KIDNEY Et Al. v. EASTSIDE MEDICAL CENTER, LLC Et Al.

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, 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 26, 2017

In the Court of Appeals of Georgia
A17A0806. KIDNEY et al. v. EASTSIDE MEDICAL CENTER
LLC et al.

MCFADDEN, Presiding Judge.

Tiffany Jennings-Perry died from a volvulus, or an abnormal twisting of the

intestine causing obstruction.1 In the days before her death, she twice had gone to the

emergency room at Eastside Medical Center, complaining of abdominal pain, but the

emergency room doctors had discharged her, finding her condition to be stable.

Gwendolyn Kidney, Jennings-Perry’s mother and the executor of her estate,

and Thurna Ray Perry, Jr., the father of Jennings-Perry’s child, filed this action

against the hospital, the two emergency room doctors who saw her and their

employers, the radiologist who read her CT scan and his employer, and others. The

1
The American Heritage Medical Dictionary (2007). Retrieved July 26, 2017
from http://medical-dictionary.thefreedictionary.com/volvulus.
trial court granted the motions for summary judgment filed by the hospital, the

emergency room doctors and their employers, and the radiologist and his employer.

It also denied the plaintiffs’ motion to amend the complaint. The plaintiffs appeal.

The plaintiffs argue that the trial court erred by denying their motion to amend

the complaint. But they have not shown that the trial court manifestly abused his

discretion in denying the motion. The plaintiffs argue that the trial court erred by

granting the defendants’ motions for summary judgment. We agree with the plaintiffs

that disputed issues of fact control whether the heightened evidentiary burden

imposed by the emergency medical care statute, OCGA § 51-1-29.5, applies to the

claims against these defendants. So we do not reach the doctors’ argument that the

plaintiffs presented no evidence that they were grossly negligent. But we find that the

plaintiffs have failed to point to any evidence of negligence on the part of the hospital

or its employees. So we affirm the grant of the hospital’s motion for summary

judgment. In sum, we affirm the denial of the plaintiffs’ motion to amend the

complaint, we reverse the grant of summary judgment to the emergency room doctors,

the radiologist, and their employers, and we affirm the grant of summary judgment

to the hospital.

1. Facts.

2
 “We review the grant of summary judgment de novo, viewing the evidence in

the record, as well as all inferences that might reasonably be drawn from that

evidence, in the light most favorable to the non-moving party.” Bonds v. Nesbitt, 322

Ga. App. 852 (1) (747 SE2d 40) (2013) (citation omitted).

So viewed, the evidence shows that early in the morning of Saturday, April 28,

2012, Jennings-Perry went to Eastside’s emergency department because she was

experiencing abdominal pain. Jennings-Perry saw nurses, a technician, and defendant

John Limehouse, the emergency room physician.

According to Limehouse, Jennings-Perry told him that her pain was moderate.

But she told the Eastside nurse who took her history that her pain level was a 10 and

then a 9 on a scale from 1 to 10. Limehouse discounted the reliability of Jennings-

Perry’s report to the nurses about the intensity of her pain based on his interaction

with her.

Limehouse was aware that Jennings-Perry had had a Roux-en-Y gastric bypass

years before. Limehouse diagnosed Jennings-Perry with “epigastric abdominal pain,”

or pain at the top of the abdomen, which he characterized as a “nonspecific broad

diagnosis” that could encompass more than a thousand different ailments. Because

Jennings-Perry’s pain was fairly mild, Limehouse testified, she was given viscous

3
lidocaine to numb the esophagus and stomach, and Mylanta, medicines that were “just

above” what a person can get over-the-counter.

Limehouse explained that as an emergency room physician, his job was to rule

out acutely life-threatening events and to get the patient to the next step in the

treatment algorithm. Based on Jennings-Perry’s signs and symptoms, he concluded

that her condition was not acutely life-threatening and that she was stable, so he

discharged her. He prescribed Vicodin for pain, Zofran for nausea, and Prilosec to

heal the lining of the stomach, and instructed her to drink plenty of fluids and to

follow up with her doctor in three days, even if she felt well.

Within three hours, Jennings-Perry was returned to the Eastside emergency

department by ambulance. Eastside nurses recorded that Jennings-Perry was suffering

a 9 and then a 10 out of 10 on the pain intensity scale.

Defendant Kamlesh Gandhi was the emergency room physician who saw

Jennings-Perry at this second visit. Gandhi was aware that Jennings-Perry had been

to the emergency room earlier and he reviewed the chart of her earlier visit. Jennings-

Perry told him that the Vicodin prescribed by Limehouse had not relieved her pain.

But Gandhi discounted the reliability of her report of her pain based on his

observation: she did not appear to be in that much pain, she was not grimacing in

4
pain, she was not crying, she was talking normally on her cell phone, her vital signs

were normal, and she did not exhibit any signs or symptoms of severe pain. Gandhi

gave Jennings-Perry Dilaudid for pain and Phenergan for nausea.

Gandhi ordered an ultrasound, thinking that Jennings-Perry’s symptoms might

be related to her gallbladder, and a CT scan of her abdomen with IV contrast “to rule

out any life-threatening situation,” such as perforation of the stomach. A technician

employed by the hospital performed the CT scan. Defendant radiologist Robert

Kubek reviewed the CT scan on his computer screen, but he never met or spoke with

Jennings-Perry. Kubek saw nothing that required surgical intervention, admission to

the hospital, or further work up. Kubek saw swirling of the mesentery2 in Jennings-

Perry’s CT scan, but he did not make a notation of it because he did not believe that

it was significant, given the clinical findings as related by Gandhi; he believed that

the image simply showed Jennings-Perry’s post-gastric bypass anatomy. Kubek

explained that a radiologist cannot tell whether a swirling of the mesentery as

depicted on a CT scan is acute or nonacute; the findings must be correlated with the

2
The mesentery is “[a]ny of several folds of the peritoneum that connect the
intestines to the dorsal abdominal wall.” The American Heritage Medical Dictionary
(2007). Retrieved July 20, 2017 from http://medical-dictionary.thefreedictionary.
com/mesentery.

5
clinical findings as evaluated by the emergency room physician. According to Kubek,

a swirling of the mesentery could indicate an abnormality, such as internal herniation

with strangulation of the small bowel, if the patient also has severe abdominal pain

or other symptoms.

Kubek and Gandhi discussed Jennings-Perry’s clinical history, including that

she was experiencing mild pain and that her examination was benign, with, as Kubek

described it, “no guarding, no rebound [or reaction to physical touch ], not tender,”

and they discussed the results of the scan. Kubek told Gandhi that the CT scan was

completely normal and unremarkable. According to Gandhi, this ruled out volvulus

of the bowels.

But at the time Kubek reviewed Jennings-Perry’s CT scan, he did not know that

she had visited the emergency department hours before and he did not recall Gandhi

telling him how long she had been experiencing pain. Gandhi testified that had he

been informed of the swirling of the mesentery, which he considered to be an

abnormal finding, he would have consulted with a general surgeon or hospitalist or

had Jennings-Perry admitted to the hospital for observation and further studies or re-

evaluation.

6
 That was Kubek’s and Gandhi’s only conversation about Jennings-Perry.

Gandhi did not believe that Jennings-Perry was in an immediately life-threatening

condition. He determined that Jennings-Perry’s medical condition was stable and that

her pain had been controlled, so he discharged her from the hospital. Gandhi

prescribed Tramadol for pain and instructed her to see a gastroenterologist as soon

as possible. Gandhi considered more than a dozen causes for Jennings-Perry’s

abdominal pain, but he had not reached a specific diagnosis when he discharged her.

On Monday, April 30, 2012, Jennings-Perry was seen by gastroenterologist

Sanjay Parikh, a defendant who is not a party to this appeal. He determined that she

was sick and needed to be in the hospital. He told her he would directly admit her to

the hospital or she could go to the emergency room. She refused both options.

A friend of Jennings-Perry found her dead in her apartment the next day. The

medical examiner determined as the cause of death “small intestinal ischemia3 due to

volvulus of small intestine.” She determined as another significant condition “remote

Roux-en-Y gastric bypass surgery.”

3
An ischemia is “[a] decrease in the blood supply to a bodily organ, tissue, or
part caused by constriction or obstruction of the blood vessels.” The American
Heritage Medical Dictionary (2007). Retrieved July 20, 2017 from
http://medical-dictionary.thefreedictionary.com/ischemia.

7
 2. Denial of plaintiffs’ motion to amend the complaint.

The plaintiffs enumerate as error the trial court’s denial of their motion to

amend their complaint to add a claim under the Federal Emergency Medical

Treatment and Active Labor Act, 42 USC § 1395dd, against Eastside. We disagree.

(To the extent the plaintiffs argue that the trial court erred by denying their motion

to add a claim against Limehouse, Gandhi, and Kubek for violation of the Act, we

observe that the record contains no motion to add such a claim against these

defendants; the motion only proposed adding the claim against Eastside.)

The trial court entered a case management order that established deadlines

including an October 28, 2015 deadline for the filing of all amendments adding

counts or parties. In December 2015, the parties filed a joint motion asking the court

to extend the deadline to May 1, 2016. In response, on December 8, 2015, the trial

court entered an amended case management order, extending the deadline for the

filing of amendments to March 31, 2016, a month earlier than the parties had

requested but five months later than the original deadline. The plaintiffs filed their

motion to amend their complaint and proposed amendment in August 2016.

Generally, “[a] party may amend his pleading as a matter of course and without

leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a).

8
However, the plaintiffs filed their motion to amend and the proposed amendment

before the entry of a pretrial order but “well after the [March 31, 2016] deadline set

forth in the order of [December 2015] which had been entered [in response] to a [joint

motion] between the various parties. . . .” Shedd v. Goldsmith Chevrolet, 178 Ga.

App. 554, 555 (1) (a) (343 SE2d 733) (1986). The case management order was

effectively

a pretrial order as contemplated by OCGA § 9-11-15 and thus [the
[plaintiffs] could [not] amend as a matter of right. . . . The order by
setting a particular time controlled as to the expiration date for [filing]
amendments. By doing this, though not so labeled, it was in effect a
pretrial order as to these matters. Moreover by participating in the [joint
motion the plaintiffs] waived [their] right to rely on OCGA § 9-11-15 (a)
regarding amendments to [their] complaint. [They] apparently so
recognized, as [they] thereafter sought leave of court to amend . . . .

Shedd, 178 Ga. App. at 555 (1) (a) (citation omitted). See also Dyals v. Dyals, 281

Ga. 894, 896 (3) (644 SE2d 138) (2007) (a party cannot complain of error induced by

his own conduct).

“Under OCGA § 9-11-15 (a) [], the trial court is given discretion to allow

amendments to the pleadings after the entry of a pretrial order . . . , and the appellate

court may review such a decision only for manifest abuse of discretion.” Babies Right

9
Start v. Ga. Dept. of Pub. Health, 293 Ga. 553, 556 (2) (b) (748 SE2d 404) (2013)

(citation omitted). The plaintiffs argue that because the defendants did not negate the

essential facts related to their obligations under the Federal Emergency Medical

Treatment and Active Labor Act, the trial court should have granted the motion to

amend. They add that it is unfair to allow the defendants to claim the benefits of the

emergency medical care statute while preventing the plaintiffs from pursuing a claim

based upon the provision of emergency medicine. Neither of these arguments,

however, shows how the trial court abused his discretion in adhering to the deadline

established at the inducement of the plaintiffs.

3. Federal Emergency Medical Treatment and Active Labor Act.

The plaintiffs argue that the trial court erred by granting summary judgment to

Eastside on the claim under the Federal Emergency Medical Treatment and Active

Labor Act, 42 USC § 1395dd. But as discussed above, the trial court denied the

plaintiffs’ motion to amend the complaint so the claim under the federal act was not

before the court. Nor did Eastside move for summary judgment on the claim. Thus the

trial court did not grant summary judgment on the claim, and this argument presents

nothing for review.

4. Heightened evidentiary burden under OCGA § 51-1-29.5.

10
 The plaintiffs argue that the trial court erred by granting summary judgment to

the defendants because whether the defendants are entitled to the benefit of the

heightened evidentiary burden of the emergency medical care statute, OCGA § 51-1-

29.5, depends on disputed issues of fact. We agree. (As discussed in Division 5

below, however, Eastside is entitled to summary judgment on a different ground: that

the plaintiffs have failed to point to evidence that any negligence of Eastside’s nurses

caused or contributed to Jennings-Perry’s death.)

OCGA § 51-1-29.5 provides in relevant part:

In an action involving a health care liability claim arising out of the
provision of emergency medical care in a hospital emergency
department or obstetrical unit or in a surgical suite immediately
following the evaluation or treatment of a patient 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). Three conditions must be present for the emergency medical

care statute to apply:

([1]) the lawsuit must involve a “health care liability claim”; ([2]) the
claim must arise out of the provision of “emergency medical care”; and
([3]) the care must have been provided to the patient “in a hospital
emergency department or obstetrical unit or in a surgical suite

11
 immediately following the evaluation or treatment of a patient in a
hospital emergency department.”

Nisbet v. Davis, 327 Ga. App. 559, 564-565 (1) (760 SE2d 179) (2014) (citation

omitted). In this case, whether all of these conditions were present depends on

disputed issues of fact.

(a) Eastside, Limehouse, Gandhi.

It is undisputed that this lawsuit involves a “health care liability claim,” the

first condition, and it is clear that the services of Limehouse, Gandhi, and Eastside’s

employees were provided to Jennings-Perry “in a hospital emergency department,”

the third condition. The question is whether these defendants were providing

“emergency medical care” from which the plaintiffs’ claims arose.

The emergency medical care statute defines “emergency medical care” 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.

12
OCGA § 51-1-29.5 (a) (5). The phrase “bona fide emergency services” as used in the

statute “means ‘genuine or actual emergency services.’ [T]he statute establishes an

objective standard on this issue; the health care provider’s subjective belief about

what kind of care he was providing the patient or what kind of care the patient needed

does not determine whether ‘bona fide emergency services’ were provided.” Nguyen

v. Southwestern Emergency Physicians, P.C., 298 Ga. 75, 79-80 (2) (b) (779 SE2d

334) (2015) (citations omitted).

Moreover,

whether the condition of the patient meets the definition of “emergency
medical care” is an objective, rather than subjective, test. . . . The
patient’s actual medical or traumatic condition is determinative — but
only as that condition is revealed by the patient’s symptoms. The
factfinder must consider the evidence regarding the symptoms the
patient presented and determine whether those symptoms were acute and
sufficiently severe to show that the patient had a medical or traumatic
condition that could reasonably be expected to seriously impair her
health if not attended to immediately.

Nguyen, 298 Ga. at 81 (2) (c) (citation omitted).

The statute excludes from its definition of “emergency medical care” “medical

care or treatment that occurs after the patient is stabilized and is capable of receiving

13
medical treatment as a nonemergency patient. . . .” OCGA § 51-1-29.5 (a) (5). So

medical care can change from emergency medical care to non-emergency care: “the

services provided by [the defendants could have been] ‘emergency medical care’ until

such time as [Jennings-Perry] was stabilized and the absence of such services would

not have placed [her] health in serious jeopardy.” Bonds, 322 Ga. App. at 855 (1).

Neither Dr. Limehouse nor Dr. Gandhi believed that Jennings-Perry’s condition

was life-threatening. They both determined that her condition was stable, so they

discharged her from the emergency room. Viewing the evidence and all reasonable

inferences in the light most favorable to the plaintiffs, we conclude that whether

Jennings-Perry at some point was “stab[le] and [] capable of receiving medical

treatment as a nonemergency patient within the meaning of OCGA § 51-1-29.5 (a)

(5) is a question for the trier of fact.” Bonds, supra, at 856 (1) (punctuation omitted).

See also Nguyen, 298 Ga. at 81 (2) (c). The trial court erred by granting summary

judgment to Eastside, Limehouse, and Gandhi on the issue of whether the emergency

medical care statute applies to the claims against them.

(b) Kubek.

Whether Kubek is entitled to the benefits of the emergency medical care statute

depends not only on the disputed issue of whether his services were emergency

14
medical care as described in Division 4 (a), but also on the issue of whether his

services were provided in a hospital emergency department. “By its ordinary and

everyday meaning, care provided ‘in a hospital emergency department’ is care

provided to a patient in a particular location in a hospital.” Nisbet, 327 Ga. App. at

567 (1) (c). Specifically, “the [emergency medical care] statute applies only when the

medical care at issue was provided in a hospital emergency department or obstetrical

unit or in a surgical suite immediately following the evaluation or treatment of a

patient in a hospital emergency department.” Nguyen, 298 Ga. at 78 (2) (a) (citation

omitted). Although Jennings-Perry remained in the hospital emergency room, the

record does not undisputedly show where Kubek provided “the medical care at issue.”

The plaintiffs allege that Kubek deviated from the standard of care by failing

to recognize and properly report that Jennings-Perry’s CT scan was abnormal. Thus,

as to Kubek, the “medical care at issue” includes his alleged failure to properly read

Jennings-Perry’s CT scan as well as his alleged failure to effectively report to Gandhi

what he saw in the scan. Kubek read the CT scan in “radiology.” He points to no

evidence that “radiology” is located in one of the particular locations listed in the

statute. He telephoned Gandhi to discuss his findings. It is not clear where either

physician was when they spoke by telephone. Given this evidence, where Kubek

15
provided the medical care at issue, whether in a hospital emergency department or

elsewhere, is not a matter of undisputed fact. And if he did not provide the medical

care at issue in a hospital emergency department, he would not be entitled to the

heightened evidentiary burden of the emergency medical care statute. OCGA §

51-1-29.5 (c).

The concurring opinion raises the possibilities of circumstances where a

physician consulted by way of tele-medicine technology might be deemed to have

been virtually present in an emergency room as emergency services were being

provided or a compounding pharmacist might be found to have been subjected to

some of the pressures of the emergency room. The questions raised by such

circumstances would be substantial. But they are not before us today. On the record

before us, a fact finder would be authorized to infer that Dr. Kubek reviewed the CT

scans in the relative quiet of his office.

We recognize that in Nisbet, we stated that the emergency medical care statute

“cover[s] any physician providing emergency medical care to a patient located in the

emergency room.” Id. at 568 (1) (c). But Nisbet does not conclusively answer the

question of whether Kubek provided care in a hospital emergency department.

16
 First, under its plain terms, the emergency medical care statute applies to “a

health care liability claim arising out of the provision of emergency medical care in

a hospital emergency department,” OCGA § 51-1-29.5 (c) — not to a health care

liability claim arising out of the provision of emergency medical care to a patient

located in a hospital emergency department, as Nisbet held.

Second, the instant case is factually distinguishable from Nisbet. In Nisbet, it

was not disputed that the physician provided at least some care in the emergency

department. Nisbet, 327 Ga. App. at 560 (“Dr. Nisbet first saw Mrs. Davis in the

emergency department at 8:51 p.m., according to medical records produced by the

hospital. Dr. Nisbet spoke with the nurses and Dr. Buchanan, evaluated the x-ray and

ultrasound results, and spoke with Mrs. Davis and her husband about her medical

history, including her recent surgery.”) . Here, it is not clear where Kubek was located

when he provided care.

Third, the quoted language from Nisbet is dicta. The issue in that case was

whether the application of the emergency medical care statute “was dependent on the

department of the physician responsible for the patient’s care [or] the physical

location of the patient in the hospital.” Id. at 564. Nisbet did not address the situation

presented here: the patient is physically located in the emergency room but the

17
physician may have provided services remotely. Finally, as noted above, our Supreme

Court, albeit in dicta, has stated that “the [emergency medical care] statute applies

only when the medical care at issue was provided in a hospital emergency

department” Nguyen, 298 Ga. at 78 (2) (a) (citation omitted).

For these reasons, the trial court erred by granting summary judgment to Kubek

on the issue of whether the emergency medical care statute applies to the claims

against him.

5. Evidence of the nurses’ negligence.

The plaintiffs argue that the trial court erred by granting summary judgment to

Eastside because whether the nurses were negligent or grossly negligent and whether

any negligence caused or contributed to Jennings-Perry’s death depend upon genuine

issues of material fact. We find that the plaintiffs have not come forward with

sufficient evidence to create a jury question as to whether any conduct of the nurses

caused or contributed to Jennings-Perry’s death. So the trial court did not err in

granting summary judgment to Eastside.

Even where there is evidence of negligence,

a plaintiff cannot recover for medical malpractice . . . unless the plaintiff
establishes by a preponderance of the evidence that the negligence either

18
 proximately caused or contributed to cause plaintiff harm. . . . In order
to establish proximate cause by a preponderance of the evidence in a
medical malpractice action, the plaintiff must use expert testimony
because the question of whether the alleged professional negligence
caused the plaintiff’s injury is generally one for specialized expert
knowledge beyond the ken of the average layperson. Using the
specialized knowledge and training of his field, the expert’s role is to
present to the jury a realistic assessment of the likelihood that the
defendant’s alleged negligence caused the plaintiff’s injury.

Zwiren v. Thompson, 276 Ga. 498, 500-501 (578 SE2d 862) (2003) (citations and

punctuation omitted).

To hold Eastside liable, the plaintiffs point to the conduct of the two nurses

who treated Jennings-Perry at her two visits to the emergency department. They rely

on the affidavit of their nursing expert, who testified that the nurses deviated from the

standard of care by failing to report Jennings-Perry’s continuing unresolved

abdominal pain to the emergency department physicians prior to her discharge and

by allowing Jennings-Perry to be discharged without assuring themselves that her

pain had been relieved. The nursing expert also testified in her affidavit that in her

opinion, “within a reasonable degree of certainty . . . the deviations of the standard

of care . . . cause[d] or contributed to cause Ms. Jennings-Perry’s pain and suffering

19
and death.” But the plaintiffs point to no evidence linking the alleged deviations to

Jennings-Perry’s death.

In her deposition, the nursing expert testified that Carla Bray, the nurse who

saw Jennings-Perry at the first visit, should have triaged Jennings-Perry at a more

urgent level, but the expert could not say whether the outcome would have been

different if Bray had triaged Jennings-Perry at a more urgent level. The expert

testified that Bray did not document a complete abdominal assessment, but she

admitted that Dr. Limehouse’s documentation indicated that Bray did not miss any

symptoms. She could not identify any specific thing that was missed because of an

allegedly improper assessment.

The expert testified that Bray should have approached Limehouse regarding

Jennings-Perry’s pain, reconfirming with him whether anything else should be looked

at and informing him that she was not comfortable discharging Jennings-Perry, given

her pain level. But she admitted that Limehouse was aware of Jennings-Perry’s

reported pain level and that Bray had noted objective findings — “no acute distress,

alert and oriented, patient ambulating without difficulty” — that suggested that

Jennings-Perry’s reported pain level was not objectively accurate. The expert testified

20
that Bray should have gone up the chain of command, but she could not with any

degree of medical certainty say that anything different would have happened.

The expert testified that nurse Nicole Johnson, who saw Jennings-Perry at her

second visit, should have increased the priority level of triage, given that this was

Jennings-Perry’s second visit, that Jennings-Perry reported her pain as a 10 of 10, and

that Jennings-Perry came by ambulance. But the expert admitted that the records

indicated that Gandhi immediately saw Jennings-Perry: she arrived at the emergency

department at 9:30 a.m. and Gandhi saw her at 9:30 a.m., so the plaintiffs have not

pointed to evidence that elevating the priority level of triage would have changed the

outcome.

The expert also criticized Johnson for deferring to the doctor’s assessment and

judgment regarding Jennings-Perry’s pain and for failing to go up the chain of

command. But the expert could not say that anything different would have happened

had Johnson done this.

The plaintiffs have pointed to no evidence that the nurses’ alleged negligence

“either proximately caused or contributed to cause [Jennings-Perry’s] harm.” Zwiren,

276 Ga. at 500 (citation and punctuation omitted). Accordingly, the trial court did not

21
err in granting Eastside summary judgment. Compare Everson v. Phoebe Sumter Med.

Center, 341 Ga. App. 182, 191 (5) (b) (798 SE2d 667) (2017) .

6. Gross negligence.

The plaintiffs argue that the trial court erred in granting summary judgment to

Limehouse, Gandhi, and Kubek because whether they were negligent or grossly

negligent depends upon genuine issues of material fact. The defendants argue only

that there are no issues of material fact as to whether they were grossly negligent;

they do not counter the plaintiffs’ argument that whether they were negligent depends

upon genuine issues of material fact.

At this juncture we cannot say whether the heightened evidentiary burden of

the emergency medical care statute will apply. Therefore, the issue of whether the

plaintiffs have come forward with sufficient evidence of gross negligence to create

a question for the factfinder “may well turn out to be moot. Under these

circumstances, issuing an opinion [on this issue] would be, in essence, rendering an

advisory opinion. However, Georgia appellate courts are not authorized to render

advisory opinions as to potential error. Accordingly, we do not reach this issue.”

Wellstar Health System v. Sutton, 318 Ga. App. 802, 805 (3) (734 SE2d 764) (2012)

22
(citations and punctuation omitted). See also Dempsey v. Gwinnett Hosp. System, 330

Ga. App. 469, 475 (3) (765 SE2d 525) (2014).

Judgment affirmed in part, reversed in part. Branch and Bethel, JJ., concur

fully in Divisions 1, 2, 3, 5 and 6, and specially in Division 4.

23
 A17A0806. KIDNEY et al. v. EASTSIDE MEDICAL CENTER
LLC et al.

BETHEL, Judge, concurring specially.

I concur in the judgment of the court, and I concur fully in Divisions 1, 2, 3,

5, and 6. However, while I reach the same conclusion in Division 4, I do not agree

with significant portions of the analysis found in that portion of the Presiding Judge’s

opinion. Accordingly, I concur specially to Division 4.

The record contains evidence that would authorize a fact-finder to conclude

that Tiffany Jennings-Perry died on Tuesday, April 31, 2012, as a result of a condition

she was suffering from when she visited the emergency department on Saturday,

April 28, 2012. The evidence in the record creates genuine issues of material fact

concerning whether all of the care she received from the emergency department

physicians and the radiologist1 constituted bona fide emergency service and whether

her condition at the time of treatment in the emergency department was for a

1
The identification of genuine issues of material fact concerning the delivery
of bona fide emergency services and the presence of a genuine or actual emergent
condition apply equally to Dr. Kubek.
condition that required immediate medical attention.2 Thus, a fact-finder will be

required to decide the facts that will, in turn, determine the applicable standard of

proof. In as much as Division 4(a) expresses this view of the record and the law, I

agree.

But I do not agree with the analysis in Division 4(a) to the extent it suggests

the relevance of the physician’s assessment of the stability of the patient on this

record. As the Presiding Judge notes, Jennings-Perry was discharged upon a

determination of her stability. I see no evidence in the record that she received

treatment or care from the defendants following the determination that she was stable.

Absent such evidence, whether the care provided to her by the defendants preceding

her discharge qualifies as “emergency medical care” under OCGA § 51-1-29.5 (a) (5)

is a question of fact for the jury that should not be informed either way by a

physician’s assessment of stability at the time of discharge. A physician’s assessment

2
Obviously, the volvulus in question was a life threatening condition. This
record, however, does not provide conclusive evidence of when the failure to treat it
placed Jennings-Perry’s life, bodily functions, or organs in serious jeopardy. This
question will be reserved for a jury.

2
of stability would only be relevant where there was evidence of additional treatment

following the assessment of stability.3

I further disagree with the analysis in Division 4(b). I simply cannot agree with

the Presiding Judge’s analysis that would have the location of the physician (or other

care provider) determine the applicability of OCGA § 51-1-29.5 (c). The language of

this statutory section provides that

[i]n 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) (emphasis supplied). The Presiding Judge reads “the provision

of emergency medical care in a hospital emergency department” in this statute to

mean the provision of emergency medical care by a physician who is also located in

a hospital emergency department. But the statute contains no such restriction, and

therefore I believe the Presiding Judge’s interpretation to be erroneous.

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I fully agree with the Presiding Judge that Jennings-Perry has provided
evidence sufficient to create a genuine issue of material fact concerning whether at
some point during her care during both visits to the Emergency Department she was
stable and capable of receiving medical treatment as a non-emergency patient.

3
 In construing OCGA § 51-1-29.5 (c), “we apply the fundamental rules of

statutory construction that require us to construe the statute according to its terms, to

give words their plain and ordinary meaning, and to avoid a construction that makes

some language mere surplusage.” Lakeview Behavioral Health Sys., LLC v. UHS

Peachford, LP, 321 Ga. App. 820, 822 (1) (743 SE2d 492) (2013) (citation omitted).

“Thus, a statute should be read according to its natural and most obvious import of

the language without resorting to subtle and forced constructions for the purpose of

either limiting or extending its operation.” Id. (citation and punctuation omitted).

Here, OCGA § 51-1-29.5 (c) applies “to an action involving a health care

liability claim arising out of the provision of emergency medical care in a hospital

emergency department[.]” This statutory language is very broad,4 and should be

interpreted according to its terms without resorting to a reading that forces a

limitation not appearing on the face of the statute. Thus, even if the language in

Nisbet providing that the provision applies to “any physician providing emergency

4
“We have previously construed ‘arising out of’ to mean ‘had its origins in,’
‘grew out of,’ or ‘flowed from.’ Moreover, we have also held that the term ‘arising
out of’ does not mean proximate cause in the strict legal sense . . . . Almost any causal
connection or relationship will do.” Harrison v. McAfee, 338 Ga. App. 393, 398 (2)
(b) (788 SE2d 872) (2016) (citations omitted).

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medical care to a patient located in the emergency room”5 is dicta, it is nevertheless

correct. Jennings-Perry received all of her care relevant to this litigation in the

emergency department. That satisfies the requirement of the statute that the care must

have been provided in a hospital emergency department.

When a patient presents in the emergency department with a head trauma and

the physician (or other member of the emergency department provider team) calls a

local neurosurgeon at her office for urgent consult, that neurosurgeon is treating the

patient in the emergency department. When an emergency department nurse calls the

hospital pharmacy urgently calling for medicine not present in the emergency

department, the pharmacist or technician counting, measuring, or compounding is

rendering care to the patient in the emergency department. When the emergency

department in a hospital in rural Georgia uses tele-medicine technology to consult

with physicians at a large hospital in Atlanta or elsewhere, the physician on the other

end of the connection is providing care in that emergency department. Further,

suppose in the instant case that Dr. Gandhi had left the emergency department to

retrieve an item from a vehicle or had left the emergency department to find an

available restroom when Dr. Kubek called to discuss the CT scan results. Are we to

5
Nisbet v. Davis, 327 Ga. App. 559, 568 (1) (c) (760 SE2d 170) (2014).

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believe that Dr. Gandhi would then not be providing care to a patient in the

emergency department? No. Such a reading of the statute belies its clear and plain

meaning.

A patient is receiving treatment, if at all, where he or she is located.

I am authorized to state that Branch, J. joins in this special concurrence.

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