Swint v. Alphonse

820 S.E.2d 312, 348 Ga. App. 199
CourtCourt of Appeals of Georgia
DecidedNovember 1, 2018
DocketA18A0869
StatusPublished
Cited by14 cases

This text of 820 S.E.2d 312 (Swint v. Alphonse) 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
Swint v. Alphonse, 820 S.E.2d 312, 348 Ga. App. 199 (Ga. Ct. App. 2018).

Opinion

Gobeil, Judge.

*199During a prolonged surgical procedure, Fritz F. Swint suffered an injury that left him with nerve damage and limited use of his right hand. Swint and his wife Melissa thereafter filed suit in DeKalb County State Court against Paul Alphonse, Jr., M.D. (the surgeon), Tonya Mae, M.D. (the anesthesiologist), Pamela Roy, R. N. (the surgical nurse), and Midtown Urology, P.C. (Alphonse's employer), seeking damages arising from the defendants' alleged medical malpractice. The Swints now appeal from an order granting summary judgment in favor of Dr. Alphonse and Midtown Urology (collectively "Dr. Alphonse") on the Swints' claims.1 The Swints assert that in granting summary judgment, the trial court erred in its factual conclusion about the applicable standard of care and in finding that the Swints lacked sufficient evidence to create a question of fact on the causation element of their malpractice claims. We agree with the Swints, and we therefore reverse the trial court's order.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of *200law. OCGA § 9-11-56 (c). "In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion." Bryant v. Optima Int'l , 339 Ga. App. 696, 696, 792 S.E.2d 489 (2016) (citations and punctuation omitted). In doing so, we bear in mind that "[t]he party opposing summary judgment is not required to produce evidence *314demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact." Johnson v. Omondi , 294 Ga. 74, 75, 751 S.E.2d 288 (2013) (citation and punctuation omitted).

The underlying facts in this case are largely undisputed and are set forth in Swint I as follows:

[O]n December 3, 2009, Mr. Swint underwent a surgical procedure known as a robotic-assisted laparoscopic prostatectomy ("RALP") performed by Dr. Alphonse and proctored by Dr. Raymond Pak ("Dr. Pak").[2 ] Dr. Mae, M.D. was the attending anesthesiologist and Nurse Roy was the circulating nurse during the surgery. The RALP procedure required Mr. Swint to be positioned in the lithotomy in a steep Trendelenburg[3 ] position, with his left and right arms tucked to his side. Dr. Alphonse and Dr. Pak positioned Mr. Swint's body using Dr. Pak's method of wrapping the patient's body with sheets and towel clips, without the assistance of Dr. Mae and Nurse Roy. Once Mr. Swint was positioned by Drs. Alphonse and Pak, Dr. Mae tilted the operating table into the steep Trendelenburg position to the level approved by the surgeons. The surgery, conducted by Dr. Alphonse, *201lasted approximately 9 hours and 21 minutes. At no time during the surgery did Defendants ... reposition Mr. Swint's body[, nor did they discuss doing so]. Mr. Swint's body remained in the same position throughout the entire procedure.
After surgery, Defendants took Mr. Swint to a post-surgery recovery room where he complained of pain in both shoulders and arms. Mr. Swint was diagnosed with compartment syndrome[4 ] in his right arm the following day, and underwent surgery to relieve the pressure [causing the condition]. Following surgery, Mr. Swint did not regain complete use of his right arm and hand.

Swint I , 340 Ga. App. at 481, 798 S.E.2d 23 (original footnotes omitted).

In their complaint, the Swints alleged that Dr. Alphonse committed medical malpractice by failing to position Mr. Swint properly at the outset of surgery and then failing to reposition him during the surgery. They further alleged that as a result of this negligence, Mr. Swint suffered injuries in both of his arms and developed compartment syndrome in his right arm, which left him in significant pain and partially disabled.5 To demonstrate that Dr. Alphonse breached the applicable standard of care and that this breach was a cause of Mr. Swint's injuries, the Swints offered the expert testimony of Michael A. Palese, M.D. and Paul Collier, M.D. At the time of his 2013 deposition, Dr. Palese, a urologist, was the Director of Minimally Invasive Surgery in the Urology Department of Mount Sinai Medical School. Dr. Palese described his "area of expertise" as "robotic and laparoscopic surgery" and he had previously done a one-year fellowship in robotic and laparoscopic surgery at Cornell New York Hospital. Immediately after completing that fellowship, Dr. Palese established the robotic urological surgery program at Mount Sinai. Additionally, Dr. Palese's *315affidavit and resume show that he has published in textbooks and medical journals in the area of robotic and laparoscopic urological surgery. *202Dr. Palese testified repeatedly that when a patient is placed in the lithotomy in the steep Trendelenburg position (the "LST position") for a lengthy surgery, the standard of care requires the physician to give the patient a positional holiday6 sometime between the four and five hour mark of the surgery. Dr. Palese's testimony also made clear that his statement of "between four and five hours" was based on the fact that a decision to give a patient a positional holiday at a particular time would depend on how the surgery was progressing. As Dr. Palese explained, complications from an LST position do not generally arise until between the four and five hour mark. If the surgery reached the four-hour mark and the doctor knew the surgery was not going to end soon, then he would need to start preparing for a positional holiday,7 and then provide such a holiday no later than the fifth hour of surgery. Thus, Dr. Palese opined that the standard of care was breached in this case somewhere between the four and five hour mark, when Dr. Alphonse failed to give Mr.

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Bluebook (online)
820 S.E.2d 312, 348 Ga. App. 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swint-v-alphonse-gactapp-2018.