Willingham v. Hudson

• Decision Date: 07 July 2005
• Docket Number: No. A05A0422.,A05A0422.
• Citation: 617 S.E.2d 192,274 Ga. App. 200
• Parties: WILLINGHAM v. HUDSON.
• Court: Georgia Court of Appeals

274 Ga. App. 200

Page 192

617 S.E.2d 192

WILLINGHAM v. HUDSON.

No. A05A0422.

Court of Appeals of Georgia.

July 7, 2005.

Douglas R. Powell, Hinton & Powell, Atlanta, for appellant.

Wade H. Coleman, Edward F. Preston, Coleman, Talley, Newbern, Kurrie, Preston & Holland, Valdosta, Hodges, Erwin, Hedrick & Coleman, William A. Erwin, Albany, J. Patrick Ward, Cairo, for appellee.

BERNES, Judge.

Appellant Charlotte Willingham filed this medical malpractice action alleging that appellee Dr. Mark Hudson rendered negligent medical treatment which resulted in an infection and subsequent leg amputation.¹ Appellee moved for summary judgment on the basis of the "Good Samaritan" and "Hospital" immunity exemptions from civil liability pursuant to OCGA §§ 51-1-29 and 51-1-29.1 respectively. The trial court granted appellee's motion from which Willingham has filed the instant appeal. We agree that "Good Samaritan" immunity applies based upon the facts and evidence presented in this case, and therefore, we affirm.

The evidence of record shows that on or about February 14, 2000, a tornado struck Camilla and Mitchell counties. Local hospitals were inundated with severely injured tornado victims. Between 2:00 a.m. and 3:00 a.m. during the crisis, an emergency room nurse at Grady General Hospital contacted appellee, a local family practitioner, and requested his assistance in treating the influx of patients at the hospital. Although appellee was not the on-call physician nor the ER back-up physician on that date, he and other local doctors arrived at the hospital and began treating the injured victims as requested.²

EMS transported Willingham, an injured tornado victim, to Grady General Hospital for medical treatment. She was suffering from a 20 cm x 14 cm laceration to her right thigh, which was open to the bone and exposed the femoral artery; a laceration to her right foot; and lacerations to her earlobe. Several different physicians treated Willingham upon her arrival at the hospital.³ Another ER physician began to debride and irrigate the wound on her right thigh. However, when Willingham began to feel uncomfortable, that ER physician stopped the procedure and asked appellee to transport her to the operating room where the procedure could be completed with anesthesia. Thereafter, appellee treated the wound to Willingham's right thigh and earlobe. Before he loosely sutured the right thigh wound, appellee explored and irrigated it using saline and bacitracin. Willingham remained hospitalized for further treatment and observation.

Several days later, a "foul smelling purulent drainage" was coming from Willingham's right foot wound and Willingham could not move her toes. A follow-up x-ray revealed a "soft-tissue injury with gas in the soft tissues of the mid foot laterally" and "a questionable radiopaque foreign body" near the foot laceration. Thereafter, Willingham was transferred to Archbold Memorial Hospital where she was diagnosed as having a "necrotizing infection of the right foot with compartment syndrome and necrosis of the foot and lower leg." As a result of the infection, Willingham's right leg was amputated.

1. Willingham enumerates that the trial court erred by granting appellee's motion for summary judgment based upon the "Good Samaritan" defense. We disagree.

On a motion for summary judgment, the burden is on the movant to show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. OCGA § 9-11-56(c). The movant's burden may be discharged by referencing affidavits, depositions and other documentary evidence in the record showing that there is an absence of evidence to support the nonmovant's case. All the evidence is to be construed most strongly against the movant with all favorable inferences given to benefit the party opposing the motion. After the movant discharges his burden, the nonmovant cannot rest on his pleadings, but rather must point to specific 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 a motion for summary judgment de novo. Rubin v. Cello Corp., 235 Ga.App. 250, 510 S.E.2d 541 (1998).

Pursuant to OCGA § 51-1-29, commonly known as the "Good Samaritan Law,"

Any person, including any person licensed to practice medicine and surgery pursuant to Article 2 of Chapter 34 of Title 43 and including any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.⁴

In Clayton v. Kelly, 183 Ga.App. 45, 357 S.E.2d 865 (1987), this Court explained the underlying principles of Georgia's "Good Samaritan" statute.

The basic premise of [Good Samaritan immunity statutes] is to induce voluntary rescue by removing the fear of potential liability which acts as an impediment to such rescue. Thus, they are directed at persons who are not under some pre-existing duty to rescue. If the doctor had a particular employment duty to aid the patient at the hospital or had a pre-existing doctor-patient relationship to the patient he aided, then he had a duty to the patient to begin with; and in such a case ... the aid he offers is not voluntary in the sense of a Good Samaritan.... Good Samaritan statutes are directed at persons, including physicians, who by chance and on an irregular basis come upon or are called upon to render emergency care. The fact that a physician is skilled in the subject matter in question or that the exigency lies within his expertise, does not create a duty where none existed before; in fact, such persons are particularly encouraged by the statute to volunteer their aid. Neither is he deprived of immunity by the fact alone that he works at the hospital, or is present at the hospital, or is called to the hospital when the emergency arises.

(Citations and punctuation omitted, emphasis in original.) Clayton, supra at 47, 357 S.E.2d 865.

The burden of proof rested upon appellee to establish his "Good Samaritan" immunity defense. After appellee discharged his burden by referencing affidavits, deposition testimony, and the medical records and invoices, Willingham was required to point to specific documentary evidence of record, beyond mere accusations, that gave rise to a triable issue refuting the applicability of the "Good Samaritan" immunity.⁵ After reviewing the record, we conclude that the undisputed evidence established appellee's entitlement to statutory immunity.

(a) Emergency care at the scene of an emergency. Willingham contends that an issue of fact existed as to whether Willingham was treated at the scene of an emergency within the meaning of OCGA § 51-1-29. The uncontroverted evidence showed that a tornado resulted in an irregular influx of injured victims and created an abnormal situation for which appellee was called upon to render emergency aid. Indeed, Willingham admits in her brief that the dangerous weather and numerous casualties suggested the existence of an emergency situation on the night that appellee was called to the emergency room. As noted previously, this court has held that the scene of an emergency may extend to the hospital location, and we agree with the trial court that the unrebutted evidence in this case established that on February 14, 2000, the hospital, faced with an influx of victims from a natural disaster, was the scene of an emergency. See Clayton, supra at 47, 357 S.E.2d 865.⁶

Willingham also contends that a genuine issue of fact exists as to whether appellee rendered emergency care. Willingham, a victim of the tornado, was transported to the hospital via EMS with several lacerations, including a 20 cm x 14 cm deep laceration that was open to her bone and that exposed her femoral artery. In his uncontroverted affidavit, appellee averred that when he treated Willingham, she had an emergency medical condition. Compare Herrin Business Products v. Ergle, 254 Ga.App. 713, 715(1), 563 S.E.2d 442 (2002) (where this court determined that no emergency existed when the victim's blood-sugar problems were normal and repetitive events, and the circumstances of the victim's treatment did not indicate any urgency).

While the term "emergency care" is not defined in OCGA § 51-1-29, our Supreme Court has defined the term in a similar statutory context as "the performance of necessary personal services during an unforeseen circumstance that calls for immediate action." Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753(1), 251 S.E.2d 250 (1978).⁷ Other jurisdictions have applied a similar definition in providing construction and application of their "Good Samaritan" statutes.⁸ This definition does not require that the victim be in a critical or life-threatening condition. Id.

When appellee was called upon to treat Willingham, she had an exposed and dirty wound which presented a high likelihood of infection. Another physician, who had already commenced treatment of Willingham, called upon appellee to complete Willingham's treatment in the operating room where anesthesia could be administered.⁹ The physician summoned appellee when he realized that he could not complete Willingham's treatment without causing her undue discomfort. As such, the uncontroverted evidence established that appellee's treatment of Willingham was rendered during an unforeseen circumstance that called for immediate action. See Rivera, supra at 651, 255 Ill.Dec. 333, 749 N.E.2d 434; Swenson, supra at 799; McCain, supra.

Willingham nevertheless contends that appellee's admission that Willingham was not in "critical" condition...