Swint v. Alphonse, A18A0869

• Citation: 348 Ga.App. 199,820 S.E.2d 312
• Decision Date: 01 November 2018
• Docket Number: A18A0869
• Parties: SWINT, et al. v. ALPHONSE, Jr., et al.
• Court: United States Court of Appeals (Georgia)

348 Ga.App. 199

820 S.E.2d 312

SWINT, et al.

v.ALPHONSE, Jr., et al.

A18A0869

Court of Appeals of Georgia.

November 1, 2018

Reconsideration Denied November 15, 2018

William James Atkins, Atlanta, for Appellant.

Michael Scott Bailey, Michael Geoffrey Frankson, Atlanta, for Appellee.

Gobeil, Judge.

During a prolonged surgical procedure, Fritz F. Swint suffered an injury that left him with nerve damage and limited use of his right hand. Swint and his wife Melissa thereafter filed suit in DeKalb County State Court against Paul Alphonse, Jr., M.D. (the surgeon), Tonya Mae, M.D. (the anesthesiologist), Pamela Roy, R. N. (the surgical nurse), and Midtown Urology, P.C. (Alphonse’s employer), seeking damages arising from the defendants’ alleged medical malpractice. The Swints now appeal from an order granting summary judgment in favor of Dr. Alphonse and Midtown Urology (collectively "Dr. Alphonse") on the Swints’ claims.¹ The Swints assert that in granting summary judgment, the trial court erred in its factual conclusion about the applicable standard of care and in finding that the Swints lacked sufficient evidence to create a question of fact on the causation element of their malpractice claims. We agree with the Swints, and we therefore reverse the trial court’s order.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "In reviewing a grant or denial of summary judgment, we owe no deference to the trial court’s ruling and we review de novo both the evidence and the trial court’s legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion." Bryant v. Optima Int’l , 339 Ga. App. 696, 696, 792 S.E.2d 489 (2016) (citations and punctuation omitted). In doing so, we bear in mind that "[t]he party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact." Johnson v. Omondi , 294 Ga. 74, 75, 751 S.E.2d 288 (2013) (citation and punctuation omitted).

The underlying facts in this case are largely undisputed and are set forth in Swint I as follows:

[O]n December 3, 2009, Mr. Swint underwent a surgical procedure known as a robotic-assisted laparoscopic prostatectomy ("RALP") performed by Dr. Alphonse and proctored by Dr. Raymond Pak ("Dr. Pak").^{[2 ]} Dr. Mae, M.D. was the attending anesthesiologist and Nurse Roy was the circulating nurse during the surgery. The RALP procedure required Mr. Swint to be positioned in the lithotomy in a steep Trendelenburg^{[3 ]} position, with his left and right arms tucked to his side. Dr. Alphonse and Dr. Pak positioned Mr. Swint’s body using Dr. Pak’s method of wrapping the patient’s body with sheets and towel clips, without the assistance of Dr. Mae and Nurse Roy. Once Mr. Swint was positioned by Drs. Alphonse and Pak, Dr. Mae tilted the operating table into the steep Trendelenburg position to the level approved by the surgeons. The surgery, conducted by Dr. Alphonse, lasted approximately 9 hours and 21 minutes. At no time during the surgery did Defendants ... reposition Mr. Swint’s body[, nor did they discuss doing so]. Mr. Swint’s body remained in the same position throughout the entire procedure.

After surgery, Defendants took Mr. Swint to a post-surgery recovery room where he complained of pain in both shoulders and arms. Mr. Swint was diagnosed with compartment syndrome^[4] in his right arm the following day, and underwent surgery to relieve the pressure [causing the condition]. Following surgery, Mr. Swint did not regain complete use of his right arm and hand.

Swint I , 340 Ga. App. at 481, 798 S.E.2d 23 (original footnotes omitted).

In their complaint, the Swints alleged that Dr. Alphonse committed medical malpractice by failing to position Mr. Swint properly at the outset of surgery and then failing to reposition him during the surgery. They further alleged that as a result of this negligence, Mr. Swint suffered injuries in both of his arms and developed compartment syndrome in his right arm, which left him in significant pain and partially disabled.⁵ To demonstrate that Dr. Alphonse breached the applicable standard of care and that this breach was a cause of Mr. Swint’s injuries, the Swints offered the expert testimony of Michael A. Palese, M.D. and Paul Collier, M.D. At the time of his 2013 deposition, Dr. Palese, a urologist, was the Director of Minimally Invasive Surgery in the Urology Department of Mount Sinai Medical School. Dr. Palese described his "area of expertise" as "robotic and laparoscopic surgery" and he had previously done a one-year fellowship in robotic and laparoscopic surgery at Cornell New York Hospital. Immediately after completing that fellowship, Dr. Palese established the robotic urological surgery program at Mount Sinai. Additionally, Dr. Palese’s affidavit and resume show that he has published in textbooks and medical journals in the area of robotic and laparoscopic urological surgery.

Dr. Palese testified repeatedly that when a patient is placed in the lithotomy in the steep Trendelenburg position (the "LST position") for a lengthy surgery, the standard of care requires the physician to give the patient a positional holiday⁶ sometime between the four and five hour mark of the surgery. Dr. Palese’s testimony also made clear that his statement of "between four and five hours" was based on the fact that a decision to give a patient a positional holiday at a particular time would depend on how the surgery was progressing. As Dr. Palese explained, complications from an LST position do not generally arise until between the four and five hour mark. If the surgery reached the four-hour mark and the doctor knew the surgery was not going to end soon, then he would need to start preparing for a positional holiday,⁷ and then provide such a holiday no later than the fifth hour of surgery. Thus, Dr. Palese opined that the standard of care was breached in this case somewhere between the four and five hour mark, when Dr. Alphonse failed to give Mr. Swint a positional holiday even though he should have known that the surgery was still several hours away from being completed.

Additionally, Dr. Palese’s testimony established that giving a patient a positional holiday was the standard of care by the time of Swint’s surgery in December 2009. According to Dr. Palese, by 2008, 80% of all prostatectomies in this country were being done robotically, and by 2009 it was "pretty standard" practice for a physician to consider and execute a positional holiday. Dr. Palese explained that the LST position had been in use for other types of surgeries before robotic prostatectomies became routine, and by 2009 there was "plenty of literature" talking about the need for providing a positional holiday for any patient who was placed in the LST position for a lengthy surgery. Although the only article talking about the need for positional holidays in robotic surgery specifically (as opposed to laparoscopic or other types of surgery) was not published until 2010, Dr. Palese testified that the article itself was written in 2009. Moreover, it was a "review" article, meaning it was based on "quite a bit of literature" that existed prior to 2009.

During his testimony, Dr. Palese acknowledged that if the compartment syndrome had started by the four-hour mark of surgery, and Mr. Swint was thereafter given a positional holiday at five hours, the holiday would not have reversed the compartment syndrome. Dr. Palese further stated, however, that in his opinion, it was "more likely than not" that Mr. Swint would not have suffered such a significant injury had he been given a positional holiday between the four and five hour mark of surgery "rather than waiting until eight or nine hours after the surgery was done." At the end of his deposition, defense counsel asked Dr. Palese whether, if in this case Dr. Alphonse "had gone six hours and then realized that [he was not] getting to the conclusion of the procedure and had [given Swint a positional holiday]" and then continued on with the procedure for another 2 to 2 ½ hours, "would that have been within the standard of care?" Dr. Palese responded "Yes." He then reiterated that "the start of the compartment syndrome was most likely" between the four and five hour mark, but stated that in his opinion, providing a positional holiday at the six hour mark, even after the start of the compartment syndrome, would have meant "the severity of the injury ... would probably have been much less" because of the positional holiday.⁸

Following this Court’s decision in Swint I , Dr. Alphonse moved for summary judgment, arguing that Dr. Palese’s testimony failed to establish that any breach of the standard of care caused Mr. Swint’s compartment syndrome. In response to that motion, the Swints submitted the affidavit of Paul Collier M.D., a graduate of Yale Medical School and a general vascular surgeon. Dr. Collier averred that over the course of his 32-year career, he had treated an average of four to six patients a year suffering from compartment syndrome. Additionally, Dr. Collier stated that he was familiar with the LST surgical position and that he had previously performed surgeries that required placing patients in that position. Dr. Collier further testified that he had evaluated Mr. Swint’s case "by differential diagnosis and ruled out other explanations for Mr. Swint’s compartment syndrome other than the failure to reposition Mr. Swint during a very long surgical procedure."⁹ Dr. Collier also stated:

While it is possible that Mr. Swint developed compartment syndrome prior to the 4-hour mark, it is not probable because the body can typically withstand surgery in a lithotomy with steep Trendelenburg position without complications for that period of time and, had Mr. Swint

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