This is a medical malpractice case, and at this stage, the issues swirl around that first element of negligence, the legal duties of the defendants towards Mr. and Mrs. Worthy.
Mr. Worthy, individually and as guardian of his wife, brought this action against CAA, Drs. Mani-Murugiah, Cortes, and Shantha; their employee Krencik; nurse Castro; Drs. Moorhead and Moore; and the hospital. After extensive discovery, the Worthys moved for partial summary judgment on the issue of negligence per se for violation of OCGA § 43-26-9 (b). Nurse Castro, Drs. Moorhead and Moore, and the hospital also moved for summary judgment. The trial court granted the Worthys’ motion for partial summary judgment on the issue of negligence per se against all defendants except Moore, reserving the issues of proximate cause and damages for the jury. It granted Moore’s motion for summary judgment. It denied Castro’s (68547), Moorhead’s (68548) and the hospital’s (68549) motions for summary judgment. All defendants except Moore, who is no longer an active party, appealed the grant of partial summary judgment to the Worthys. Castro, Moorhead and the hospital also appealed the denial of their summary judgment motions. Held:
The first issue involves the grant of partial summary judgment to the Worthys against all remaining defendants on the issue of negligence. The court concluded that violation of OCGA § 43-26-9 constituted negligence per se as to each of these defendants and that the only issues for the jury to determine were those involving the elements of proximate cause and damages. That is, it concluded that all defendants had a legal duty imposed by the Code provision, that each had breached it, and that plaintiffs had only to prove that the breach was the proximate cause of Mrs. Worthy’s condition and what the damages were.
Appellants argue that the statute pertains only to the conduct of
OCGA § 43-26-9 (a) defines and establishes the minimum qualifications for “certified registered nurse anesthetist” in this state: “As used in this Code section, the term ‘certified registered nurse anesthetist’ means any person who is authorized by this article to practice nursing as a registered professional nurse in this state who has successfully completed the education program of a school of nursing approved by the board in accordance with this article or has successfully completed an educational program outside the state or the United States which meets criteria similar to and not less stringent than those established by the board, who has successfully completed the educational program of a school for nurse anesthetists accredited by the American Association of Nurse Anesthetists, and who either is certified as a registered nurse anesthetist by the American Association of Nurse Anesthetists or has an application for certification pending within the American Association of Nurse Anesthetists.” OCGA § 43-26-9 (b) provides: “In any case where it is lawful for a duly licensed physician practicing medicine under the laws of this state to administer anesthesia, such anesthesia may also lawfully be administered by a certified registered nurse anesthetist, provided that such anesthesia is administered under the direction and responsibility of a duly licensed physician with training or experience in anesthesia.”
These provisions are part of that chapter of our Code which regulates registered and licensed practical nurses. OCGA Title 43, Chapter 26. Section 10, immediately following the CRNA section focused on here, declares that the practice of nursing as a registered professional nurse (RPN) or as a licensed undergraduate nurse, without license, is a public nuisance and may be enjoined. CRNAs, of course, must be RPNs. Section 12 provides that it is a misdemeanor for any person, corporation, or association to willfully violate this chapter. OCGA § 43-26-12 (7).
It is well-settled that Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per
Another way of putting it was stated earlier in
Etheridge v. Guest,
The purpose of OCGA § 43-26-9 is to protect patients from the dangers of improperly administered anesthesia by those unqualified by a lack of what public policy regards as minimum education in the field, and by a lack of specified supervision. Mrs. Worthy is one such patient the statute was intended to protect. So too is the harm incurred by Mrs. Worthy, the harm the statute was intended to guard against. The statute set threshold qualifications which had to be met before a person would be permitted under the law to apply anesthesia. These qualifications do not establish how the anesthesia is to be administered, or what methods or instruments may be used, but rather who may do it with whose supervision. Thus it prohibits anyone not meeting these qualifications from performing, and it further prohibits even a statutorily qualified person from performing without prescribed supervision.
For a violation of the statute to be negligence per se, the violation “must be capable of having a causal connection between it and the damage or injury inflicted upon the other person.” Etheridge v. Guest, supra. This refers not to the proximate cause element of the negligence action, which the Worthys still must prove by a preponderance of the evidence, but rather to the character of the legal duty involved. Is this statutory duty one which, if breached, is capable of producing injury to an anesthetized person?
It seems clear that it is. The unauthorized and unsupervised administration of anesthesia could indeed cause injury to the patient.
The next question is, who had the duty imposed by the statute which prohibited the administration of anesthesia by a non-physician unless the person was a CRNA and supervised by an anesthesiology-qualified physician?
Certainly the nurse Castro had a duty not to practice medicine beyond what the law allowed. Her duty to comply with the law as a student did not end at the point she was assigned by her supervisors to attend this patient as part of her schooling.
Also the physician’s assistant Krencik had a duty not to undertake and supervise her performance, as he was not authorized under the statute to do so. Only “a duly licensed physician with training or experience in anesthesia” could do so. The physician assistant’s authority is circumscribed by law, and nowhere does it allow the activity outside of the prohibition in OCGA § 43-26-9. To begin with, he is to work under the personal direction or supervision of the licensed physician who will be responsible for his performance. OCGA §§ 43-34-102 (4) and 43-34-103. Additionally, he is to perform only those tasks in his job description plus those performed under the direct supervision and in the presence of the physician utilizing him, OCGA § 43-34-105. So he was not authorized by law to substitute himself for the physician required by OCGA § 43-26-9.
The corporation which provided anesthesia services in the hospital and which operated the school that nurse Castro was enrolled in, and which controlled her assignments and those of its employee Krencik, and on whose assignment they were at the time, had a duty not to assign students to administer anesthesia and not to assign a non-physician to supervise her. The duty also devolved upon the physicians who were individually sued here, since each had a position of responsibility with respect to her anesthetizing Mrs. Worthy that day. All denied involvement, showing that no anesthesiologist was in charge. Their breach was one of omission rather than commission. Even if any of them had authorized her activity, negligence per se would be laid at their doorstep because no student was permitted by law to perform the task.
As to the hospital, while it did not control the operation of the
Dr. Moorhead claims that he was not responsible for the anesthesia in this case. He was the surgeon in charge of the tubal ligation on Mrs. Worthy. His duties are inherent in the doctor-patient relationship.
Hawkins v. Greenberg,
However, there is no expert evidence one way or the other with respect to an obligation of a surgeon directing surgery to see that those who assist him and provide services to his patient meet the minimum qualifications of the law authorizing the practice of medicine. Whether the standard of care would require the surgeon to inquire or satisfy himself at least that the anesthetist was an anesthesiologist or a CRNA has not been determined by expert opinion. As held in
Self v. Executive Comm. of Ga. Baptist Convention,
No one, including Dr. Moorhead, testified that according to medical practice standards, the surgeon could assume that the assembled
Whether the surgeon in this case had control over who anesthetized his patient is not shown by the record. Did he have a right to rely on others for assembling a minimally-qualified team? Or would expert testimony on the degree of care and skill ordinarily employed by the profession generally under similar conditions and like surrounding circumstances dictate otherwise? As to this facet of the surgeon’s relationship with his patient, the evidence is thus far silent. See
Johnson v. Myers,
Finding negligence
per se
for violation of this statute does not end the matter. The duties of the participants here embraced much more than merely compliance with the law-required qualifications of one who may anesthetize. There were other duties as well, the breach of which may have proximately caused or contributed to the proximate cause of the injury to Mrs. Worthy. OCGA § 51-1-27. “The degree of care and skill required is that which, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.”
Blount v. Moore,
Plaintiffs allege that the proper standard of treatment and care was additionally not met, with respect to the method chosen, the procedure used, the supervision by a physician’s assistant, the action taken when trouble developed, and the content of instruction and training of the student nurse anesthetist. So for example, even if the nurse actually had all the qualifications of a CRNA, even though she had completed only one year of the two-year course, she would have had to perform the anesthetization in a skillful way and meet the medical standard for doing so. Those responsible for the proper application of the anesthesia and for the selection of the method would be liable for deviation therefrom.
The point is that if the failure to abide by the threshold standards of OCGA § 43-26-9 was not in fact the proximate cause of the
Therefore, we affirm the trial court’s granting the motion for partial summary judgment insofar as it establishes that the violation of OCGA § 43-26-9 is negligence per se, except as to Dr. Moorhead. Plaintiffs have not shown without dispute that he had a legal duty in this regard. We reverse the grant of partial summary judgment against him. We affirm the denials of summary judgment made on behalf of all defendants-appellants.
Judgment affirmed in Case Nos. 68546, 68547, and 68549; judgment affirmed in part and reversed in part in Case No. 68548.
Notes
Three of the eight physicians, Mani-Murugiah, Cortes and Shantha, are individual defendant-appellants.
We are not overruling
Andrews v. Lofton,
Even though the violation of the statute was capable of causing the injury.