Cope v. Evans

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/

October 23, 2014

In the Court of Appeals of Georgia
A14A0881. COPE v. EVANS.

ANDREWS, Presiding Judge.

Monette Evans sued John Cope, M.D., an orthopedic surgeon, for medical

malpractice claiming that she was injured when Dr. Cope breached the applicable

medical standard of care by failing to recognize and treat a staph infection in her hip

joint before proceeding with hip replacement surgery. We granted Dr. Cope’s

application for an interlocutory appeal from the denial of his motion for summary

judgment. Because we find no evidence in the record that Dr. Cope violated the

applicable standard of care, he was entitled to summary judgment, and we reverse.

After Ms. Evans fell and fractured her hip, Dr. Cope performed surgery in

September 2006 to repair the fracture. X-rays taken in October 2006 showed that the

September 2006 surgery failed because a screw used to fix the fracture started to
come loose from the bone. After the hip repair surgery failed, Dr. Cope performed a

second surgery in October 2006 in which he replaced Ms. Evans’s injured hip. When

Dr. Cope entered the hip during the replacement surgery, he encountered some clear

yellow fluid which he testified appeared to be the result of inflamation caused by the

loose screw from the first surgery. According to Dr. Cope, he saw nothing before or

during the second surgery that suggested an infection was present in the hip.

Nevertheless, Dr. Cope ordered a gram stain test and a culture on the fluid for the

purpose of determining if bacteria might be present. The gram stain test was

conducted during the surgery; the test showed no bacteria (an indication of lack of

infection); and Dr. Cope completed the surgery. Four days after the hip replacement

surgery was completed, the culture of the fluid grew staphylococcus bacteria

indicating that, unknown to Dr. Cope when he performed the surgery, an antibiotic-

resistant staph infection was present in the hip at the time of the surgery. Expert

medical evidence showed that Dr. Cope knew at the time he performed the first and

second surgeries that Ms. Evans was taking immunosuppressive drug therapy for a

prior kidney transplant, and that this made her more susceptible to bacterial infection.

Expert medical evidence also showed that, when Dr. Cope put hip replacement

hardware in the hip joint during the second surgery, this had the effect of making the

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existing staph infection more difficult to treat. The infection was eventually

eliminated after Ms. Evans was hospitalized for about six weeks of antibiotic

treatment. After Ms. Evans continued to have pain in the replaced hip, she had the hip

examined in April 2008 by another orthopedic surgeon, J. Kevin Brooks, M.D. Dr.

Brooks determined that the hip replacement hardware placed by Dr. Cope in the

second surgery had loosened. In September 2008, Dr. Brooks performed another hip

replacement surgery on Ms. Evans’s hip to revise the earlier replacement surgery

performed by Dr. Cope. Based on his review of Ms. Evans’s medical records, Dr.

Brooks’s opinion was that the probable cause of the failure of the first hip repair

surgery performed by Dr. Cope was the development of a staph infection; that the

infection was present in the hip when Dr. Cope replaced the hip in the second

surgery; and that the infection likely caused the loosening of the replacement

hardware placed by Dr. Cope in the second surgery.

“[I]n order to establish medical malpractice, the evidence presented by the

patient must show a violation of the degree of care and skill required of a physician.

Such standard of care is that which, under similar conditions and like circumstances,

is ordinarily employed by the medical profession generally.” Johnson v. Riverdale

Anesthesia Assoc., P.C., 275 Ga. 240, 241 (563 SE2d 431) (2002) (punctuation and

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citation omitted), overruled on other grounds, Condra v. Atlanta Orthopaedic Group,

P.C., 285 Ga. 667, 669 (681 SE2d 152) (2009). There is a rebuttable presumption that

medical or surgical services were performed in an ordinary and skillful manner.

Beach v. Lipham, 276 Ga. 302, 303-304 (578 SE2d 402) (2003). “To overcome the

presumption in the typical case, the injured patient must present evidence from expert

medical witnesses that the defendants did not exercise due care and skill in

performing their services.” Id. at 304. To prevail on a motion for summary judgment,

“the moving party must demonstrate that there is no genuine issue of material fact and

that the undisputed facts, viewed in the light most favorable to the nonmoving party,

warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405

SE2d 474) (1991); OCGA § 9-11-56. The moving party on summary judgment may

carry this burden by affirmatively presenting evidence which negates an essential

element of the nonmoving party’s claim, or by demonstrating the absence of evidence

to support an essential element of the nonmoving party’s claim. Lau’s Corp, 261 Ga.

at 491.

Ms. Evans does not claim that Dr. Cope breached a medical standard of care

during his performance of the first surgery to repair her hip in September 2006, nor

does she claim that staph bacteria invaded her hip joint because Dr. Cope breached

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a standard of care. Rather, her malpractice action is based on the claim that Dr. Cope

violated the applicable medical standard of care when he failed to recognize and treat

a staph infection in her hip before he proceeded with the hip replacement surgery in

October 2006.

Ms. Evans argues that expert testimony given by Dr. Brooks supports her

malpractice claim. Dr. Brooks and Dr. Cope both gave testimony showing that, when

infection is recognized to exist before or during hip replacement surgery, the standard

of care requires that replacement hardware not be placed in the infected hip; rather,

the standard is to treat and eliminate known infection before placing the hardware in

the hip. Dr. Cope testified that he did not see evidence of or recognize any infection

in Ms. Evans’s hip before or during the October 2006 hip replacement surgery, and

that he placed the replacement hardware in her hip unaware that a staph infection was

present. Based on his review of medical records, Dr. Brooks testified that he found

no basis to conclude that Dr. Cope violated any standard of care during his treatment

of Ms. Evans. Dr. Brooks found no reason to disagree with Dr. Cope’s operative

report on the October 2006 surgery, which noted the absence of evidence of infection.

As to Dr. Cope’s October 2006 surgery to replace the hip, Dr. Brooks testified that

Dr. Cope used good surgical technique, including use of the gram stain test during the

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surgery to determine if the clear yellow fluid encountered in the hip was a sign of

infection. According to Dr. Brooks, the fluid could have been associated with arthritis

or infection in the joint, and it was appropriate for Dr. Cope to order the gram stain

test during the surgery to look for infection. Dr. Brooks testified that, based on the

results of the gram stain test which showed some inflammatory cells, but no bacteria

present, there was no reason for Dr. Cope not to proceed with the hip replacement

surgery. Given the fact that no bacteria was detected in the gram stain test, Dr. Brooks

was asked, “[I]n that situation, is it within the standard of care to proceed with the hip

revision surgery?,” and he responded, “Yes.”1

Ms. Evans points out that, in addition to testifying that Dr. Cope complied with

the standard of care, Dr. Brooks described his own treatment of her hip beginning in

April 2008 after the staph infection had been recognized and treated. Dr. Brooks

testified that, before he performed the September 2008 hip replacement surgery, he

was aware that Ms. Evans had been treated for a prior antibiotic-resistant staph

infection in her hip, although he did not know to what extent the infection had been

1
Dr. Cope testified that he did not violate the standard of care, and two
additional orthopedic surgeons other than Dr. Brooks reviewed the medical records
and gave opinions that Dr. Cope did not violate the standard of care in the treatment
of Ms. Evans.

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treated. Prior to performing that surgery, Dr. Brooks did various diagnostic testing to

look for possible infection in the hip. Ms. Evans contends that the testimony given

by Dr. Brooks showing he tested her hip for infection before the September 2008

surgery in ways that Dr. Cope did not test before the October 2006 surgery was

evidence showing that Dr. Cope violated the applicable standard of care before the

October 2006 surgery.

Testimony from Dr. Brooks about the diagnostic testing he did for infection

before the September 2008 surgery did not create a factual issue precluding summary

judgment in favor of Dr. Cope. Dr. Brooks tested Ms. Evans for infection under

different circumstances than those encountered by Dr. Cope. Dr. Brooks treated Ms.

Evans after she had incurred a known antibiotic-resistant staph infection in her hip,

and he pointed out that he did not know the extent the prior infection had been

treated. Dr. Brooks made clear his opinion that Dr. Cope’s treatment of Ms. Evans

complied with the applicable standard of care. Moreover, Dr. Brooks did not testify

that the various diagnostic testing he did was the medical standard of care under the

circumstances facing Dr. Cope before the October 2006 surgery, or under the

circumstances existing prior to his September 2008 surgery. The only reasonable

construction which can be given to Dr. Brooks’s testimony about diagnostic testing

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he undertook prior to the September 2008 surgery is that it described his personal

practice. Even assuming that Dr. Cope and Dr. Brooks treated Ms. Evans under

similar conditions and like circumstances, testimony from Dr. Brooks about his

personal treatment of Ms. Evans was relevant to cast doubt on his testimony that Dr.

Cope’s treatment of Ms. Evans complied with the standard of care. Condra, 285 Ga.

at 669-672. But testimony about Dr. Brooks’s personal treatment preferences was not

evidence which, standing alone, could establish those preferences as the medical

standard of care. Dendy v. Wells, 312 Ga. App. 309, 314 (718 SE2d 140) (2011);

Condra, 285 Ga. at 672 (noting the difference between the general medical standard

of care and the personal treatment preferences of particular physicians, and

reaffirming “the principle that a mere difference in views between physicians does not

by itself prove malpractice.”).

Construing the facts and reasonable inferences therefrom in favor of Ms.

Evan’s claim, there was no expert medical evidence in the record that Dr. Cope

violated any medical standard of care.2 In the absence of any evidence that Dr. Cope

2
With her amended complaint, Ms. Evans filed an expert affidavit pursuant to
OCGA § 9-11-9.1 from an orthopedic surgeon, Alexander Doman, M.D., stating that,
based on review of medical records, Dr. Cope violated the applicable standard of care
by failing to obtain a gram stain culture to diagnose the existing hip infection, and by
failing to debride and irrigate the hip after diagnosing the infection. The medical

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violated a medical standard of care, Ms. Evans failed to rebut the presumption that

Dr. Cope exercised due care and skill within the standard of care, and the trial court

erred by denying Dr. Cope’s motion for summary judgment. Vaughan v. Wellstar

Health System, Inc., 304 Ga. App. 596, 602 (696 SE2d 506) (2010); Bregman-

Rodoski v. Rozas, 273 Ga. App. 835, 836-837 (616 SE2d 171) (2005); Bowling v.

Foster, 254 Ga. App. 374, 376-377 (562 SE2d 776) (2002); Lau’s Corp., supra.

Judgment reversed. McFadden and Ray, JJ., concur.

records at issue and Dr. Cope’s testimony subsequently provided undisputed proof
that, contrary to the affidavit, Dr. Cope did order a gram stain test which showed no
evidence of infection. See Ezor v. Thompson, 241 Ga. App. 275, 279 n.4 (526 SE2d
609) (1999) (OCGA § 9-11-9.1 affidavit based on fact proved to be incorrect is not
sufficient to preclude summary judgment). Moreover, in response to Dr. Cope’s
motion for summary judgment, Ms. Evans stated that “plaintiff will not rely upon the
Doman affidavit at trial, and does not rely upon it in this summary judgment
proceeding.” Dr. Doman’s affidavit did not create an issue of fact precluding
summary judgment.

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