Quinney v. Phoebe Putney Mem'l Hosp., Inc., A13A1616.

• Citation: 325 Ga.App. 112,751 S.E.2d 874
• Decision Date: 21 November 2013
• Docket Number: No. A13A1616.,A13A1616.
• Parties: QUINNEY, et al. v. PHOEBE PUTNEY MEMORIAL HOSPITAL, INC., et al.
• Court: United States Court of Appeals (Georgia)

325 Ga.App. 112

751 S.E.2d 874

QUINNEY, et al.

v.PHOEBE PUTNEY MEMORIAL HOSPITAL, INC., et al.

No. A13A1616.

Court of Appeals of Georgia.

Nov. 21, 2013.

Adams & Jordan, Virgil Louis Adams, Macon, William C. Heard, Adams & Adams, Charles R. Adams III, for Appellants.

Joseph Pryor Durham Jr., Donald W. Lee, Albany, Huff, Powell & Bailey, Jeffrey Daniel Braintwain, Michael Geoffrey Frankson, Atlanta, for Appellees.

RAY, Judge.

Douglas L. Quinney and his wife sued Phoebe Putney Memorial Hospital, Inc. and Phoebe Putney Health System, Inc. (“the hospital”), Southwestern Emergency Physicians,P.C., Raymond E. Gutierrez, M.D., Elizabeth Kenja, R.N., and David Stalvey, R.N. (collectively referred to as “ the defendants”) asserting claims for professional negligence and for violations of the Federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) under 42 USC § 1395dd, alleging that the defendants failed to provide Mr. Quinney with necessary medical treatment while he was in the emergency department of the hospital. The trial court granted summary judgment in favor of the defendants, finding that OCGA § 51–1–29.5 applied to the Quinneys' negligence claims and that the Quinneys failed to satisfy their evidentiary burden of showing gross negligence by clear and convincing evidence. The trial court further found that the hospital was entitled to judgment on the Quinneys' EMTALA claim. The Quinneys appeal, arguing that the trial court erred: (1) in finding that their claims arose out of the provision of “emergency medical care” as defined by OCGA § 51–1–29.5(a)(5); or (2) if OCGA § 51–1–29.5 does apply, in finding that they failed to show gross negligence by clear and convincing evidence; and (3) in finding that they failed to show that the hospital violated the federal EMTALA statute. For the reasons that follow, we reverse the trial court's grant of summary judgment.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9–11–56(c). On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

(Citations omitted.) Ansley v. Raczka–Long, 293 Ga. 138, 140(2), 744 S.E.2d 55 (2013). Our review of the grant or denial of a motion for summary judgment is de novo. Woodcraft by Macdonald, Inc. v. Ga. Cas. and Surety Co., 293 Ga. 9, 10, 743 S.E.2d 373 (2013).

So viewed, the evidence shows on March 11, 2009, Mr. Quinney underwent surgery to have a spinal cord stimulator implant placed in his back to relieve a neuropathic condition in his feet. The surgery was performed by a neurosurgeon in Columbus, Georgia. Immediately after the surgical procedure, Mr. Quinney was discharged and allowed to go back to his home in Albany.

Five days later, in the early morning hours of March 16, 2009, Mr. Quinney awakened with severe pain in his back. When he got up and walked around in an attempt to alleviate the pain, he noticed that one of his legs was getting weak such that he could no longer stand, so he laid across an ottoman in his living room. During this time, Mr. Quinney told his wife that he could no longer feel his legs. As Mr. Quinney was screaming in pain, Mrs. Quinney called 911 and requested an ambulance. By the time the ambulance arrived, Mr. Quinney had lost the ability to move his right leg, and he had to be physically picked up and placed on a stretcher.

Mr. Quinney was transported by ambulance and arrived at the emergency department of the hospital in Albany at approximately 5:55 a.m. He was immediately triaged by nurse Stalvey, who classified Mr. Quinney as a “level two” patient, meaning that there could be some serious complications if he did not receive immediate medical attention. Mr. Quinney told Stalvey that his pain was a “nine” on a scale of zero to ten, with ten being the worst. Although Mr. Quinney was screaming in pain during his initial examination, Stalvey was able to obtain Mr. Quinney's medical history, which included his history of neuropathy, as well as the fact that he had recently received a spinal cord stimulator implant.

At approximately 6:09 a.m., Mr. Quinney was examined by Dr. Gutierrez. Dr. Gutierrez noted that Mr. Quinney had presented to the emergency room with severe pain in his back, and Dr. Gutierrez further noted that Mr. Quinney had recently undergone surgery to implant the spinal cord stimulator. Dr. Gutierrez performed a physical examination on Mr. Quinney, as well as a general neurologic examination to evaluate his alertness, his orientation to person, place, and time, his cranial nerve responses, and his motor deficits. Although Dr. Guiterriez's differential diagnosis included the possibilities of a spinal canal abscess or a spinal canal hematoma, ¹ Dr. Gutierrez never performed a complete neurologic examination of Mr. Quinney, which would have included a test for deep tendon reflexes, a neurological sensory exam, and tests to determine if Mr. Quinney had the ability to ambulate.² Instead, Dr. Gutierrez ordered a CT scan of Mr. Quinney's spine.

During the CT scan, Mr. Quinney could not lie on his back and had to lie in a different position for the procedure. After the CT scan was performed, the results were interpreted by a radiologist.³ The radiologist found no evidence of an abscess or any abnormal fluid collection at the operative site along Mr. Quinney's spine, and his impression of the area was consistent with a recent neurostimulator implant. The radiologist's report was made available to Dr. Gutierrez at 8:46 a.m.

Importantly, Dr. Gutierrez was unaware that Mr. Quinney could not lie on his back for the CT scan, even though it was clearly noted in the medical records. Dr. Gutierrez testified at his deposition that he did not know if this fact would have changed his mind about the results of the CT scan.

At 8:55 a.m., Dr. Gutierrez re-examined Mr. Quinney and noted that he remained symptomatic. Despite this fact, there is no evidence in the medical records to indicate that Dr. Gutierrez performed any more physical or neurological examinations of Mr. Quinney. Based on his initial examination of Mr. Quinney and the results of the CT scan, Dr. Gutierrez removed the possibilities of a spinal canal abscess and a spinal canal hematoma from his differential diagnosis.

Dr. Gutierrez called the neurosurgeon at the medical center in Columbus who had performed the spinal cord stimulator implant surgery to discuss the details of Mr. Quinney's presentation to the emergency room. After Dr. Guiterriez informed the neurosurgeon that Mr. Quinney's general neurological examination and CT scan results were both normal, the neurosurgeon agreed to have Mr. Quinney transferred to him at the medical center in Columbus for further evaluation and treatment. At 9:23 a.m., Dr. Gutierrez ordered Mr. Quinney's transfer to the medical center in Columbus.

After nurse Stalvey went off duty at 7:00 a.m., nurse Kenja was assigned to monitor Mr. Quinney and to attend to his care during the remainder of his stay in the emergency room. Mr. Quinney had been given several doses of pain medications throughout his stay at the emergency room, with little or no effect. Although Mr. Quinney remained symptomatic, the evidence shows that both Stalvey and Kenja failed to perform any neurologic assessments of Mr. Quinney. Mr. Quinney's vital signs, including the severity of his pain, were worse at the time of his discharge than they were at the time of his admission into the emergency room.

Dr. Gutierrez's final diagnosis for Mr. Quinney was “back pain, status post back surgery.” Around 12:30 p.m., approximately three hours after the patient transfer order was entered, Mr. Quinney was discharged from the emergency room and transported by ambulance to the medical center in Columbus. Upon his arrival at the medical center at approximately 3:00 p.m., Mr. Quinney was irreversibly paralyzed from a spinal cord compression caused by an expanding spinal canal hematoma.

1. In granting summary judgment to the defendants, the trial court found that the Quinneys' negligence claims arose out of the provision of emergency medical care and were therefore subject to the higher evidentiary standard (clear and convincing evidence) and the lower standard of care (gross negligence) mandated by OCGA § 51–1–29.5. The Quinneys contend that the trial court erred in finding that this statute applied to their negligence claims because the treatment Mr. Quinney received was not emergency medical care. We disagree.

OCGA § 51–1–29.5(c) provides, in pertinent part:

In an action involving a health care liability claim arising out of the provision of emergency medical care 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(a)(5) defines “[e]mergency medical care” as:

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

The Quinneys argue that OCGA § 51–1–29.5...