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Kidney v. Eastside Medical Center LLC

Court of Appeals of Georgia, Fifth Division

October 26, 2017

KIDNEY et al.
v.
EASTSIDE MEDICAL CENTER LLC et al.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         Tiffany Jennings-Perry died from a volvulus, or an abnormal twisting of the intestine causing obstruction.[1] 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.

         Gwendolyn 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.

         The 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.

         1. Facts.

          "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) (citation omitted).

         So 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 physician.

         According 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.

         Limehouse 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.

         Limehouse 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 well.

         Within 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.

         Defendant 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.

         Gandhi 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[2] 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.

         Kubek 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 bowels.

         But at 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 or re-evaluation.

          That 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.

         On 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.

         A 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[3] due to volvulus of small intestine." She determined as another significant condition "remote Roux-en-Y gastric bypass surgery."

          2. Denial of plaintiffs' motion to amend the complaint.

         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 against Eastside.)

         The 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.

         Generally, "[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 was effectively

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).

         "Under 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.

         3.Federal Emergency Medical Treatment ...


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