Abdel-Samed v. Dailey

294 Ga. 758
FINAL COPY

S13G0657. ABDEL-SAMED et al. v. DAILEY et al.

THOMPSON, Chief Justice.

We granted a writ of certiorari in Dailey v. Abdul-Samed, 319 Ga. App.

380 (736 SE2d 142) (2012),1 to determine whether the Court of Appeals erred

in this medical malpractice action by reversing the trial court’s grant of

summary judgment in favor of the defendants.2 Because we conclude there

exists a question of fact for jury determination, and therefore, the defendants

were not entitled to summary judgment, we affirm.

Viewed in a light most favorable to the non-moving parties, Ryan and

Cindy Dailey, the evidence shows that Ryan Dailey arrived at Spalding Regional

1
It appears Dr. Abdel-Samed was inadvertently referred to as Dr. Abdul-
Samed in the Court of Appeals. Because she has been identified in this Court
as Dr. Abdel-Samed, we refer to her by that name.
2
The amended complaint named as defendants emergency room doctor
Gihan Abdel-Samed, physician’s assistant Mark Epps, and ACS Primary Care
Physicians Southeast, P.C., which employed Epps and contracted with Dr.
Abdel-Samed for the provision of professional services at Spalding Regional
Medical Center. Claims against the medical center were dismissed with
prejudice by consent of the parties.
Medical Center (SRMC) just after midnight on December 11, 2005, seeking

treatment after he accidentally shot paint thinner into his finger with a high

pressure paint sprayer. Mark Epps, a physician’s assistant, examined Ryan and

concluded he needed an immediate referral to a hand surgeon and emergency

surgery. SRMC did not have a hand surgeon on call, and Epps told Ryan and

his wife, Cindy, that the on-call orthopedic surgeon did not like to be disturbed

during the night. As a result, Epps stated surgery would have to wait until the

morning. Meanwhile, Dr. Abdel-Samed, who had been informed of Ryan’s

presence in the emergency room and of Epps’ diagnosis, was talking to Dr. John

Seiler, a hand surgeon at Piedmont Hospital, about a different hand surgery

patient she was transferring to him. In the course of this conversation, Dr.

Abdel-Samed mentioned that she might have a second hand surgery patient, i.e.,

Ryan, to send him. Dr. Seiler responded that he would be willing to take and

treat Ryan.

Dr. Abdel-Samed first examined Ryan at approximately 1:00 a.m. and

agreed with Epps’ conclusion that immediate surgery was necessary.

Nevertheless, the Daileys stated in deposition testimony that Dr. Abdel-Samed

told them surgery would have to wait until the next morning when the on-call

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orthopedic surgeon arrived. Dr. Abdel-Samed then encouraged Cindy to go

home and wait, moved Ryan into a small storage room, and turned off the lights.

Hospital staff checked on Ryan periodically throughout the early morning,

noting that he continued to complain of pain in his finger and hand. Hospital

records indicate a breakfast tray was ordered for Ryan at 6:30 a.m.

Epps testified that he spoke with Dr. Abdel-Samed about Ryan’s diagnosis

before 1:00 a.m., that he made no effort to transfer Ryan to a hand surgeon, and

that he spoke with Dr. Abdel-Samed again at 3:00 a.m. when his shift was

ending, but he had no recollection of what was said in that conversation. Dr.

Abdel-Samed testified that after she examined Ryan, she gave a general

instruction to hospital staff to transfer him to an available hand surgeon. The

unit secretary was unable to recollect which hospitals, if any, were called or

when. Instead, she testified as to her normal practice, which was to call Atlanta

Medical Center (AMC) and the Medical Center of Central Georgia (MCCG),

hospitals affiliated with SRMC. Dr. Abdel-Samed testified that based on

hospital protocol, she believed AMC and MCCG had been called, but neither

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had a hand surgeon available.3 There is other evidence, however, showing that

MCCG was not called and that it had a hand surgeon on call and available to

perform surgery on the morning in question.

It is undisputed that at 7:33 a.m., seven-and-a-half hours after Ryan

arrived at SRMC, Dr. Seiler was called and Ryan was accepted for transfer.

Ryan arrived at Piedmont Hospital at approximately 9:45 a.m., where

emergency surgery was performed through use of nerve blocks instead of

general anesthesia.4

The Daileys filed suit, claiming Dr. Abdel-Samed and Epps breached their

duties of care by not transferring Ryan to a hand surgeon in a timely manner.

They contend the delay resulted in amputation of the tip of Ryan’s middle finger

and reduced range of motion and increased pain and sensitivity in his finger and

hand. Dr. Abdel-Samed and Epps moved for summary judgment, relying, in

part, on their contention that the Daileys’ claims are controlled by OCGA § 51-

3
It is undisputed that Dr. Abdel-Samed knew from her experience with the first
patient in need of hand surgery that AM C did not have a hand surgeon on call the morning
of December 11, 2005.
4
The Daileys’ expert suggested general anesthesia may not have been used both
because of the immediate need for surgery and because Ryan was given breakfast at SRMC.

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1-29.5, which places a higher evidentiary burden on plaintiffs asserting certain

health care liability claims arising out of the provision of emergency medical

care. The trial court granted summary judgment in favor of the defendants, and

the Court of Appeals reversed, concluding that an issue of fact exists regarding

the applicability of OCGA § 51-1-29.5 (c). Dailey, supra, 319 Ga. App. at 386.

1. Our review of the grant or denial of summary judgment is de novo, and

we view the evidence, and all reasonable conclusions and inferences drawn from

it, in the light most favorable to the nonmovant. See Johnson v. Omondi, 294

Ga. 74, 75 (751 SE2d 288) (2013); Bonner v. Southern Restaurant Group, 271

Ga. App. 497 (610 SE2d 129) (2005). 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 it is entitled to judgment as a matter of law, the burden shifts to the

respondent to come forward with rebuttal evidence. Id.

Relying on Crewey v. American Medical Response of Ga., 303 Ga. App.

258 (692 SE2d 851) (2010), the Court of Appeals reversed the trial court’s grant

of summary judgment based on its determination that a question of fact exists

as to whether the medical provider defendants’ actions in delaying necessary

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treatment constituted emergency medical care under OCGA § 51-1-29.5 (c).

That subsection provides, in pertinent part:

In an action involving a health care liability claim arising out
of the provision of emergency medical care 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). “Emergency medical care” is defined in OCGA § 51-1-

29.5 (a) (5) as

bona fide emergency services provided after the onset of a medical
or traumatic condition manifesting itself by acute symptoms of
sufficient severity, including severe pain, such that the absence of
immediate medical attention could reasonably be expected to result
in placing the patient’s health in serious jeopardy, serious
impairment to bodily functions, or serious dysfunction of any
bodily organ or part. The term does not include medical care or
treatment that occurs after the patient is stabilized and is capable of
receiving medical treatment as a nonemergency patient or care that
is unrelated to the original medical emergency.

Considering the plain language of these provisions and the uncontradicted

evidence pertaining to Ryan’s medical condition, we find no dispute as to

whether the care provided by the defendants constituted emergency medical

care. The parties and the Daileys’ medical expert agree that Ryan presented at

the emergency room with a high pressure puncture wound to his hand that

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required emergency surgery to minimize the degree of secondary injury in his

hand and forearm. All further agree that defendants had a duty within the

medical standard of care to attempt to locate an available hand surgeon in a

timely manner, including by transfer to another medical facility with an

available hand surgeon if necessary. Contrary to the Daileys’ argument, there

is no evidence in the record that Ryan’s medical condition had stabilized so as

to render him capable of receiving medical treatment as a nonemergency patient.

See OCGA § 51-1-29.5 (a) (5). The fact that Ryan’s need for emergency

surgery was “not changing or fluctuating” is not evidence that his medical

condition had stabilized to the point that he no longer required emergency

treatment to avoid serious injury. In fact, the Daileys’ claims are based on their

contention, a contention not disputed by defendants, that at all relevant times

Ryan remained in need of emergency surgery.5

Because the evidence on summary judgment establishes without dispute

that Dr. Abdel-Samed’s and Epps’ actions were taken after the onset of a

5
Nor can we agree with the Daileys’ contention that although Ryan’s condition was
worsening as he waited for surgery, he was stable because the defendants did not treat him
like he was in crisis. The definition of emergency medical care depends on the actual
medical condition of the individual patient, not the manner in which such condition is treated.
See Bonds v. Nesbitt, 322 Ga. App. 852, 855 (747 SE2d 40) (2013).

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medical or traumatic condition causing severe pain such that the absence of

medical attention could reasonably be expected to result in placing Ryan’s

health in serious jeopardy or in serious dysfunction to his hand, we find the

Court of Appeals erred by finding a question of fact as to the applicability of

OCGA § 51-1-29.5 (c).

The Court of Appeals’ reliance on Crewey was misplaced, as that case is

both factually and substantively distinguishable. The plaintiff in Crewey

suffered a heart attack and required an emergency transfer from the medical

center where he presented to another facility. The medical center called an

ambulance company, American Medical Response (AMR), but AMR had no

ambulances available. Eventually, another ambulance service was contacted,

and Crewey was transferred. Crewey sued AMR, alleging it was negligent in

its efforts to transfer him and as a result of the delay, he suffered severe heart

damage. AMR sought summary judgment, contending it was immune from civil

liability as an emergency care provider pursuant to OCGA § 31-11-8 (a), a

statute which grants immunity to licensed ambulance services and their agents

and employees who in good faith render emergency care to a person who is the

victim of an accident or emergency. The trial court granted the motion, and the

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Court of Appeals reversed, concluding that “AMR did not render ‘emergency

care’ as contemplated by OCGA § 31-11-8 (a). To the contrary, it was AMR’s

inability to provide Crewey with the necessary emergency care . . . that led to the

series of events in question.” (Footnote omitted.) Id. at 263. Thus, the statutory

immunity sought by AMR and granted by OCGA § 31-11-8 (a) to those who

provide ambulance services in an emergency situation did not apply in Crewey

because the plaintiff’s negligence claims were based on allegations that the

ambulance company provided no emergency services.

In contrast, the evidence in this case demonstrates that Dr. Abdel-Samed

and Epps provided emergency medical services to Ryan through their

examination and diagnosis of his medical condition and their efforts to transfer

him to a hand surgeon. Moreover, unlike in Crewey, it is undisputed that these

defendants had a duty under the applicable standard of medical care to attempt

to locate an available hand surgeon to perform the required emergency surgery.

The Daileys’ claims, therefore, are based on clear allegations that the provided

emergency medical services failed to meet the applicable standard of care,

thereby rendering OCGA § 51-1-29.5 (c) applicable. See Bonds v. Nesbitt, 322

Ga. App. 852 (1) (747 SE2d 40) (2013). See also OCGA § 51-1-29.5 (a) (7)

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(defining “health care” as “any act or treatment performed or furnished, or that

should have been performed or furnished”); OCGA § 51-1-29.5 (a) (9) (defining

“health care liability claim” to include a cause of action against a physician or

health care provider for treatment or lack of treatment).

2. Although not addressed by the Court of Appeals, the Daileys further

argued that summary judgment was not warranted because there exists a

question of fact as to whether the defendants provided “bona fide emergency

services.” OCGA § 51-1-29.5 (a) (5). They urge us, as they did the Court of

Appeals, to construe the phrase “bona fide emergency services” to render

OCGA § 51-1-29.5 (c) applicable only to those cases in which emergency

medical services are provided honestly or in good faith. Completing the

argument, the Daileys posit that Dr. Abdel-Samed and Epps did not provide the

emergency medical services in good faith, and therefore, they are not entitled to

claim the heightened protection set forth in OCGA § 51-1-29.5 (c).

In the interpretation of all statutes, the courts shall look diligently for the

intention of the General Assembly. OCGA § 1-3-1 (a). Legislative intent is

determined from consideration of the entire statute; thus we consider a statutory

provision not in isolation, but in the context of the other statutory provisions of

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which it is a part. Hendry v. Hendry, 292 Ga. 1, 3 (734 SE2d 46) (2012). In this

instance, the legislature chose not to define “bona fide” within OCGA § 51-1-

29.5. Nor is it defined elsewhere in the Torts section of the Georgia Code. It

is, however, a phrase of general usage and must be given its ordinary meaning.

See OCGA § 1-3-1 (b). The American Heritage Dictionary defines “bona fide”

as “made or carried out in good faith,” “authentic,” or “genuine.” American

Heritage Dictionary 214 (3rd ed. 1992). Webster’s Dictionary similarly defines

“bona fide” as “real or genuine,” “made or done in an honest and sincere way.”

Merriam-webster.com, http://www.merriam-webster.com/dictionary/bonafide.

Black’s Law Dictionary defines the term to mean both “in good faith” or

“sincerely” and “truly, actually” but recognizes that “bona fide” often is used

ambiguously and may describe either something that is real or true or something

that is “without notice of any fraud.” Thelawdictionary.org,

http://www.thelawdictionary.org/bonafide. See also Black’s Law Dictionary

168 (7th ed. 1999). Strict dictionary definitions thus suggest two possible

meanings for the term “bona fide,” either “in good faith” or “genuine” and

“true.”

In construing language used in a statute, however, we also must consider

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the context in which a phrase is used and the legislative intent behind enactment

of the statute. See Restina v. Crawford, 205 Ga. App. 887, 888 (424 SE2d 79)

(1992). In the context of OCGA § 51-1-29.5 (a) (5), “bona fide” is used as an

adjective to describe the type of emergency medical services to which the

heightened protections of OCGA § 51-1-29.5 (c) shall apply. OCGA § 51-1-

29.5 itself was enacted as part of the Tort Reform Act of 2005, Ga. L. 2005, pp.

1, 11-13, § 10, a legislative effort intended to promote affordable liability

insurance for health care providers and hospitals and thereby promote the

availability of quality healthcare services. Ga. L. 2005, pp. 1-2, § 1. As part of

this effort, the focus of OCGA § 51-1-29.5 (a) (5) is on the definition of

“emergency medical care” and reflects a legislative intent to provide greater

protection from liability to physicians and health care providers who provide

genuine emergency medical care. This interpretation is borne out by the second

sentence of subsection (a) (5) which addresses when an “emergency” dissipates.

In arguing that “bona fide” should be read to mean “good faith,” the

Daileys focus exclusively on the actions or inactions of Dr. Abdel-Samed and

Epps, arguing that their actions or inactions show that they did not act in good

faith. But OCGA § 51-1-29.5 (a) (5) does not once mention health care

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providers or their actions. When the legislature wants to limit an individual’s

tort liability based on good faith actions, it appears to do so by describing the

individuals in question and by specifically saying that they must act in good

faith. Many of these Code sections are in the same chapter of the Georgia Code

as OCGA § 51-1-29.5. See, e.g., OCGA § 51-1-20 (a) (“A person serving with

or without compensation as a member, director, or trustee, or as an officer of the

board without compensation, of any nonprofit hospital or association or of any

nonprofit, charitable, or eleemosynary institution or organization or of any local

governmental agency, board, authority, or entity shall be immune from civil

liability for any act or any omission to act arising out of such service if such

person was acting in good faith within the scope of his or her official actions

and duties and unless the damage or injury was caused by the willful or wanton

misconduct of such person.”); OCGA § 51-1-29 (“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

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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.”); OCGA § 51-1-30.2 (“Teachers and other school personnel

shall be immune from any civil liability for communicating information in good

faith concerning drug abuse by any child to that child’s parents, to law

enforcement officials, or to health care providers.”); OCGA § 31-11-8 (a) (“Any

person, including agents and employees, who is licensed to furnish ambulance

service and who in good faith renders emergency care to a person who is a

victim of an accident or emergency shall not be liable for any civil damages to

such victim as a result of any act or omission by such person in rendering such

emergency care to such victim”). That the General Assembly did not use this

familiar language in OCGA § 51-1-29.5 belies the notion that they intended

“bona fide” to describe the actions of health care providers.

Accordingly, considering the phrase “bona fide emergency services” in its

proper context, we find “bona fide emergency services” to mean genuine or

actual emergency services. Because there is no disputed question of fact in this

case that the defendants provided actual emergency care, see Division 1, supra,

the heightened evidentiary burden found in OCGA § 51-1-29.5 (c) applies, and

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this issue did not preclude the grant of summary judgment.

3. Having determined that the undisputed evidence demonstrates the

applicability of OCGA § 51-1-29.5 (c) to the Daileys’ claims, we must

determine whether there exists a question of fact regarding their claim of gross

negligence. With proper application of OCGA § 51-1-29.5 (c), the Daileys

would bear the burden at trial of proving by clear and convincing evidence that

the defendants were grossly negligent by failing to transfer Ryan to a hand

surgeon in a timely manner. See OCGA § 51-1-29.5 (c); Johnson, supra.

Summary judgment in favor of the defendants, therefore, would be appropriate

only if, viewing the record evidence in a light most favorable to the Daileys,

there was no genuine issue of fact and the medical defendants showed that a

reasonable jury could not find gross negligence by clear and convincing

evidence. “Gross negligence” is defined as

the absence of even slight diligence, and slight diligence is defined
in [OCGA § 51-1-4] as “that degree of care which every man of
common sense, however inattentive he may be, exercises under the
same or similar circumstances.” [Cit.]

Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (694 SE2d 75) (2010). See OCGA §

51-1-4. Applying this definition in the context of a medical malpractice action

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brought pursuant to OCGA § 51-1-29.5 (c), liability would be authorized where

the evidence, including admissible expert testimony, would permit a jury to find

by clear and convincing evidence that the defendants caused harm by grossly

deviating from the applicable medical standard of care. See Johnson, supra, 294

Ga. at 82-83 (Blackwell, J., concurring). As a general rule, “[w]hen facts

alleged as constituting gross negligence are such that there is room for

difference of opinion between reasonable [people] as to whether or not

negligence can be inferred, and if so whether in degree the negligence amounts

to gross negligence, the right to draw the inference is within the exclusive

province of the jury.” (Citation and punctuation omitted.) Trustees of Trinity

College v. Ferris, 228 Ga. App. 476, 477 (1) (491 SE2d 909) (1997). See Currid

v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 709 (2) (618 SE2d

621) (2005).

Viewed in the proper manner, the evidence of record shows that Ryan was

diagnosed by Dr. Abdel-Samed and Epps before 1:00 a.m. with a high velocity

puncture wound that required emergency surgery. Dr. Abdel-Samed and Epps

both testified that Ryan required emergency surgery. The Daileys submitted

expert testimony that Dr. Abdel-Samed’s and Epps’ actions, if any, in

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attempting to transfer Ryan to a hand surgeon did not meet the medical standard

of care under like circumstances because Dr. Abdel-Samed and Epps either

made no effort to transfer Ryan to a hand surgeon or waited 5.5 hours to contact

Dr. Seiler after learning that no other hand surgeon was available.6 Even

applying the heightened evidentiary burden imposed by OCGA § 51-1-29.5 (c),

from this evidence a jury could find clear and convincing evidence that

defendants acted with gross negligence in their efforts to transfer Ryan to a hand

surgeon.7

The defendants argue a jury could not find gross negligence because they

exercised at least slight diligence in caring for Ryan. They point to Dr. Abdel-

6
The Daileys’ expert specifically opined that the calls Dr. Abdel-Samed claims were
made to other hospitals would have been completed within one hour of Ryan’s 1:00 a.m.
diagnosis and that Dr. Abdel-Samed’s failure to make any effort between 2:00 a.m. and 7:33
a.m. to transfer Ryan to a hand surgeon, especially when she knew of the availability of Dr.
Seiler, constituted gross negligence and a gross deviation from the applicable standard of
medical care.
7
As recently stated in Johnson, supra, 294 Ga. at 77,
[w]hen faced with such a heightened burden, “a trial judge must bear in mind
the actual quantum and quality of proof necessary to support liability. . . . [cit.]
The appropriate summary judgment question is ‘whether the evidence in the
record could support a reasonable jury finding either that the plaintiff has
shown [the required element] by clear and convincing evidence or that the
plaintiff has not.’”
(Citation omitted.)

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Samed’s testimony that she directed the emergency room unit secretary to seek

a transfer to a hand surgeon and after another hand surgeon could not be found,

she contacted Dr. Seiler. There is also evidence, however, that no call was made

to MCCG, where a hand surgeon was available on the morning in question.

Moreover, as stated, even assuming the telephone calls were made, this evidence

would not contradict the undisputed evidence that Dr. Abdel-Samed at 1:00 a.m.

believed that Ryan needed emergency surgery and that no hand surgeon was

available at MCCG or AMC and she knew that Dr. Seiler was available to

accept Ryan for surgery, yet she took no additional action to effectuate a transfer

until she called Dr. Seiler at 7:33 a.m.8 In light of this evidence, we cannot say

the evidence precludes a finding that Dr. Abdel-Samed and/or Epps grossly

deviated from the applicable medical standard of care in the treatment of Ryan’s

medical condition.

In summary, although we find no question of fact pertaining to the

8
We note in this regard that the Daileys’ expert witness testified that had Dr. Abdel-
Samed used her best efforts to locate a hand surgeon but one had not been available, her
conduct would not have deviated from the applicable standard of care. Similarly, he opined
that he considered it within the appropriate standard of care for a medical doctor to delegate
to emergency room staff the responsibility of calling other hospitals in search of an available
hand surgeon.

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applicability of OCGA § 51-1-29.5 to the Daileys’ claims, the Daileys have

shown facts sufficient to raise a jury question as to gross negligence on the part

of the defendants. See Currid, supra, 274 Ga. App. at 709 (2); Trustees of

Trinity College, 228 Ga. App. at 477-478. Accordingly, the evidence presented

was sufficient to preclude the grant of summary judgment in favor of the

defendants on this ground, and the decision of the Court of Appeals is affirmed.

Judgment affirmed. All the Justices concur.

Decided March 10, 2014.

Certiorari to the Court of Appeals of Georgia – 319 Ga. App. 380.

Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, for

appellants.

Reynolds, Horne & Survant, W. Carl Reynolds, Bradley J. Survant, for

appellees.

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