Wellstar Health System, Inc. v. Painter

• Decision Date: 29 November 2007
• Docket Number: No. A07A1358.,A07A1358.
• Parties: WELLSTAR HEALTH SYSTEM, INC. v. PAINTER.
• Court: Georgia Court of Appeals

288 Ga. App. 659

655 S.E.2d 251

288 Ga.App. 659

WELLSTAR HEALTH SYSTEM, INC. v. PAINTER.

No. A07A1358.

Court of Appeals of Georgia.

November 29, 2007.

Downey & Cleveland, William C. Anderson, for appellant.

Richard L. Powell, Marietta, for appellee.

ELLINGTON, Judge.

Pursuant to a granted interlocutory appeal, Wellstar Health System, Inc. d/b/a Wellstar Kennestone Hospital ("Wellstar"), appeals from the order of the State Court of Cobb County denying its motion for summary judgment. Because the unrebutted evidence showed that Michael Painter's claims sounded in professional negligence rather than ordinary negligence, and Painter failed to file contemporaneously with his complaint the expert affidavit required by OCGA § 9-11-9.1(a), the trial court erred in denying Wellstar's motion. Therefore, we reverse.

On February 3, 2006, Painter filed this action against Wellstar without an expert affidavit seeking damages for injuries he suffered when he, while hospitalized, took the wrong medication. On March 14, 2006, Wellstar filed a motion to dismiss, contending that Painter's claims sounded in professional negligence only and an expert affidavit was a jurisdictionally required prerequisite under OCGA § 9-11-9.1(a). The hearing on the motion was held six months later, on September 18, 2006. Although Wellstar filed a motion to dismiss, the state court, with the consent of the parties, converted the motion to a motion for summary judgment upon considering matters outside the pleadings. The court gave the parties additional time to file affidavits, depositions, or other evidence in support of their positions. Because the motion was treated as a motion for summary judgment, we apply the standard for reviewing a denial of summary judgment, not the standard applicable to a motion to dismiss. See Simmons v. Brady, 251 Ga.App. 717, 718(1), 555 S.E.2d 94 (2001).

Upon motion for summary judgment, it is the movant's burden to show that no jury question remains and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). The movant may discharge such burden by reference to affidavits, depositions, and other documentary evidence in support of the nonmovant's case. Id. After the movant discharges this burden, the nonmovant cannot rest on the pleadings, but instead must come forward with evidence giving rise to a triable issue. OCGA § 9-11-56(e); Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). We review the trial court's decision on motion for summary judgment de novo, "viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law." (Citation omitted.) Gilhuly v. Dockery, 273 Ga.App. 418, 418-419, 615 S.E.2d 237 (2005).

So viewed, the record reveals the following evidence, which was submitted by Wellstar and taken from Painter's own deposition testimony. Upon the advice of a plastic surgeon, Painter returned to Kennestone Hospital following an initial emergency room visit to be treated for burns to his back. After having been hospitalized for three days, Painter deposed that a nurse¹ forced him to take three large cups full of pills. Each cup contained from six to ten different pills. Painter deposed that the nurse said: "[T]hat's what your doctor prescribed for you to take." When Painter protested and told the nurse that he did not believe he was supposed to take all those pills and that he wanted to see his doctor, the nurse said: "I'm in charge right now and I'm telling you you're going to take your medication." Painter took the pills and the nurse left the room. Shortly thereafter, the nurse returned, upset and crying, and said: "[P]lease tell me you didn't take all the pills." Painter responded, "[M]a'am, you made me take them." Painter deposed that, shortly after taking the pills, he felt "woozy," went into cardiac arrest, and was rushed to the intensive care unit for treatment. Painter deposed that, before he lost consciousness, he observed the "head nurse" immediately fire the nurse who had forced him to take the medication. He heard the head nurse say: "[H]ow could you have made such a mistake as this[?]" Wellstar admitted that Painter received the wrong medication and did not charge him for any hospital expenses associated with correcting what it deemed a "medication error."² Painter has not pointed to any record evidence that contradicts his deposition testimony.³

Wellstar contends the trial court should have granted summary judgment in its favor because, based on the evidence adduced, Painter's medication error could only be construed as one sounding in professional malpractice, a claim which must be accompanied by an affidavit pursuant to OCGA § 9-11-9.1(a). Although Painter's complaint may have been construed initially as one sounding in ordinary negligence,⁴ upon summary judgment his own deposition testimony not only disproved his claim for ordinary negligence, it established that a nurse ordered him to take the wrong medication, a claim which sounds in professional negligence only. As we have held,

[W]hether an action alleges professional malpractice or simple negligence depends on whether the professional's alleged negligence required the exercise of professional judgment and skill. It is a question of law for the court to decide. A professional negligence or professional malpractice claim calls into question the conduct of the professional in his area of expertise. Administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence. We have previously held that a nurse's failure to activate an alarm, as a doctor ordered, was ordinary negligence. Likewise, claims that employees failed to carry out instructions and that hospitals failed to have appropriate equipment alleged ordinary negligence. However, if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.

(Punctuation and footnotes omitted.) Upson County Hosp. v. Head, 246 Ga.App. 386, 389(1), 540 S.E.2d 626 (2000).

Here, according to Painter's own uncontradicted deposition testimony,⁵ a nurse, a medical professional,⁶ insisted that Painter take a large amount of medication, despite his protestations and his request to see his doctor. At issue here is a medical judgment made by a nurse acting in her capacity as a nurse.⁷ She was not simply effecting a judgment previously made by another, she was exercising an independent medical judgment that required her to evaluate whether Painter's medications were correct. Whether the nurse should have known that the amount and type of pills prescribed were unusual for a patient in Painter's condition, whether she should have checked a chart to make sure the medication was, in fact, prescribed for Painter, and whether she should have consulted with Painter's doctor, another nurse, or a pharmacist to confirm that the drugs and the dosages were correct, especially given Painter's protestations, are all medical questions. They are not questions of ordinary negligence they are questions concerning whether the nurse deviated from the standard of care required of nurses, the resolution of which requires expert testimony and which thus requires the plaintiff to attach an expert affidavit to the complaint. As we have explained:

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