HOSPITAL AU THORIT OF VALDOSTA/LOWNDES COUNTY d/b/a SOUTH GEORGIA MEDICAL CENTER et al.
FENDER et al. SPELL et al.
FENDER et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
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
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.
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.
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'
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
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
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
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.
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,
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
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, 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.
Medical Malpractice Action.
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
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
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 ...