Wilson v. Inthachak

• Docket Number: A23A0398
• Decision Date: 30 June 2023
• Parties: WILSON et al. v. INTHACHAK et al.
• Court: Georgia Court of Appeals

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WILSON et al. v. INTHACHAK et al.

No. A23A0398

Court of Appeals of Georgia

June 30, 2023

The Court of Appeals hereby passes the following order:

There being an equal division of the judges of this Court in connection with the consideration of this case, it is ordered that this case be immediately TRANSFERRED to the Supreme Court of Georgia in accordance with Article VI, Section V Paragraph V of the Constitution of the State of Georgia.

On dispostive issues, the judges of this Court are equally divided.

Those voting to vacate, and remand:

Miller, P, J., Brown, Gobeil, Markle, Hodges, Pipkin, and Land, JJ.

Those voting to reverse:

Rickman, C. J., Barnes, P. J., Doyle, P. J., Dillard, P. J McFadden, P. J., Mercier, J., and Senior Appellate Judge Phipps.

MARKLE, JUDGE

In this appeal, we must decide whether a radiologist reading a CT scan from his office miles away from the hospital is entitled to the heightened gross negligence standard applicable under the emergency medical care statute, OCGA § 51-1-29.5 (c). After Dorothy Warren died, her daughter Angela Wilson filed suit against radiologist Dr. Nirandr Inthachak and his medical practice, alleging that he misread Dorothy's CT scan.^[1] Dr. Inthachak moved for summary judgment on the issue of whether the emergency medical care statute's gross negligence standard applied to his diagnosis. The trial court concluded that it did, and Wilson appeals. For the reasons that follow, we vacate the trial court's order, and remand the case for further proceedings.^[2]

This Court reviews the grant or denial of summary judgment de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Summary judgment is warranted only where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Once the movant has made a prima facie showing that [he] is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.

(Citation and punctuation omitted.) Ob-Gyn Assoc., P. A. v. Brown, 357 Ga.App. 655, 656 (849 S.E.2d 257) (2020).

So viewed, the record shows that, in January 2018, nursing home resident Dorothy Warren fell and struck her head. She was transported to Clinch Memorial Hospital by non-emergency ambulance transport, and was alert but disoriented upon arrival. Physician assistant John Steigner treated Dorothy in the emergency room, marking her priority level as "routine." He noted hip pain and a bruise on her head. Dorothy's vital signs were normal, and her cognitive evaluation indicated only mild deficiency. Steigner ordered a routine CT scan.

At the time, Dr. Inthachak was working in his office at another hospital miles away from Clinch Memorial, but received the CT scan and immediately read it remotely. He did not speak with Dorothy, her family, or Steigner at any point during his diagnosis. Dr. Inthachak reported that the CT scan showed a large acute intracerebral hemorrhage.^[3]

Based on this diagnosis, Steigner spoke with Dorothy's family, told them she had bleeding in the brain, and explained that her condition was grave. They discussed transferring Dorothy to another hospital for a neurology consultation, but Steigner advised that she might not survive the trip, and even if she did, it was likely that the consulting hospital would send her back to Clinch Memorial. Upon considering the diagnosis, the family decided not to transfer Dorothy and instead opted for comfort measures only. Dorothy died several days later.

Thereafter, Wilson filed suit against Dr. Inthachak, and his practice, Radiology Associates of South Georgia, alleging Dr. Inthachak breached the standard of care by erroneously diagnosing Dorothy's condition as an intracerebral hemorrhage.^[4] As alleged in the complaint, Dorothy actually experienced a treatable subdural hematoma.^[5]

Following discovery, Dr. Inthachak moved for summary judgment, arguing that the gross negligence standard applied under the emergency medical care statute. He noted that Dorothy was receiving treatment in the emergency room throughout his involvement in her care and that she was in need of emergent care to treat her condition. In reviewing the emergency medical care statute, Dr. Inthachak argued that it did not require his physical presence in the hospital at the time he made his diagnosis, and there was no testimony that Dorothy was stable at the time of the CT scan. He further asserted that there was no evidence of causation because Steigner, the physician assistant who treated Dorothy, testified in his deposition that both an intracerebral hemorrhage and a subdural hematoma were serious conditions that required a neurology consultation, and he would have made the same recommendations for Dorothy's treatment even if he believed she had experienced a subdural hematoma.^[6]

In response, Wilson argued that the emergency medical care statute did not apply because Dorothy was stable at the time of her CT scan, and Dr. Inthachak did not provide medical care "in" the hospital. See OCGA § 51-1-29.5 (c). As to causation, Wilson argued that the misdiagnosis resulted in a more severe prognosis, when the actual condition was treatable. In support, Wilson submitted the deposition of Dr. John Gaughen, a neuro-radiologist who opined that Dr. Inthachak was negligent, and that the misdiagnosis led the family to choose to forego treatment. Gaughen explained that subdural hematomas were not necessarily a medical emergency and were not life-threatening. Wilson also submitted testimony from Dr. Jason Sheehan, who stated that Dorothy likely would have survived if the family had opted for treatment. The family members also testified that they would not have elected to do comfort measures only had they known the condition was less severe and more likely to be treated successfully.

Following a hearing, the trial court granted summary judgment to Dr. Inthachak, finding that the emergency medical care statute applied; Wilson had not met the gross negligence standard; and there was no evidence the outcome would have been different but for the improper diagnosis. Wilson now appeals.

1. In her first enumeration of error, Wilson contends that the trial court erred by applying the emergency medical care statute to Dr. Inthachak's conduct because he (a) did not provide care "in a hospital emergency department;" and (b) did not render "emergency medical care." OCGA § 51-1-29.5 (c). Although we agree with the trial court that Dr. Inthachak provided care "in an emergency department," we conclude that there is a factual question concerning whether Dorothy received "emergency medical care," and thus Dr. Inthachak was not entitled to summary judgment on this issue.

Under the emergency medical care statute,

[i]n an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence.

OCGA § 51-1-29.5 (c).^[7] There is no dispute that this case involves a health care liability claim. See OCGA § 51-1-29.5 (a) (9). Rather, the parties dispute whether Dr. Inthachak's made his diagnosis "in a hospital emergency department," and whether Dorothy received "emergency medical care." To resolve these questions, we must apply our rules of statutory interpretation.

When construing statutory language, our analysis must begin with familiar and binding canons of construction. First and foremost, in considering the meaning of a statute, our charge as an appellate court is to presume that the legislature meant what it said and said what it meant. And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage. In summary, when the language of a statute is plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.

(Citation omitted.) Ob-Gyn Assoc., 357 Ga.App. at 657 (1).

"Gross negligence" is defined as the absence of even slight diligence, and slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence is equivalent to the failure to exercise even a slight degree of care, or lack of the diligence that even careless men are accustomed to exercise.

(Citation omitted.) Nisbet v. Davis, 327 Ga.App. 559, 568-569 (2) (760 S.E.2d 179) (2014).

But when the language of a statute or regulation is not obvious on its face, we should employ other tools of construction to interpret it and resolve its meaning. Those rules require that we give due weight and meaning to all of the words of the statute, and we are not authorized to disregard any of the words of the statute in question unless the failure to do so would lead to an absurdity manifestly not intended by the legislature. In addition, language in one part of the statute must be construed in light of the legislature's intent as found in the whole statute.

(Citations and punctuation omitted.) PTI Royston, LLC v Eubanks, 360 Ga.App. 263, 266-267 (1) (861 S.E.2d 115) (2021). And, when we engage in statutory construction, we presume...