Swint v. Mae

Decision Date06 March 2017
Docket NumberA16A1759
Parties SWINT et al. v. MAE et al.
CourtGeorgia Court of Appeals

William James Atkins, Roderick Earl Edmond MD, JD, Atlanta, for Appellant.

Benjamin David Ladner, Melanie Shirley Taylor, for Appellee.

Bethel, Judge.

Fritz and Melissa Swint ("Plaintiffs") brought a medical malpractice action against multiple medical providers1 including Tonya Mae, M.D. ("Dr. Mae") and Pamela Roy, R.N. ("Nurse Roy") (collectively, the "Defendants"), alleging the doctors and nurse breached the standard of care owed to Mr. Swint in failing to correctly position and/or reposition him prior to and during surgery, which resulted in permanent injury to his right arm. Defendants moved for summary judgment on the grounds that Plaintiffs failed to present sufficient evidence of causation. After arguments, the trial court entered an order granting summary judgment to Defendants,2 and this appeal followed.

Plaintiffs argue the trial court erred by holding that there was no evidence in the record that Defendants proximately caused any injury to Mr. Swint, by mis-characterizing Plaintiffs' causation expert's testimony, and by misapplying the standard for medical causation. We disagree and affirm for reasons explained below.

"To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Anthony v. Chambless , 231 Ga.App. 657, 658 (1), 500 S.E.2d 402 (1998). "A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case." Id . (citations and emphasis omitted). "Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant[.]" Knight v. Roberts , 316 Ga.App. 599, 601, 730 S.E.2d 78 (2012). "On appeal from a grant of a motion of summary judgment, we review the evidence de novo ... to determine whether the trial court erred in concluding that no genuine issue of fact remains and the moving party is entitled to judgment as a matter of law." Allen v. Family Med. Ctr., P.C. , 287 Ga.App. 522, 522, 652 S.E.2d 173 (2007).

So viewed, the evidence shows that on December 3, 2009, Mr. Swint underwent a surgical procedure known as a robotic-assisted laparoscopic prostatectomy

("RALP") performed by Dr. Alphonse and proctored3 by Dr. Raymond Pak ("Dr. Pak"). Tonya Mae, M.D. was the attending anesthesiologist and Pamela Roy was the circulating nurse during the surgery. The RALP procedure required Mr. Swint to be positioned in the lithotomy

in a steep Trendelenburg4 position, with his left and right arms tucked to his side. Drs. Alphonse and 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 suggest or attempt to reposition Mr. Swint's body. 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

in his right arm the following day, and underwent surgery to relieve the pressure. Following surgery, Mr. Swint did not regain complete use of his right arm and hand.

1. Plaintiffs allege the combined negligence of Defendants and Dr. Alphonse in failing to properly position Mr. Swint's body initially and/or in failing to reposition Mr. Swint's body during the surgery is the proximate cause of his right arm injury. "To recover in a medical malpractice case, a plaintiff must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained." Berrell v. Hamilton , 260 Ga.App. 892, 896, 581 S.E.2d 398 (2003) (citation omitted). A mere showing of negligence without proof of causation is insufficient to withstand summary judgment. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga.App. 706, 709 (2), 505 S.E.2d 232 (1998).

Causation is established through expert testimony "because the question of whether the alleged professional negligence caused the plaintiff's injury is generally one for specialized expert knowledge[.]" Knight, 316 Ga.App. at 604 (1) (a), 730 S.E.2d 78 (quoting Zwiren v. Thompson, 276 Ga. 498, 500, 578 S.E.2d 862 (2003) ). The expert must state his or her opinion regarding proximate causation in terms stronger than that of medical possibility—e.g., a reasonable degree of medical certainty or reasonable medical probability. Knight, 316 Ga.App. at 604 (1) (a), 730 S.E.2d 78. The use of the magic words "reasonable degree of medical certainty" is not required and causation may be established by linking the testimony of several different experts. Allen, 287 Ga.App. at 524, 652 S.E.2d 173 ; see also Knight , 316 Ga.App. at 607 (1) (a), 730 S.E.2d 78. This means that Plaintiffs were required to present expert testimony that showed to a reasonable degree of medical certainty that Defendants' failure to adhere to the applicable standard of care caused Mr. Swint's injury. Plaintiffs failed to do so, and Defendants were entitled to judgment as a matter of law.

In support of their causation argument, Plaintiffs proffered the medical expert testimony of Drs. Kenneth Rosenfeld and Michael Palese. Dr. Rosenfeld testified that he was uncertain as to what led to Mr. Swint's injury and that it could have been the initial positioning, the length of surgery, or both. He could not say at what point during the surgery the injury developed. Dr. Rosenfeld conceded that nothing in the medical report indicated there was any violation of the standard of care with respect to the initial positioning of Mr. Swint, however he believes that mal-positioning, mis-positioning, or failure to reposition—one or a combination of those reasons—caused the injury and directly relates to the shared responsibilities of the parties. Dr. Rosenfeld opined that Defendants breached their respective duties by failing to "[i]nsist with the team in the operating room that the patient be repositioned[,]" and that "had the anesthesiologist insisted that the patient be taken out of the position that they [sic] were in for such a long period of time, that this injury [compartment syndrome

] may very well have been and probably would have been either avoided or lessened to some degree [.]" For Dr. Rosenfeld, Mr. Swint's development of compartment syndrome

informed his opinion that there was a positioning problem.

Plaintiffs also point to the deposition testimony of Dr. Palese who believes Mr. Swint began developing compartment syndrome

approximately four to five hours into the surgery. Dr. Palese testified that Mr. Swint was initially positioned in a manner which caused pressure on the upper extremities in such a way that more likely than not contributed to Mr. Swint's development of compartment syndrome. Furthermore, Dr. Palese testified that positioning is one factor that can contribute to the development of compartment syndrome, but that it is possible for the condition to occur following a RALP absent a deviation from the standard of care. Dr. Palese criticized only the length of the procedure, but conceded that repositioning a patient does not eliminate positional injuries, as Mr. Swint could have developed compartment syndrome prior to repositioning. Dr. Palese did not opine as to Dr. Mae or Nurse Roy's care.5 Both experts testified that they had never read anything about repositioning a patient simply because of the length of the procedure, were not aware of any medical literature prior to 2010 that directly advocated repositioning patients undergoing a robotic-assisted procedure in the steep Trendelenburg position, and were not familiar with any literature or statistics on the amount or degree by which the risk of developing compartment syndrome is lessened when a patient is repositioned.

The trial court found the experts' causation testimony legally insufficient to establish that Defendants caused Mr. Swint's injury. "In presenting an opinion on causation, the expert is required to ‘express some basis for both the confidence with which his conclusion is formed, and the probability that his conclusion is accurate.’ " Zwiren, 276 Ga. at 501, 578 S.E.2d 862 (citation omitted). The expert also meets this requirement by stating that the only apparent cause of the plaintiff's injury was the defendant's action, Killingsworth v. Poon, 167 Ga.App. 653, 657, 307 S.E.2d 123 (1983) ; or if the expert presents "overwhelming" testimony of experience that, in the absence of the alleged negligence, the patient's condition could have been prevented from worsening. Lee v. Satilla Health Svcs., 220 Ga.App. 885, 888 (2), 470 S.E.2d 461 (1996).

As it relates to Mr. Swint's initial positioning, neither expert opined to any degree of medical certainty that the initial positioning caused the injury.6 At best, Dr. Rosenfeld opined that the initial positioning in some likelihood contributed to the injury, but could not say how much it contributed. Further, both Dr. Rosenfeld and Dr. Palese conceded that there was nothing in Nurse Roy's report that indicated there was any violation of the standard of care with respect to the initial positioning of Mr. Swint. This Court has previously found expert testimony alleging that a defendant's...

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