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Hospital Auth. of Valdosta/Lowndes County v. Brinson

Court of Appeals of Georgia

November 20, 2014


Reconsideration denied December 5, 2014.

Medical malpractice. Lowndes Superior Court. Before Judge Tunison.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, Brian J. Miller, Daniel C. Hoffman, Huff, Powell & Bailey, Jeffrey D. Braintwain, Michael G. Frankson, for appellants.

Charles R. Adams III, James E. Messer, Jr., for appellee.

BARNES, Presiding Judge. Boggs and Branch, JJ., concur.


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Barnes, Presiding Judge.

This medical malpractice case addresses the applicability of the emergency room (ER) statute, OCGA § 51-1-29.5, which requires a plaintiff to show clear and convincing evidence of gross negligence to recover for claims arising out of the provision of emergency medical care. The trial court in this case granted partial summary judgment to the plaintiff, finding that the ER statute did not apply because the patient had been stable and non-urgent when seen and received no emergency care.

The defendants appealed, arguing that the " actual condition" of the plaintiff is determinative and that the trial court erred in " relying on the subjective belief" of the plaintiff that the baby who presented to the ER only had a cold when the evidence establishes that the baby had a " life-threatening medical condition." Because the baby needed emergency medical care he did not receive, they argue, they are entitled as a matter of law to the greater protection of the ER statute.

We agree that the trial court erred in holding that the ER statute does not apply as a matter of law, and therefore reverse the grant of partial summary judgment to the plaintiff. We affirm the trial court's denial of summary judgment to the defendants, however, finding a question of fact exists for a jury to determine whether the gross negligence standard of the ER statute applies in this case, and whether the defendants breached whatever standard of care the jury finds applicable.

1. As an initial matter, we note that the plaintiff devotes much of her brief to arguing that the defendants must automatically lose because they did not designate the entire record in their notice of appeal, omitting at least three depositions despite the trial court's recitation that it had reviewed all of the record before granting partial summary judgment to the plaintiff.[1] Additionally, the plaintiff correctly notes that the defendants' notice of appeal was not in proper [330 Ga.App. 213] form because they designated items to be included in the record rather than those to be omitted as directed by OCGA § 5-6-37.

The defendants subsequently moved this Court for permission to supplement the record with the three omitted depositions, admitting that the depositions had been filed with the trial court before it issued the order on appeal. They further argued that the supplementation would cause no delay and would cure any perceived defect in the record and allow this appeal to be decided on the merits. This Court granted the motion over the plaintiff's procedural objection. At oral argument, the plaintiff further objected to this Court's grant of the defendants' motion to supplement the record.

" It is well settled that, on appeal, the burden is on the appellant to establish error." (Citation and punctuation omitted.) Miller Grading Contractors v. Ga. Fed. Savings & Loan Assn., 247 Ga. 730, 734 (3) (279 S.E.2d 442) (1981).

[F]or the appellate court to determine whether the grant of summary judgment was erroneous, the appellant must include in the record those items which will enable the appellate court to ascertain whether a genuine issue of material fact remains or, if the record establishes there is no such issue of fact, whether the moving party is entitled to judgment as a matter of law.

Brown v. Frachiseur, 247 Ga. 463, 464 (277 S.E.2d 16) (1981). This Court has previously

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held that when a trial court states that it considered the entire record and an appellant omits some portion of the evidence upon which the court relied, we must affirm the trial court. See, e.g., Hooks v. Humphries, 303 Ga.App. 264, 268 (3) (692 S.E.2d 845) (2010); Armstrong v. Rapson, 299 Ga.App. 884, 885 (683 S.E.2d 915) (2009); Advanced Elec. System v. Turkin, 288 Ga.App. 799, 800 (655 S.E.2d 685) (2007); Roach v. Roach, 237 Ga.App. 264, 265 (514 S.E.2d 44) (1999); Regency Executive Plaza Unit Owner's Assn. v. Wilmock, Inc., 237 Ga.App. 193, 194-195 (514 S.E.2d 446) (1999). We have also held more specifically that when the evidence omitted is something upon which the appellant relies in arguing on appeal that a material issue of fact exists, we must assume that the trial court's judgment was correct. Ferros v. Ga. State Patrol, 211 Ga.App. 50, 51-52 (2) (438 S.E.2d 163) (1993) (omission of depositions that appellant cited in appellate brief required affirming trial court order).

[330 Ga.App. 214] On the other hand, " [i]t is permissible for an appellant to submit only a portion of the record below to this court," although he remains obliged to demonstrate error by the record and cannot omit portions of the record that are material to deciding the specific issues raised on appeal. Rohatensky v. Woodall, 257 Ga.App. 801, 802 (1) (572 S.E.2d 354) (2002). Further, OCGA § 5-6-48 (d) grants this Court the authority, with or without a motion, to " require that additional portions of the record or transcript of proceedings be sent up ... or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it." We exercised our statutory discretion in this case and granted the defendants' motion to amend their notice of appeal and forward to this court the three depositions that were not previously included in the appellate record. Transcripts of those three depositions were subsequently forwarded to this court. Accordingly, we will address the merits of this appeal rather than automatically affirm the trial court without analysis because the defendants initially omitted deposition transcripts from the plaintiff's three expert witnesses.

2. An appellate court's " review of the grant or denial of summary judgment is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant." Abdel-Samed v. Dailey, 294 Ga. 758, 760 (1) (755 S.E.2d 805) (2014). In this case, both parties moved for summary judgment, and do not appear to dispute ...

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