FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, J.
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 14, 2016
In the Court of Appeals of Georgia
A16A1600. GRAHAM et al. v. WELLSTAR HEALTH SYSTEM,
INC. et al.
ANDREWS, Presiding Judge.
This appeal is from the grant of partial summary judgment in an action arising
out of the death of Justin Graham due to liver failure following his arrest for DUI.
The operative facts of the case are fully set forth in a previous appeal and will not be
reiterated here. See Graham v. Cobb County, 316 Ga. App. 738 (730 SE2d 439)
(2012).
Subsequent to that earlier appeal, Graham’s family (hereinafter Graham) filed
a third amendment to the complaint withdrawing all remaining claims and instead
asserting the following claims: (1) simple negligence as to Dr. Clarence Hendrix as
chief medical officer at the Cobb County Adult Detention Infirmary, and as to David
Howell as Administrator for Wellstar Health Systems; (2) professional negligence as
to Dr. Hendrix; (3) simple negligence as to Wellstar under the doctrine of respondeat
superior based on the acts of Dr. Hendrix and David Howell; (4) Negligence per se
as to Wellstar; (5) wrongful death as to all defendants; and (6) pain and suffering as
to all defendants.
On February 16, 2015, as clarified on reconsideration on February 23, 2015,
the trial court granted summary judgment for the defendants on the negligence and
wrongful death claims asserted against Wellstar and Howell. This appeal followed.
1. Negligence per se. Graham contends that by contracting with the Cobb
County Sheriff’s Office to provide medical care for jail detainees, Wellstar owed a
duty under OCGA §§ 42-5-2 (a), 42-4-4 (a) (2), and 42-4-32 (d) to provide needed
medical care for detainees, and breached that duty in its mismanagement of Graham’s
care. However, as noted by the trial court in its order on February 23, 2015, Graham
never pleaded any application and violation of OCGA §§ 42-4-4 (a) (2) or 42-4-32
(d) against Wellstar in the third amended complaint. The amended complaint did
assert a per se violation of OCGA § 42-5-2 (a), but to the extent that statute applied
to Wellstar by virtue of its contract with the Cobb County Sheriff’s Office, it created
an obligation to provide detainees with access to medical care, but did not address the
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issue of proper medical care. Epps v. Gwinnett County, 231 Ga. App. 664, 670 (8)
(499 SE2d 657) (1998). As it is undisputed Graham was provided access to medical
care, the trial court did not err in concluding OCGA § 42-5-2 (a) provides no basis
for a negligence per se claim against Wellstar.
2. Ordinary negligence or professional negligence. The trial court found
Graham’s ordinary negligence claims actually were claims for professional
negligence and granted summary judgment for the defendants on the basis the expert
affidavits filed in the case were insufficient to support any such claims. Graham
contends the trial court erred in classifying the claims against Wellstar and Howell
as professional negligence, but even so, the expert affidavits specifically incorporated
in the third amended complaint sufficiently stated specific examples of duty and
alleged breach that support claims for professional negligence.
“Whether a complaint alleges ordinary negligence or professional malpractice
is a question of law for the court, regardless of how the plaintiff categorizes it.”
(Citation and punctuation omitted.) Grady Gen. Hosp. v. King, 288 Ga. App. 101, 102
(653 SE2d 367) (2007). Accord, Burke v. Paul, 289 Ga. App. 826, 828 (658 SE2d
430) (2008). The court must look at the substance of the action, and if the alleged
negligence required exercising professional skill and judgment to comply with a
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standard of conduct, the action will involve professional negligence. Piedmont Hosp.
v. D. M., 335 Ga. App. 442, 445 (779 SE2d 36) (2015); Burke v. Paul, supra at 828.
The gravamen of the complaint in this case was that the defendants failed to
recognize the severity of Graham’s condition, failed to monitor his condition, and
failed to take appropriate measures to try to forestall the progressive liver failure. In
short, the complaint alleges the defendants, through their inattention, neglected
Graham to the point of irreversible liver failure and death. We find the trial court
properly determined the complaint stated claims for professional negligence instead
of ordinary negligence. However, the trial court erred in concluding the expert
affidavits on file were insufficient to support those professional negligence claims.
The expert affidavits in the record were originally submitted in support of the
professional negligence asserted against Dr. Hendrix and various members of the
nursing staff, but the affidavits also contain multiple averments pertaining to the
standard of care applicable to Wellstar and the administrator Howell. Dr. Robert
Kaufmann identified a standard of care requiring supervision of healthcare personnel
and policies and procedures that insure timely review of a patient’s care. Based on his
review of Graham’s treatment records, Dr. Kaufmann opined that was not done, and
specifically faulted the Administrator for the failure to actively monitor the medical
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care being provided in the facility. Other specific violations of an applicable standard
of care included the nursing staff’s failure to monitor Graham’s input and output;
failure to monitor changes in Graham’s abdomen for any ascites buildup; failure to
document administration of IV fluids; failure to communicate abnormal lab values to
the physician; and failure to document sufficient data for two Code Blue reports.
Dr. Mark Griffis averred the same standards of care and failures of the nursing
staff and the Administrator iterated by Dr. Kaufmann. Dr. Griffis emphasized the
standard of care of conscientiously supervising healthcare providers, monitoring the
patient’s care and condition, and intervening when necessary, and noted the breach
of that standard in Graham’s case.
Based on his review of the records of Graham’s treatment, Patrick Washington,
a registered nurse, listed multiple deficiencies of the nursing staff: the failure to
procure Graham’s transfer to the hospital following two Code Blue incidents; failure
to report lab results or follow-up lab results with the physician on a timely basis;
failure to report to the management elevated lab results and vital sign levels that
indicated the need for immediate intervention; failure to report the continuous
elevation of pulse rates; failure to report alert levels of bilirubin, and non-resolving
jaundice for days; failure to record the patient’s input and output; failure to request
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the physician timely to attend to Graham as his condition worsened; and failure to
document adequately Graham’s status for multiple days.
These affidavits set forth “at least one negligent act or omission claimed to
exist and the factual basis for each such claim,” OCGA § 9-11-9.1 (a) (3), and thus
the trial court should not have granted summary judgment for the defendants on the
professional negligence claims asserted against Wellstar and the administrator
Howell.
3. Wrongful death claims. In the order entered on February 23, 2015, the trial
court found that as Graham’s negligence claims against Wellstar and Howell failed,
so, too, must the wrongful death claims asserted against those two defendants. In light
of our decision that the trial court erred in granting summary judgment for Wellstar
and Howell on those negligence claims, the trial court likewise erred in similarly
disposing of the wrongful death claims.
Judgment affirmed in part and reversed in part. Doyle, C. J., and Ray, J.,
concur.
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