*1 Moseley, II, H. Hinson Westmoreland, Thomas & Patterson appellee. POE CENTER, INC. v. MEDICAL FULTON
A96A1181. SOUTH et al.
(480 SE2d Pope, Presiding Judge. Jacqueline infant of the deceased Poe, Ernest and against malpractice brought Poe, Jr., action this medical Ernest son’s Dr. O. for their Center and M. Tomeh Fulton Medical South death. jury, a verdict in to a which returned The matter was tried against for 1.85 million dollars. Tomeh, favor of and following appeals reasons, affirm. and, for the Poe, was at South that Ernest Jr. born at trial was Evidence hospital kept April 29, at the until 1991. The infant was Fulton on May unit his in the he was treated intensive where possible sep- jaundice hypoglycemia, pediatrician, Tomeh, and Dr. given specific discharged baby and the Poes were The was sis. greater baby’s temperature physician if was call a instructions to than 100 change baby’s degrees; color; or if there in the if there was change baby’s eating in the habits. was discharge, brought day him to the the the Poes
The after Ernest Jr.’s room, were attended to where Merry complained triage baby duty, The Poes nurse on Gunnin. baby They reported at also had turned blue home. eyes day, appeared limp his all and that
not had a bowel movement had rolled back his head. pulse, baby p.m.; took his and assessed the at 10:45
Gunnin signs temperature. respiration The infant’s vital checked alarming. baby completely normal, were were through grade slept fever and examination. While had low baby at had a movement. Poes bowel exchange According Gunnin and both testified was tense. Gunnin the adults assessment Poe, and that Mr. instructed the Poes to fill out certain forms that she demanding agitated, kept “screaming” appeared that his who baby immediately. raised admitted that she also a doctor Gunnin see “barking like that he Gunnin were Mr. Poe testified voice. “nasty dogs” Gunnin had a each other. The Poes both testified that at complaints. not listen to Mrs. Poe’s attitude” and would baby, completing Gunnin admitted After the examination of baby right now.” Gunnin fine that she told the Poes that “the okay” couple doing she told the Poes that “the stated that an of times in effort to calm them. She also told them that the breathing properly According Poe,. was told her that she that time. to Mrs. Gunnin overreacting. then classified the “Priority according procedure internal South Fulton’s as 3” semi-urgent which denoted that medical intervention would be approximately eight problem hours, within but that the *2 immediately life or severe. waiting Gunnin instructed the Poes to sit in the room and told baby shortly. them a doctor with their would be The who felt baby’s overreacting problems had been to the and believed that alright morning the be infant would until the next when he could see emergency eight doctor, a examination. The left the room within minutes after the clerk admissions recalled Mr. Poe did not that com- plete filling specifically, sign the documents he was out he did not Although the “consent to treatment” form. Gunnin was unaware that leaving, the Poes were Poe the room admissions clerk told Mr. that the decision to leave his. The died several hours after the Poes left South Fulton. malpractice part, action,
The Poes filed this medical based upon accurately diagnose triage South Fulton’s: failure and the family by physi- infant; failure to that insist remain until seen adequate cian; failure to admit assessment; the infant for and failure baby immediately by physician. Experts to have the seen testified applicable at trial that Gunnin’s actions fell below the standard of —ways particularly care a several in her failure to take the physician immediately classify and in her failure to threatening. dition as life
1. law, contends as a matter of the infant was patient denying not its and that the trial court erred in its motions summary judgment, j.n.o.v. for directed verdict and firstWe note that argues summary to the extent that South its motion judgment improperly Dept. denied, was Brown, the issue is moot. See (1) 812) (1995). Transp. App. v. Therefore review the denial of the directed verdict motion and the j.n.o.v. granting denial of the motion for “The standard for a directed judgment notwithstanding verdict or the verdict are the same. Where there is no conflict in the issue, evidence as to material introduced, evidence with all reasonable deductions there- particular from, shall verdict, demand a such verdict shall be (Citations omitted.) punctuation directed.” and Truck Parts & Svc. v. Rutledge, Citing Clough Lively, County Hosp. Matthews v. DeKalb 743) (1994), that a mere assessment of a person’s provider condition does create care rela- relationship tionship, the Poes and prin- “It is a well-settled one. not the consensual Fulton was liability malpractice Georgia ciple no there can be law that relationship. provider]-patient [the There health care the absence recovery liability imposing upon which are three essential elements (1) providerj- [health duty care The inherent is bottomed: (2) duty failing relationship; patient to exercise the breach of (3) requisite degree care; and that this failure of skill and § injury [Cit.] See also OCGA 51-1- sustained. cause of the privity providerj-patient [health is essen- cases, . care In such . . 27. of a consensual trans- which is a result is this relation tial because duty legal of con- to conform to a standard action that establishes [Cits.] where the The considered duct. provider] [health patient knowingly care seeks assistance accepts patient.” knowingly provider] [health him as and (Citations omitted.) punctuation Weisman, Peace 697, 698 County Hosp. Auth., 211 Ga. In Matthews v. DeKalb emergency room com- General Mrs. Matthews came to DeKalb history, plaining pain nurse recorded in her chest. *3 signs indi- Matthews her vital and made an assessment. obtained cated that pain, her nurse classified was not long it would be a non-life and told her that condition as waiting, repre- services four and a half hours of social wait. After Mat- see her next. told that the doctor would sentative Matthews long leaving. The social stated that she had waited too was thews stay, representative pleaded she left with Matthews to services superior days nonetheless, died This court affirmed two later. summary judgment, grant General’s motion for court’s DeKalb relationship voluntary finding termination of that Matthews’ relationship hospital any DeKalb Gen- with causal with severed eral’s actions. responded Clough Lively, police 286,
In 193 officer Ga. Lively accident call and found semiconscious an automobile to an Believing Lively and not left the was intoxicated that had road. injured, Hospital seriously him to Shallowford so officer took sample Clough at could taken. Nurse Shallowford took blood might sample, Lively’s signs, learned that he blood have checked vital diagnosis medication, taken and made a his condition. perform, Clough make, to did she undertake to asked nor Lively. any any fact, to In examination or render medical treatment Clough Lively he desired medical asked if either needed or when Clough he stated that her involve- treatment, he stated that did not. solely Hospital comply with ment on behalf of Shallowford Lively. request sample from that a be taken officer’s written blood 110
Lively jail processing. officer, was released to who took him Shortly arriving jail, Lively lapsed after into coma and died. In reversing superior court’s denial of defendants’ motion for sum- mary judgment, this found that there a limited Court relation- ship Lively created, because neither the nurse and nor provider relationship. Payne sented to See also (458 (1995); App. Rogers Sherrer, 217 Ga. 761 SE2d v. Coronet (1992); App. Co., 46, 206 Ins. Pohl, Ga. 49 Minster v. 204) (1992); App. Weisman, Peace v. (1); Fritz, Brumbalow v. 872) (1986). Haam, Von Clanton v. relationship case, In this we find that the was established Poes, between South Fulton and the and that the j.n.o.v. proper. denials of the motions directed verdict and Clough, Clanton, Unlike above, and the cases cited the Poes did not any limit the with South manner sought desired and out medical assistance needed for their baby. There was evidence that the Poes received reassurances that strength fine, their the reassurances, and on the of these left hospital. Regardless good reassuring Gunnin’s intentions in there was evidence from which a could conclude that hospital. these reassurances motivated the Poes leave the Com (2) (d) pare Hosp. Strickland v. Auth., DeKalb although County the dissent finds Matthews v.DeKalb Hosp. indistinguishable from the instant important matter, several First, factors differentiate the cases. Matthews, there was no evidence of medical error at the time Mat- thews’ medical In contrast, examination. here there was evidence that Gunnin’s actions fell below the standard of care because she physician immediately failed to take to a and failed to clas- sify threatening. fact, condition as life In Gunnin classified “Priority denoting 3,” as a that medical care would be eight baby actually within hours, and the died *4 Secondly, personnel pleaded Matthews, time. the medical with stay hospital. initially Mrs. Matthews to case, In this the Poes threatening, persuaded considered the otherwise dependent condition life but were totally patient Gunnin. here the was a necessarily infant who relied on others to discover patient dition, Matthews, unlike the adult who could describe her symptoms respond questions. own to 2. In error, related enumerations South Fulton claims taking the infant from the room before he could be by physician, examined the Poes severed causal
Ill the infant’s death. assessment and nurse’s ordinary argues to failed to exercise that the Poes Fulton also hospital’s consequences out- the reasons actions. For of the avoid arguments merit. without above, also find these lined we by failing argues erred that the trial court 3. South Fulton closing during argu- steps take other curative a mistrial or declare “enlarged which on an exhibit and commented” the Poes ment when was South at issue into evidence. exhibit admitted had not been performance stated Gunnin, which evaluation on internal Fulton’s charge techniques rather when to “use assertive that she needed than confronting staff members.” testimony,
During Fulton did to which South trial there was object, regarding Later, the form. the contents evaluation it con- inadmissible because the evaluation itself was court ruled that questioned ruling, hearsay Gunnin was After this statements. tained without objection regarding that she assessment evaluation’s interpersonal improvement confrontations.” “had room Although how, whether, or the Poes’ from the record is unclear during closing argument, South referred this exhibit counsel motion, Fulton’s for a mistrial. The court denied South Fulton moved “problems not to refer to Gunnin’s but cautioned Poes’ counsel closing argument people.” did not Poes’ counsel resumed with refer to handling again. no in the court’s We find error evaluation exhibit that a reference of this matter. Even discretion in made, no manifest abuse of the court’s broad we find Bishop, denying mistrial, Walker v. Ga. the motion see (8) (312 (1983), nor do find that other curative required. Compare Piggly Wiggly Southern, Williams v. actions were 209 (1993). Dept. Transp. Citing Benton, 4. 159) argues that it is entitled to a South Fulton closing argument new trial because the Poes’ counsel read portions testimony deposition contained in and trial tran witness scripts, violating against “continuing thus the rule witness” testi mony. testimony arguments complained without merit. The We find these go jury during out with the their deliberations and
did theory inapplicable. generally “continuing Buck witness” See (5) (464 State, ner object 5. failed to to the court’s failure to disclose argument. jury and this See the contents of notes from the waived County, generally Provost v. Gwinnett improperly Finally, 6. that the trial court charged damages based on their that the Poes could recover Specifically, of their life. losses rather than on the value son’s own *5 impermissibly charge allowed the Poes to recover for their loss of the child’s services. (c) (1) provides § 19-7-1 of a
OCGA deceased child full shall be entitled to recover the OCGA value of the life of the child. See “ ‘[f]ull § § 51-4-4. OCGA 51-4-1 states that the value of the decedent, life of the as shown the evidence’ full means the value of deducting necessary the life of of the decedent without the or personal expenses of the he lived.” decedent had (a) specifically age provides § OCGA 19-7-1 that until the of majority, parents, the child shall be under the control the are “who proceeds entitled his services and the of his It labor.” is established may wrongful that loss of part be services awarded death action as Freightways of the full value of the deceased’s life. Consolidated (1) (410 751) (1991). Futrell, &c. v. the full value of life the of the decedent includes both the economic expectancy intangible value ment deceased’s normal life ele- incapable proof, parent’s society, of exact advice, such as “a (Citations omitted.) example punctuation and counsel.” Consoli Freightways, dated v.Jenkins, 233 Miller contrary Here, to South Fulton’s charge contentions, the court not did as to losses, the Poes’ properly charged jury regarding but life. the full value of the infant’s Judgment Beasley, McMurray, J., J., C. P. Johnson and affirmed. Birdsong, Blackburn, JJ., J., Andrews, concur. P. Smith and Ruffin, JJ., dissent. Judge, dissenting. Andrews, County Hosp. Because I believe Matthews DeKalb 404) (1993) indistinguishable is from the respectfully situation, I Poes’ dissent. I do not believe that provider relationship had been and, established even if the is assumed, failure, any, comply regarding
if with the standard assessment of baby cause Poe’sdeath. majority opinion, In addition to the facts contained view- ing the record under the standard for consideration of a motion for j.n.o.v., following Tilelli, evidence also was adduced. Dr. one of the expert witnesses, Poes’ the stated was not in shock when performed. experience, baby’s symp- In his with the “septic workup part toms, a would have to be done as of routine care baby” began. once treatment He stated to tell “baby okay appropriate the Poes that the “an now” was remark” aspect triage nursing reassuring because one tois calm people stayed, “[i]f down. He also stated that would seen] [have a doctor.” experts, opined that, had Cullen, the Poes’
Also, Dr. another of arriving after at the 15 to 30 minutes been seen the which left, have that would occurred if the Poes had would have appropriate treatment. been kept assuring them Poe stated that Gunnin Mr. Mrs.
Both *6 right. stated, that was However, as Dr. Cullen all that acknowledged she appropriate Poe that to do. Mrs. for Gunnin complete clip given that she knew that forms to board with seeing “I a doctor. to leave without did not mean that she was Gunnin that that, ... I was convinced not mean but she that she did know they overreacting.” maybe that, had Mrs. Poe knew I was . . . Similarly, they a Mr. Poe acknowl- remained, have seen doctor. would they edged gave out, fill that waited them the forms to Gunnin that waiting despite while, that, Gunnin’s for a in the room .attitude they they He seen a doctor had remained. him, would have toward thought, they leaving based on what discussed because and Mrs. Poe telling they overreacting. They left without said, were they anyone leaving. disputed the consent to treat It is not that were signed. form was never emergency supra, Matthews, went to the
1. In
Mrs. Matthews
radiating
p.m.,
pain
complaining of
in her chest
down
room at 11:25
her arm. While her
signs,
slightly
Poe’s,
elevated,
vital
like
were
category
pain
a
2
time. She was classified as
she was not
that
long
it
After
non-life
condition and told would be
wait.
wait,
half hour
Mrs. Matthews was told she would be
a four and a
enough,
quickly
next,
felt she had
been seen
seen
she left.
but
because
Similarly,
by
although
Poes,
here, about
be seen
doc-
facility
signing
tor,
without
the consent form or
chose to leave the
leaving
advising anyone
In such a
were
treatment.
without
provider relationship
situation,
was not
Id.;
Pohl,
established, as a matter of
Minster v.
206 Ga.
law.
204)
(387
(426
(1992); Clough Lively,
v.
SE2d
SE2d
573) Ridgeview
compare
Institute,
v.
Brandvain
(382
106,
aff’d
OCGA which are the though contingent done, and natural result of act extent, to some damages However, are not too remote to be recovered. traceable to legal consequence, act, are which not its and natural are too contingent remote and recovered.” damages plaintiff prove action,
“Torecover
in a tort
must
negligence
‘proxi-
the defendant’s
was both the ‘cause in fact’ and the
injury.
requirement
mate cause’ of the
cause consti-
legal liability;
‘policy
tutes a limit on
decision . . .
for a
variety
e.g., intervening
of reasons,
act, the defendant’s act and the
plaintiff’s injury
recovery.’
are too remote for the law to countenance
258) (1983)].”
[v.
McAuley Wills,
Atlanta Ob. &
Gyn. Group Coleman,
Reconsideration denied December Sullivan, Hall, Smith, Sullivan, Booth & C. Terrance Rush S. Phillip Jr., appellant. Smith, Friduss, E. Dan McDevitt, S. Kennedy, Sampson Thomas, Sampson, Patterson, & Thomas G. Willingham, Zilton, La’Sean M. Courville, Love & Traci G. H M& appellees. Johnson, E. Jones, Duane