South Fulton Medical Center, Inc. v. Poe

Decision Date21 November 1996
Docket NumberNo. A96A1181,A96A1181
Citation480 S.E.2d 40,224 Ga.App. 107
CourtGeorgia Court of Appeals

Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, Rush S. Smith, Jr., Phillip E. Friduss, Dan S. McDevitt, Atlanta, for appellant.

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, La'Sean M. Zilton, Love & Willingham, Traci G. Courville, H & M Johnson, E. Duane Jones, Atlanta, for appellees.

POPE, Presiding Judge.

Ernest and Jacqueline Poe, parents of the deceased infant Ernest Poe, Jr., brought this medical malpractice action against South Fulton Medical Center and Dr. M.O. Tomeh for their son's death. The matter was tried to a jury, which returned a verdict in favor of Tomeh, and against South Fulton for 1.85 million dollars. South Fulton appeals and, for the following reasons, we affirm.

Evidence at trial was that Ernest Poe, Jr. was born at South Fulton on April 29, 1991. The infant was kept at the hospital until May 6, 1991, where he was treated in the intensive care unit by his pediatrician, Dr. Tomeh, for hypoglycemia, jaundice and possible sepsis. The baby was discharged and the Poes were given specific instructions to call a physician if the baby's temperature was greater than 100 degrees; if there was a change in the baby's color; or if there was a change in the baby's eating habits.

The day after Ernest Jr.'s discharge, the Poes brought him to the South Fulton emergency room, where they were attended to by the triage nurse on duty, Merry Gunnin. The Poes complained that the baby had turned blue at home. They also reported that the baby had not had a bowel movement all day, appeared limp and that his eyes had rolled back in his head.

Gunnin assessed the baby at 10:45 p.m.; she took his pulse, and checked his respiration and temperature. The infant's vital signs were not completely normal, but they were not alarming. The baby had a low grade fever and slept through the examination. While the Poes were at the hospital, the baby had a bowel movement.

According to both Gunnin and the Poes, the exchange between the adults during the baby's assessment was tense. Gunnin testified that she instructed the Poes to fill out certain forms and that Mr. Poe, who appeared agitated, kept "screaming" and demanding that his baby see a doctor immediately. Gunnin admitted that she also raised her voice. Mr. Poe testified that he and Gunnin were "barking like dogs" at each other. The Poes both testified that Gunnin had a "nasty attitude" and would not listen to Mrs. Poe's complaints.

After completing the examination of the baby, Gunnin admitted that she told the Poes that "the baby was fine right now." Gunnin stated that she told the Poes that "the baby was doing okay" a couple of times in an effort to calm them. She also told them that the baby was breathing properly at that time. According to Mrs. Poe, Gunnin told her that she was overreacting. Gunnin then classified the baby according to South Fulton's internal procedure as "Priority 3" -- which denoted that semi-urgent medical intervention would be required within approximately eight hours, but that the problem was not immediately life threatening or severe.

Gunnin instructed the Poes to sit in the waiting room and told them a doctor would be with their baby shortly. The Poes, who felt they had been overreacting to the baby's problems and believed that the infant would be alright until the next morning when he could see a doctor, left the emergency room within eight minutes after the examination. The admissions clerk recalled that Mr. Poe did not complete the documents he was filling out -- specifically, he did not sign the "consent to treatment" form. Although Gunnin was unaware that the Poes were leaving, the emergency room admissions clerk told Mr. Poe that the decision to leave was his. The baby died several hours after the Poes left South Fulton.

The Poes filed this medical malpractice action, based in part, upon South Fulton's: failure to accurately diagnose and triage the infant; failure to insist that the family remain until seen by a physician; failure to admit the infant for adequate assessment; and failure to have the baby immediately seen by a physician. Experts testified at trial that Gunnin's actions fell below the applicable standard of care in several ways -- particularly in her failure to take the baby to a physician immediately and in her failure to classify the baby's condition as life threatening.

1. South Fulton contends that, as a matter of law, the infant was not its patient and that the trial court erred in denying its motions for summary judgment, directed verdict and j.n.o.v. We first note that to the extent that South Fulton argues that its motion for summary judgment was improperly denied, the issue is moot. See Dept. of Transp. v. Brown, 218 Ga.App. 178, 179(1), 460 S.E.2d 812 (1995). Therefore we review the denial of the directed verdict motion and the denial of the motion for j.n.o.v. "The standard for granting a directed verdict or a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed." (Citations and punctuation omitted.) Truck Parts & Svc., Inc. v. Rutledge, 211 Ga.App. 166(2), 438 S.E.2d 404 (1993).

Citing Clough v. Lively, 193 Ga.App. 286, 387 S.E.2d 573 (1989), and Matthews v. DeKalb County Hosp. Auth., 211 Ga.App. 858, 440 S.E.2d 743 (1994), South Fulton argues that a mere assessment of a person's condition does not create a patient-health care provider relationship, and that the relationship between the Poes and South Fulton was not the requisite consensual one. "It is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of [the health care provider]-patient relationship. There are three essential elements imposing liability upon which recovery is bottomed: (1) The duty inherent in the [health care provider]-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained. [Cit.] See also OCGA § 51-1-27. In such cases, ... [health care provider]-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. [Cits.] The relationship is considered consensual where the patient knowingly seeks the assistance of the [health care provider] and the [health care provider] knowingly accepts him as a patient." (Citations and punctuation omitted.) Peace v. Weisman, 186 Ga.App. 697, 698(1), 368 S.E.2d 319 (1988).

In Matthews v. DeKalb County Hosp. Auth., 211 Ga.App. 858, 440 S.E.2d 743, Mrs. Matthews came to the DeKalb General emergency room complaining of a pain in her chest. The triage nurse recorded her history, obtained her vital signs and made an assessment. Matthews indicated that she was not in pain, and the triage nurse classified her condition as non-life threatening and told her that it would be a long wait. After four and a half hours of waiting, a social services representative told Matthews that the doctor would see her next. Matthews stated that she had waited too long and was leaving. The social services representative pleaded with Matthews to stay, but she left nonetheless, and died two days later. This court affirmed the superior court's grant of DeKalb General's motion for summary judgment, finding that Matthews' voluntary termination of her relationship with the hospital severed any causal relationship with DeKalb General's actions.

In Clough v. Lively, 193 Ga.App. 286, 387 S.E.2d 573, a police officer responded to an accident call and found Lively semiconscious in an automobile that had left the road. Believing that Lively was intoxicated and not seriously injured, the officer took him to Shallowford Hospital so that a blood sample could be taken. Nurse Clough at Shallowford took a blood sample, checked Lively's vital signs, learned that he might have taken medication, and made a diagnosis of his condition. Clough was not asked to make, nor did she undertake to perform, any examination or render any medical treatment to Lively. In fact, when Clough asked Lively if he either needed or desired medical treatment, he stated that he did not. Clough stated that her involvement on behalf of Shallowford Hospital was solely to comply with the officer's written request that a blood sample be taken from Lively. Lively was released to the officer, who took him to jail for processing. Shortly after arriving at jail, Lively lapsed into a coma and died. In reversing the superior court's denial of defendants' motion for summary judgment, this Court found that there was a limited relationship created, because neither the nurse and hospital, nor Lively consented to a patient-health care provider relationship. See also Payne v. Sherrer, 217 Ga.App. 761, 458 S.E.2d 916 (1995); Rogers v. Coronet Ins. Co., 206 Ga.App. 46, 49(3), 424 S.E.2d 338 (1992); Minster v. Pohl, 206 Ga.App. 617, 426 S.E.2d 204 (1992); Peace v. Weisman, 186 Ga.App. 697(1), 368 S.E.2d 319 (1988); Brumbalow v. Fritz, 183 Ga.App. 231(1), 358 S.E.2d 872 (1987); Clanton v. Von Haam, 177 Ga.App. 694, 340 S.E.2d 627 (1986).

In this case, we find that the requisite consensual relationship was established between South Fulton and the Poes, and that the denials of the motions for directed verdict and j.n.o.v. were proper. Unlike Clough Clanton, and the cases cited above, the Poes did not limit the relationship with South Fulton in any manner--they desired and sought out any medical assistance they needed for their baby. There was evidence...

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