Toombs v. Acute Care Consultants, Inc.

756 S.E.2d 589, 326 Ga. App. 356, 2014 Fulton County D. Rep. 902, 2014 WL 1043636, 2014 Ga. App. LEXIS 183
CourtCourt of Appeals of Georgia
DecidedMarch 19, 2014
DocketA13A2316
StatusPublished
Cited by4 cases

This text of 756 S.E.2d 589 (Toombs v. Acute Care Consultants, Inc.) 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
Toombs v. Acute Care Consultants, Inc., 756 S.E.2d 589, 326 Ga. App. 356, 2014 Fulton County D. Rep. 902, 2014 WL 1043636, 2014 Ga. App. LEXIS 183 (Ga. Ct. App. 2014).

Opinion

Miller, Judge.

Jacqueline Toombs brought the instant medical malpractice action against Dr. Bruce Friedman, nurse practitioner Gena Mark-waiter and Acute Care Consultants, Inc. (collectively the “Defendants”), alleging that they were negligent in providing medical care following her late husband’s surgery and that this negligence led to his death.1 The Defendants moved for summary judgment on the ground that no jury question remained following the disqualification of Toombs’s sole expert witness. The trial court granted the Defendants’ motion for summary judgment, and Toombs appeals from that order. Toombs contends that her expert met all the criteria of OCGA § 24-7-702 (c)2 in terms of education, training and experience. After a thorough review of the law and facts in this case, we reverse.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that, on September 18, 2006, Toombs’s husband, Charles Toombs, Jr., suffered a chemical burn to his left foot while working at his job as a chemical technician. On September 23, 2006, Charles was admitted to Doctor’s Hospital in Augusta, Georgia, where he underwent surgery to excise his wound and to apply a skin graft. Following his surgery, Charles was prescribed Lovenox, a medicine used to prevent blood clotting, because he was at high risk for deep vein thrombosis (“DVT”).

Subsequently, Charles was readmitted to the hospital and underwent a second skin-graft surgery on October 4, 2006. Following his surgery on that day, Charles was examined by Dr. Friedman and [357]*357nurse practitioner Markwalter. Dr. Friedman’s post-surgery assessment and care plan provided that Charles would be increasingly mobilized in order to attempt to prevent DVT. Markwalter deposed that Charles’s mobilization plan would have included turning side-to-side and sitting up in the bed, sitting on the side of the bed and moving his legs and arms. Dr. Friedman did not, however, prescribe Lovenox following Charles’s second surgery.

On the day after his surgery, Charles was able to get out of the bed and sit in a chair. Occupational therapists also administered in-bed physical therapy that day to help increase Charles’s range of motion. On October 6,2006, the second day after his surgery, Charles stood up on crutches with the help of a physical therapist. Charles walked about ten feet with assistance and use of the crutches before he told the therapist that he was in pain, felt dizzy, had difficulty breathing and wanted to return to his bed. Charles went into respiratory distress, stopped breathing and could not be resuscitated. Charles died from a DVT blood clot that formed in his leg, broke loose and traveled to his lungs where it became a pulmonary embolism (“PE”).

Toombs subsequently filed this action, alleging that the Defendants were negligent in providing medical care to her husband following his surgery. Toombs supplemented her complaint with an affidavit from Dr. Michael S. Oleksyk, who opined that Charles was at significant risk for DVT and PE because he was over 40 years old and significantly obese, he had undergone surgery lasting more than 30 minutes under general anesthesia, he was bed-bound for more than 40 hours, and his leg was immobilized with an Ace wrap which restricted the venous blood flow in the leg. Dr. Oleksyk further opined that the Defendants’ failure to evaluate Charles’s increased risk of DVT and failure to take measures to decrease that risk constituted substandard care.

The Defendants filed a motion to disqualify Oleksyk on the ground that he was not qualified under OCGA § 24-7-702 (c) to testify regarding the standard of care applicable to the treatment of a post-surgical burn care patient who had undergone skin graft surgery. The trial court granted the Defendants’ motion to disqualify Oleksyk from giving testimony regarding the standard of care applicable to Friedman and Markwalter, and this Court denied Toombs’s application for interlocutory review.3

[358]*358In her sole enumeration of error, Toombs contends that the trial court erred in granting summary judgment to the Defendants. Specifically, Toombs argues that the trial court confused Georgia law as to the specialty or practice of medicine relevant to this case, and that OCGA § 24-7-702 (c) authorizes the admission of Oleksyk’s stricken testimony. We agree.

The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently the trial court’s ruling thereon cannot be reversed absent an abuse of discretion. Under Daubert,[4] disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.

(Citations and punctuation omitted.) Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008).

In order to survive the Defendants’ motion for summary judgment on her medical malpractice claim, Toombs had to present expert testimony that the Defendants deviated from the applicable standard of care. See Vaughan v. WellStar Health System, 304 Ga. App. 596, 602 (4), n. 20 (696 SE2d 506) (2010); Bowling v. Foster, 254 Ga. App. 374, 377 (562 SE2d 776) (2002). OCGA § 24-7-702 (c) sets forth the statutory criteria for the qualification of experts in medical malpractice cases. That statute pertinently provides:

[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency...; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the [359]*359procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or

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Bluebook (online)
756 S.E.2d 589, 326 Ga. App. 356, 2014 Fulton County D. Rep. 902, 2014 WL 1043636, 2014 Ga. App. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toombs-v-acute-care-consultants-inc-gactapp-2014.