Snider v. Basilio, No. S06G0559.

• Decision Date: 30 October 2006
• Docket Number: No. S06G0559.
• Citation: 637 S.E.2d 40,281 Ga. 261
• Parties: SNIDER et al. v. BASILIO et al.
• Court: Georgia Supreme Court

281 Ga. 261

637 S.E.2d 40

SNIDER et al. v.BASILIO et al.

No. S06G0559.

Supreme Court of Georgia.

October 30, 2006.

Reconsideration Denied November 20, 2006.

Hardy Gregory, Jr., Davis & Forehand, Cordele, John Sherrod Taylor, Jefferson C. Callier, Taylor, Harp & Callier, Columbus Frederick S. Bergen, Bergen & Bergen, Savannah, for appellant.

David Norton Nelson, Chambless, Higdon & Carson, Macon, Robert C. Martin, Hatcher, Stubbs, Land, Hollis & Rothchil, Columbus, H. Andrew Owen Jr., Amy Jo Kolczak, Elizabeth Louise Fite, Owen Gleaton Egan Jones & Sweeney, LLP, Atlanta, for appellee.

THOMPSON, Justice.

This Court granted a writ of certiorari to the Court of Appeals in Snider v. Basilio,276 Ga.App. 315, 623 S.E.2d 521(2005), and posed this question: In what circumstances, if any, is evidence of a nurse's failure to pass a licensing examination admissible in a medical malpractice action against the employing physician?

Rebecca and Matthew Snider brought this medical malpractice action against Dr. Florida Basilio, a pediatrician, Magelie DeVera, her nurse, and others.The cause of action arose when the Sniders' six-month-old son, Luke, became sick and they called Dr. Basilio's office.The weekend call was answered by Ms. DeVera, an unlicensed nurse who graduated from nursing school but failed to pass the nursing licensing examination three times.Mrs. Snider relayed Luke's symptoms and told Ms. DeVera that Luke had been to an after hours clinic where he had been diagnosed with a stomach virus.Ms. DeVera advised Mrs. Snider that Luke should be given fluids and a special diet.Ms. DeVera did not call Dr. Basilio after giving that advice.Early the next morning, Ms. Snider called and spoke with Dr. Basilio directly.The doctor advised the Sniders to give Luke a bottle because he probably was hungry.When Ms. Snider called back again, she was told she could bring Luke to the office.Mrs. Snider took Luke to a hospital emergency room instead.Ultimately, Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia.

At trial, the Sniders introduced expert testimony that Dr. Basilio violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician.To support that testimony, the Sniders showed that Ms. DeVera was not licensed.However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.The Court of Appeals affirmed that aspect of the case, Snider v. Basilio,supra at 317, 318, 623 S.E.2d 521, and we granted certiorari.We now affirm.

In Williams v. Memorial Med. Ctr.,218 Ga.App. 107, 460 S.E.2d 558(1995), plaintiffs brought suit against a hospital for the death of their six-month-old son.The trial court granted the hospital's motion in limine to exclude evidence that the attending physician failed his pediatric board examination.In granting the motion, the trial court ruled, however, that plaintiffs could show the physician was not board certified.The Court of Appeals affirmed, finding no abuse of discretion in the trial court's refusal to allow evidence that the physician took, but did not pass, the board examination.In so doing, our appellate court observed:

A physician's inability to pass certification and licensure examinations does not make probable his negligent performance of a specific procedure.[Cits.]Beis v. Dias,859 S.W.2d 835, 839(6)(Mo.Ct.App.1993).Such evidence has little if any relevance to the issue of whether the physician complied with the standard of care required in his treatment in a given case.Douglas v. University Hosp.,150 F.R.D. 165, 171(10)(E.D.Mo.1993), aff'd34 F.3d 1070(8th Cir.1994).That is the issue in a medical malpractice case, OCGA § 51-1-27, as explained in Hayes v. Brown,108 Ga.App. 360, 363(1), 133 S.E.2d 102(1963).

Id. at 108, 460 S.E.2d 558.¹

The Court of Appeals applied the holding in Williams to the facts of this case.The Sniders assert that, in so doing, the Court of Appeals went astray because the issue in this case is whether Dr. Basilio negligently employed an incompetent nurse.In this regard, the Sniders cite Douglas v. University Hosp.,150 F.R.D. 165, supra, for the proposition that, although evidence that a medical professional failed an examination would not be relevant to determine whether she breached the standard of care, it would be relevant to determine competence.

In Douglas,a defendant physician filed a motion in limine to prohibit plaintiff from introducing evidence that he...