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DAILEY v. ABDUL SAMED

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Court of Appeals of Georgia.

DAILEY et al. v. ABDUL–SAMED et al.

A12A1109.

Decided: November 28, 2012

Ryan S. Dailey and Cindy Dailey brought the instant medical malpractice action against Dr. Gihan Abdul–Samed, PA–C Mark Epps, and ACS Primary Care Physicians–Southeast P.C. (collectively, “the Defendants”),1 alleging that the Dr. Abdul–Samed and her staff delayed referring Mr. Dailey to a hand surgeon, left his hand injury untreated for a protracted period, and caused a partial amputation of his finger.   The Defendants moved for summary judgment on the basis that the Daileys' suit was governed by OCGA § 51–1–29.5(c) since Mr. Dailey presented to the emergency room, and that the Daileys failed to present clear and convincing evidence that Defendants' actions were grossly negligent.   The trial court granted Defendants' motion for summary judgment, and the Daileys appeal from that order.   The Daileys contend that OCGA § 51–1–29.5 is unconstitutionally vague, and that the trial court erred in concluding that the statute insulated Defendants from liability.   The Daileys also contend that, even if OCGA § 51–1–29.5 applied, there are still issues of fact as to Defendants' liability, Dr. Abdul–Samed's breach of her fiduciary duty to Mr. Dailey, and whether Defendants' acted in bad faith For the reasons set forth below, we reverse.

To prevail at summary judgment under OCGA § 9–11–56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.   A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion.   Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment.   When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Punctuation and footnotes omitted.)  Beasley v. Northside Hosp., Inc., 289 Ga.App. 685, 685–686 (658 S.E.2d 233) (2008).

So viewed, the evidence shows that on the night of December 10, 2005, Mr. Dailey inadvertently shot paint thinner into his left-middle finger as he was cleaning a paint spraying device.   The tip of Mr. Dailey's finger immediately started hurting.   The Daileys went to the emergency room at Spalding Regional Hospital, arriving shortly after midnight on December 11, 2005.   Mr. Dailey saw a nurse for an initial assessment at approximately 12:15 a.m. Shortly thereafter, the nurse contacted a poison control center, who informed the nurse to contact a hand surgeon about Mr. Dailey's injury.

Epps next examined Mr. Dailey.   Based on the high-pressure injection injury that Mr. Dailey had suffered, Epps concluded that Mr. Dailey needed an immediate referral to a hand surgeon.   Sometime before 1:00 a.m., Epps reviewed Mr. Dailey's condition with Dr. Abdul–Samed, who agreed that Mr. Dailey needed an immediate referral to a hand surgeon.

At approximately 1:00 a.m., Dr. Abdul–Samed contacted Dr. John G. Seiler, a hand surgeon at Piedmont Hospital in Atlanta, about possibly transferring Mr. Dailey to Piedmont Hospital in the event Mr. Dailey could not be transferred to a closer facility.   At approximately 1:30 a.m., Dr. Abdul–Samed examined Mr. Dailey, confirmed that Mr. Dailey's injury represented a surgical emergency, and informed the Daileys that she would attempt to transfer Mr. Dailey to another hospital with an available hand surgeon.

Dr. Abdul–Samed had the emergency room's unit secretary call hospitals to find a hospital that would accept Mr. Dailey.   Although the unit secretary initiated the calls, the actual transfer request was a physician-to-physician discussion.   Based on Spalding Hospital's protocol, the unit secretary first called the Atlanta Medical Center at approximately 2:00 a. m. An Atlanta Medical Center physician returned the call approximately 45 minutes later and informed Dr. Abdul–Samed that the hospital was unable to accept Mr. Dailey.   Spalding Hospital's protocol required that the next call be made to hospitals in close proximity, including the Medical Center of Central Georgia.   While Dr. Abdul–Samed testified that she believed the Medical Center of Central Georgia was called, the Director of the Transfer Center for the Medical Center of Central Georgia stated that the center never received a transfer request.   The Medical Center of Central Georgia further stated that it would have accepted a transfer had a request been made since it had an available hand surgeon to treat Mr. Dailey.

At some point, the unit secretary called Piedmont Hospital.2  Dr. Abdul–Samed spoke with Dr. Seiler at Piedmont Hospital in an attempt to transfer Mr. Dailey.   Dr. Seiler agreed to accept Mr. Dailey and instructed Spalding Hospital to send Mr. Dailey to Piedmont Hospital “right away.”   Dr. Abdul–Samed testified that she spoke to Dr. Seiler one to two hours before Piedmont Hospital's official acceptance, which occurred at 7:33 a.m. Dr. Abdul–Samed explained that once the physician accepts the patient, the hospitals must coordinate the transfer, and that a transfer is not official until both parties complete the necessary paperwork.   An ambulance arrived at Spalding Hospital about an hour later and delivered Mr. Dailey to Piedmont Hospital at approximately 9:43 a.m. Dr. Seiler subsequently performed surgery on Mr. Dailey, amputating part of Mr. Dailey's finger.

The Daileys filed the instant suit, claiming that Defendants breached their duty of care by not achieving a transfer for Mr. Dailey to a hand surgeon within a timely manner.   The affidavit of Mr. Dailey's physician expert stated that Defendants' knew Mr. Dailey's condition would worsen over time, and that their delay in timely transferring Mr. Dailey to a hand surgeon violated the standard of care.

1. The Daileys contend that OCGA § 51–1–29.5 is unconstitutionally vague.   Although the Daileys raised this issue below, there is no evidence in the record that the trial court distinctly ruled on their constitutional challenge.   Therefore, the constitutional challenge was not preserved for appeal because it was not ruled on below.   See Focus Entertainment Intl., Inc. v. Bailey, 256 Ga.App. 283, 284 (568 S.E.2d 183) (2002).  “Further, transfer of this appeal to the Supreme Court of Georgia is not warranted because that court does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court.”  (Citation and punctuation omitted.)  Id.3

2. The Daileys contend that the trial court erred in granting summary judgment to Defendants because they failed to establish that OCGA § 51–1–29.5(c) applied.   We agree.

OCGA § 51–1–29.5(c) provides, in pertinent part, 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.

“Emergency medical care” has been defined 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.   The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

OCGA § 51–1–29.5(a)(5).

The burden of proof rested upon Defendants to establish that OCGA § 51–1–29.5 applied.   Cf. Willingham v. Hudson, 274 Ga.App. 200, 202(1) (617 S.E.2d 192) (2005) (holding that defendants had the burden of establishing “Good Samaritan” immunity defense under OCGA § 51–1–29);  see also OCGA § 24–4–1 (“[t]he burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential”).   Defendants have failed to meet that burden based upon the record evidence.

While Defendants provided some care to Mr. Dailey upon his arrival to the Spalding Hospital emergency department, it was their alleged lack of emergent care—namely, their delay in timely transferring him to a hand surgeon—that led to this suit.   Construing the evidence in a light most favorable to the Daileys, the record shows that Mr. Dailey presented to the emergency room around midnight.   At 1:00 a.m., Dr. Abdul–Samed had a conversation with Dr. Seiler about possibly transferring Mr. Dailey to Piedmont hospital for surgery.   Around 1:30 a.m, Dr. Abdul–Samed confirmed that Mr. Dailey needed surgery immediately and directed her staff to make calls to other hospitals to initiate transfer requests.   Spalding Hospital's unit secretary stated that she could have multiple transfer requests pending at any given time.   Despite Dr. Abdul–Samed's prior conversation with Dr. Seiler, there was no attempt, however, to call Piedmont Hospital until sometime after 2:45 a.m., more than an hour after the transfer requests were initiated.

Moreover, while Spalding Hospital's unit secretary averred that generally had to wait for hospitals to return their calls, Dr. Abdul–Samed stated that she spoke to Dr. Seiler one to two hours before the official acceptance, which occurred at 7:30 a.m. In other words, Dr. Abdul–Samed spoke to Dr. Seiler at approximately 5:30 or 6:30 a.m., or three to four hours after Piedmont Hospital was contacted concerning the transfer request.   It is not clear from the record what actions Defendants took during this significant period of time in which Dr. Abdul–Samed waited to speak with Dr. Seiler to make the physician-to-physician request.   Defendants did not present evidence that other hospitals were contacted, while the Daileys presented evidence that other hand surgeons were available at the time and were not contacted.

More troubling, Spalding Hospital's protocols required that transfer requests be made to nearby hospitals, such as the Medical Center of Georgia.   While Dr. Abdul–Samed believed that the Medical Center of Central Georgia was called, there was contrary evidence that no call was made.   Significantly, the Medical Center of Central Georgia stated that it never received a call from Spalding Hospital concerning a transfer request for Mr. Dailey, and that it would have accepted a transfer since a hand surgeon would have been available to treat Mr. Dailey.   The failure to contact Piedmont Hospital sooner and the failure to contact Medical Center of Central Georgia at all caused an unnecessary delay in providing the required treatment to Mr. Dailey.

The circumstances in this case are similar to those found in Crewey v. American Medical Response of Ga., Inc., 303 Ga.App. 258, 259–261, 263 (692 S.E.2d 851) (2010), where we ruled that an ambulance company was not entitled to summary judgment after claiming immunity under OCGA § 31–11–8(a).4  In Crewey, the plaintiff suffered a heart attack and presented to a medical center, where a cardiologist ordered that the plaintiff be transferred to another facility because the medical center did not have the resources to treat the plaintiff.  Id. at 259.   The medical center contacted an ambulance company, but the ambulance company delayed in providing the necessary transportation.  Id. at 259–261.   The plaintiff, who suffered significant heart damage, sued the ambulance company alleging that the company was negligent in its failure to provide timely transportation.  Id. at 258.   We held that the ambulance company was not entitled to emergency-care immunity under OCGA § 31–11–8 because it was the company's failure to provide the requisite care that allegedly led to the increased severity of the plaintiff's heart damage.  Id. at 262–263.

As in Crewey, the suit in this case is based upon allegations that Defendants failed to provide the requisite emergency care by not transferring Mr. Dailey to a hand surgeon in a more timely manner.   Viewing the record evidence in a light most favorable to the Daileys, the evidence shows that Mr. Dailey's prognosis worsened with the delay.   While we express no opinion as to the question of Defendants' liability, we conclude that there are factual questions as to Defendants actions during the time Mr. Dailey remained in the emergency room.   The mere fact that Mr. Dailey remained in the emergency department while Defendants allegedly delayed in transferring Mr. Dailey to a hand surgeon does not automatically shield Defendants from liability under OCGA § 51–1–29.5(c).  We conclude that Defendants did not meet their burden of proof in establishing immunity under OCGA § 51–1–29.5(c), and the trial court erred in granting summary judgment to Defendants on this basis.

3. In light of our disposition of Division 2, we need not consider the Daileys' remaining enumerations of error.

Judgment reversed.   Ray and Branch, JJ., concur in judgment only.

FOOTNOTES

FN1. The Daileys also named other defendants who had been dismissed from the suit and are not parties to the appeal..  FN1. The Daileys also named other defendants who had been dismissed from the suit and are not parties to the appeal.

FN2. The time of this call is not in the record.   Dr. Abdul–Samed could not recall what the time the call was made, and conceded that his staff did a “poor” job documenting its calls..  FN2. The time of this call is not in the record.   Dr. Abdul–Samed could not recall what the time the call was made, and conceded that his staff did a “poor” job documenting its calls.

FN3. The Daileys acknowledge that the Supreme Court has upheld the constitutionality of OCGA § 51–1–29.5. See Gliemmo v. Cousineau, 287 Ga. 7, 12–13(4) (694 S.E.2d 75) (2010).   The Daileys nevertheless argue that the Supreme Court did not address their vagueness challenge as to the definition of “emergency medical care.”   In any event, we cannot transfer the case to the Supreme Court for consideration of the Daileys' constitutional claim since the trial court did not distinctly rule on the issue below..  FN3. The Daileys acknowledge that the Supreme Court has upheld the constitutionality of OCGA § 51–1–29.5. See Gliemmo v. Cousineau, 287 Ga. 7, 12–13(4) (694 S.E.2d 75) (2010).   The Daileys nevertheless argue that the Supreme Court did not address their vagueness challenge as to the definition of “emergency medical care.”   In any event, we cannot transfer the case to the Supreme Court for consideration of the Daileys' constitutional claim since the trial court did not distinctly rule on the issue below.

FN4. OCGA § 31–11–8(a) provides, in relevant part:Any person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim..  FN4. OCGA § 31–11–8(a) provides, in relevant part:Any person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.

Miller, Presiding Judge.

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