Pham v. Black, A18A1360

• Decision Date: 10 October 2018
• Docket Number: A18A1361,A18A1360
• Citation: 347 Ga.App. 585,820 S.E.2d 209
• Parties: PHAM v. BLACK. Black v. Trinh et al.
• Court: Georgia Court of Appeals

347 Ga.App. 585

820 S.E.2d 209

PHAM

v.BLACK.

Black

v.Trinh et al.

A18A1360

A18A1361

Court of Appeals of Georgia.

October 10, 2018

Michael Scott Bailey, Randolph Page Powell Jr., Bailey Blair Sabulis, Arthur James Cheek, for Appellant in A18A1360 and Appellee in A18A1361

LaTisha Dear Jackson, Thomas G. Sampson, Thomas Gatewood Sampson II, Atlanta, for Appellee in A18A1360 and Appellant in A18A1361

Shermela Williams, for Appellant

Hunter S. Allen Jr., Joscelyn Marie Hughes, Xiaolin Layne Zhou, Margaret Alison Dobes, Robert P. Monyak, Austin Thomas Ellis, Michael Taylor Sumner, Wade K. Copeland, Stephanie Bowers Vari, Atlanta, for Appellee

Rickman, Judge.

Following the death of Jonathan Black ("the decedent"), his sister and administratrix of his estate, Nicolette Black, sued Drs. Hai Hong Trinh, James S. Abraham, Lily Lan-Nhu Huyen Pham, Newton Medical Center ("NMC"), and others, alleging, inter alia, that the individual doctors committed medical malpractice in their treatment of the decedent and violated their legal duty under the Federal Emergency Medical Treatment and Active Labor Act ("EMTALA") 42 USC § 1395dd by, inter alia, failing to stabilize the decedent prior to transferring him to another hospital.¹ Pham filed a motion for summary judgment alleging that Black’s claims against her must fail because she and the decedent did not have a doctor-patient relationship. Additionally, the doctors filed motions to dismiss Black’s claim of violation of a legal duty because EMTALA imposes a legal duty only upon hospitals, not individual doctors. Following a hearing, the trial court denied Pham’s motion for summary judgment but granted the motions to dismiss Black’s claim of violation of a legal duty.

On appeal in A18A1360, Pham contends that the trial court erred by denying her motion for summary judgment because she had no doctor-patient relationship with the decedent. In A18A1361, Black contends that the trial court erred in dismissing her claim of violation of a legal duty. For the following reasons, we reverse the trial court’s denial of Pham’s motion for summary judgment and we affirm the trial court’s grant of the doctors’ motion to dismiss.

We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may obtain summary judgment by showing an absence of evidence supporting at least one essential element of the plaintiff’s claim.

(Citation and punctuation omitted.) Donastorg v. Rainbow USA, Inc. , 342 Ga. App. 215, 215-216, 802 S.E.2d 425 (2017)

So viewed, the record shows that on February 19, 2013, the 23-year-old decedent arrived at the NMC emergency department by ambulance complaining of a racing heart rate. On that evening, Pham was the only night-shift hospitalist on duty, and her responsibilities included admitting patients to NMC and taking care of emergent issues that developed with any patients who had already been admitted. Pham had the ability to admit patients from the emergency department.

Trinh, the emergency department doctor who treated the decedent, paged Pham, described the decedent’s symptoms, and informed her that he had spoken with Abraham, the on-call cardiologist. Pham told Trinh that she was reluctant to admit the decedent until his heart rate could be lowered. Pham exchanged text messages with Abraham about the decedent’s condition, and Abraham recommended that the decedent be placed in the ICU, Pham replied that she was concerned about the decedent staying at NMC because of his symptoms at his young age. Trinh diagnosed the decedent as suffering from a thyroid storm

. Trinh had never previously treated a patient with a thyroid storm.

In a second conversation, Trinh informed Pham about the thyroid storm

and advised her that Abraham recommended the decedent be admitted to the ICU. This conservation was cut short when the decedent "coded." Pham then had a third conversation with Trinh during which Trinh advised her that the decedent had "coded" and was on life support. Pham suggested that Trinh inform Abraham about the decedent’s change in condition. Pham decided that the decedent should not be admitted to NMC. Abraham told Trinh that he decided to transfer the decedent to Emory University Hospital so that he could receive a higher level of care. Trinh signed the transport form which indicates that the transfer was due to "lack of needed services." While the decedent was treated at NMC, Pham never saw him.

The decedent was transported via helicopter to Emory and "coded" during the flight. The following morning, Pham sent a text message to Abraham inquiring if he had heard anything about the decedent’s condition. Abraham responded that the decedent was, "[a]live but very sick ... I guess you [have] learned not to trust that idiot [Trinh]." Pham replied, "Most definitely. Trinh is a moron and an embarrassment to my race." Once at Emory, the decedent was stabilized, however he died the next day.

A18A1360

1. Pham contends that the trial court erred in denying her motion for summary judgment because she had no doctor-patient relationship with the decedent. We agree.

It is well settled Georgia law that proof of three essential elements is required to establish liability in a medical malpractice action: (1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.

(Citation and punctuation omitted.) Tomeh v. Bohannon , 329 Ga. App. 596, 598, 765 S.E.2d 743 (2014). See OCGA § 51-1-27. "[T]here can be no liability for malpractice in the absence of a physician-patient relationship. Doctor-patient privity is essential because it is this relationship which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct." (Citation and punctuation omitted.) Anderson v. Houser , 240 Ga. App. 613, 615 (1), 523 S.E.2d 342 (1999). "The relationship is considered consensual where the patient knowingly seeks the assistance of the physician and the physician knowingly accepts him as a patient." (Citation and punctuation omitted.) Id.

"Although a doctor who has agreed to be on-call makes himself available to be consulted regarding a patient’s condition, that fact alone does not indicate that the doctor has agreed to establish a doctor-patient relationship with any patient who presents herself to the hospital for diagnosis and treatment." Anderson , 240 Ga. App. at 619 (1), 523 S.E.2d 342. "Indeed, there may be many circumstances where an on-call physician who is consulted about a particular patient does not feel competent to diagnose and treat the patient." Id."Clearly, in those circumstances, the mere fact that the doctor has agreed to be on call for consultation does not establish a consensual doctor-patient relationship." Id."A plaintiff has to show more than that a doctor was the on-call physician at the time of the patient’s injury. Georgia law requires some evidence of an actual doctor-patient relationship." Tomeh , 329 Ga. App. at 601 (b), 765 S.E.2d 743.

Here, Pham was the hospitalist on duty at the time the decedent was being treated at NMC and was called for consultation by Trinh and Abraham. Pham never met the decedent and did not participate in his diagnosis or his treatment. Additionally, Pham deposed that she had never treated anyone with a thyroid storm

, and while she was familiar with the medications required to treat a thyroid storm, she did not know when the medication should be administered. Pham believed that NMC did not have the capacity to treat a patient suffering from a thyroid storm because there was not an endocrinologist on staff. Abraham arranged the decedent’s transfer to Emory and Trinh signed the transfer document.

Under these facts and circumstances where Pham’s sole involvement with the decedent was consulting with his treating doctors regarding whether he should be admitted to NMC and ultimately refusing to admit him, we do not find that Pham and the decedent had an actual doctor-patient relationship. See Tomeh , 329 Ga. App. at 600-601 (b), 765 S.E.2d 743 (b) (holding that there was no doctor-patient relationship where pediatrician who was on call during baby’s birth did not diagnose or treat the baby); see also Anderson , 240 Ga. App. at 620-621 (1), 523 S.E.2d 342 (finding that the on-call doctor who did not diagnose or treat patient was not in privity with patient); Minster v. Pohl , 206 Ga. App. 617, 620 (1), 426 S.E.2d 204 (1992) (where the trial court properly granted summary judgment in favor of the emergency room doctor on duty because "[a]lthough [the doctor] unquestionably took action with respect to the decedent, viewing the x-ray and making a notation on her chart, nothing in the record justifies the inference that Pohl was acting as her doctor.") (emphasis in original). Accordingly, the trial court erred in denying Pham’s motion for summary judgment.

A18A1361

2. Black contends that the trial court erred in dismissing her violation of a legal duty claim because EMTALA imposes a legal duty on the individual doctors but does not provide a cause of action and, thus, the claim was properly brought pursuant to OCGA § 51-1-6.

"This appeal presents a question of law, which we review de novo." (Citation and punctuation omitted.) Atlanta Women’s Health Group, P.C. v. Clemons , 299 Ga. App. 102, 681 S.E.2d 754 (2009).

"EMTALA ... was intended to prevent "patient dumping," the practice of some hospital emergency rooms turning away or transferring indigents to public hospitals without prior assessment or stabilization treatment." Harry v. Marchant , 291 F.3d 767, 772 (III) (B) (11th Cir. 2002). EMTALA imposes certain requirements on hospitals with emergency departments, including "if any individual ... comes to the emergency...