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Hospital Au Thorit of Valdosta v. Fender

Court of Appeals of Georgia, First Division

June 23, 2017

HOSPITAL AU THORIT OF VALDOSTA/LOWNDES COUNTY d/b/a SOUTH GEORGIA MEDICAL CENTER et al.
v.
FENDER et al. SPELL et al.
v.
FENDER et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          McMillian, Judge.

         Dennis H. Fender and Penny B. Fender brought this medical malpractice action against Hospital Authority of Valdosta/Lowndes County d/b/a South Georgia Medical Center ("SGMC"), Melissa Brackin, Dr. Andrew Spell, and Radiology Associates of Valdosta, LLC ("Radiology Associates"), alleging that the negligent performance and interpretation of a carotid artery ultrasound study resulted in Mr. Fender suffering a massive stroke and permanent brain damage. After the trial court denied the defendants' motions for summary judgment and to exclude the opinion testimony of one of the plaintiffs' medical experts, the trial court issued certificates of immediate review, and the defendants filed applications for interlocutory appeal, which we granted. These companion appeals followed.

         In Case No. A17A0002, SGMC and Brackin (collectively, the "Hospital Defendants") contend that the trial court erred in denying their motions for summary judgment because the plaintiffs' claims were barred by the applicable two-year statute of limitation and the plaintiffs failed to prove causation. Additionally, SGMC contends that the trial court erred in denying its motion for summary judgment on the plaintiffs' claims for negligent hiring, training, supervision, and retention. In Case No. A17A0003, Dr. Spell and Radiology Associates (collectively, the "Radiology Defendants") contend that the trial court erred in denying their motion for summary judgment because the plaintiffs' claims were barred by the statute of limitation and in denying their motion to exclude certain expert opinion testimony.

         For the reasons discussed below, we conclude that the trial court erred in denying SGMC's motion for summary judgment on the plaintiffs' claims against it for the negligent hiring, training, supervision, and retention of Brackin. Accordingly, in Case No. A17A0002, we reverse the trial court's denial of summary judgment to SGMC on the plaintiffs' claims for negligent hiring, training, supervision, and retention, and we remand for the entry of summary judgment in favor of SGMC on those claims. We affirm in all other respects in both appeals.

         Case No. A17A0002

         1. The Hospital Defendants argue that the trial court erred in denying their motions for summary judgment on the statute of limitation and causation. Summary judgment is appropriate only if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56 (c). On appeal from the trial court's denial of summary judgment, "we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant." (Citation, punctuation, and footnote omitted.) MCG Health v. Barton, 285 Ga.App. 577, 578 (647 S.E.2d 81) (2007). "We do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution." Tookes v. Murray, 297 Ga.App. 765, 766 (678 S.E.2d 209) (2009). Guided by these principles, we turn to the factual and procedural background in the present case before addressing the Hospital Defendants' specific arguments.

         May 18, 2009.

         The record reflects that on May 18, 2009, Mrs. Fender drove Mr. Fender to the emergency room at SGMC after he woke up with disorientation, a headache, dizziness, extremely high blood pressure, and blurred vision. In the emergency room, Mr. Fender's blurred vision progressed to a loss of peripheral vision in his left eye. At the time he presented to the emergency room with these symptoms, Mr. Fender was 53 years old and had several risk factors for stroke, including a history of high blood pressure and high cholesterol and the fact that he was a smoker. He also had a family history of stroke.

         Mr. Fender was admitted to the hospital, where he underwent an ultrasound of his carotid arteries, the vessels in the neck that supply blood to the face and brain. A carotid ultrasound is a diagnostic imaging tool used to evaluate carotid arteries for narrowing, or stenosis, caused by plaque. An ultrasound technician called a sonographer performs the imaging and takes the blood flow velocity measurements, which are then provided to a radiologist or other physician who interprets them.

         Mr. Fender's ultrasound study was performed by Brackin, a sonographer employed by SGMC, who then sent her documentation to Dr. Spell, the hospital's on-call radiologist who practiced with Radiology Associates. Dr. Spell interpreted the ultrasound study and concluded that Mr. Fender had mild narrowing in his left internal carotid artery from the plaque, but no significant stenosis. Dr. Spell believed that the ultrasound study had been performed correctly and that no further imaging or testing was necessary to evaluate the extent of the narrowing in Mr. Fender's carotid artery. Dr. Spell's ultrasound report was provided to the hospital clinicians involved in making Mr. Fender's treatment decisions.

         Following Dr. Spell's interpretation of the ultrasound study as showing no significant stenosis, Mr. and Mrs. Fender were told that the results of the ultrasound study were "normal" and that Mr. Fender's symptoms were the result of a "hypertensive crisis." Mr. Fender was discharged from the hospital on May 19 and told to follow up with his primary care physician and with an ophthalmologist. Mr. Fender carried on with his life as before the May 2009 incident, pursuing his usual occupation of driving a tractor-trailer rig.

         A week after Mr. Fender was discharged from the hospital, Mr. and Mrs. Fender visited their primary care physician, who informed them that Mr. Fender had suffered a transient ischemic attack ("TIA"), which causes temporary symptoms that can resemble the symptoms of a stroke. See Mayo Clinic Staff, Definition of Trans ient Is c he mic Attack (TIA), The Mayo Clinic, http://www.mayoclinic.com/health/conditions/transient-ischemic-attack/ symptoms-causes/dxc-20314622 (last visited June 20, 2017). Mr. Fender's physician counseled him to stop smoking and to continue his medication for high blood pressure and high cholesterol. No additional ultrasounds or other testing were ordered.

         In addition to seeing his primary care physician, Mr. Fender saw an ophthalmologist approximately two weeks after his discharge from the hospital. A medical record from the ophthalmologist visit stated that Mr. Fender complained of continued vision problems in his left eye. However, Mrs. Fender testified that Mr. Fender had stopped complaining of any symptoms from the May 2009 incident, including any vision problems in his left eye, by the time he was discharged from the hospital and that, to her knowledge, Mr. Fender went a period of time without any symptoms.

         April 7, 2010.

         On April 7, 2010, Mr. Fender suddenly collapsed at his home. Mr. Fender was unable to move or speak and did not recognize his family. Mrs. Fender called 911, and an ambulance transported Mr. Fender to the hospital, where he was diagnosed with having suffered a massive stroke. Ultrasound imaging showed a complete obstruction of his left internal carotid artery in the same location as the plaque shown in the May 2009 ultrasound. Additional testing showed that the stroke had caused extensive brain damage.

         The Medical Malpractice Action.

         Mr. and Mrs. Fender commenced the present action against the defendants on April 2, 2012, less than two years after his 2010 stroke, seeking damages for medical malpractice and loss of consortium. The plaintiffs alleged that Brackin had negligently performed the carotid ultrasound study of Mr. Fender on May 18, 2009 by failing to recognize significant stenosis in his left internal carotid artery caused by a large plaque formation, failing to properly measure velocities in the area of the stenosis, and failing to reproduce all appropriate images during the ultrasound. The plaintiffs further alleged that Dr. Spell had negligently interpreted the May 2009 ultrasound study by failing to recognize, document, and diagnose the significant visible stenosis in Mr. Fender's left internal carotid artery caused by the large plaque formation, and by failing to recognize inaccuracies in the ultrasound study that necessitated further imaging and measurements. According to the plaintiffs, if the ultrasound study had been properly performed by Brackin and evaluated by Dr. Spell, Mr. Fender would have been diagnosed with significant stenosis and would have undergone surgical intervention to address the extensive plaque buildup in his left internal carotid artery, such that his stroke in April 2010 caused by the plaque would have been avoided.

         In addition to Brackin and Dr. Spell, the plaintiffs sought to recover against SGMC and Radiology Associates under the doctrine of respondeat superior. The plaintiffs also sought to recover against SGMC on the basis that it was negligent in hiring, training, supervising, and retaining Brackin. The plaintiffs sought compensatory damages, but not punitive damages.

         The defendants answered, denying liability, and raised several affirmative defenses, including that the plaintiffs' claims were barred by the applicable two-year statute of limitation. Following discovery, the defendants moved for summary judgment on the grounds that the plaintiffs had failed to present sufficient evidence to establish the causation element of their claims. Additionally, SGMC moved for summary judgment on the plaintiffs' claims for the negligent hiring, training, supervision, and retention of Brackin, contending that the plaintiffs were limited to pursuing a claim against SGMC based on respondeat superior. The defendants also filed motions to exclude the opinion testimony of Dr. Avery J. Evans, an interventional neuroradiologist retained as an expert by the ...


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