Vaughan v. Wellstar Health System Inc

• Decision Date: 25 June 2010
• Docket Number: No. A10A0066.,A10A0066.
• Citation: 304 Ga.App. 596,696 S.E.2d 506
• Parties: VAUGHANv.WELLSTAR HEALTH SYSTEM, INC.
• Court: Georgia Court of Appeals

304 Ga.App. 596

696 S.E.2d 506

VAUGHANv.WELLSTAR HEALTH SYSTEM, INC.

No. A10A0066.

Court of Appeals of Georgia.

June 25, 2010.

Reynolds, Horne & Survant, W. Carl Reynolds, Bradley J. Survant, Michael G. Horner, Macon, for appellant.

Green & Sapp, David A. Sapp, Donald A. Gillis, Atlanta, for appellee.

MIKELL, Judge.

Seventy-one-year-old William M. Vaughan was admitted to Kennestone Hospital in 2002 for weakness and ataxia ¹ and died several weeks later after hitting his head on the bathroom door of his hospital room. His surviving spouse and the administrator of his estate, Nancy R. Vaughan (“Vaughan”), filed this medical malpractice action against WellStar Health System, Inc. d/b/a WellStar Kennestone Hospital (“WellStar”). The trial court granted summary judgment in favor of WellStar, and Vaughan appeals, contending that the trial court erred in excluding Vaughan's expert's affidavit; in denying her motion to modify the scheduling order; and in granting WellStar's motion to exclude Vaughan's new expert's affidavit. We affirm.

To prevail at summary judgment ..., 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. 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. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.²

We review de novo a trial court's grant of summary judgment, construing the evidence most favorably to the nonmovant.³ So viewed, the evidence shows that on July 6, 2002, Mr. Vaughan was admitted to Kennestone Hospital with a diagnosis of weakness and ataxia. According to the record, hospital staff gave Mr. Vaughan a fall prevention score of 30, as of July 26, 2002. Lillian Holloway, the nurse assigned to care for Mr. Vaughan, testified that he was a low risk for falls but that an “out of bed with assistance” order had been in place when Mr. Vaughan initially was admitted to the hospital. That order was not in place at 12:30 a.m. on July 28, 2002, when Holloway noticed a small hematoma on the left side of Mr. Vaughan's head. Mr. Vaughan told Holloway that he had gotten up to go the bathroom and fell into the door frame. Holloway testified that after discovering the hematoma, she performed a neurological assessment and found Mr. Vaughan's condition unchanged. About an hour later, Mr. Vaughan called the nurse's station, complaining of a headache. Holloway responded to his room five minutes later and found him unresponsive. Mr. Vaughan was taken to the intensive care unit and underwent a craniotomy. His condition deteriorated, and he died on August 3, 2002, without regaining consciousness.

On April 23, 2004, Vaughan sued WellStar on behalf of her husband's estate. Pursuant to OCGA § 9-11-9.1, Vaughan submitted the affidavit of Charles Horton, R.N., along with her complaint. Horton's deposition was taken on March 3, 2006, and on July 12, 2007, Vaughan notified the trial court that Horton would be unavailable to testify at trial. On September 5, 2007, the trial court entered a scheduling order, ordering that all experts be identified by September 14, 2007, and that all expert depositions be completed by October 16, 2007. On September 12, 2007, Vaughan identified a new expert, Mitzi Weekley, R.N., B.S.N. Weekley was deposed on October 4, 2007.

On July 29, 2008, WellStar moved to exclude Weekley's testimony, contending that she failed to qualify as an expert because she had not been engaged in the active teaching or practice of nursing for three of the five years preceding the date of the alleged negligence, as required by OCGA § 24-9-67.1(c). WellStar also filed a supplemental motion for summary judgment. On February 6, 2009, Vaughan moved the trial court to modify the scheduling order to provide her with additional time to identify a third expert. Vaughan explained that the motion was necessary because of “unexpected problems with [Weekley's] qualifications”; that a new expert had been identified; and that the new expert affidavit would be filed in conjunction with Vaughan's brief in response to WellStar's supplemental motion for summary judgment.

Following a hearing on February 12, 2009, the trial court granted WellStar's motion to exclude Weekley's affidavit; struck the third expert affidavit; and denied Vaughan's motion to modify the scheduling order, finding that she had identified the third expert nearly seventeen months after the court's deadline for identification of experts and in an apparent attempt to cure defects in Weekley's affidavit. The court also granted WellStar's supplemental motion for summary judgment, ruling that there was no admissible evidence as to either causation or violation of the applicable standard of care. This appeal followed.

1. Vaughan first contends that the trial court abused its discretion when it excluded Weekley's affidavit on the ground that she was not qualified to render an expert opinion. We disagree.

The standard for determining an expert's competence to testify is governed by OCGA § 24-9-67.1, and the statute applies to affiants under OCGA § 9-11-9.1.⁴ OCGA § 24-9-67.1(c)(2)(A) provides that in medical malpractice actions, the expert must have

actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in ... [t]he active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.

We emphasize that OCGA § 24-9-67.1 “gives the trial judge the discretion to determine whether the purported expert is competent to testify.” ⁵ This is a corollary to the rule that “[t]he issue of the admissibility or exclusion of expert testimony rests in the broad

discretion of the court,” ⁶ whose ruling will not be disturbed on appeal absent an abuse of that discretion.

In the case at bar, the trial court did not abuse its discretion in concluding that Weekley did not qualify as an expert under OCGA § 24-9-67.1 because she had not practiced in the relevant area of nursing for three of the five years preceding July 2002. The expert's knowledge and experience must be “relevant to the acts or omissions that the plaintiff alleges constitute[d] malpractice and caused the plaintiff's injuries.” ⁷ In this regard, the complaint alleges that the nursing staff failed to properly monitor Mr. Vaughan, resulting in his fall; namely, nurses failed to activate the alarm system on Mr. Vaughan's bed, which would have notified them if he had gotten out of bed; that they failed to raise all four rails on Mr. Vaughan's bed; and that Holloway administered an excessive dose of a sedative to Mr. Vaughan on the evening of July 27, even though he previously had responded well to a lower dose. In an affidavit filed in conjunction with Vaughan's response to WellStar's supplemental motion for summary judgment, Weekley averred that from 2000 to 2001, she provided bedside nursing care twenty-four hours a day, seven days a week, to her husband and mother, both of whom were seriously ill. Weekley further stated that she was employed (1) as a registered nurse with Macon Northside Hospital from July until December 1997; (2) as a contract agency nurse with ATC Healthcare Services (“ATC”) from December 1997 through December 2001; and (3) as a staff nurse for Beaufort Memorial Hospital from January 2002 through August 2002.

Kathryn Ann Chandler, branch manager of ATC, disputed Weekley's averments. Chandler testified that Weekley last worked at ATC on December 10, 1998. According to Chandler, Weekley was a “per diem registered nurse”; she was paid by the hour and worked as needed when she chose. Chandler could not say how often Weekley worked and she explained that ATC per diem nurses are not on full-time staff at any hospital; such nurses are employed by ATC, but could work full-time at a hospital and work for ATC on their off days. There is no evidence that Weekley was working fulltime at any hospital at the time she was employed by ATC.

At best, the evidence shows that in the five years preceding the alleged malpractice, Weekley worked as a full-time hospital nurse for only eleven months. Vaughan argues that the nursing care Weekley administered to her husband and mother should be counted toward the requirement that she be “regularly engaged in” the “active practice” of the relevant area of nursing “for at least three of the last five years.” ⁸ In this regard however, Vaughan was required to proffer some evidence that Weekley dealt with bed alarms and side rails, administered medications, and supervised geriatric patients and/or patients with abnormal neurological symptoms. Vaughan submitted no evidence concerning the ages and illnesses of Weekley's husband and mother or her duties and responsibilities in caring for them. As we noted in Spacht v. Troyer,⁹ “the trial court is the gatekeeper of expert testimony. OCGA § 24-9-67.1 ... gives the trial judge the discretion to determine whether the purported expert is competent to testify.” ¹⁰ Given the conflicting testimony about whether Weekley had actual...