FOURTH DIVISION BARNES, P. J., DILLARD AND MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 18, 2014
In the Court of Appeals of Georgia A14A1404. FREEMAN et al. v. LTC HEALTHCARE OF STATESBORO, INC. d/b/a WESTWOOD NURSING CENTER et al.
MCFADDEN, Judge.
Hospice patient Mary L. Freeman died shortly after arriving at Westwood
Nursing Center, a long-term care facility. Her husband, Charles W. Freeman, acting
individually and as administrator for her estate (collectively, “Freeman”), brought a
malpractice action against several defendants including LTC Healthcare of
Statesboro, Inc. d/b/a Westwood Nursing Center (“Westwood”), the appellee in this
case. The trial court granted summary judgment to Westwood on the ground that
Freeman had not pointed to evidence that Mrs. Freeman’s death had been caused by
the alleged breaches in the standard of care. In so ruling, the trial court declined to
consider the expert opinion testimony of a nurse, concluding that she was not competent to opine on causation. We decline to adopt a “bright line” rule that nurses
may never testify to causation in medical malpractice cases, but we nevertheless
affirm the trial court’s grant of summary judgment because the evidence shows that
the nurse’s causation opinion in this case fell outside her realm of expertise.
To prevail on a motion for summary judgment, the moving party must
demonstrate that there is no genuine issue of material fact and that the party is entitled
to judgment as a matter of law. OCGA § 9-11-56 (c); Cowart v. Widener, 287 Ga.
622, 623 (1) (a) (697 SE2d 779) (2010).
A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. . . . Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Cowart, 287 Ga. at 623 (1) (a) (citations and punctuation omitted). We review a grant
of summary judgment de novo and construe the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to the
nonmovant. Abdel-Samed v. Dailey, 294 Ga. 758, 760 (1) (755 SE2d 805) (2014).
2 So viewed, the evidence shows that in February 2003, Mrs. Freeman underwent
surgery to remove a benign brain tumor. She experienced serious complications
following the surgery including quadriplegia, and she had to have a tracheostomy
tube inserted.
On March 19, 2003, Mrs. Freeman was transferred from the hospital to
Westwood, arriving there around 2 p.m. The medical orders accompanying her
transfer instructed, among other things, that she receive albuterol treatments, that her
oxygen level be monitored, and that her tracheostomy tube be suctioned. Westwood’s
medical records reflect that at 4 p.m. Mrs. Freeman was given a feeding tube, but they
do not reflect that she received any other care that afternoon or evening.
Shortly before midnight, a Westwood nurse noticed that Mrs. Freeman was in
distress; she had “frothy mucous coming from her mouth and trach [sic],” was “non-
responsive,” and had “no blood pressure and a faint pulse.” In the early morning of
March 20, Mrs. Freeman died of respiratory failure.
In support of his malpractice claims against Westwood, Freeman presented the
expert opinion of Donna Jones, a registered nurse. In her affidavit and deposition
testimony, Jones opined that Westwood had breached the applicable standard of care
by: failing to follow the medical orders for Mrs. Freeman’s care, including failing to
3 provide albuterol treatments, tracheostomy suctioning, and oxygen monitoring;
failing to thoroughly assess Mrs. Freeman’s condition upon her admission; and failing
to assess, treat, report and document any changes to her condition. Jones opined that,
based upon a reasonable degree of medical probability, had [Westwood’s] nursing staff met the standard of care for nurses caring for quadriplegic patients with tracheostomy tubes when Mrs. Freeman was in [Westwood’s] care, this would have significantly altered Mrs. Mary Freeman’s treatment and prevented her death from respiratory failure[.]
Westwood sought summary judgment on the ground that there was an absence
of evidence showing that the alleged breaches of the standard of care proximately
caused Mrs. Freeman’s death. The trial court agreed, holding that, while Jones was
competent to give an opinion on whether Westwood breached the applicable standard
of care, she was not competent to give an opinion on causation. Accordingly, the trial
court granted summary judgment to Westwood.
To recover for medical malpractice, a plaintiff must demonstrate, to a
reasonable degree of medical probability, that a breach of the applicable standard of
care proximately caused the plaintiff’s injury. Zwiren v. Thompson, 276 Ga. 498, 499,
503 (578 SE2d 862) (2003); Berrell v. Hamilton, 260 Ga. App. 892, 896 (581 SE2d
398) (2003). The element of causation must be established through expert testimony
4 because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Using the specialized knowledge and training of his field, the expert’s role is to present to the jury a realistic assessment of the likelihood that the defendant’s alleged negligence caused the plaintiff’s injury.
Zwiren, 276 Ga. at 500-501(citations and punctuation omitted); accord Knight v.
Roberts, 316 Ga. App. 599, 604 (1) (a) (730 SE2d 78) (2012).
Pointing to decisions from other jurisdictions, Westwood invites us to adopt
what amounts to a “bright line” rule precluding nurses from giving expert opinions
on causation in medical malpractice cases. We find such a “bright line” rule
unnecessary, because Georgia law provides a framework for considering such expert
opinions on a case-by-case basis. “Georgia law . . . does not mandate that only
medical doctors be permitted to testify regarding medical issues; others with certain
training and experience may testify on issues within the parameters of their
experience.” Sinkfield v. Oh, 229 Ga. App. 883, 885 (495 SE2d 94) (1997) (citations
and punctuation omitted) (holding trial court erred in excluding witness educated in
pharmacology and toxicology from testifying in medical malpractice case that
defendant doctor’s prescription of medication was “predominate major contributing
5 factor to the demise of [plaintiff’s] fetus”). See also Hankla v. Jackson, 305 Ga. App.
391, 398 (2) (b) (699 SE2d 610) (2010) (holding trial court did not err in allowing
biomechanical engineer to testify in medical malpractice case about “the myriad
causes of brachial plexus injuries in general, the normal forces exerted by a mother
and birth attendants during labor and delivery, and the current medical literature
regarding causation of this type of injury”). This rule extends to a licensed registered
nurse testifying as an expert within the areas of her expertise. McCormick v. Avret,
246 Ga. 401 (271 SE2d 832) (1980); Hyde v.
Free access — add to your briefcase to read the full text and ask questions with AI
FOURTH DIVISION BARNES, P. J., DILLARD AND MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 18, 2014
In the Court of Appeals of Georgia A14A1404. FREEMAN et al. v. LTC HEALTHCARE OF STATESBORO, INC. d/b/a WESTWOOD NURSING CENTER et al.
MCFADDEN, Judge.
Hospice patient Mary L. Freeman died shortly after arriving at Westwood
Nursing Center, a long-term care facility. Her husband, Charles W. Freeman, acting
individually and as administrator for her estate (collectively, “Freeman”), brought a
malpractice action against several defendants including LTC Healthcare of
Statesboro, Inc. d/b/a Westwood Nursing Center (“Westwood”), the appellee in this
case. The trial court granted summary judgment to Westwood on the ground that
Freeman had not pointed to evidence that Mrs. Freeman’s death had been caused by
the alleged breaches in the standard of care. In so ruling, the trial court declined to
consider the expert opinion testimony of a nurse, concluding that she was not competent to opine on causation. We decline to adopt a “bright line” rule that nurses
may never testify to causation in medical malpractice cases, but we nevertheless
affirm the trial court’s grant of summary judgment because the evidence shows that
the nurse’s causation opinion in this case fell outside her realm of expertise.
To prevail on a motion for summary judgment, the moving party must
demonstrate that there is no genuine issue of material fact and that the party is entitled
to judgment as a matter of law. OCGA § 9-11-56 (c); Cowart v. Widener, 287 Ga.
622, 623 (1) (a) (697 SE2d 779) (2010).
A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. . . . Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.
Cowart, 287 Ga. at 623 (1) (a) (citations and punctuation omitted). We review a grant
of summary judgment de novo and construe the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to the
nonmovant. Abdel-Samed v. Dailey, 294 Ga. 758, 760 (1) (755 SE2d 805) (2014).
2 So viewed, the evidence shows that in February 2003, Mrs. Freeman underwent
surgery to remove a benign brain tumor. She experienced serious complications
following the surgery including quadriplegia, and she had to have a tracheostomy
tube inserted.
On March 19, 2003, Mrs. Freeman was transferred from the hospital to
Westwood, arriving there around 2 p.m. The medical orders accompanying her
transfer instructed, among other things, that she receive albuterol treatments, that her
oxygen level be monitored, and that her tracheostomy tube be suctioned. Westwood’s
medical records reflect that at 4 p.m. Mrs. Freeman was given a feeding tube, but they
do not reflect that she received any other care that afternoon or evening.
Shortly before midnight, a Westwood nurse noticed that Mrs. Freeman was in
distress; she had “frothy mucous coming from her mouth and trach [sic],” was “non-
responsive,” and had “no blood pressure and a faint pulse.” In the early morning of
March 20, Mrs. Freeman died of respiratory failure.
In support of his malpractice claims against Westwood, Freeman presented the
expert opinion of Donna Jones, a registered nurse. In her affidavit and deposition
testimony, Jones opined that Westwood had breached the applicable standard of care
by: failing to follow the medical orders for Mrs. Freeman’s care, including failing to
3 provide albuterol treatments, tracheostomy suctioning, and oxygen monitoring;
failing to thoroughly assess Mrs. Freeman’s condition upon her admission; and failing
to assess, treat, report and document any changes to her condition. Jones opined that,
based upon a reasonable degree of medical probability, had [Westwood’s] nursing staff met the standard of care for nurses caring for quadriplegic patients with tracheostomy tubes when Mrs. Freeman was in [Westwood’s] care, this would have significantly altered Mrs. Mary Freeman’s treatment and prevented her death from respiratory failure[.]
Westwood sought summary judgment on the ground that there was an absence
of evidence showing that the alleged breaches of the standard of care proximately
caused Mrs. Freeman’s death. The trial court agreed, holding that, while Jones was
competent to give an opinion on whether Westwood breached the applicable standard
of care, she was not competent to give an opinion on causation. Accordingly, the trial
court granted summary judgment to Westwood.
To recover for medical malpractice, a plaintiff must demonstrate, to a
reasonable degree of medical probability, that a breach of the applicable standard of
care proximately caused the plaintiff’s injury. Zwiren v. Thompson, 276 Ga. 498, 499,
503 (578 SE2d 862) (2003); Berrell v. Hamilton, 260 Ga. App. 892, 896 (581 SE2d
398) (2003). The element of causation must be established through expert testimony
4 because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Using the specialized knowledge and training of his field, the expert’s role is to present to the jury a realistic assessment of the likelihood that the defendant’s alleged negligence caused the plaintiff’s injury.
Zwiren, 276 Ga. at 500-501(citations and punctuation omitted); accord Knight v.
Roberts, 316 Ga. App. 599, 604 (1) (a) (730 SE2d 78) (2012).
Pointing to decisions from other jurisdictions, Westwood invites us to adopt
what amounts to a “bright line” rule precluding nurses from giving expert opinions
on causation in medical malpractice cases. We find such a “bright line” rule
unnecessary, because Georgia law provides a framework for considering such expert
opinions on a case-by-case basis. “Georgia law . . . does not mandate that only
medical doctors be permitted to testify regarding medical issues; others with certain
training and experience may testify on issues within the parameters of their
experience.” Sinkfield v. Oh, 229 Ga. App. 883, 885 (495 SE2d 94) (1997) (citations
and punctuation omitted) (holding trial court erred in excluding witness educated in
pharmacology and toxicology from testifying in medical malpractice case that
defendant doctor’s prescription of medication was “predominate major contributing
5 factor to the demise of [plaintiff’s] fetus”). See also Hankla v. Jackson, 305 Ga. App.
391, 398 (2) (b) (699 SE2d 610) (2010) (holding trial court did not err in allowing
biomechanical engineer to testify in medical malpractice case about “the myriad
causes of brachial plexus injuries in general, the normal forces exerted by a mother
and birth attendants during labor and delivery, and the current medical literature
regarding causation of this type of injury”). This rule extends to a licensed registered
nurse testifying as an expert within the areas of her expertise. McCormick v. Avret,
246 Ga. 401 (271 SE2d 832) (1980); Hyde v. State, 189 Ga. App. 727, 728 (1) (377
SE2d 187) (1988).
“Of course, it is axiomatic that no expert can testify outside the limits of his
area of expertise,” Sinkfield, 229 Ga. App. at 886, and Georgia law considers opinions
about medical diagnoses to fall outside the limits of the expertise of a non-physician.
See OCGA § 43-34-21 (3) (“[t]o practice medicine” means, among other things, “to
hold oneself out to the public as being engaged in the diagnosis . . . of disease,
defects, or injuries of human beings”); Chandler Exterminators v. Morris, 262 Ga.
257, 259 (3) (c) (416 SE2d 277) (1992) (citing predecessor to OCGA § 43-34-21 (3)
to hold neuropsychologist not qualified to render opinion concerning diagnosis of
mental disorder when disorder required professional opinion as to physical disorder),
6 superceded by statute as explained in Drake v. LaRue Constr. Co., 215 Ga. App. 453,
455 (2) (451 SE2d 792) (1994) (intent of statutory amendment defining practice of
neuropsychology to include certain diagnoses was to overrule Chandler as to
neuropsychologists); Hunnicutt v. Hunnicutt, 237 Ga. 497 (228 SE2d 881) (1976)
(diagnosis and potential continuance of disease or other medical condition are
“medical questions to be established by physicians as expert witnesses”); Hankla, 305
Ga. App. at 398 (2) (b) (although biomechanical engineer could give other expert
opinion testimony about brachial plexus injuries, trial court erred in failing to
preclude him from providing “expert testimony regarding any questions of medical
treatment or diagnosis” because he did not have “any experience diagnosing or
treating [such] injuries”). Cf. Rainwater v. State, 210 Ga. App. 594, 595-596 (3) (436
SE2d 772) (1993) (trial court did not err in permitting expert in biology, who was not
a physician, to give an opinion on whether a blood test established paternity, noting
that “no diagnosis or treatment of a medical disorder [was] involved”).
Moreover, Jones herself deposed that medical diagnoses fell outside her realm
of experience. She contrasted a “medical diagnosis,” which involved “a medical
issue,” with a “nursing diagnosis,” which involved the identification of “signs and
symptoms.” She used chest pain to illustrate this distinction, testifying: “Chest pain
7 is a [nursing] diagnosis. What caused the chest pain, I can’t say that it was pneumonia
or it was a heart attack, an MI. I can’t diagnose that. But chest pain is a symptom, but
it’s also a diagnosis.” As to Mrs. Freeman’s condition, Jones deposed: “[H]er
outcome was death. I mean, I think I can pretty much give that as a nursing
diagnosis.” But when asked whether determining the cause of Mrs. Freeman’s
respiratory failure involved a medical diagnosis, Jones replied, “I don’t have an
opinion.”
The evidence here does not establish the specific cause of Mrs. Freeman’s
respiratory failure. So as Jones’s chest pain example makes clear, the causation
opinion in this case involved a “medical diagnosis” rather than a “nursing diagnosis.”
The question in this case was not whether Mrs. Freeman died of respiratory failure
but whether the breaches of care attributed to Westwood were the proximate cause
of that respiratory failure. The issues raised by that question went beyond the
identification of signs and symptoms, and even beyond the identification of the
particular symptoms exhibited by Mrs. Freeman shortly before her death. See Phillips
v. Alamed Co., 588 So. 2d 463, 465 (Ala. 1991) (noting “the important distinction
between the question of what ailment or organic failure caused [a patient’s] death and
the question of whether [the defendant’s] alleged negligence was the proximate cause
8 of her death”). Instead, the proximate cause question in this case raised issues about
the pharmacological and physiological reactions Mrs. Freeman would have had to the
ordered treatment (or would have had in the absence of the ordered treatment), given
her particular medical and physical condition on March 19, 2003. A pulmonologist
who treated Mrs. Freeman in the hospital testified that the symptoms Mrs. Freeman
experienced shortly before her death could be caused by several different things. Just
as identifying the reason for the chest pain in Jones’s deposition example involved
a medical diagnosis beyond her nursing expertise, so did identifying the reason why
Mrs. Freeman died from respiratory distress. See Elswick v. Nichols, 144 FSupp2d
758, 765-767 (ED Ky 2001) (nurse could testify to breaches of nursing standard of
care, but although she held strong opinion that those breaches caused patient to
develop hospital-acquired infection, she was not competent to give causation opinion
because, as nurse conceded, question of how patient received infection involved
medical diagnosis outside nurse’s area of expertise), aff’d sub nom. Elswick v.
Pikeville United Methodist Hosp. of Ky., 50 Fed. Appx. 193 (6th Cir. 2002).
Without Jones’s opinion, Freeman has not shown evidence demonstrating the
necessary causal link between Westwood’s alleged breaches of the standard care and
9 Mrs. Freeman’s death. Accordingly, the trial court did not err in granting summary
judgment to Westwood.
Judgment affirmed. Barnes, P. J., concurs. Dillard, J., concurs in the
judgment only.
10 A14A1404. FREEMAN et al. v. LTC HEALTHCARE OF
STATESBORO, INC. d/b/a WESTWOOD NURSING
CENTER et al.
DILLARD, Judge, concurring in judgment only.
I concur in judgment only because I do not agree with all that is said in the
majority opinion. As such, the majority’s opinion decides only the issues presented
in the case sub judice and may not be cited as binding precedent. See Court of
Appeals Rule 33 (a).