KIDNEY et al.
EASTSIDE MEDICAL CENTER LLC et al.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
Jennings-Perry died from a volvulus, or an abnormal twisting
of the intestine causing obstruction. In the days before her
death, she twice had gone to the emergency room at Eastside
Medical Center, complaining of abdominal pain, but the
emergency room doctors had discharged her, finding her
condition to be stable.
Kidney, Jennings-Perry's mother and the executor of her
estate, and Thurna Ray Perry, Jr., the father of
Jennings-Perry's child, filed this action against the
hospital, the two emergency room doctors who saw her and
their employers, the radiologist who read her CT scan and his
employer, and others. The trial court granted the motions for
summary judgment filed by the hospital, the emergency room
doctors and their employers, and the radiologist and his
employer. It also denied the plaintiffs' motion to amend
the complaint. The plaintiffs appeal.
plaintiffs argue that the trial court erred by denying their
motion to amend the complaint. But they have not shown that
the trial court manifestly abused his discretion in denying
the motion. The plaintiffs argue that the trial court erred
by granting the defendants' motions for summary judgment.
We agree with the plaintiffs that disputed issues of fact
control whether the heightened evidentiary burden imposed by
the emergency medical care statute, OCGA § 51-1-29.5,
applies to the claims against these defendants. So we do not
reach the doctors' argument that the plaintiffs presented
no evidence that they were grossly negligent. But we find
that the plaintiffs have failed to point to any evidence of
negligence on the part of the hospital or its employees. So
we affirm the grant of the hospital's motion for summary
judgment. In sum, we affirm the denial of the plaintiffs'
motion to amend the complaint, we reverse the grant of
summary judgment to the emergency room doctors, the
radiologist, and their employers, and we affirm the grant of
summary judgment to the hospital.
"We review the grant of summary judgment de novo,
viewing the evidence in the record, as well as all inferences
that might reasonably be drawn from that evidence, in the
light most favorable to the non-moving party." Bonds
v. Nesbitt, 322 Ga.App. 852 (1) (747 S.E.2d 40) (2013)
viewed, the evidence shows that early in the morning of
Saturday, April 28, 2012, Jennings-Perry went to
Eastside's emergency department because she was
experiencing abdominal pain. Jennings-Perry saw nurses, a
technician, and defendant John Limehouse, the emergency room
to Limehouse, Jennings-Perry told him that her pain was
moderate. But she told the Eastside nurse who took her
history that her pain level was a 10 and then a 9 on a scale
from 1 to 10. Limehouse discounted the reliability of
Jennings-Perry's report to the nurses about the intensity
of her pain based on his interaction with her.
was aware that Jennings-Perry had had a Roux-en-Y gastric
bypass years before. Limehouse diagnosed Jennings-Perry with
"epigastric abdominal pain, " or pain at the top of
the abdomen, which he characterized as a "nonspecific
broad diagnosis" that could encompass more than a
thousand different ailments. Because Jennings-Perry's
pain was fairly mild, Limehouse testified, she was given
viscous lidocaine to numb the esophagus and stomach, and
Mylanta, medicines that were "just above" what a
person can get over-the-counter.
explained that as an emergency room physician, his job was to
rule out acutely life-threatening events and to get the
patient to the next step in the treatment algorithm. Based on
Jennings-Perry's signs and symptoms, he concluded that
her condition was not acutely life-threatening and that she
was stable, so he discharged her. He prescribed Vicodin for
pain, Zofran for nausea, and Prilosec to heal the lining of
the stomach, and instructed her to drink plenty of fluids and
to follow up with her doctor in three days, even if she felt
three hours, Jennings-Perry was returned to the Eastside
emergency department by ambulance. Eastside nurses recorded
that Jennings-Perry was suffering a 9 and then a 10 out of 10
on the pain intensity scale.
Kamlesh Gandhi was the emergency room physician who saw
Jennings-Perry at this second visit. Gandhi was aware that
Jennings-Perry had been to the emergency room earlier and he
reviewed the chart of her earlier visit. Jennings-Perry told
him that the Vicodin prescribed by Limehouse had not relieved
her pain. But Gandhi discounted the reliability of her report
of her pain based on his observation: she did not appear to
be in that much pain, she was not grimacing in pain, she was
not crying, she was talking normally on her cell phone, her
vital signs were normal, and she did not exhibit any signs or
symptoms of severe pain. Gandhi gave Jennings-Perry Dilaudid
for pain and Phenergan for nausea.
ordered an ultrasound, thinking that Jennings-Perry's
symptoms might be related to her gallbladder, and a CT scan
of her abdomen with IV contrast "to rule out any
life-threatening situation, " such as perforation of the
stomach. A technician employed by the hospital performed the
CT scan. Defendant radiologist Robert Kubek reviewed the CT
scan on his computer screen, but he never met or spoke with
Jennings-Perry. Kubek saw nothing that required surgical
intervention, admission to the hospital, or further work up.
Kubek saw swirling of the mesentery in Jennings-Perry's CT
scan, but he did not make a notation of it because he did not
believe that it was significant, given the clinical findings
as related by Gandhi; he believed that the image simply
showed Jennings-Perry's post-gastric bypass anatomy.
Kubek explained that a radiologist cannot tell whether a
swirling of the mesentery as depicted on a CT scan is acute
or nonacute; the findings must be correlated with the
clinical findings as evaluated by the emergency room
physician. According to Kubek, a swirling of the mesentery
could indicate an abnormality, such as internal herniation
with strangulation of the small bowel, if the patient also
has severe abdominal pain or other symptoms.
and Gandhi discussed Jennings-Perry's clinical history,
including that she was experiencing mild pain and that her
examination was benign, with, as Kubek described it, "no
guarding, no rebound [or reaction to physical touch ], not
tender, " and they discussed the results of the scan.
Kubek told Gandhi that the CT scan was completely normal and
unremarkable. According to Gandhi, this ruled out volvulus of
the time Kubek reviewed Jennings-Perry's CT scan, he did
not know that she had visited the emergency department hours
before and he did not recall Gandhi telling him how long she
had been experiencing pain. Gandhi testified that had he been
informed of the swirling of the mesentery, which he
considered to be an abnormal finding, he would have consulted
with a general surgeon or hospitalist or had Jennings-Perry
admitted to the hospital for observation and further studies
was Kubek's and Gandhi's only conversation about
Jennings-Perry. Gandhi did not believe that Jennings-Perry
was in an immediately life-threatening condition. He
determined that Jennings-Perry's medical condition was
stable and that her pain had been controlled, so he
discharged her from the hospital. Gandhi prescribed Tramadol
for pain and instructed her to see a gastroenterologist as
soon as possible. Gandhi considered more than a dozen causes
for Jennings-Perry's abdominal pain, but he had not
reached a specific diagnosis when he discharged her.
Monday, April 30, 2012, Jennings-Perry was seen by
gastroenterologist Sanjay Parikh, a defendant who is not a
party to this appeal. He determined that she was sick and
needed to be in the hospital. He told her he would directly
admit her to the hospital or she could go to the emergency
room. She refused both options.
friend of Jennings-Perry found her dead in her apartment the
next day. The medical examiner determined as the cause of
death "small intestinal ischemia due to volvulus of small
intestine." She determined as another significant
condition "remote Roux-en-Y gastric bypass
Denial of plaintiffs' motion to amend the
plaintiffs enumerate as error the trial court's denial of
their motion to amend their complaint to add a claim under
the Federal Emergency Medical Treatment and Active Labor Act,
42 USC § 1395dd, against Eastside. We disagree. (To the
extent the plaintiffs argue that the trial court erred by
denying their motion to add a claim against Limehouse,
Gandhi, and Kubek for violation of the Act, we observe that
the record contains no motion to add such a claim against
these defendants; the motion only proposed adding the claim
trial court entered a case management order that established
deadlines including an October 28, 2015 deadline for the
filing of all amendments adding counts or parties. In
December 2015, the parties filed a joint motion asking the
court to extend the deadline to May 1, 2016. In response, on
December 8, 2015, the trial court entered an amended case
management order, extending the deadline for the filing of
amendments to March 31, 2016, a month earlier than the
parties had requested but five months later than the original
deadline. The plaintiffs filed their motion to amend their
complaint and proposed amendment in August 2016.
"[a] party may amend his pleading as a matter of course
and without leave of court at any time before the entry of a
pretrial order." OCGA § 9-11-15 (a). However, the
plaintiffs filed their motion to amend and the proposed
amendment before the entry of a pretrial order but "well
after the [March 31, 2016] deadline set forth in the order of
[December 2015] which had been entered [in response] to a
[joint motion] between the various parties. . . ."
Shedd v. Goldsmith Chevrolet, 178 Ga.App. 554, 555
(1) (a) (343 S.E.2d 733) (1986). The case management order
a pretrial order as contemplated by OCGA § 9-11-15 and
thus [the [plaintiffs] could [not] amend as a matter of
right. . . . The order by setting a particular time
controlled as to the expiration date for [filing] amendments.
By doing this, though not so labeled, it was in effect a
pretrial order as to these matters. Moreover by participating
in the [joint motion the plaintiffs] waived [their] right to
rely on OCGA § 9-11-15 (a) regarding amendments to
[their] complaint. [They] apparently so recognized, as [they]
thereafter sought leave of court to amend . . . .
Shedd, 178 Ga.App. at 555 (1) (a) (citation
omitted). See also Dyals v. Dyals, 281 Ga. 894, 896
(3) (644 S.E.2d 138) (2007) (a party cannot complain of error
induced by his own conduct).
OCGA § 9-11-15 (a) , the trial court is given
discretion to allow amendments to the pleadings after the
entry of a pretrial order . . ., and the appellate court may
review such a decision only for manifest abuse of
discretion." Babies Right Start v. Ga. Dept. of Pub.
Health, 293 Ga. 553, 556 (2) (b) (748 S.E.2d 404) (2013)
(citation omitted). The plaintiffs argue that because the
defendants did not negate the essential facts related to
their obligations under the Federal Emergency Medical
Treatment and Active Labor Act, the trial court should have
granted the motion to amend. They add that it is unfair to
allow the defendants to claim the benefits of the emergency
medical care statute while preventing the plaintiffs from
pursuing a claim based upon the provision of emergency
medicine. Neither of these arguments, however, shows how the
trial court abused his discretion in adhering to the deadline
established at the inducement of the plaintiffs.
Emergency Medical Treatment ...