Smith v. North Fulton Medical Center

Andrews, Judge,

dissenting.

I agree with the disposition of the professional negligence claim, but dissent because I believe the trial court also properly granted summary judgment as to any claim for ordinary negligence.

In the initial complaint, Smith alleged that, because “[b]oth rails of the bed were improperly positioned and not raised all the way up” when she fell out of her bed, the hospital was negligent in its duty to provide proper care and supervision. Although the complaint specifically stated the alleged negligent placement of the side rails, it made only a general allegation as to who at the hospital was responsible for the alleged negligent act or omission, stating: “Contrary to this duty, Defendant [hospital] by and through its agents and/or employees was negligent in the care and supervision which they rendered to Plaintiff.”

In its initial defensive pleadings the hospital raised the failure of Smith to file an expert affidavit with the complaint pursuant to OCGA § 9-11-9.1, and subsequently moved for dismissal on the basis that the complaint could be construed as alleging professional negligence by nurses employed by the hospital and was unsupported by an expert affidavit. The hospital contemporaneously moved for total summary judgment on all claims whether for professional negligence or ordinary negligence. After the hospital’s motions were filed, Smith *468filed an amended complaint attempting to add a count specifically alleging professional negligence by the hospital’s nursing staff. The trial court granted the hospital’s motion to dismiss and motion for summary judgment, and Smith appealed from these rulings.

Smith argued that the grant of total summary judgment was error because, under the general allegations of her complaint, she stated a claim for ordinary negligence on which genuine issues of fact remain. She claims questions of fact exist as to ordinary negligence on two grounds: (1) that the nurses themselves could have been guilty of ordinary negligence, or (2) that she may possibly have proved other non-nursing or non-professional hospital employees could have negligently lowered or failed to raise the side rails. The record does not support the claim that any genuine issue of fact remains on these grounds, and the trial court properly granted summary judgment on any claim based on ordinary negligence.

The record reflects that, in the absence of a physician’s order, the decision to have the side rails in a raised or lowered position was made by the nursing staff based on the patient’s medical condition. Smith was under sedative medication and there is no evidence of a physician’s order with respect to side rails. When Smith was admitted to the hospital a written nursing admission assessment indicated a “yes” with respect to side rails. Subsequent to the initial assessment, the medical records show nursing notations for each eight-hour shift reflecting various changing positions of the side rails. At the time of the fall, evidence shows that only one side rail was in the up position. On the night of the fall, four registered nurses were on duty for Smith’s floor, along with one nurse’s aide. There is no evidence that other hospital employees were present on the floor. With respect to who may have raised or lowered Smith’s side rails, the only evidence is deposition testimony of the shift charge nurse as follows:

“Q. Whose decision was it just to put one side of Mrs. Smith’s bed up on the evening of February 21st, ’87?

“A. It would be the nurse’s.”

The practice of nursing is recognized as a profession subject to its own general standards of care and qualifications. OCGA § 43-26-1 et seq. (registered nurses); Candler Gen. Hosp. v. Joiner, 180 Ga. App. 455, 456-457 (349 SE2d 756) (1986). A decision by a nurse to place the side rails in an up or down position requires the exercise of professional expertise based on an evaluation of the patient’s condition. Smith argues that this is a simple negligence case since, once the initial nursing assessment was made to raise the side rails, any subsequent action taken by nurses with respect to the side rails was merely a physical action taken to carry out the expert assessment, and required no professional expertise. However, this case differs from Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 110-111 (354 SE2d *469872) (1987), where a patient was injured when moved by a nurse from a stretcher to a wheelchair. There, the court determined that carrying out a medical decision to move the patient was “merely an act of relative physical strength and dexterity” rather than an act requiring professional judgment. Id. at 110. Here, the allegation of negligence was not that the mere physical act of lowering the side rails was done in a negligent manner, but that the side rails were in the down position when they should have been up. When applied to nurses at the hospital, this allegation calls into question the exercise of their professional judgment on the placement of the side rails, and, therefore, states a professional negligence claim requiring proof by expert testimony, rather than a claim for ordinary negligence. General Hosp. of Humana v. Bentley, 184 Ga. App. 489, 490-491 (361 SE2d 718) (1987); OCGA § 9-11-9.1.

As to claims that non-nursing or non-professional hospital personnel could have been guilty of simple negligence, the record is devoid of any indication that such personnel were involved in adjusting the side rails. To the contrary, though one of the hospital’s nurses deposed that a nurse’s aide was on duty, she also indicated that it was the nurses’ decision to lower or raise the side rails. Furthermore, the nursing routine flowsheets in the medical records reflect the shift-to-shift monitoring of the side rails by the nursing staff. The affidavit of the plaintiff’s non-treating nurse expert, who had no personal knowledge of the present case, to the effect that side rails could have been adjusted by non-professionals is pure speculation, and sets forth no specific facts necessary to create a factual issue on summary judgment in response to the evidence produced by the hospital. Levine v. First Bank of Savannah, 154 Ga. App. 730, 731 (270 SE2d 20) (1980).

The trial judge correctly concluded that there were no genuine issues of fact with respect to ordinary negligence. On summary judgment, a responding party may not rest upon the allegations in the pleadings, but must set forth specific facts by affidavit or otherwise to show there is a genuine issue for trial. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604 (203 SE2d 173) (1974); OCGA § 9-11-56 (e). Smith failed to come forward with specific facts to rebut the record evidence that nurses placed the side rails, and to thus substantiate the possibility that the alleged negligence was attributable to nonprofessional hospital employees.

The majority finds summary judgment on ordinary negligence inappropriate because the record does not conclusively establish how or why Smith fell out of her bed, but only that the side rail was in the down position at the time of the fall, and that the nurses and a nurse’s aide were on duty. Since the record does not establish the specific circumstances of the defendant’s fall, by stating that the evidence does not demand a finding that the hospital exercised ordinary *470care in watching over Smith, and does not negate Smith’s claim that the hospital’s agents or employees negligently injured her, the majority may be implicitly relying on the doctrine of res ipsa loquitur to conclude that a genuine issue of fact exists. See Bridgestone Firestone v. Green, 198 Ga. App. 858, 860-861 (403 SE2d 442) (1991). Even if the elements of that doctrine are present here,2 it does not apply. Smith alleged in her complaint that the negligent placement of the side rails caused her injury. On summary judgment, the defendant hospital made a prima facie showing that the nurses, and not any other hospital employees, placed the side rails, and that in doing so they acted within the realm of their professional expertise. When Smith offered no rebuttal to this showing, it was established as a matter of law that, however the negligent act or omission may have occurred, it was attributable to nurses acting within the scope of their expertise. See Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52) (1987). Despite the lack of evidence as to how the injury occurred, res ipsa loquitur might have been invoked to establish a question of fact as to the nurses’ professional negligence. However, Smith is precluded from suing the hospital based on the professional negligence of its nurses because she failed to file an expert affidavit, so the doctrine is of no assistance.

Decided June 28, 1991 Reconsideration denied July 15, 1991 Ellerin & Associates, Irwin M. Ellerin, Denise A. Hinds, Heidi Koch, for appellants. Sullivan, Hall, Booth & Smith, Timothy H. Bendin, for appellee.

I am authorized to state that Chief Judge Sognier joins in this dissent.

“The elements of the doctrine are: (l) injury of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” (Citations and punctuation omitted.) Bridgestone, supra at 861.