Ussery v. Children's Healthcare of Atlanta

• Decision Date: 23 January 2008
• Docket Number: No. A07A2223.,No. A07A2224.,No. A07A2222.,A07A2222.,A07A2223.,A07A2224.
• Citation: 656 S.E.2d 882,289 Ga. App. 255
• Parties: USSERY et al. v. CHILDREN'S HEALTHCARE OF ATLANTA, INC. et al. Children's Healthcare of Atlanta, Inc. et al. v. Ussery et al. Jose et al. v. Ussery et al.
• Court: Georgia Court of Appeals

656 S.E.2d 882

289 Ga. App. 255

USSERY et al. v. CHILDREN'S HEALTHCARE OF ATLANTA, INC. et al.

Children's Healthcare of Atlanta, Inc. et al. v. Ussery et al.

Jose et al. v. Ussery et al.

No. A07A2222.

No. A07A2223.

No. A07A2224.

Court of Appeals of Georgia.

January 23, 2008.

Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, Atlanta, for appellant.

Peters & Monyak, Jonathan C. Peters, Melissa B. Johnson, Hall, Booth, Smith & Slover, John E, Hall, Jr., Jason D. Hergenroether, Atlanta, Terrell W. Benton III, Athens, for appellees.

BLACKBURN, Presiding Judge.

William Ussery and his former wife, on behalf of the estate of their deceased minor daughter Ella Ussery ("Ella") and as Ella's parents (collectively "plaintiffs"), filed suit in the State Court of Fulton County, on March 24, 2000, against Children's Healthcare of Atlanta, Inc. (f/k/a Scottish Rite Children's Medical Center) ("Scottish Rite"), Dr. James Jose, and his employer, Neonatal Associates, P.C., and several of the physicians who had treated Ella, alleging professional and nonprofessional negligence, that the defendants had failed to meet the applicable standard of care in varying particulars, and that the defendants were guilty of medical malpractice which caused Ella's injury and death.

On June 4, 2001, plaintiffs filed their first amendment to their complaint, and added Pediatric Emergency Associates (the employer of Dr. Mills and Dr. Cortes) as a defendant. They added allegations that Dr. Mills and Dr. Cortes were operating within the scope of their employment at all relevant times; that Dr. Jose ordered the withdrawal of nutrition and hydration, which led to Ella's death; and they removed two paragraphs from the original complaint, which stated that as a result of her brain damage, Ella was reduced to a persistent vegetative state, and that as a result of that condition, the decision was made to withdraw nutrition and hydration.

On October 24, 2001, plaintiffs filed their second amendment to their complaint. They added Plaintiffs' Statement of Facts Disputing Dr. Jose's Statement of Facts. They also added several allegations of specific instances of malpractice by Dr. Jose in the case, which issue is not before us on this appeal, and is still pending in the trial court. They alleged that, as Dr. Jose's employer, Neonatology Associates is responsible for his actions in this case. They also alleged that Dr. Jose negligently or intentionally caused Ella's death because no factual or legal basis existed warranting the withdrawal of nutrition and hydration, and because Dr. Jose misrepresented to Dr. White that nutrition and hydration could not be restarted. We do not address plaintiffs initial or subsequent negligence allegations in this appeal, because, other than a limited question involving Dr. Jose, addressed in Case No. A07A2224, those issues are not before us and are still pending in the trial court. Because these three appeals are related, we consolidate them for review.

In Case No. A07A2222, we address plaintiff's intentional tort allegations of unlawful withdrawal of life support raised for the first time in their second amendment, filed some 17 months after the original complaint, which is the only matter raised by plaintiffs on their appeal. Plaintiffs argue that the trial court erred in ruling that Scottish Rite complied with the requirements under Georgia law for withdrawal of life support and in ruling that plaintiffs fully consented to the withdrawal. The question before this Court in this appeal is limited to whether or not the trial court erred in granting summary judgment to Dr. Jose and Scottish Rite, holding that these defendants did not intentionally injure or cause the death of Ella, and there was no factual issue as to their intentions in this regard. While certain acts may or may not have constituted medical malpractice, there must be evidence of the intentional nature of defendants' acts to support plaintiffs' contentions. We affirm the trial court's grant of defendants', and denial of plaintiffs', motions for summary judgment on the intentional tort claims in Case No. A07A2222, for the reasons hereinafter outlined.

In Case No. A07A2223, Scottish Rite appeals the trial court's ruling that plaintiffs' intentional tort claim is not barred by the statute of limitation and Dr. Jose and Neonatal Associates, P.C. appeal the same issue in Case No. A07A2224. Given the fact that we affirm the trial court's grant of summary judgment to defendants and denial of summary judgment to plaintiffs on the intentional tort claim, we need not address this issue.

Also in Case No. A07A2223, Scottish Rite appeals the trial court's ruling that hospital incident reporting and nonparty patient records are not protected from discovery. For reasons hereafter outlined, we reverse the trial court's ruling ordering the production of these documents; however, because it requires notice to the patient and an opportunity to object, and has other safeguards, we affirm the order requiring the production of nonparty patient records.

In Case No. A07A2224, Dr. Jose appeals the trial court's denial of his motion for summary judgment based on his claim that his physician-patient relationship with Ella ended when she was moved from the intensive care unit (ICU), which was his responsibility, to another unit, which was not. We affirm the trial court's denial of Dr. Jose's motion for summary judgment on this issue. In Case No. A07A2224, Dr. Jose and his employer, Neonatal Associates, P.C., also appeal the trial court's denial of their motion for summary judgment, arguing that the court erred in ruling that a question of fact remained as to whether or not the physician-patient relationship ended when Ella transferred to another ICU. They argue that there was no duty of care owed her by Dr. Jose as the relationship had ended upon Ella's transfer. We affirm the trial court's denial of defendants' motions for summary judgment in Case No. A07A2224 for the reasons hereinafter outlined.

The question in Case No. A07A2222 is whether Scottish Rite's and Dr. Jose's decision to withdraw Ella's life support, in light of Ella's condition and her parents' consent, constituted an intentional tort under Georgia law. We hold that under these circumstances it did not, particularly considering the relevant case law and the evidence as to the actions taken by Scottish Rite and Dr. Jose (at the time of decision) in obtaining additional medical concurring opinions that Ella's brain damage was irreversible and that the chances were poor that she would ever regain cognitive functions (with which conclusions plaintiffs' own later-hired expert concurred). Indeed, plaintiffs' claim is an improper attempt to transform a possible malpractice claim into an intentional tort.

The key issue in Case No. A07A2223 is whether Scottish Rite's incident reporting records, which were designed to allow the hospital's department of quality/performance improvement to make evaluations that would improve patient care, are covered by the peer review privilege and whether nonparty patient records are discoverable. Because the very purpose of the peer review privilege is to protect from discovery hospital efforts at self-evaluation for improving patient care, we reverse the trial court's ruling ordering the production of these documents; however, we affirm the order requiring the production of nonparty patient records where the patients are given notice and opportunity to object.

Finally, the relevant inquiry in Case No. A07A2224 is whether Dr. Jose continued his physician-patient relationship with Ella when she was moved from one ICU to another. Because some evidence showed that the doctor in his notes arid in his conversations with Ella's mother indicated that he would continue to act as the child's physician, we affirm the denial of Dr. Jose's motion for summary judgment on this question.

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); Britt v. Kelly & Picerne, Inc.¹ "On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant." McCaskill v. Carillo.²

So construed, the evidence shows that 34-month-old Ella was admitted to Scottish Rite hospital on March 15, 1998, for laryngotracheal reconstructive surgery to correct a narrowed airway condition below her vocal cords known as a subglottic stenosis. Ella had been diagnosed with this condition shortly after being born 12 weeks premature in 1995, and had relied on a tracheostomy³ to assist her breathing since that time. The surgery was successfully performed on March 16, after which Ella was moved to Section A of Scottish Rite's intensive care unit ("ICU-A") and placed under the care of intensive care physician Dr. Jose. On March 27, Ella had been moved to ICU-C and had been recovering there for several days when she began to suffer a series of periodic throat spasms, which would cause her to stop breathing for a few seconds. Some time after 9:00 p.m. that day, Ella suffered another throat spasm, while also vomiting food she had eaten earlier, and began choking. With her airway completely blocked, she soon stopped breathing and lost consciousness. Scottish Rite staff immediately called a "Code Blue" to alert physicians that a patient was in cardiac or respiratory, arrest. An emergency department physician arrived within a couple of minutes but could not successfully intubate Ella to restore her breathing. By the time another physician arrived and successfully intubated her, Ella had been substantially deprived of oxygen for at least 20 minutes.

As a result of this oxygen deprivation, Ella had lapsed into a coma and was feared to have suffered a significant...