Bonds v. Nesbitt

747 S.E.2d 40, 322 Ga. App. 852, 2013 Fulton County D. Rep. 2342, 2013 WL 3481818, 2013 Ga. App. LEXIS 624
CourtCourt of Appeals of Georgia
DecidedJuly 12, 2013
DocketA13A0348
StatusPublished
Cited by20 cases

This text of 747 S.E.2d 40 (Bonds v. Nesbitt) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonds v. Nesbitt, 747 S.E.2d 40, 322 Ga. App. 852, 2013 Fulton County D. Rep. 2342, 2013 WL 3481818, 2013 Ga. App. LEXIS 624 (Ga. Ct. App. 2013).

Opinion

McFADDEN, Judge.

Deborah Bonds sued Dr. Reginald Charles Nesbitt for the death of her husband, alleging that Dr. Nesbitt failed to provide necessary emergency treatment. The trial court granted Dr. Nesbitt partial summary judgment, ruling that OCGA § 51-1-29.5 applies. Under that statute, a plaintiff must prove gross negligence by clear and convincing evidence to recover in medical malpractice actions arising out of the provision of emergency medical services.

Bonds appeals, arguing that the cause of action does not arise out of the provision of emergency services but instead out of Dr. Nesbitt’s failure to provide appropriate emergency services. Consequently, she argues, the statute does not apply, she need only prove her case by a preponderance of the evidence, and a jury may hold Dr. Nesbitt liable if it finds that he acted negligently. Bonds also challenges rulings allowing testimony of a defense expert witness, excluding testimony of one of her expert witnesses, and allowing Dr. Nesbitt to depose a plaintiff’s expert for a second time.

We find that the trial court correctly ruled that the undisputed evidence shows that at least some of Dr. Nesbitt’s treatment of Mr. Bonds arose in the context of the provision of emergency medical services, thereby triggering application of the statute. But the evidence is conflicting on the issue of whether Mr. Bonds at some point became stable and capable of receiving non-emergency medical services, thereby triggering an exception to the statute. Accordingly, we affirm in part and reverse in part the trial court’s summary judgment that OCGA § 51-l-29.5appliestoMrs.Bonds’cause of action. Because the trial court did not abuse its discretion in its expert-witness rulings or its ruling on the deposition issue, we affirm those rulings.

1. OCGA § 51-1-29.5.

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. Cowart v. Widener, 287 Ga. 622, 624 (1) (697 SE2d [853]*853779) (2010). Viewed in this light, the evidence shows that on Friday, January 12, 2007, Billy Curtis Bonds was diagnosed with pneumonia. The following Tuesday evening, he had not improved; he had vomited repeatedly and was experiencing nausea and dizziness. Mrs. Bonds drove her husband to the hospital. They arrived at the hospital at 7:30 p.m., and Mr. Bonds was triaged at 7:35 p.m. He complained of abdominal pain and that he was nauseated, vomiting and dizzy. The triage assessment documentation included a section for the triage nurse to indicate the level of potential threat, giving two applicable choices: “none apparent” and “requires immediate life saving intervention,” which applies, for example, when someone is not breathing or does not have a pulse. The nurse selected “none apparent.” The document also had a section to rate “initial acuity,” with a range from one, meaning the most acute, to five, meaning the least acute. The nurse indicated two, which meant that Mr. Bonds needed to go straight back to the emergency room to see a doctor as soon as possible.

At 7:45 p.m. Mr. Bonds was taken to a room in the emergency department where, within 15 minutes, Dr. Nesbitt had initially evaluated him. Dr. Nesbitt ordered the administration of fluids by IV and multiple pain medications, including Dilaudid and morphine. Dr. Nesbitt ordered laboratory blood tests, an EKG, and blood cultures to determine whether Mr. Bonds had a bacterial or yeast infection. Dr. Nesbitt also ordered a CT scan of Mr. Bonds’ abdomen.

According to Dr. Nesbitt, Mr. Bonds was still undergoing evaluation in the emergency department at least until 10:30 p.m. Based on Mr. Bonds’ symptoms and Dr. Nesbitt’s examination, Dr. Nesbitt reached a differential diagnosis that was mainly intra-abdominal, including the possibilities of pancreatitis, cholecystitis, cholelithiasis, gastritis and peptic ulcer disease. At some point, Dr. Nesbitt signed a document to admit Mr. Bonds to the floor, indicating that Mr. Bonds was experiencing acute renal failure and hypertension but that his condition had improved by 11:30 p.m. and that he was stable. While Mr. Bonds was awaiting a room, Dr. Nesbitt continued to treat him at least until 12:44 a.m., when another doctor took over his care. Before he was moved to a room, Mr. Bonds became agitated, tossing on the bed and entangling himself in the wires from the machines. He was moved to a room on the third floor of the hospital at 2:00 a.m. He began thrashing about and complaining that he could not breathe. At 2:41 a.m., Mr. Bonds went into respiratory and cardiac arrest. Mr. Bonds was resuscitated and was moved to the ICU at 3:05 a.m., where he again went into cardiopulmonary arrest. He was pronounced dead at 4:00 a.m.

[854]*854OCGA § 51-1-29.5 (c) provides:

In 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 (a) (5) defines “[e]mergency 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. 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.

Mrs. Bonds argues that whether Dr. Nesbitt provided emergency medical care, and therefore whether the statute applies to her malpractice action against him, is a jury question.

We agree with the trial court that there is no material question of fact that when Dr. Nesbitt began his care of Mr. Bonds, he was providing emergency medical care as defined by OCGA § 51-1-29.5 (a) (5). Mr. Bonds was experiencing a medical condition with acute symptoms of sufficient severity, including pain, repeated vomiting, dizziness and nausea, such that the absence of immediate medical attention could reasonably be expected to result in placing his health in serious jeopardy. This expectation is evidenced by the fact that he was triaged with an acuity level of two, that within 15 minutes of his arrival in a room, Dr. Nesbitt had examined him and ordered the administration of fluids by IV and multiple pain medications, including Dilaudid and morphine, and that Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matthew Womack v. Jonathan Buckelew
Court of Appeals of Georgia, 2025
MAISHA K. HUMPHREY v. THE EMORY CLINIC, INC.
Court of Appeals of Georgia, 2023
ALLISON JOY RUSSELL v. ARUN K. KANTAMNENI
Court of Appeals of Georgia, 2022
Keyla Connie v. Robert P. Garnett
Court of Appeals of Georgia, 2021
Rudy Robles v. Patricia Yugueros
807 S.E.2d 110 (Court of Appeals of Georgia, 2017)
KIDNEY Et Al. v. EASTSIDE MEDICAL CENTER, LLC Et Al.
806 S.E.2d 849 (Court of Appeals of Georgia, 2017)
Graham v. Reynolds
807 S.E.2d 39 (Court of Appeals of Georgia, 2017)
Nguyen v. Southwestern Emergency Physicians, P.C.
779 S.E.2d 334 (Supreme Court of Georgia, 2015)
Southwestern Emergency Physicians, P.C. v. Nguyen
767 S.E.2d 818 (Court of Appeals of Georgia, 2014)
Hospital Authority v. Brinson
767 S.E.2d 811 (Court of Appeals of Georgia, 2014)
Callaway v. O'Connell
44 F. Supp. 3d 1316 (M.D. Georgia, 2014)
Nisbet v. Davis
760 S.E.2d 179 (Court of Appeals of Georgia, 2014)
Abdel-Samed v. Dailey
755 S.E.2d 805 (Supreme Court of Georgia, 2014)
Howland v. Wadsworth
749 S.E.2d 762 (Court of Appeals of Georgia, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
747 S.E.2d 40, 322 Ga. App. 852, 2013 Fulton County D. Rep. 2342, 2013 WL 3481818, 2013 Ga. App. LEXIS 624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonds-v-nesbitt-gactapp-2013.