Johnson v. Omondi , 294 Ga. 74 ( 2013 )

HlNES, Presiding Justice.

This Court granted a writ of certiorari to the Court of Appeals in Johnson v. Omondi, 318 Ga. App. 787 (736 SE2d 129) (2012), to determine whether the Court of Appeals properly applied the standards for a medical malpractice claim in a hospital emergency department as found in OCGA § 51-1-29.5 (c). Finding that the plurality opinion of the Court of Appeals erred, we reverse.

As set forth in the plurality opinion of the Court of Appeals, and as revealed in the record, Thelma Johnson took her 15-year-old son Shaquille to the emergency department at Phoebe Putney Memorial Hospital on December 29, 2007; a week earlier, Shaquille had undergone arthroscopic knee surgery. Shaquille complained of chest pain; was first seen by a nurse; and then examined by Dr. Price Paul Omondi. Dr. Omondi ordered that Shaquille be administered pain medication, an electrocardiogram (“EKG”), and a chest x-ray; he interpreted the results of the EKG and x-ray himself. Dr. Omondi noted that Shaquille had undergone arthroscopic knee surgery a week earlier; he inquired about Shaquille’s medical history and family history and conducted a physical examination. Dr. Omondi ruled out asthma, pericarditis, myocardial infarction, pneumothorax, and, specifically, pulmonary embolism¹ as causes of Shaquille’s pain. Dr. Omondi diagnosed Shaquille with pleurisy and discharged him from the hospital with a prescription for an anti-inflammatory pain reliever, and instructions to return to the emergency department if his symptoms continued. Two weeks later, Shaquille did return to the emergency department, but died of a bilateral pulmonary embolism. Further facts can be found in the opinion of the Court of Appeals.

Thelma Johnson and her husband (“the Johnsons”) sued Dr. Omondi and Southwest Emergency Physicians, PC., Dr. Omondi’s employer (collectively, “Dr. Omondi”), for medical malpractice. Dr. Omondi moved for summary judgment, which the trial court granted. On appeal to the Court of Appeals, in a plurality opinion, that Court looked, to OCGA § 51-1-29.5 (c), held that there was no genuine issue of material fact to dispute Dr. Omondi’s argument that he could not be liable under that statute, and affirmed the trial court.

It is certainly true that OCGA § 51-1-29.5 (c) controls this case. That subsection of the Code sets forth:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

OCGA § 51-1-29.5 (a) (9) defines “health care liability claim” as

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant.

And, there is no dispute that Dr. Omondi was acting as a physician, providing emergency medical care, in a hospital emergency department, as contemplated by OCGA § 51-1-29.5 (c). Thus, this is one of those cases in which the General Assembly has placed a higher evidentiary burden on plaintiffs such as the Johnsons, namely, that any departure from accepted standards of medical care must be shown, by clear and convincing evidence, to be gross negligence.

As noted, the trial court granted Dr. Omondi summary judgment.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. [Cit.] The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact. [Cit.]

Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013). Our review of the grant or denial of a motion for summary judgment is de novo. Woodcraft by MacDonald, Inc. v. Georgia Casualty and Surety Co., 293 Ga. 9, 10 (743 SE2d 373) (2013).

In an ordinary medical malpractice action, some evidence that Dr. Omondi violated the standard of care would generally serve to defeat his motion for summary judgment on that issue. See, e.g., Aleman v. Sugar loaf Dialysis, LLC, 312 Ga. App. 658, 660 (1) (719 SE2d 551) (2011); Lee v. Phoebe Putney Mem. Hosp., 297 Ga. App. 692, 694 (2) (678 SE2d 340) (2009). However, under the heightened evidentiary burden in this case, Dr. Omondi cannot “be held liable unless it is proven by clear and convincing evidence that [his] actions showed gross negligence.” OCGA § 51-1-29.5 (c). And, “ ‘[c]lear and convincing’ is a more stringent standard than ‘preponderating’ and requires a greater quantum and a high quality of proof in plaintiff’s favor.” In re Estate of Burton, 265 Ga. 122, 123 (453 SE2d 16) (1995) (Citations and punctuation omitted). But, OCGA § 51-1-29.5 (c)’s requirement that gross negligence must be proved by clear and convincing evidence does not necessarily mean that those issues must be presented to a finder of fact and that summary judgment is never appropriate. Although it is generally true that whether evidence meets the required standard of being “clear and convincing” is a question left to the finder of fact, in certain cases it is properly one for the trial court’s determination. Id. at 123-124.

In regard to the trial court’s role in evaluating a motion for summary judgment when a heightened evidentiary burden such as “clear and convincing” has been imposed, we find instructive the opinion of the United States Supreme Court in Anderson v. Liberty Lobby, Inc., 477 U. S. 242 (106 SCt 2505, 91 LE2d 202) (1986).

Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden. This conclusion is mandated by the nature of this determination. The question here is whether a jury could reasonably find either that the plaintiff proved his case by the quality and quantity of evidence required by the governing law or that he did not. Whether a jury could reasonably find for either party, however, cannot be defined except by the criteria governing what evidence would enable the jury to find for either the plaintiff or the defendant: It makes no sense to say that a jury could reasonably find for either party without some benchmark as to what standards govern its deliberations and within what boundaries its ultimate decision must fall, and these standards and boundaries are in fact provided by the applicable evidentiary standards.

Our holding that the clear-and-convincing standard of proof should be taken into account in ruling on summary judgment motions does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. [Cit.]

Id. at 254-255 (II) (B). And, the heightened evidentiary burden imposed in cases falling under OCGA § 51-1-29.5 (c) must necessarily be considered on a motion for summary judgment. When faced with such a heightened burden, “a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability....” Id. at 254. “The appropriate summary judgment question is ‘whether the evidence in the record could support a reasonable jury finding either that the plaintiff has shown [the required element] by clear and convincing evidence or that the plaintiff has not.’ ” Howard v. Pope, 282 Ga. App. 137, 141 (1) (637 SE2d 854) (2006) (citing Anderson, supra).

At trial, the conduct that the Johnsons would bear the responsibility to show by clear and convincing evidence was that Dr. Omondi’s treatment of Shaquille constituted gross negligence under OCGA § 51-1-29.5 (c). Although many terms used in OCGA § 51-1-29.5 are defined therein, that Code section does not contain a definition of “gross negligence.” However, this Court has previously recognized that, as “gross negligence” is not specifically defined in OCGA § 51-1-29.5, the term carries the general meaning set forth in OCGA § 51-1-4. Gliemmo v. Cousineau, 287 Ga. 7 (694 SE2d 75) (2010) (addressing a constitutional challenge to OCGA § 51-1-29.5 (c)). Thus, as used in OCGA § 51-1-29.5,

gross negligence is the absence of even slight diligence, and slight diligence is defined in [OCGA § 51-1-4] as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” In other words, gross negligence has been defined as “equivalent to (the) failure to exercise even a slight degree of care” ([cits.]), or “lack of the diligence that even careless men are accustomed to exercise.” [Cit.]

Gliemmo, supra at 12-13 (4).² While questions of gross negligence and slight diligence are usually to be determined by a factfinder, courts may resolve them as matters of law in plain and indisputable cases. Mixon v. City of Warner Robins, 264 Ga. 385, 389-391 (2) (444 SE2d 761) (1994); Wolfe v. Carter, 314 Ga. App. 854, 859 (2) (b) (726 SE2d 122) (2012). Accordingly, on his motion for summary judgment, Dr. Omondi was required to show that there was no genuine issue of material fact, and that a reasonable jury would be unable to find, by clear and convincing evidence, that he was grossly negligent. This he cannot do.

Dr. Omondi’s own testimony was that he recognized the potential for pulmonary embolism and that it was part of his differential diagnosis, but that he ruled it out because: Shaquille was not of an age in which that condition was common; his vital signs were normal, including his pulse oximetry which was “perfect”; and he did not have shortness of breath. Dr. Omondi also testified that he diagnosed pleurisy because, when he ordered that Shaquille be given an injection of the pain medication Toradol, Shaquille responded favorably and his “pain went away,” and that “if he’s got something other than pleurisy going on and you give him Toradol, he wouldn’t respond to it.” He further testified that if Shaquille “had [pulmonary embolism] a shot of Toradol would not have taken away his symptoms.”

The Johnsons submitted expert testimony that Dr. Omondi’s actions did not meet the standard of care “in the medical profession generally under like and similar circumstances,” and that he did not take action that would be appropriate to exclude pulmonary embolism from his diagnosis of Shaquille’s condition and treatment thereof. And, expert testimony specifically noted that the symptoms Shaquille presented were “classical” indications of pulmonary embolism and that the diagnostic measures that Dr. Omondi took in response to those symptoms “did nothing to prove or disprove the presence” of pulmonary embolism. Rather, Shaquille’s response to the administration of Toradol was termed “totally irrelevant” to investigating whether he had pulmonary embolism, and Dr. Omondi’s reliance on it to exclude pulmonary embolism was termed “ridiculous.” There was expert testimony that, in order to exclude pulmonary embolism from his diagnosis, the standard of care required Dr. Omondi to administer a CT scan, or a lung scan, which he did not do.

Given this evidence, a reasonable jury could find, by clear and convincing evidence, that in addressing Shaquille’s symptoms, Dr. Omondi acted with gross negligence, i.e., that he lacked “the diligence that even careless men are accustomed to exercise.” Gliemmo, supra; Howard, supra. Thus, this case is unlike Pottinger v. Smith, 293 Ga. App. 626 (667 SE2d 659) (2008), in which summary judgment in favor of the emergency room physician was appropriate. In Pottinger, the physician ordered the diagnostic measure appropriate to the symptoms the patient presented, i.e., an x-ray, and then relied upon the services of another professional’s evaluation of the x-ray when determining the course of treatment. Under those circumstances, a reasonable jury would not be able to find that the physician “failed to exercise even slight care and was therefore grossly negligent.” Id. at 629.

It was error for the trial court to grant Dr. Omondi’s motion for summary judgment, and the judgment of the Court of Appeals affirming that decision must be reversed.

Judgment reversed.

All the Justices concur.

1 There was testimony that Shaquille’s recent surgery increased the possibility of pulmonary embolism occurring.

2 The dissent in the Court of Appeals takes issue with what it terms the plurality’s “suggestion that immunity applies as long as some care is provided...Johnson, supra at 799 (Miller, P. J., dissenting). Of course, the requirement to exercise a “slight degree of care” does not mean that Dr. Omondi was required to provide merely “some medical care” so as to avoid liability under O CGA § 51 -1 -29.5 (c). Rather, exercising “a slight degree of care” and acting with “slight diligence” means exercising “that degree of care which every man of common sense, however inattentive he maybe, exercises under the same or similar circumstances.” Gliemmo, supra.