Snider v. Basilio, No. A05A0847.
| Decision Date | 24 October 2005 |
| Docket Number | No. A05A0847. |
| Citation | 276 Ga. App. 315,623 S.E.2d 521 |
| Parties | SNIDER et al. v. BASILIO. |
| Court | Georgia Court of Appeals |
Jefferson Callier, John Taylor, John Harp, Taylor, Harp, Callier & Morgan, Columbus, for Appellants.
Robert Martin, Jr., Joseph Chambless, Hatcher, Stubbs, Land, Hollis & Rothschild, LLP, Columbus, for Appellee.
This is an appeal from a directed verdict granted to a doctor in a medical malpractice action. Because there is some evidence that the doctor violated the standard of care, the trial court erred in granting the doctor a directed verdict, and we therefore reverse that ruling.
On Saturday, February 7, 1998, Rebecca and Matthew Snider's six-month-old son Luke was vomiting and had a fever of 103.6 degrees Fahrenheit. Ms. Snider took Luke to Pediatric After Hours in Macon, Georgia, where Dr. Harold Sims diagnosed the child as having a stomach virus. The next day Sunday, February 8, at about 4:30 in the afternoon, Ms. Snider called the office of Florida Basilio, M.D., the family pediatrician. Dr. Basilio's office is located in Columbus, Georgia, where the Snider family had lived until a temporary job transfer required them to move to the Macon area.
The call was answered by Magelie DeVera, a nurse employed by Dr. Basilio's professional corporation. DeVera graduated from nursing school in the Philippines in 1993, but she has failed the Georgia nursing examination three times, and does not have a nursing license in Georgia or in any other state. During the telephone call, Rebecca Snider reported Luke's fever and vomiting. She also reported that Luke had been seen by Dr. Sims in Macon, who had diagnosed Luke with a stomach virus. DeVera advised Snider to mix Sprite or ginger ale with Pedialyte and start Luke on a diet of bananas, rice, applesauce and toast.
On Monday, February 9, at approximately 3:00 a.m., Ms. Snider called again and spoke with Dr. Basilio, who allegedly said that Luke was probably hungry and to try to give him a bottle. At 8:00 that same morning, the mother again called Dr. Basilio, who allegedly said that Ms. Snider could bring the child to the doctor's office in Columbus. Instead, Ms. Snider took Luke to a hospital emergency room in Macon. Luke was eventually diagnosed with bacterial meningitis, which ultimately caused brain damage and rendered him a quadriplegic.
The Sniders sued Dr. Sims, Pediatric After Hours, Dr. Basilio, Dr. Basilio's professional corporation, and DeVera. The case proceeded to a jury trial. At the close of the plaintiff's evidence, the trial court directed a verdict in favor of Dr. Basilio in her individual capacity.
The remaining defendants — Dr. Sims, Pediatric After Hours, DeVera and Dr. Basilio's professional corporation — presented their evidence. During his cross-examination of the final defense expert, the Sniders' attorney asked if the expert had previously given a deposition in a case filed against him as a defendant. Based on the question, the trial court granted a mistrial. The Sniders appeal from the directed verdict granted to Dr. Basilio.
1. The Sniders assert that the trial court erred in granting a directed verdict to Dr. Basilio. We agree.
"A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demand a particular verdict."1 Dr. Basilio argues that a directed verdict was proper in this case because there is no evidence that she individually committed any act of malpractice. In support of this argument, however, she misconstrues the testimony of the Sniders' two expert witnesses, both of whom testified that Dr. Basilio had violated the medical profession's standard of care by permitting DeVera, an unlicensed nurse, to take calls from and give advice to patients without consulting Dr. Basilio.
The first expert, Dr. Steven Shore, testified that it was a violation of the standard of care to allow the nurse to answer calls on the weekend because the symptoms reported were very serious and the nurse, if not directing the child to get immediate care, should at least have spoken to her supervising physician, who could then have made the decision about immediate care. He further testified that it would be unusual to use an unlicensed nurse for call coverage, and if an unlicensed nurse were so used that the bond between the nurse and supervising doctor would have to be much stricter, with frequent calls to the doctor.
The second expert, Dr. Joseph Simon, likewise testified that to allow an unlicensed nurse to take first call coverage on weekends for a doctor violated the standard of care unless, for each call where the child is allowed to remain home, the doctor is immediately called. He also testified that, assuming Dr. Basilio had not been called, the standard of care was violated in this case.
It is undisputed that DeVera did not call Dr. Basilio after advising Ms. Snider about how to treat her child. Moreover, both Dr. Basilio and DeVera testified that the doctor gave the unlicensed nurse the authority to advise patients and dispose of care without consulting the doctor as long as the nurse was comfortable with her decision. Only if DeVera felt she could not handle a situation was she required to contact Dr. Basilio.
In support of her contention that there is no evidence that she committed any act of individual malpractice, Dr. Basilio not only ignores her own testimony that she gave such authority to DeVera but she also misrepresents the experts' testimony by claiming that their opinions about allowing an unlicensed nurse to take patient calls were premised on the fact that DeVera was an employee of the professional corporation. Thus, Dr. Basilio reasons, the experts' concerns were with the corporation, not with the doctor individually.
While it is true that DeVera...
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