Emory Healthcare, Inc. v. Pardue

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

July 15, 2014

In the Court of Appeals of Georgia
A14A0112. EMORY HEALTHCARE, INC. v. PARDUE.

RAY, Judge.

Vivian Pardue (“Plaintiff”), by and through her daughter Chris Vance as next

friend, filed a complaint for premises liability and ordinary negligence against Emory

Healthcare, Inc.1 (“Defendant”) for injuries sustained when she slipped and fell on

urine on the floor of her room. After the trial court granted the Defendant’s motion

for summary judgment on the premises liability claim, but denied its motion for

summary judgment on Plaintiff’s ordinary negligence claim, the case proceeded to a

jury trial. Defendant appeals from the jury’s verdict in favor of the Plaintiff. On

appeal, Defendant argues that the trial court erred by denying its motion for summary

1
Two additional defendants, Wesley Woods Center of Emory University and
Wesley Woods Long Term Hospital, Inc. were dismissed from the lawsuit prior to
trial.
judgment and its motion for a directed verdict on the grounds that plaintiff’s claims

sound in medical malpractice, not ordinary negligence. Defendant additionally argues

that the trial court erred in failing to take judicial notice of adjudicated facts and in

allowing inadmissible evidence. Finding no reversible error, we affirm.

The record reveals that, in April 2007, the 72-year-old Plaintiff was admitted

to Wesley Woods’ inpatient psychiatric unit to adjust her medications while in an

inpatient setting. At the time of her admission, she was documented to have a history

of dementia. Upon her admission to the facility, a history was taken, a fall-risk

assessment was completed, and various evaluations were performed by Defendant’s

employees, including nurse Pat Terry. These admission documents noted that Plaintiff

had delirium, that her insight and judgment were poor, and that her cognition was

impaired. In the “Fall Risk Assessment” and admission history, nurses noted that

Plaintiff had several sensory and cognitive impairments, including cataracts, hearing

loss, weakness, an unsteady gait and a history of dementia. Terry testified that

Plaintiff was deemed to be a fall risk, and that the fall risk precautions provided that

the patient be assisted getting out of bed. Terry testified that she was aware of

Plaintiff’s conditions as noted in the records.

2
 In the early morning hours of April 19, 2007, Plaintiff attempted to climb over

the raised bed rails to go to the bathroom. Plaintiff’s actions triggered a bed alarm in

the nursing station. Terry and nursing assistant Daphne Bridges responded to the

alarm and went to Plaintiff’s room. When they got to the room, they assisted Plaintiff

with her slippers and, with one on each side of her, assisted her in walking to the

bathroom. As they were walking to the bathroom, Plaintiff urinated on the floor. They

then led Plaintiff to the bathroom, sat her on the toilet and told her to stay there while

they cleaned up the floor. Terry and Bridges then left the bathroom and went into the

patient’s room to wipe urine off the floor with bath towels. Nurse Margaret Richards

also entered the room and helped to clean the floor. At some point, Bridges and

Richards left the room to fetch more towels, leaving Terry alone in the room.

Terry testified that she was bent over, with her back to Plaintiff, cleaning up

the urine outside the door of the bathroom when Plaintiff got up, walked across the

wet bathroom floor into her room and fell. Terry testified that she did not see Plaintiff

get up off the toilet, that she did not see her walk through the bathroom, and that she

did not see her fall. After her fall, Plaintiff was transported by ambulance to the

emergency room where she was diagnosed with an ankle fracture.

3
 Plaintiff filed suit against Defendant alleging claims of premises liability and

ordinary negligence. Defendant moved for summary judgment on plaintiff’s

negligence claim, arguing that her claims sounded only in professional and not

ordinary negligence. Its motion was denied.2 The trial court then held a bench trial

and determined that, although the statute of limitation for a negligence claim had

elapsed, Plaintiff was not competent at the time of her injury and, thus, that the statute

of limitation as to her negligence claim was tolled pursuant to OCGA § 9-3-90. The

case then proceeded to a jury trial on the ordinary negligence claim, and the jury

awarded a verdict in favor of the Plaintiff.

1. Defendant contends that the trial court erred in denying its motion for

summary judgment and its motion for directed verdict as to Plaintiff’s claim for

ordinary negligence, arguing that Plaintiff’s claim sounds in medical malpractice.

Because no expert affidavit was filed pursuant to OCGA § 9-11-9.1 and because the

tolling provisions of OCGA § 9-3-90 do not apply to medical malpractice actions,

Defendant claims that it was entitled to judgment as a matter of law. We disagree.

2
The trial court granted the Defendants’ motion for summary judgment on
Plaintiff’s claims for premises liability.

4
 Simply because a patient’s injury occurs in a hospital setting or calls into

question the actions of a medical professional does not mean that a suit to recover for

that injury is necessarily a “medical malpractice” action. Rather, “[w]e must look to

the substance of the action against a medical professional in determining whether the

action is one for professional or simple negligence.” (Citation and punctuation

omitted.) Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 849 (635 SE2d 184)

(2006). “[I]n cases involving a person’s fall while in the care of medical

professionals, it can be difficult to distinguish professional negligence from ordinary

negligence. This distinction is a question of law for the court.” (Citations and

punctuation omitted.) Id. In such cases, “the distinction between ordinary and

professional negligence turns on whether the decision on how to monitor, assist or

care for the patient was based on a professional assessment of whether the patient,

based on the patient’s medical condition, required assistance of some sort.” (Citation

omitted.) Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 147 (1)

(682 SE2d 165) (2009). “If the specific information known to the defendant was such

that a jury could determine without the help of expert testimony whether the

defendant exercised due care in failing to prevent the patient’s fall, the claim sounds

in ordinary negligence and no expert affidavit is required.” (Citation and punctuation

5
omitted.) Id. See also Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101)

(2005) (Where a medical professional’s alleged negligence involves “the exercise of

professional skill and judgment to comply with a standard of conduct within the

professional’s area of expertise, the action states professional negligence. But where

the allegations of negligence do not involve professional skill and judgment, the

action states ordinary negligence”) (citations omitted.)

In resolving the issue of whether a medical professional is liable for

professional negligence or ordinary negligence, this Court has “focused on the

specific information known to the defendant about the victim’s condition and about

the surrounding circumstances immediately prior to the victim’s fall.” (Citation

omitted.) Brown, supra. In Brown, this Court held that a complaint could be construed

as setting forth ordinary negligence as a basis for recovery when an occupational

therapist exited the bathroom where a patient was showering to retrieve a bathrobe

even though the patient told the therapist that she was slipping and needed help. Id.

at 848-851. Further, the patient’s hospital and medical records indicated that the

patient was prone to fall and needed “maximum assistance” when being bathed and

“significant assistance” when being moved. Id. at 848. Similarly, in Donson Nursing

Facilities v. Dixon, 176 Ga. App. 700, 700-701 (1) (337 SE2d 351) (1985), this Court

6
held that an ordinary negligence theory was authorized, and thus expert opinion

testimony was not required, when there was evidence presented on summary

judgment of defendant nursing home’s knowledge of decedent’s propensities to set

fires while smoking and of the failure of the nursing home to exercise any supervision

of decedent while smoking. See also Brown v. Durden, 195 Ga. App. 340, 340-342

(393 SE2d 450) (1990) (physical precedent only) (action against physician and

physician’s office staff, based on claim that physician’s assistant negligently

permitted patient to remain seated and unrestrained on a high examining table, was

not a medical malpractice action requiring an expert’s affidavit when physician’s

assistant had been informed that patient had recently suffered from dizziness and

nausea following a seizure). Compare General Hospitals of Humana, Inc. v. Bentley,

184 Ga. App. 489, 489-491 (361 SE2d 718) (1987) (claim against hospital for

negligent failure to supervise 72-year-old patient as he exited bathtub was a

professional negligence claim requiring expert testimony as to standard of care, even

though patient fell three days after hernia repair surgery, because the “[m]edical

condition of the patient was the determinative factor as to the degree of supervision

the patient was accorded by the hospital staff,” requiring the exercise of medical

judgment. In holding that the decision not to supervise the patient while exiting the

7
bathtub was an exercise of medical judgment, this Court indicated that the severity

of the patient’s medical condition and the duty to supervise had not been established

by the evidence).

Here, like the defendants in Brown v. Tift County Hosp. Auth., supra, Donson,

supra, and Durden, supra, it was shown on summary judgment and during trial that

the nurses and nursing assistant assisting Plaintiff on the night of her fall were aware

of her medical and cognitive conditions and that a duty to supervise her had been

established prior to her fall. Plaintiff demonstrated that the nurses and the nursing

assistant were aware that she had diminished cognitive condition, and that she had

previously been determined to be a fall risk at the time of her fall. The nurses and the

nursing assistant nevertheless left Plaintiff unattended in the bathroom, despite the

fact that moments before she had been observed trying to get out of her bed by

climbing over the side rails, and notwithstanding medical records reflecting that she

had a history of dementia, presence of delirium, a history of falls in the previous three

months, cognitive impairment, and poor insight and judgment. Under these

circumstances, a jury could, without the help of expert testimony, find that the nurses

and the nursing assistant failed to exercise ordinary care by leaving Plaintiff

unattended in the bathroom while they cleaned her room. See Brown v. Durden,

8
supra. (finding that a jury could determine without the help of expert evidence

whether the “medical assistant exercised due care in leaving decedent unattended and

unrestrained on the examining table after he had been brought to the office suffering

from dizziness and nausea following an apparent seizure”). Accord Brown v. Tift

County Hosp. Auth., supra. The trial court did not err.

2. Defendant contends that the trial court erred in denying its request to take

judicial notice of certain findings of fact and conclusions of law made by the trial

court in the portion of its order granting Defendant’s summary judgment motion

regarding Plaintiff’s premises liability claim. Defendant contends that these findings

foreclose Plaintiff’s alternate claim of ordinary negligence. We disagree.

Defendant first argues that the trial court should have taken judicial notice of

the findings in its summary judgment order pursuant to OCGA § 24-8-821. This

argument is without merit because that Code Section applies only to “allegations or

admissions made in the pleadings” of another party and not to a trial court’s order.3

Defendant next contends that the trial court should have taken judicial notice

of its findings as adjudicative facts under OCGA § 24-2-201. Under this Code

3
OCGA § 24-8-821 provides that “[w]ithout offering the same in evidence,
either party may avail himself or herself of allegations or admissions made in the
pleadings of another.”

9
Section, a trial court may take judicial notice of “a fact which is not subject to

reasonable dispute” in that it is “[g]enerally known within the territorial jurisdiction

of the court;” or “[c]apable of accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.” It is well settled that “the taking

of judicial notice of facts is, as a matter of evidence law, a highly limited process. The

reason for this caution is that the taking of judicial notice bypasses the safeguards

which are involved with the usual process of proving facts by competent evidence in

. . . court.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir.) (1997) (applying Fed. R.

Evid. 201 (b)). Further, “in order for a fact to be judicially noticed . . . indisputability

is a prerequisite.” (Citation omitted.) U. S. v. Jones, 29 F.3d 1549, 1553 (III) (11th

Cir.) (1994) (applying Fed. R. Evid. 201 (b)). “Since the effect of taking judicial

notice . . . is to preclude a party from introducing contrary evidence and in effect,

directing a verdict against him as to the fact noticed, the fact must be one that only

an unreasonable person would insist on disputing.” (Citation omitted.) Id.

Here, Defendant asked the trial court to take judicial notice of the following

findings of fact and conclusions of law made in the trial court’s summary judgment

order as they related to Plaintiff’s claim for premises liability:

10
 Nurse Terry communicated specific information to [Plaintiff, Ms.
Pardue,] after seating her on the toilet: “Ms. Pardue, we need you to sit
here, we need to clean the urine off the floor for safety, please sit down,
stay there.” (Terry Depo., p. 49) On her own volition Ms. Pardue got up
and walked to the very area she was told to avoid. The hazard was open
and obvious. Ms. Pardue had equal knowledge of the hazard, and she
failed to exercise ordinary care.

Defendant contends that these findings automatically foreclose Plaintiff’s alternate

claim for ordinary negligence because of OCGA § 51-11-7, which provides that “[i]f

the plaintiff by ordinary care could have avoided the consequences to [herself] caused

by the defendant’s negligence, [s]he is not entitled to recover.” However, this

argument is without merit.

Although “[a] trial court may take judicial notice of its own records[,]”

(Citations omitted.) Lee v. State Const. Indus. Licensing Bd. of Ga., 205 Ga. App.

497, 497 (1) (423 SE2d 26) (1992), a trial court cannot take judicial notice of matters

that are the subject of proof in the case. See Eubanks v Rabon, 281 Ga. 708, 711 (3)

(642 SE2d 652) (2007) (trial court committed harmless error in taking judicial notice

of an increase in the needs of children in a child support modification award because

“the question whether there had been an increase in the needs of the children would

be a matter of proof if it were placed in issue, it would not be a proper matter for

11
judicial notice”) (citations omitted); Jones, supra at 1553 (finding that “to deprive a

party of the right to go to the jury with his evidence where the fact was not

indisputable would violate the constitutional guarantee of trial by jury”). As we noted

above, in its analysis of the premises liability claim the trial court found, among other

things, that Plaintiff “had equal knowledge of the hazard, and she failed to exercise

ordinary care.” But in its analysis of the ordinary negligence claim the trial court

found that “whether a plaintiff exercised the care that a prudent person in her

condition and in the same or similar circumstances would exercise” and if “the

plaintiff under the circumstances was so careless for her own safety as to lose her

right to recover,” were questions for the jury.4 The trial court’s analysis and findings

as to the premises liability claim and the ordinary negligence claim may well be

inconsistent, but we do not need to decide that question. Rather, the Defendant cannot

4
In denying Defendant’s motion to take judicial notice of its summary
judgment order the trial court made it clear that it had considered the two claims
separately, noting that
[t]he reason I granted the motion on the premises liability had to do with
an equal knowledge analysis. It was my belief that [Plaintiff] had equal,
if not . . . greater, but at least equal knowledge [of the hazard]. I was not
finding whether or not the nurse’s [sic] had any obligations to her with
respect to how much supervision she needed on a toilet[.]

12
show by reason of the trial court’s order that it was indisputably established for

purposes of the ordinary negligence claim that Plaintiff failed to exercise care for her

own safety. To the contrary, it appears that the trial court intended for the issue of

Plaintiff’s ordinary care for her own safety to be considered by the jury, thereby

leaving the matter in dispute. It follows that the trial court did not err in refusing to

take judicial notice of its findings of fact and conclusions of law as to the premises

liability claim. See, e.g., Eubanks, supra at 711 (3).

3. Defendant next argues that the trial court erred in admitting certain testimony

by Plaintiff’s daughter, Chris Vance, on the grounds that it constituted inadmissible

hearsay. We disagree.

Specifically, Defendant argues that the trial court erred in allowing Chris

Vance, over its objection, to testify that she spoke with a nurse employed by the

Defendant named “Pat” the morning after her mother’s fall.5 The Defendant asserts

that Vance’s testimony did not qualify as an admission by a party opponent under

5
During her deposition, Vance could only identify the speaker as a nurse
named Pat who was in the room when her mother fell. At trial, after seeing nurse
Terry testify, Vance positively identified her as the “Pat” she had spoken to on the
day after her mother’s fall.

13
OCGA § 24-8-801 (d) (2) (D) and that the probative value of the testimony was

outweighed by the danger of unfair prejudice. See OCGA § 24-4-403.

At trial, Vance identified “Pat” as Pat Terry, the first nurse to testify during the

trial. Vance testified that Terry told her that while two employees (not including

Terry) began to assist Plaintiff to the bathroom, she “excessively urinated” on the

floor.6 Vance also testified that Terry stated that the Plaintiff was instructed to stand

by the wall while they cleaned and that Terry was then called into the room only to

bring more towels. Vance then testified that Terry informed her that when the

Plaintiff thought the employees were finished cleaning, she walked around them to

her bed and fell. Vance then stated that Terry “laughed” when she recounted the

events.

6
Although it was not necessarily clear from Vance’s testimony that Terry had
personal knowledge of all of the events about which she spoke, the personal
knowledge requirement of OCGA § 24-6-602 “shall not apply to party admissions.”
Id. This appears to be consistent with prior Georgia law. See Brooks v. Sessoms, 47
Ga. App. 554, 555 (171 SE2d 222) (1933) (finding that “[a]dmissions do not come
in on the ground that the party making them is speaking from his personal
knowledge”) (citation and punctuation omitted). Nor was there multiple hearsay
inasmuch as Vance did not testify that Terry repeated statements made by a third
person. See, e.g., Holiness v. Moore-Handley, Inc., 114 F. Supp. 2d 1176, 1183 n. 7
(N. D. Ala. 1999).

14
 The trial court overruled Defendant’s objection to this testimony at trial on the

ground that it constituted an admission of a party opponent under OCGA § 24-8-801

(d) (2) (D). Under Georgia’s Evidence Code, an out-of-court statement offered

against a party will not be excluded under the rule of hearsay if the statement is made

“by the party’s agent or employee. . . concerning a matter within the scope of the

agency or employment, made during the existence of the relationship[.]” OCGA § 24-

8-801 (d) (2) (D).7 See also Law v. BioLab, Inc., 325 Ga. App. 500, 502 (1) (753

SE2d 446) (2013) (“For a statement to be admissible under OCGA § 24-8-801 (d) (2)

(C) or (D), the subject matter of the statement must relate to what the employee would

know because of the employee’s job duties”) (citation omitted). The statement at

issue was allegedly made to Vance by Terry about what happened on the night of

Plaintiff’s fall. Further, it is undisputed that Nurse Terry was an employee of the

defendant and that the statement was a matter within the scope of her employment.

7
To the extent that Defendant also suggests that Vance’s testimony constituted
extrinsic evidence of a prior inconsistent statement by Terry and was not admitted in
compliance with the requirements of OCGA § 24-6-613 (b) (which provides, in part,
that “extrinsic evidence of a prior inconsistent statement by a witness shall not be
admissible unless the witness is first afforded an opportunity to explain or deny the
prior inconsistent statement”), we note that OCGA § 24-6-613 (b) states that it “shall
not apply to admissions of a party-opponent as set forth in paragraph (2) of subsection
(d) of Code Section 24-8-801.”

15
Accordingly, the statement was an admission for purposes of OCGA § 24-8-801 (d)

(2) (D). Pretermitting whether Defendant has shown that it sought to exclude the

evidence under OCGA § 24-4-403 at trial, although Vance’s testimony contained

prejudicial elements, some of which were also arguably unfair, her testimony was

substantially probative in that it provided a version of events surrounding the

Plaintiff’s fall. See, e.g., United States v. Meester, 762 F.2d 867, 875 (11th Cir. 1985)

(“Relevant evidence is inherently prejudicial; but it is only unfair prejudice,

substantially outweighing probative value, which permits exclusion of relevant

matter[.]”) (Citation and punctuation omitted; emphasis in original) (applying Fed.

R. Evid. 403). Accordingly, the trial court did not abuse its discretion in overruling

Plaintiff’s objection to this testimony.

4. Defendant contends that the trial court erred in allowing evidence of

Plaintiff’s medical expenses to be submitted to the jury over Defendant’s objection

without expert testimony to establish that the medical costs were related to any injury

sustained as a result of Plaintiff’s fall.8 Defendant contends that the admission of

8
Defendant also argues that the trial court erred in allowing a summary list of
Plaintiff’s medical expenses to be admitted into evidence. However, when raised at
trial, that objection was sustained and the summary list was not admitted into
evidence.

16
Plaintiff’s medical bills was in error because there was “absolutely no expert

testimony separating bills related to [Plaintiff’s] ongoing cognitive condition from

those resulting from her unrelated ankle injury.” We disagree.

Plaintiff tendered as evidence the medical bills incurred after Plaintiff’s fall.

Defendant’s contention that Plaintiff “was allowed to admit, without explanation, the

entirety of [Plaintiff’s] medical bills” is belied by the record. At trial, Chris Vance,

Plaintiff’s daughter, testified that she went through each bill item by item and

included only those charges which were obviously directly related to Plaintiff’s ankle

injury and treatment for the ankle injury. Specifically, Plaintiff’s counsel stated that

Vance

[went] through and separated out [bills] related to the injury. . . And . .
. with respect to [bills related to the nursing home, Wesley Woods] we
. . . did not include her entire stay. We only included x-rays of her ankle,
the blood thinning injection . . . [and] [t]he only room charges were the
room charges after the surgery, not before . . . and the physical therapy.
Defendant objected, arguing that expert testimony was required to
distinguish bills that were related to Plaintiff’s ongoing cognitive
condition from those resulting from her injuries sustained during her
fall. The trial court overruled the objection, holding that such distinction
could be determined upon cross-examination.

17
 Under OCGA § 24-9-921 (a), a plaintiff patient or the member of her family

responsible for care of the patient “shall be a competent witness to identify bills for

expenses incurred in the treatment of the patient upon a showing by such a witness

that the expenses were incurred in connection with the treatment of the injury . . .

involved in the subject of litigation at trial. . . .” Subsection (b) of the same Code

Section further provides that “it shall not be necessary for an expert witness to testify

that the charges were reasonable and necessary. However, nothing in this Code

section shall be construed to limit the right of a thorough and sifting cross-

examination as to such items of evidence.”

“Where a party sues for damages, he has the burden of proof of showing the

amount of loss in a manner in which the jury . . . can calculate the amount of the loss

with a reasonable degree of certainty. An allowance for damages cannot be based on

guess work.” (Citation and punctuation omitted.) Lester v. S. J. Alexander, Inc., 127

Ga. App. 470, 471 (1) (193 SE2d 860) (1972). Further, “[w]here medical bills include

charges for treatment, drugs, and hospitalization for items other than those arising out

of the cause of action, the plaintiff has the duty to segregate the irrelevant expenses

since he has the burden of proof to show his losses in such manner as can permit

calculation thereof with a reasonable degree of certainty.” (Citation and punctuation

18
omitted.) Daniel v. Parkins 200 Ga. App. 710, 711-712 (4) (409 SE2d 233) (1991).

This Court has held that all that is required is “that it be shown that medical expenses

were incurred in connection with the treatment of the injury, disease or disability

involved in the subject of litigation at the trial, which may be done by lay testimony.”

(Citation and punctuation omitted.) Id. at 712 Accordingly, “[w]hether the edited

medical bills did in fact represent treatment only for [Plaintiff’s injury] and whether

any irrelevant bill for [her] pre-existing . . . condition had been included in those

submitted for admission were topics for appellant to pursue on cross-examination.”

(Citation omitted.) Id. Here, Plaintiff provided lay testimony that the edited bills

admitted into evidence were related solely to the injury at issue in the present

litigation, and Defendant elected not to cross-examine Chris Vance regarding these

bills.9 There was no error in admitting the edited medical bills over Defendant’s

objection.

Judgment affirmed. McFadden, J., concurs and Andrews, P. J. concurs in

judgment only.

9
Compare Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352
SE2d 832) (1987) (affirming trial court’s grant of directed verdict for the
defendant/appellee on the ground that plaintiff had failed to prove through medical
expert testimony a causal connection between the football injury he had sustained
during his 1979-1982 collegiate football career and the physical condition which
underlay the medical expenses he incurred several years later in 1985).

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