Roberts v. Nessim

• Court: Georgia Court of Appeals
• Writing for the Court: Doyle
• Citation: Roberts v. Nessim, 676 S.E.2d 734, 297 Ga. App. 278 (Ga. App. 2009)
• Decision Date: 10 March 2009
• Docket Number: No. A08A2341.,No. A08A2342.,A08A2341.,A08A2342.
• Parties: ROBERTS v. NESSIM. Gwinnett Hospital System, Inc. v. Roberts.

676 S.E.2d 734

297 Ga. App. 278

ROBERTS v. NESSIM.

Gwinnett Hospital System, Inc. v. Roberts.

No. A08A2341.

No. A08A2342.

Court of Appeals of Georgia.

March 10, 2009.

Opinion Denying Reconsideration April 2, 2009.

Certiorari Denied June 8, 2009.

Hicks, Massey & Gardner, Frederick V. Massey, Winder, for appellant.

Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Shaun Daugherty, Jack G. Gresh, Lynda W. Kenney, Atlanta, for Gwinnett Hospital System, Inc. and Nessim.

DOYLE, Judge.

Virginia Roberts's late husband, Lester Roberts, died while a patient at Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center ("the Hospital"). Roberts brought a professional negligence and wrongful death action against the Hospital and Dr. Mourad Nessim, who provided medical care to the decedent. She later amended her complaint to allege a fraud claim against the defendants. The trial court granted summary judgment to Dr. Nessim, and Roberts appeals this ruling in Case No. A08A2341. In the same order, the trial court denied the Hospital's motion to dismiss Roberts's fraud claim, and the Hospital challenges that ruling on cross-appeal in Case No. A08A2342. For reasons that follow, we affirm.

The record shows that the decedent was admitted to the Hospital on December 28, 2002, with a history of stroke and diagnoses of hallucinations, progressive dementia, congestive heart failure, atrial fibrillation, and hypertension. After his admission, he had a stroke. The decedent was seen and treated by physicians in multiple specialties, including cardiology, pulmonology, neurology, and internal medicine. Dr. Nessim, who specializes in internal medicine, began treating him on January 7, 2003. On January 7, 2003, Dr. Nessim ordered that a nasogastric feeding tube be placed in the decedent's stomach based on the patient's inability to eat. Medical staff placed the feeding tube in the decedent, and the placement was confirmed by a radiologist via x-ray. On January 8, 2003, another x-ray was taken, and it revealed that the feeding tube was then located in his lungs. The feeding tube was then removed and reinserted, and its placement was again confirmed by an x-ray. The decedent died on January 10, 2003.

Roberts filed suit against the Hospital and Dr. Nessim, asserting professional negligence and fraud claims. In support of her claims, she submitted the affidavit of Dr. Mark Tidswell. Dr. Nessim moved for summary judgment, relying in part upon his own affidavit, stating that his treatment of the decedent did not fall below the standard of care and that no action or inaction by him caused or contributed to any injury alleged by Roberts. The trial court granted the motion, indicating in its order that Tidswell's

affidavit fails to establish that [the decedent's] injuries were proximate [sic] caused by [a] breach of the standard of care alleged therein. [Tidswell's] affidavit concludes that Plaintiff's decedent's death was the result of the lack of appropriate treatment for pneumonia. [Tidswell's] affidavit does not contain any basis for this conclusion, neither does it contain an allegation that Defendant Nessim was medically responsible for or involved in such treatment or lack thereof. Moreover, [Tidswell's] affidavit does not show an appropriate standard of care or set out any "particulars in which the defendant's treatment of the plaintiff was negligent," as required to overcome Defendant's motion for summary judgment.¹

The order further specifies that Roberts could not prevail on her fraud claim against Dr. Nessim because she "has not shown that a material fact exists to be tried as to Dr. Nessim's professional negligence."

The Hospital filed a motion to dismiss or, in the alternative, a motion for more definite statement on Roberts's fraud claim. The trial court denied the motion to dismiss, but granted the Hospital's motion for a more definite statement, requiring Roberts to amend her fraud claim within 35 days "to include the specificity required by OCGA § 9-11-9."

Case No. A08A2341

1. Roberts argues that the trial court erred in granting summary judgment to Dr. Nessim. We disagree.

To prevail at summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law.²

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. 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.³

(a) Professional negligence claim.

In support of his motion for summary judgment, Dr. Nessim submitted his affidavit in which he stated that his treatment of the decedent did not fall below the appropriate standard of care and that no action or inaction by him contributed to any injury alleged by Roberts. In opposition to the summary judgment motion, Roberts submitted the amended affidavit of her expert, Tidswell. Therein, Tidswell averred that Dr. Nessim breached the applicable standard of care when he: failed to suspect an aspiration event after the decedent experienced a choking episode; ordered the continuation of the decedent's feeding tube; failed to ensure that the decedent received the pulmonary consult that Dr. Nessim ordered; failed "to evaluate, diagnose, or treat an aspiration in [the decedent's] lungs." Tidswell further stated that the decedent's

chart reflects that his respiratory function continued to decline. Lab results on the morning of January 9, 2003 reveal that Mr. Robert[s] had an elevated white blood cell [sic]. It is my opinion that Mr. Roberts was suffering from pneumonia brought about by tube feeding aspiration. The pneumonia was not treated appropriately by Dr. Nessim [or the treating nurses]. As a result of the lack of treatment, Mr. Roberts died on January 10, 2003.

(i) Roberts alleges that the trial court erred in concluding that Tidswell's "amended affidavit failed to show that he was qualified to render his expert opinions." But the trial court made no such ruling. Although the court stated in its order that it was "not convinced" that Tidswell's affidavit was sufficient to establish that he was qualified to render the opinions contained therein, the trial court did not actually state a rationale or ruling on this issue. Thus, this enumeration presents no basis for reversal.

Dr. Nessim urges this Court to apply the "right for any reason rule" and affirm the trial court's grant of summary judgment— applying a de novo standard of review—on the basis that Tidswell failed to meet the qualification requirements for experts set forth in OCGA § 24-9-67.1. Pretermitting whether Tidswell was qualified to render his opinions in this case, the issue is not properly before us, given the trial court's failure to rule on this issue, the standard of review, and the language of the statute.⁴

(ii) Roberts further argues that the trial court erred in concluding that Roberts failed to establish that a breach of the standard of care by Dr. Nessim was the proximate cause of the decedent's injuries. We disagree.

To recover on a professional negligence claim, a plaintiff must demonstrate that the defendant physician violated the applicable medical standard of care and that the violation was the proximate cause of the injury.⁵ "Proof of negligence, alone, is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill."⁶ Further, "there can be no recovery where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided."⁷ If the defendant physician, in his motion for summary judgment

gives a medical affidavit that states a medical opinion that the alleged deviation from the standard of care has no causal connection with the injury or aggravated a pre-existing condition, such motion has pierced the plaintiff's pleadings, refuted causation, and shifted the burden to the plaintiff of coming forward with some evidence to create a material issue of fact, because the defendant ... has disproved the essential element of causation. When causation is involved, plaintiff has a more complex dilemma where the defendant has given expert testimony that there was no proximate cause, because to merely show a causal link does not refute the defendant's denial of causation and leaves an examination upon the entire record that the evidence does not create a triable issue as to the essential elements of causation, requiring the grant of summary judgment. Thus, the plaintiff must present medical expert opinion as to causation which may be aided by other medical or non-medical evidence that, in totality, shows causation, even though the medical opinion is weak, i.e., showing a reasonable possibility rather than a probability.⁸

Here, Dr. Nessim refuted causation and consequently pierced the pleadings by giving his medical affidavit.⁹ Accordingly, Roberts had the burden to produce evidence demonstrating the essential elements of causation; simply showing a causal link between Dr. Nessim's actions or inactions and the decedent's injuries was insufficient.¹⁰ Roberts relied solely on Tidswell's affidavit to meet her burden of production, failing to point to any additional evidence (medical or otherwise) to show causation. But Tidswell's conclusory affidavit is simply insufficient to create a genuine issue of fact as to causation.

In his affidavit, Tidswell avers that Dr. Nessim violated the standard of care by failing to properly diagnose and treat the decedent's feeding tube aspiration and that the aspiration caused the decedent's pneumonia. He then concludes that Dr. Nessim's failure to appropriately treat the pneumonia resulted in the decedent's death.¹¹...