SECOND DIVISION BARNES, P. J., ADAMS 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 30, 2012
In the Court of Appeals of Georgia A12A1872. GAULDEN et al. v. GREEN et al.
BARNES, Presiding Judge.
Following the death of Deloris P. Gaulden in the emergency room of Liberty
Regional Medical Center (“LRMC”), her daughter, individually and as administratrix
of her estate, brought this wrongful death and survival action against several
defendants, including Bobby L. Herrington, M.D., the Medical Director of the LRMC
Emergency Department.1 The trial court granted summary judgment to Dr. Herrington
1 The other individual defendants were Dr. Daniel Green, M.D., the physician who treated the decedent in the emergency room; Stuart E. Mauney, R.N., the nurse assigned to the decedent; and Debra Hall Carter, R.N., the charge nurse on duty at the time of the decedent’s presentation and treatment. Several corporate entities also were named as defendants: The Hospital Authority of Liberty County d/b/a LRMC; the Schumacher Group of Delaware, Inc. d/b/a Scuhmacher Group; Liberty Emergency Group, LLC; Schumacher Medical Corporation; and Schumacher Management Services, Inc. on the plaintiff’s claim for professional negligence on the ground that he had no
physician-patient relationship with the decedent and owed no legal duty to her. The
trial court subsequently granted summary judgment to Dr. Herrington on the
plaintiff’s claim for ordinary negligence on the ground that all of the allegations
against him sounded in professional negligence. For the reasons discussed below, we
affirm the trial court grant of summary judgment on the ordinary negligence claim.
However, we conclude that Dr. Herrington owed a legal duty to the decedent based
upon the specific supervisory responsibilities that he assumed over the emergency
room staff in agreeing to serve as Medical Director, and, therefore, reverse the trial
court’s grant of summary judgment on the professional negligence claim.
Summary judgment is proper if, and only if, the pleadings and evidence “show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). See Ly v. Jimmy
Carter Commons, LLC, 286 Ga. 831, 833(1) (691 SE2d 852) (2010). On appeal from
the grant of summary judgment, we view the evidence de novo, with the facts and all
inferences drawn from them viewed in the light most favorable to the nonmoving
party. McCaskill v. Carillo, 263 Ga. App. 890 (589 SE2d 582) (2003).
2 So viewed, the record shows that on October 17, 2008, the 64-year-old
decedent was transported by ambulance to the LRMC Emergency Department after
becoming dizzy and fainting at church. En route to the hospital, the decedent
informed the paramedic who was riding in the ambulance that she had a history of
hypertension and hypercholesterolemia. She also complained of “chest tightness,”
which the paramedic reported to emergency room staff by phone on the way to the
hospital and in-person once the ambulance arrived there.
The decedent was received by staff in the emergency room at 1:47 p.m. Despite
her repeated complaints of chest pain following her arrival, she did not receive an
anticoagulant (i.e., aspirin) until 2:45 p.m. The first 12-lead electrocardiogram
(“EKG”) of the decedent, which showed that she was likely suffering from a heart
attack, was not performed until 2:58 p.m. Following the EKG, the decedent went into
cardiac and respiratory arrest, and the emergency room staff called an emergency
code and began CPR at 3:19 p.m. Efforts were made to revive the decedent until 6:05
p.m., when she was pronounced dead.
The administratrix of the decedent’s estate subsequently commenced this
wrongful death and survival action against multiple defendants, alleging that the
failure to properly triage, diagnose, and treat the decedent in the emergency room
3 caused her untimely death from a sudden cardiac event. The complaint and
accompanying expert affidavits alleged that if Dr. Daniel Green (the emergency room
physician who had treated the decedent), had properly recognized the decedent’s
symptoms of a heart attack, and if Dr. Green and Stuart Mauney (the registered nurse
assigned to the decedent in the emergency room), had immediately and properly
implemented the hospital’s “Chest Pain Standing Orders” in response to those
symptoms, the decedent would not have died from her cardiac condition.
The complaint also named as a defendant Dr. Herrington, the Medical Director
of the LRMC Emergency Department. Dr. Herrington was not present or physically
involved in the care and treatment of the decedent the day she presented and died at
the hospital. However, according to the complaint and the expert physician’s affidavit
attached to it, Dr. Herrington breached his specific supervisory duties as Medical
Director and was negligent in failing to take adequate steps to ensure that emergency
room staff (including Dr. Green and Nurse Mauney) were properly trained on the
existence of and proper implementation of Emergency Department policies and
protocols, including the “Chest Pain Standing Orders.”
Dr. Herrington filed a motion for summary judgment, contending that the
evidence did not support a claim of professional negligence against him because he
4 did not have a physician-patient relationship with the decedent and owed no legal
duty to her. The trial court granted the motion, but reserved ruling on any claims
asserted against Dr. Herrington for ordinary negligence. Dr. Herrington then filed a
second motion for summary judgment as to any claim for ordinary negligence,
asserting that the uncontroverted evidence showed that his duties in supervising the
Emergency Department involved medical questions demanding the exercise of
professional judgment and skill, such that the claims against him fell outside the
realm of mere ordinary negligence. The trial court granted the second motion for
summary judgment, leading the plaintiff to file this appeal.
1. The plaintiff challenges the trial court’s order granting summary judgment
to Dr. Herrington on the professional negligence claim. In seeking summary
judgment, Dr. Herrington argued that the uncontroverted evidence showed that no
physician-patient relationship existed between him and the decedent, and thus that no
legal duty was owed by him to her. The plaintiff asserts that the trial court’s order can
be affirmed only if it is true that “claims of professional negligence can never stand
against a physician who does not establish a direct, in-person doctor-patient
relationship.” According to the plaintiff, Dr. Herrington owed a legal duty to the
decedent based on the explicit, written duties set forth in his contract to serve as
5 Medical Director, “as well as those implied through his position as Director of the
Emergency Department.” We agree with the plaintiff that summary judgment on the
professional negligence claim was inappropriate under the particular facts of this
case.
To maintain a claim for professional negligence, “a plaintiff must prove the
following elements: (1) a legal duty to conform to a standard of conduct; (2) a breach
of this duty; (3) a causal connection between the conduct and the resulting injury; and
(4) damage to the plaintiff.” (Punctuation and footnote omitted.) Pattman v. Mann,
307 Ga. App. 413, 417 (701 SE2d 232) (2010). “In the absence of a legally
cognizable duty, there can be no fault or negligence.” Ford Motor Co. v. Reese, 300
Ga. App. 82, 84 (1) (a) (684 SE2d 279) (2009).
In a “classic” medical malpractice case, the plaintiff must come forward with
evidence of a physician-patient relationship to succeed on a claim of professional
negligence against the physician. See Medical Center of Central Ga. v. Landers, 274
Ga. App. 78, 84 (1) (b) (616 SE2d 808) (2005); Peace v. Weisman, 186 Ga. App. 697,
698 (1) (368 SE2d 319) (1988). “In such cases, . . . doctor-patient privity is essential
because it is this relation which is a result of a consensual transaction that establishes
6 the legal duty to conform to a standard of conduct.” (Citation omitted.) Landers, 274
Ga. App. at 84 (1) (b).
Privity is not required, however, if there is some independent basis for the
existence of a legal duty – apart from the “consensual transaction” between physician
and patient – that arises out of the unique circumstances of the case. See Bradley
Center v. Wessner, 250 Ga. 199, 201-203 (1) (296 SE2d 693) (1982) (plurality
opinion). This follows from the general principle that “[a] breach of different duties
. . . gives rise to separate and distinct claims.” (Citations and punctuation omitted.)
Blier v. Greene, 263 Ga. App. 35, 39 (2) (587 SE2d 190) (2003).
Under Georgia law, the failure to adequately supervise emergency room staff
“can result in liability for any damages resulting from such failure by one whose
responsibility it is to provide such supervision.” Gray v. Vaughn, 217 Ga. App. 872,
874 (1) (460 SE2d 86) (1995) (defendant “was contractually obligated to provide
supervision of the triage nurses” and could be held liable for injury to patient
resulting from failure to supervise them properly). There is evidence in the record that
Dr. Herrington, in serving as Medical Director of the LRMC Emergency Department,
assumed an independent duty to supervise and monitor the training of emergency
room physicians and nursing staff to ensure that they were adequately informed of
7 and knowledgeable about the existence of and proper implementation of Emergency
Department policies and protocols, including the “Chest Pain Standing Orders” at
issue in this case. Given this independent duty, the plaintiff was not required to prove
that a physician-patient relationship existed between Dr. Herrington and the decedent.
Specifically, the record reflects that since August 2000, Dr. Herrington has
worked as a staff physician in the LRMC Emergency Department. Beginning in June
2008, he also assumed the role of Medical Director of the LRMC Emergency
Department in return for additional compensation, termed a “Medical Director
Stipend,” and signed an agreement entitled “Medical Director Agreement-Emergency
Department.” (the Medical Director Agreement”)2 Under the Medical Director
Agreement, Dr. Herrington agreed to “substantially perform and carry out the typical
duties of a dedicated, fully functional Medical Director of an Emergency
Department,” including a list of duties included on an attached Exhibit A, entitled
“Medical Director Responsibilities,” which was incorporated into the agreement.
Exhibit A included several categories of responsibilities, including but not limited to
2 The Medical Director Agreement was entered into between Dr. Herrington and Liberty Emergency Group, LLC, the company that staffed LRMC with physicians.
8 “Monitor and Supervise Physicians” and “Monitor and Supervise Department
Functions.”
Some of the specific responsibilities assigned to Dr. Herrington as Medical
Director and listed in Exhibit A included: “Acts as a liaison with the hospital medical
staff, administration and emergency department staff to assure support of
department”; “Interact with ancillary services (lab/x-ray, nursing, respiratory therapy,
medical records) to insure efficient work flow between emergency department and
these services”; “Work towards insuring quality patient care”; “Review and be
familiar with policies/procedures relevant to the ED Physicians . . . ;” and “Contribute
to or assist with education of ED staff and provide direction to ED nursing staff.”
Additionally, Dr. Herrington, in his “function as Medical Director,” agreed “to insure
that the physicians . . . [in the Emergency Department] are providing emergency
medical physician staffing and management services . . . in accordance with the
policies and regulations of the Hospital, and under currently approved and acceptable
standards of care prevalent in the Hospital’s area.”
In his deposition, Dr. Herrington testified that the LRMC Emergency
Department had seven or eight “standing orders” in place in 2008 that provided a list
of measures that could be taken by emergency room nurses without a physician’s
9 order or approval. He further testified that as Medical Director, he had reviewed some
of the standing orders and had periodic discussions with the Nursing Director about
issues pertaining to them, such as any recommended changes. He noted that meetings
were held to disseminate information about the standing orders, and that he would
assist in advising emergency room physicians and staff about any changes to hospital
policies and procedures that affected how the Emergency Department functioned.
According to Dr. Herrington, he also provided “one-on-one mentoring” to
emergency room physicians “when needed” to address new procedures and played a
role in ensuring that they were knowledgeable of pertinent policies and protocols. In
addition to his role in educating emergency room physicians, Dr. Herrington would
periodically attend nurse staffing meetings where he would answer questions, and he
would “work with the nurses directing their care,” which had an education component
to it as well. Additionally, Dr. Herrington testified that he would provide direction to
the nursing staff if they had “any issues with a specific process” used in the
Emergency Department and would discuss such matters with the Nursing Director.
One of the specific protocols or standing orders in the Emergency Department
was the “Chest Pain Standing Orders.” Dr. Herrington testified that the current
version of the Chest Pain Standing Orders was adopted by the nursing staff around
10 the time that he became Medical Director and that it remained in effect at the time of
the decedent’s treatment in the emergency room.
According to Dr. Herrington, the Chest Pain Standing Orders authorized a
nurse in the emergency room to implement a series of listed measures of their own
accord without the approval of a physician, including having a 12-lead EKG
performed on a patient. In particular, he testified that the Chest Pain Standing Orders
authorized an emergency room nurse, when presented with a patient complaining of
acute chest pain,3 to immediately order a “stat” EKG on their own initiative or
perform it themselves on the patient if necessary. The goal, as related by Dr.
Herrington, was to have the EKG performed within 10 minutes of the patient’s
presentation in the emergency room to prevent potential damage to the patient’s
cardiac muscle and to inform the emergency room staff “as quickly as possible” if the
patient was suffering from myocardial ischemia and/or a myocardial infarction (i.e.,
a heart attack).
Dr. Herrington testified, however, that he did not know whether all of the
emergency room physicians and nursing staff were aware that a nurse could initiate
an order for an EKG under the Chest Pain Standing Orders without first obtaining a
3 Dr. Herrington clarified that by “acute,” he meant “recent onset.”
11 physician’s approval. Indeed, Nurse Mauney, the nurse assigned to the decedent in
the emergency room, testified by way of deposition that he believed that the Chest
Pain Standing Orders could only be instituted by a nurse upon approval of a
physician.4
There also was some evidence of confusion among emergency room staff over
whether the nurses themselves (versus other hospital personnel such as respiratory
therapists) could perform an EKG if necessary under the Chest Pain Standing Orders.
This confusion is reflected in the testimony of Dr. Green (who treated the decedent
in the emergency room) that in October 2008 he “had no idea what the rules, criteria,
or training were of any of the nursing staff with respect to EKGs” and did not know
what the hospital policy was on that issue.
Based on this record, there was evidence that Dr. Herrington assumed an
obligation as Medical Director to supervise and monitor the training of emergency
room physicians and nursing staff on hospital policies and procedures, including the
4 In contrast, later in his deposition, Nurse Mauney testified that under certain circumstances the Chest Pain Standing Orders could be initiated by an emergency room nurse without prior physician approval. At the summary judgment stage, “contradictory testimony must be construed in favor of the non-movant.” (Citation and punctuation omitted.) McCoy v. Southern Bell Tel. &c. Co., 172 Ga. App. 26, 27 (2) (322 SE2d 76) (1984).
12 Chest Pain Standing Orders, to ensure that the physicians and nurses were adequately
informed of and knowledgeable about them. Hence, under Gray, 217 Ga. App. at 874
(1), Dr. Herrington owed a legal duty to the decedent to provide that specific type of
supervision over emergency room physicians and nurses.
In seeking summary judgment, Dr. Herrington argued that, in the absence of
a physician-patient relationship, he could be found to owe a legal duty to the decedent
through his assumption of the role of Medical Director only if the plaintiff proved
that the decedent was a third-party beneficiary of the Medical Director Agreement.
To support his argument, Dr. Herrington relied on Anderson v. Houser, 240 Ga. App.
613, 615-621 (1) (523 SE2d 342) (1999). But Anderson is distinguishable from the
present case and should not be construed as broadly as Dr. Herrington argued.
First, Anderson involved a situation where the defendant was simply an on-call
physician at a hospital emergency room; it did not involve a physician who had
assumed specific supervisory responsibilities over other emergency room staff. In the
latter situation, the case of Gray, 217 Ga. App. at 874 (1), is controlling rather than
the case of Anderson.
Second, irrespective of whether a third-party beneficiary relationship exists, it
is a longstanding principle in tort actions that
13 [o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Huggins v. Aetna Cas. & Surety Co., 245 Ga. 248, 249 (264 SE2d 191) (1980). See
Restatement (Second) of Torts § 324A. See also Urban Svcs. Group v. Royal Group,
295 Ga. App. 350, 351-353 (1) (671 SE2d 838) (2008).
By agreeing to take on specific supervisory responsibilities over the emergency
room staff with respect to their training, Dr. Herrington undertook to render services
which he should have recognized as necessary for the protection of emergency room
patients. Moreover, the alleged failure to exercise reasonable care in rendering those
services would increase the risk of harm to emergency room patients, given that the
failure to have physicians and nurses properly trained on hospital protocols and
standing orders would increase the risk to patients of receiving negligent medical
care. Accordingly, irrespective of whether a third-party beneficiary relationship
14 existed based on the Medical Director Agreement, Dr. Herrington assumed a duty to
the decedent under the principle enunciated in Huggins and Section § 324A. Dr.
Herrington’s reliance on Anderson, therefore, was misplaced.5
For these combined reasons, the trial court erred in concluding that Dr.
Herrington owed no legal duty to the decedent and thus in granting summary
judgment in favor of him on the plaintiff’s claim for professional negligence. In
reversing the grant of summary judgment, we emphasize that our decision should not
be read as holding that a physician, simply by assuming the role of medical director
of a hospital department, assumes a legal duty of general supervision over the staff
of that department, the breach of which he or she can be held liable to a patient.
Rather, the instant case involves a more narrow duty of supervision over the training
of department staff arising out of the specific language of the Medical Director
Agreement and Dr. Herrington’s deposition testimony regarding his role in the
5 Schrader v. Kohout, 239 Ga. App. 134 (522 SE2d 19) (1999) also is distinguishable from the present case. In Schrader, the defendant-psychologist provided consultative services to the psychologist who treated the plaintiff-patient. Id. at 135-136. We held that because the defendant did not have a physician-patient relationship with the plaintiff, she could not be held liable for malpractice resulting from the alleged negligent psychological care received by the plaintiff. Id. at 136-138. But we specifically pointed out that the defendant “provided direct, undisputed, unequivocal evidence” that she did not serve as a supervisor over the treating psychologist. Id. at 136.
15 Emergency Department. Furthermore, we express no opinion as to whether the
plaintiff ultimately will be able to establish the other necessary elements of a
professional negligence claim, including the element of causation.
2. The plaintiff also challenges the trial court’s order granting summary
judgment to Dr. Herrington on the ordinary negligence claim. In seeking summary
judgment on that claim, Dr. Herrington asserted that the uncontroverted evidence
showed that his supervisory duties as Medical Director involved medical questions
demanding the exercise of professional judgment and skill, such that the claim
brought against him for breach of those duties could not be construed as one for
ordinary negligence. We agree with Dr. Herrington.
Whether a plaintiff’s claim sounds in ordinary or professional negligence is a
question of law for the court to resolve. James v. Hosp. Auth. of the City of
Bainbridge, 278 Ga. App. 657, 659 (1) (629 SE2d 472) (2006). Whether a claim is
for ordinary or professional negligence “depends on whether the conduct, even if
supervisory or administrative, involved a medical judgment.” (Citation and
punctuation omitted.) Id.
Here, the plaintiff relied upon the same allegations supporting the claim for
professional negligence against Dr. Herrington to support the claim for ordinary
16 negligence. The Chest Pain Standard Orders at the center of those allegations were
contained on a single sheet of paper and simply listed the following measures without
elaboration:
EKG
PORTABLE CHEST XRAY
CBC, CMP, CARDIAC ENZYMES
SALINE LOCK
02 2-4L NC
CARDIAC MONITOR
OLD CHART
As such, the question of how the Chest Pain Standing Orders should specifically be
implemented in the emergency room, and thus of how to properly and effectively train
emergency room staff on how to implement the standing orders, required the exercise
of medical knowledge and judgment. For example, there is nothing in the written
Chest Pain Standing Orders describing how soon the EKG should be performed when
a patient presents in the emergency room with chest pain; deciding the window of
17 time within which the EKG should be performed,6 and ensuring that staff were trained
accordingly, would involve an exercise of professional medical (rather than simply
administrative) skill and expertise.
For these reasons, the allegations asserted against Dr. Herrington for allegedly
failing to properly supervise the training of emergency room staff on the Chest Pain
Standing Orders sounded solely in professional rather than ordinary negligence. See
Stafford-Fox v. Jenkins, 282 Ga. App. 667, 670-671 (2) (639 SE2d 610) (2006) (claim
that physician negligently failed to implement appropriate procedures in his office to
ensure that lab results were properly acted upon was claim in professional rather than
ordinary negligence); Upson County Hosp. v. Head, 246 Ga. App. 386, 392 (1) (540
SE2d 626) (2000) (patient’s “claim that the hospital either failed to follow established
anesthesia procedures or protocols or failed to have any established procedures or
protocols in place is a claim for professional negligence”). The trial court thus
committed no error in granting summary judgment in favor of Dr. Herrington on the
plaintiff’s ordinary negligence claim.
6 As previously noted, Dr. Herrington testified that the goal was to have the EKG performed within 10 minutes of a patient presenting in the emergency room with complaints of chest pain.
18 Judgment affirmed in part; reversed in part. Adams and McFadden, JJ.,
concur.