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Abdel-Samed v. Dailey

Supreme Court of Georgia

March 10, 2014

DAILEY et al

Page 806

Certiorari to the Court of Appeals of Georgia -- 319 Ga.App. 380.

Carlock, Copeland & Stair, Thomas S. Carlock , Eric J. Frisch , for appellants.

Reynolds, Horne & Survant, W. Carl Reynolds , Bradley J. Survant , for appellees.


Page 807

Thompson, Chief Justice.

We granted a writ of certiorari in Dailey v. Abdul-Samed , 319 Ga.App. 380 (736 S.E.2d 142) (2012),[1] to determine whether the Court of Appeals erred in this medical malpractice action by reversing the trial court's grant of summary judgment in favor of the defendants.[2] Because we conclude there exists a question of fact for jury determination, and therefore, the defendants were not entitled to summary judgment, we affirm.

Viewed in a light most favorable to the non-moving parties, Ryan and Cindy Dailey, the evidence shows that Ryan Dailey arrived at Spalding Regional Medical Center (SRMC) just after midnight on December 11, 2005, seeking treatment after he accidentally shot paint thinner into his finger with a high pressure paint sprayer. Mark Epps, a physician's assistant, examined Ryan and concluded he needed an immediate referral to a hand surgeon and emergency surgery. SRMC did not have a hand surgeon on call, and Epps told Ryan and his wife, Cindy, that the on-call orthopedic surgeon did not like to be disturbed during the night. As a result, Epps stated surgery would have to wait until the morning. Meanwhile, Dr. Abdel-Samed, who had been informed of Ryan's presence in the emergency room and of Epps' diagnosis, was talking to Dr. John Seiler, a hand surgeon at Piedmont Hospital, about a different hand surgery patient she was transferring to him. In the course of this conversation, Dr. Abdel-Samed [294 Ga. 759] mentioned that she might have a second hand surgery patient, i.e., Ryan, to send him. Dr. Seiler responded that he would be willing to take and treat Ryan.

Dr. Abdel-Samed first examined Ryan at approximately 1:00 a.m. and agreed with Epps' conclusion that immediate surgery was necessary. Nevertheless, the Daileys stated in deposition testimony that Dr. Abdel-Samed told them surgery would have to wait until the next morning when the on-call orthopedic surgeon arrived. Dr. Abdel-Samed then encouraged Cindy to go home and wait, moved Ryan into a small storage room, and turned off the lights. Hospital staff checked on Ryan periodically throughout the early

Page 808

morning, noting that he continued to complain of pain in his finger and hand. Hospital records indicate a breakfast tray was ordered for Ryan at 6:30 a.m.

Epps testified that he spoke with Dr. Abdel-Samed about Ryan's diagnosis before 1:00 a.m., that he made no effort to transfer Ryan to a hand surgeon, and that he spoke with Dr. Abdel-Samed again at 3:00 a.m. when his shift was ending, but he had no recollection of what was said in that conversation. Dr. Abdel-Samed testified that after she examined Ryan, she gave a general instruction to hospital staff to transfer him to an available hand surgeon. The unit secretary was unable to recollect which hospitals, if any, were called or when. Instead, she testified as to her normal practice, which was to call Atlanta Medical Center (AMC) and the Medical Center of Central Georgia (MCCG), hospitals affiliated with SRMC. Dr. Abdel-Samed testified that based on hospital protocol, she believed AMC and MCCG had been called, but neither had a hand surgeon available.[3] There is other evidence, however, showing that MCCG was not called and that it had a hand surgeon on call and available to perform surgery on the morning in question.

It is undisputed that at 7:33 a.m., seven-and-a-half hours after Ryan arrived at SRMC, Dr. Seiler was called and Ryan was accepted for transfer. Ryan arrived at Piedmont Hospital at approximately 9:45 a.m., where emergency surgery was performed through use of nerve blocks instead of general anesthesia.[4]

The Daileys filed suit, claiming Dr. Abdel-Samed and Epps breached their duties of care by not transferring Ryan to a hand surgeon in a timely manner. They contend the delay resulted in [294 Ga. 760] amputation of the tip of Ryan's middle finger and reduced range of motion and increased pain and sensitivity in his finger and hand. Dr. Abdel-Samed and Epps moved for summary judgment, relying, in part, on their contention that the Daileys' claims are controlled by OCGA ยง 51-1-29.5, which places a higher evidentiary burden on plaintiffs asserting certain health care liability claims arising out of the provision of emergency medical care. The trial court granted summary judgment in favor of the ...

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