours and was required to be the admitting doctor on November 29 and 30. He also deposed that he utilized the hospital dictation equipment when recording his notes on hospital patients, and he does not maintain separate files for those patients in his private practice. Dr. Okoro also...