Smith v. Rodillo

• Decision Date: 13 November 2014
• Docket Number: No. A14A0967.,A14A0967.
• Parties: SMITH v. RODILLO.
• Court: Georgia Court of Appeals

330 Ga.App. 365

765 S.E.2d 432

SMITH

v.RODILLO.

No. A14A0967.

Court of Appeals of Georgia.

Nov. 13, 2014.

Reconsideration Denied Dec. 15, 2014.

Certiorari Denied April 20, 2015.

Frails & Wilson, Randolph Frails, Edwin Armon Wilson, Augusta, John Mell Clark, for Appellant.

McClure, Ramsay, Dickerson & Escoe, John A. Dickerson, Toccoa, for Appellee.

Opinion

RAY, Judge.

Glenn Smith sued Eugene S. Rodillo, M.D., a urologist, claiming that Rodillo was professionally negligent in failing to examine Smith after he presented at Elbert Memorial Hospital with symptoms which warranted examination by a urologist, and that he suffered damages as a result. Before trial, the trial court granted Rodillo's motion to exclude certain testimony by Smith's urology expert regarding the causation and permanence of Smith's alleged erectile dysfunction

. The trial court then bifurcated the proceedings into an initial trial on the issue of whether a physician-patient relationship existed between Smith and Rodillo, to be followed by a trial on the issue of damages. At the close of Smith's case, Rodillo moved for a directed verdict on the issue of the physician-patient relationship. The trial court granted the motion and then entered judgment for Rodillo.

On appeal, Smith contends that because there was some evidence supporting the existence of a physician-patient relationship between Smith and Rodillo, the trial court erred in directing a verdict in Rodillo's favor. Smith also claims that the trial court erred in excluding portions of his expert's testimony. For the reasons that follow, we conclude that the trial court erred in directing a verdict for Rodillo, and that the trial court's order excluding portions of Smith's expert's testimony must be vacated and the case remanded with direction. Accordingly, we reverse in part and vacate in part.

1. Smith claims that the trial court erred in granting Rodillo's motion for directed verdict because there was some evidence of a physician-patient relationship between Rodillo and Smith. We agree.

A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9–11–50(a). But where any evidence or some evidence exists to support a jury issue on the non-movant's claims, a directed verdict is improper. This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.

(Citations and punctuation omitted.) Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga.App. 832, 835, 730 S.E.2d 556 (2012).

The evidence adduced at trial shows that on January 10, 2006, Smith came to the Elbert Memorial Hospital (the “Hospital”) emergency room complaining of swelling to his penis and scrotum, difficulty urinating, and chest congestion. ER physician James Barton, M.D., attempted without success to insert a catheter so as to drain Smith's bladder. Barton contacted urologist Rodillo, described Smith's condition, including that Smith had difficulty voiding and was experiencing a fever and chills, and asked if Rodillo would be available to help with the insertion of the catheter. Rodillo recommended that Barton use a Coude catheter

, but that if Barton was unable to “get that [in],” he would be available. Rodillo also suggested that Barton order a PSA test. Barton was able to successfully insert the Coude catheter shortly thereafter.

Later that evening, Barton called Smith's family practice physician, Steven Durocher, M.D., and advised Durocher that, in light of Smith's condition, Smith should be admitted to the hospital. Durocher then authorized Smith's admission over the phone. Durocher went to the Hospital the next morning for rounds, and he examined Smith at that time. After concluding that Smith needed to be evaluated by a urologist, Durocher called Rodillo on either January 11 or January 12, 2006. After Durocher presented Rodillo with his findings concerning Smith's physical exam, vital signs, and lab work, Rodillo advised Durocher to order a twenty-four-hour creatinine clearance

, renal CT, and nuclear renal flow scan, and Durocher ordered the tests. Durocher testified that he expected Rodillo to come in to examine the patient, and no one informed him that Rodillo was going to be out of the country.

Smith was subsequently diagnosed with Fournier's gangrene

, a rapidly developing, tissue-killing disease, and he was treated with, among other things, two debridements to cut away dead tissue, as well as skin grafts to cover the areas where the skin had been destroyed. The Fournier's gangrene diagnosis was made on January 15, 2006, and Dr. Arnold Melman, a urologist who the parties agreed was an expert in the field of urology, opined that if Smith had been seen by a urologist the diagnosis could have been made on January 10, 2006, when Smith came in to the emergency room, or at the latest the next day, and, if so, Smith would probably not have needed the extensive surgery he was later required to undergo. Melman opined that the information provided to Rodillo by Barton, particularly that Smith was also experiencing a fever, constituted a “red flag,” which should have prompted Rodillo to come to the Hospital and see Smith.

Rodillo testified that when he spoke with Barton on January 10, 2006, he was scheduled to fly to the Philippines the next day to visit his sick brother. Rodillo was normally on call “24–7” for urological services. According to Rodillo, on the day he spoke with Barton, “all the way through several weeks, the Athens Urology Group is covering for all my urology cases.” Rodillo testified that he had also contacted the Hospital and informed the secretary of administration that he would be out of town, and he understood that the Hospital would create a memorandum to that effect and distribute it to the departments of the Hospital and to the physicians practicing in the county. Rodillo could not confirm, however, that such a memorandum was actually distributed by the Hospital.

Although Rodillo had arranged for Athens Urology to take care of any urological problems regarding his patients, Rodillo saw the emergency call from the Hospital and, he explained, “since I'm still in town ... I answered it to help ... in case they cannot get hold immediately of ... Athens Urology.” According to Rodillo, Barton asked for advice in inserting the catheter, and he told Barton to use Xylocaine

jelly and a Coude catheter. Rodillo acknowledged that he may not have told Barton that he was going out of town. Rodillo did not recall having any conversations with Durocher.

Rodillo further testified that he had never seen Smith and that Smith was not his patient. Rodillo acknowledged, however, that he “had something to do with [Smith's] treatment,” that he “had something to do with [Smith's] diagnosis,” and that his “ordering those tests or suggesting that those tests be ordered had an impact on Mr. Smith's care.”

It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of a physician-patient relationship. In such cases, called classic medical malpractice actions, doctor-patient privity is essential because it is this relation which is a result of a consensual transaction that establishes the legal duty to conform to a standard of conduct. 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.) Crisp Regional Hosp., Inc. v. Oliver, 275 Ga.App. 578, 584(5), 621 S.E.2d 554 (2005). See, e.g., Ussery v. Children's Healthcare of Atlanta, Inc., 289 Ga.App. 255, 271(6), 656 S.E.2d 882 (2008) (“Georgia law is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action”) (citation, punctuation, and footnote omitted). A physician-patient relationship may be implied, Rindsberg v. Neacsu, 317 Ga.App. 269, 273, 730 S.E.2d 525 (2012), and it can also be established by circumstantial evidence. See Walker v. Jack Eckerd Corp., 209 Ga.App. 517, 524(3), 434 S.E.2d 63 (1993).

In this case, Smith, having presented himself “to the emergency room may generally be assumed to have consented to treatment by any physician associated with the hospital who offers such treatment.” Anderson v. Houser, 240 Ga.App. 613, 619(1), 523 S.E.2d 342 (1999). Accordingly, the key issue “in determining the existence of a doctor-patient relationship is whether the physician has knowingly accepted such individual as his patient.” Id. In this respect,

[m]erely listening to another physician's description of a patient's problem and offering a professional opinion regarding the proper course of treatment is not enough. Under those circumstances, a doctor is not agreeing to enter into a contract with the patient. Instead, [he] is simply offering informal assistance to a colleague. At the other end of the spectrum, a doctor who is on call and who, on the phone or in person, receives a description of a patient's condition and then essentially directs the course of that patient's treatment, has consented to a physician-patient relationship. The difficulty arises in determining where, between these two extremes, a physician-patient relationship (and thus a duty) arises.

(Punctuation omitted.) Id. at 618(1), 523 S.E.2d 342. A doctor does not have to physically examine a patient in order for the doctor-patient relationship to arise. See Rindsberg, supra at 273, 730 S.E.2d 525 (where defendant was the on-call doctor for her practice who was responsible for treating the patient in the absence of the attending physician, and had called to check on the patient, but failed to take any action in response to receiving new information that the attending doctor would have wanted to know for purposes of treating the patient, an issue of fact remained as to the existence of...