FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 18, 2017
In the Court of Appeals of Georgia
A16A1753, A16A1754. FIELDS et al. v. TAYLOR et al.; and vice
versa.
MERCIER, Judge.
In case No. A16A1753, Cheryl Fields, individually, and as the administrator of
the estate of Laura Josey, William Josey, and Pamela Denney (collectively “Fields”),
appeal the trial court’s grant of summary judgment to William Taylor, Jr., Southeast
Geriatrics, P.C., THI of Georgia at Shamrock, LLC, d/b/a Shamrock Nursing and
Rehabilitation Center and John/Jane Does 1-6 (collectively “Taylor”). In Case No.
A16A1754, Taylor appeals the trial court’s denial of his motion to exclude allegedly
unreliable testimony given by Fields’s medical experts. As both appeals arise from the
same underlying case, we will rule on both in one opinion for the purposes of judicial
economy.
In her appeal, Fields contends that the trial court erred in granting summary
judgment to Taylor because she demonstrated that there were genuine issues of
material fact to be decided by a jury at trial. We agree, and reverse. In his cross-
appeal, Taylor contends that the trial court erred in denying his motion to exclude
Fields’s medical expert testimony because the experts based their opinions on
unsworn and uncertified medical records, because they failed to consider sufficient
facts and evidence to form reliable admissible opinions, and because they offered
unreliable expert opinions that were not based on reliable principles and methods.
Finding no error, we affirm.
The underlying action involves alleged medical errors that took place in 2010
that allegedly led to the death of Laura Josey. Fields brought the underlying action
individually, and as the administrator of Josey’s estate. The complaint alleged, inter
alia, claims for wrongful death, pain and suffering, negligence per se, and punitive
damages. Fields contended that the care given to Josey, while she was a patient at
Shamrock Nursing and Rehabilitation Center (which is no longer a party to the
underlying litigation) fell below the applicable standard of care, and as a result of this
breach of the standard of care, Josey died. After discovery was conducted, Taylor
moved for summary judgment in January 2016. In March 2016, the Superior Court of
2
Laurens County issued an order granting summary judgment to Taylor, finding that
“the Plaintiffs have not shown proximate cause.” This appeal followed.
Case No. A16A1753
1. Fields argues that the trial court erred in granting summary judgment to Taylor
because Fields demonstrated that genuine issues of material fact existed that should
have been decided by a jury. We agree. In a claim for medical malpractice three
essential elements must be present: “first, the duty of the doctor to his patient; second,
the doctor’s breach of that duty through the failure to exercise the requisite degree of
skill and care; and third, that this failure be the proximate cause of the injury
sustained.” Miranda v. Fulton DeKalb Hosp. Authority, 284 Ga. App. 203, 205 (1)
(644 SE2d 164) (2007) (footnote and punctuation omitted). See also OCGA § 51-1-
27. The trial court ruled that Fields failed to establish a genuine issue of material fact
as to the element of causation, and thus summary judgment was appropriate.
“It is well established that on appeal of a grant of summary judgment, the
appellate court must determine whether the trial court erred in concluding that no
genuine issue of material fact remains and that the party was entitled to judgment as a
matter of law. This requires a de novo review of the evidence.” Rubin v. Cello Corp.,
235 Ga. App. 250 (510 SE2d 541) (1998) (citations omitted). Furthermore,
3
“[s]ummary judgment is appropriate when the court, viewing all the facts and evidence
and reasonable inferences from those facts in a light most favorable to the
non-movant, concludes that the evidence does not create a triable issue as to each
essential element of the case.” Zeller v. Home Fed. Sav. & Loan Assn. of Atlanta, 220
Ga. App. 843 (471 SE2d 1) (1996) (citation omitted).
Viewed in this light, the facts show that Josey was treated at Shamrock Nursing
and Rehabilitation Center from September 2010 to December 2010, and placed under
the care of Taylor. Josey was admitted for a temporary duration because Fields, her
daughter and primary caregiver, was unavailable for a period of time. Dr. John
Fullerton noted in his expert affidavit (submitted on the behalf of Fields) that upon
Josey’s admission Shamrock was informed that Josey had been subject to an
aggressive program to, inter alia, prevent pressure ulcers.
It is Fields’s position that while Josey was at Shamrock, Taylor failed to
implement adequate treatment to prevent Josey from developing pressure ulcers. Fields
argues that as a consequence of this failure to implement adequate treatment, Josey
developed severe pressure ulcers, which ultimately led to her death. Because this case
involves an appeal of a grant of summary judgment to Taylor, we must view the
4
evidence in the light most favorable to Fields to determine whether triable issues of
material fact exist. We conclude that they do.
The trial court made no mention of a breach of the standard of care by Taylor.
However, in reviewing the record de novo we conclude that, at a minimum, Fields
raised a genuine issue of material fact as to whether Taylor breached the applicable
standard of care. Dr. Fullerton testified at his deposition that Taylor breached the
standard of care in numerous ways including, but not limited to, failing to implement
a proper wound care plan, failing to respond to concerns raised by other medical
professionals regarding Josey, failing to ensure the performance of adequate
assessments of Josey’s condition, and failing to follow applicable policies and
procedures. Dr. Fullerton testified that Taylor was obligated by the standard of care
to take part in the plan of care already implemented for Josey, and he failed to do so.
Therefore, Fields established a genuine issue of material fact as to whether Taylor’s
conduct fell below the relevant standard of care.
Thus, we are left to consider whether summary judgment was appropriate with
respect to causation. Succinctly stated, Fields’s theory of negligence is that Taylor’s
breach of the standard of care led to Josey developing severe pressure ulcers, and that
in turn those ulcers caused her death. The record shows that Dr. Gerald Gowitt, the
5
Chief Medical Examiner for DeKalb County , testified with respect to Josey’s cause
of death that “[w]e can discuss all these other potential causes of death. . . but my
opinion is going to be rock solid that she’s septic from her ulcers,” and that sepsis
resulting form ulcers caused her death. Dr. Gowitt’s opinion that the sepsis resulting
from ulcers caused Josey’s death, and Dr. Fullerton’s opinion that it was Taylor’s
breach of the standard of care which caused the ulcers to develop, appears to raise a
genuine issue of material fact as to causation that should be determined by a jury. See
Knight v. Roberts, 316 Ga. App. 599, 603 (1) (730 SE2d 78) (2012) (“To recover in
a medical malpractice case, a plaintiff must show. . . that the purported violation or
deviation from the proper standard of care is the proximate cause of the injury
sustained. In other words, a plaintiff must prove that the defendants’ negligence was
both the cause in fact and the proximate cause of his injury.”(citation omitted)). In fact,
Dr. Fullerton also opined that “due to the various breaches in the standard of care by
Dr. Taylor, I believe that that led to harm including [Josey’s] premature death.” Thus,
viewed in the light most favorable to Fields, the evidence raised a triable issue of
material fact as to causation.
Taylor argues however, that Fields has failed to establish proximate cause
because the record does not contain testimony linking the specific acts of Dr. Taylor
6
to Josey’s injuries. Taylor fails to point to why he is due judgment as a matter of law,
and instead argues that Fields failed to present testimony from a “‘proximate
causation’ expert.” However, there is no requirement in Georgia law that plaintiffs use
a “proximate causation expert,” and it is well established that “[c]ausation may be
established by linking the testimony of several different experts.” Walker v. Giles, 276
Ga. App. 632, 642 (1) (624 SE2d 191) (2005) (citation omitted). Dr. Fullerton opined
that Taylor’s breach of the standard of care led to Josey developing ulcers, and that
the ulcers became infected and she developed sepsis. Dr. Gowitt testified that the
sepsis resulting from the ulcers were the cause of Josey’s death. Here, Fields has
established that there is a genuine issue of material fact as to proximate cause by
linking the testimony of her experts, and thus the issue of causation should properly
be heard by a jury. “[I]t is. . . well settled that proximate cause is generally an issue for
the jury.” Id. at 643 (2). Accordingly, the trial court erred when it granted summary
judgment to Taylor.
Case No. A16A1754
2. In a related cross-appeal, Taylor argues that the trial court erred when it
denied his motion to exclude medical expert testimony because the experts based their
opinions on unsworn and uncertified medical records, the experts failed to consider
7
sufficient facts and evidence to form reliable opinions, and the experts’ opinions were
not the product of reliable principles and methods. When a trial court has conducted
a hearing pursuant to OCGA § 24-7-702 (d) to determine the admissibility of an
expert’s testimony, we review the trial court’s determination for an abuse of discretion.
See Craigo v. Azizi,, 301 Ga. App. 181, 183 (1) (687 SE2d 198) (2009); Hendrix v.
Fulton Dekalb Hosp. Authority, 330 Ga. App. 833, 836 (769 SE2d 575) (2015)
(physical precedent only).
(a). In his first enumeration of error, Taylor argues that the testimony of Fields’s
experts should have been excluded because they failed to review certified medical
records. “To be sufficient to. . . create an issue of fact, the plaintiff’s expert must base
his opinion on medical records which are sworn or certified copies, or upon his own
personal knowledge.” Padgett v. Baxley and Appling County Hosp. Auth., 321 Ga.
App. 66, 70 (1) (741 SE2d 193) (2013) (citation omitted). While this is an accurate
statement of the law, Taylor fails to establish that Fields’s experts did not review
certified medical records. Taylor points to the records that were attached to the
depositions of Dr. Fullerton and Dr. Gowitt to show that the records reviewed were
not certified. However, at Dr. Fullerton’s deposition, counsel for Taylor stated that he
had provided counsel for Fields with all of the relevant medical records. Counsel for
8
Fields also stated that he had provided Dr. Fullerton with all the medical records he
had obtained from Taylor. Furthermore, at the hearing on the motion to exclude the
expert’s testimony, counsel for Taylor stated that he provided Dr. Fullerton with a
complete copy of all certified medical records. Thus, unless Taylor provided Fields
with uncertified and unsworn records in discovery, which the record in no way
reflects, it was no abuse of discretion by the trial court to find that, based on the
evidence, both experts reviewed certified or sworn medical records and, consequently,
that their opinions were admissible.
(b). In his second and third enumerations of error Taylor argues that Fields’s
experts failed to consider sufficient facts and evidence and failed to utilize reliable
principles and methods to form their opinions.
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise,
if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
9
(3) The witness has applied the principles and methods reliably to the
facts of the case which have been or will be admitted into evidence
before the trier of fact.
OCGA § 24-7-702 (b). Taylor’s argument is that neither of Fields’s experts
considered the deposition of Dr. Ray (Josey’s attending physician while in hospice
care), the deposition testimony of Taylor, or the deposition of a nurse who provided
hospice care to Josey. Taylor fails to cite any relevant authority that establishes how
either Dr. Fullerton or Dr. Gowitt failed to rely on sufficient facts or data, or utilize
reliable principles and methods. Instead, Taylor lists what he asserts to be deficiencies
in the bases for the opinions of both Dr. Fullerton and Dr. Gowitt. While these alleged
deficiencies in the basis for each expert’s opinion do implicate the credibility of their
opinions or testimony, it was within the trial court’s discretion to determine the
admissibility of the testimony of both experts based on its review of the record. See
Craigo, supra, and Hendrix, supra. Taylor fails to point out how the trial court abused
its discretion, or why the facts and data utilized by both Dr. Fullerton and Dr. Gowitt
were insufficient.
Instead, Taylor cites Berk v. St. Vincent’s Hosp. and Medical Ctr., 380
F.Supp.2d 334 (S.D.N.Y. 2005) to support his contention that the testimony of Dr.
10
Fullerton and Dr. Gowitt should be excluded. This case is unavailing for several
reasons. Initially, this is a federal case from the Southern District of New York and so
is not binding precedent on this Court. Moreover, the facts in Berk are distinguishable
from the instant case. In that case, while the proffered expert did fail to review several
depositions, he also based his opinions on facts not supported by the evidence. Berk
v. St. Vincent’s Hosp. and Medical Ctr., 380 F.Supp.2d 334 (S.D.N.Y. 2005). In
Berk there was “simply too great an analytical gap between the data and the opinion
proffered” by the expert testimony for it to be admissible. Berk, supra at 353 (4) (b)
(citation omitted). Here, there is no such analytical gap between the data and the
evidence proffered. Therefore, the trial court did not abuse its discretion in ruling both
experts’ opinions admissible, and Berk does not support such a conclusion either.
Taylor next cites Hawkins v. OB-GYN Assocs., P.A., 290 Ga. App. 892 (660
SE2d 835) (2008), for the proposition that “[w]here an expert employs differential
diagnosis to ‘rule out other potential causes’ for the injury at issue, he must also rule
in the suspected cause, and do so using ‘scientifically valid methodology.’” Id. at 893
(1) (citation omitted). This case is also unavailing. In Hawkins we ruled that a cause
of injury assumed by an expert “was not only unsupported by any evidence, but was
contrary to all the evidence of record.” Id. Here, Dr. Gowitt did “rule in” the
11
suspected cause, namely the sepsis caused by the pressure ulcers. Dr. Gowitt stated,
with respect to ruling out another cause of death (namely aspiration pneumonia) he
could “[n]ot rule it out 100 percent. But again, let me make this clear. We’re dealing
in probabilities, what is the most probable cause of her death. . . . [M]y opinion is
going to be rock solid that she’s septic from her ulcers.” Dr. Gowitt indicated that he
reviewed various relevant medical records, Josey’s death certificate, and photographs,
and examined Josey, as well as reviewed the affidavits of both Fields and Dr.
Fullerton. Dr. Gowitt then utilized his expertise to draw a conclusion. Taylor fails to
show how this opinion was not rendered using a scientifically valid methodology.
Ultimately, Taylor’s argument that both Dr. Fullerton and Dr. Gowitt’s testimony
should be excluded for failure to consider sufficient facts and evidence, and to use
reliable methods, rests on unsupported assertions and conclusory statements.
Accordingly, it was no abuse of discretion for the trial court to rule the testimony of
both Dr. Fullerton and Dr. Gowitt was admissible.
Judgment reversed in Case No. A16A1753. Judgment affirmed in Case No.
A16A1754. Ellington, P. J., and Branch, J., concur.
12