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Cope v. Evans

Court of Appeals of Georgia

October 23, 2014


Cert. applied for.

Medical malpractice. Ware State Court. Before Judge Brooks, from Charlton County.

Judgment reversed.

Brennan & Wasden, Joseph P. Brennan, W. Richard Dekle, Sandra V. Foster, for appellant.

Ronald W. Hallman, Berrien L. Sutton, for appellee.

ANDREWS, Presiding Judge. McFadden and Ray, JJ., concur.


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Andrews, Presiding Judge.

Monette Evans sued John Cope, M.D., an orthopedic surgeon, for medical malpractice claiming that she was injured when Dr. Cope breached the applicable medical standard of care by failing to recognize and treat a staph infection in her hip joint before proceeding with hip replacement surgery. We granted Dr. Cope's application for an interlocutory appeal from the denial of his motion for summary judgment. Because we find no evidence in the record that Dr. Cope violated the applicable standard of care, he was entitled to summary judgment, and we reverse.

After Ms. Evans fell and fractured her hip, Dr. Cope performed surgery in September 2006 to repair the fracture. X-rays taken in October 2006 showed that the September 2006 surgery failed because a screw used to fix the fracture started to come loose from the bone. After the hip repair surgery failed, Dr. Cope performed a second surgery in October 2006 in which he replaced Ms. Evans's injured hip. When Dr. Cope entered the hip during the replacement surgery, he encountered some clear yellow fluid which he testified appeared to be the result of inflammation caused by the loose screw from the first surgery. According to Dr. Cope, he saw nothing before or during the [329 Ga.App. 355] second surgery that suggested an infection was present in the hip. Nevertheless, Dr. Cope ordered a gram stain test and a culture on the fluid for the purpose of determining if bacteria might be present. The gram stain test was conducted during the surgery; the test showed no bacteria (an indication of lack of infection); and Dr. Cope completed the surgery. Four days after the hip replacement surgery was completed, the culture of the fluid grew staphylococcus bacteria indicating that, unknown to Dr. Cope when he performed the surgery, an antibiotic-resistant staph infection was present in the hip at the time of the surgery. Expert medical evidence showed that Dr. Cope knew at the time he performed the first and second surgeries that Ms. Evans was taking immunosuppressive drug therapy for a prior kidney transplant, and that this made her more susceptible to bacterial infection. Expert medical evidence also showed that, when Dr. Cope put hip replacement hardware in the hip joint during the second surgery, this had the effect of making the existing staph infection more difficult to treat. The infection was eventually eliminated after Ms. Evans was hospitalized for about six weeks of antibiotic treatment. After Ms. Evans continued to have pain in the replaced hip, she had the hip examined in April 2008 by another orthopedic surgeon, J. Kevin Brooks, M.D. Dr. Brooks determined that the hip replacement hardware placed by Dr. Cope in the second surgery had loosened. In September 2008, Dr. Brooks performed another hip replacement surgery on Ms. Evans's hip to revise the earlier replacement surgery performed by Dr. Cope. Based on his review of Ms. Evans's medical records, Dr. Brooks's opinion was that the probable cause of the failure of the first hip repair surgery performed by Dr. Cope was the development of a staph infection; that the infection was present in the hip when Dr. Cope replaced the hip in the second surgery; and that the infection likely caused the loosening of the replacement hardware placed by Dr. Cope in the second surgery.

[I]n order to establish medical malpractice, the evidence presented by the patient must show a violation of the degree of care and skill required of a physician. Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally.

Johnson v. Riverdale Anesthesia Assoc., 275 Ga. 240, 241 (563 S.E.2d 431) (2002) (citation and punctuation omitted), overruled on other grounds, Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 669 (681 S.E.2d 152) (2009). There is a rebuttable presumption that medical or [329 Ga.App. 356] surgical services were performed in an ordinary and skillful manner. Beach v. Lipham, 276 Ga. 302, 303-304 (578 S.E.2d 402) (2003). " To overcome the presumption in the typical case, the injured patient must present evidence from expert medical witnesses that the defendants did not exercise due care and skill in performing their services." Id. at 304. 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 undisputed

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facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." Lau's Corp. v. Haskins, 261 Ga. 491, 491 (405 S.E.2d 474) (1991); OCGA ยง 9-11-56. The moving party on summary judgment may carry this burden by affirmatively presenting evidence which negates an essential element of the nonmoving party's claim, or by demonstrating the absence of ...

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