CALVIN H. MILLER v. MARCUS POLK ( 2024 )

FIFTH DIVISION
MERCIER, C. J.,
MCFADDEN, P. J., and RICKMAN, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 4, 2024
In the Court of Appeals of Georgia
A24A0404. MILLER v. POLK et al.
MCFADDEN, Presiding Judge.
This case is a part of the litigation that arose from the death on an operating
table of appellant Calvin Miller’s wife, Jerline Miller. Before us today, for the second
time, is Calvin Miller’s appeal from an order granting partial summary judgment to
Dr. Marcus Polk and two companies of which he is the principal. As explained in the
margin, we do not distinguish between those two companies and generally refer to
them collectively as “the companies.”1
1
Miller filed his lawsuit naming as defendants Marcus Polk and “Anesthesia
Consultants of Georgia, LLC d/b/a Oracle Anesthesia of Georgia.” (Miller also
named another individual as a defendant, but that individual is not involved in this
appeal.) The record indicates that Anesthesia Consultants of Georgia, LLC and Oracle
Anesthesia of Georgia, LLC are separate entities owned by Polk.
In a previous appeal in this case, we observed that, “counsel did not suggest
Miller argues that Dr. Polk and the companies are liable for negligent
credentialing. The credentials at issue are those of certified registered nurse
anesthetist (“CRNA”) Cynthia Hamm. Hamm was an independent contractor
supplied by the companies. She was present when appellant’s deceased was scheduled
to undergo the subject procedure.
The trial court concluded that, individually and collectively, the companies
“serve[ ] as a staffing company that supplies anesthesia providers to hospitals and
medical facilities.” . Although Dr. Polk is an anesthesiologist, , he had no role in the
subject procedure other than through the companies. The trial court held that Dr.
Polk and the companies had no credentialing duty. We agree.
Miller makes two other arguments which we must reject without substantive
analysis. He argues that the trial court erred by holding that the defendants’ alleged
that any distinctions between the entities [were] relevant to [that] appeal[.]” Miller v.
Polk, 363 Ga. App. 771, 772 n.1 (872 SE2d 754) (2022). So we did “not distinguish
between the entities in [the] opinion.” Id. We directed the parties to raise any such
issues on remand to the trial court. Id.In their brief in support of their post-remand summary judgment motion, the
defendants identified themselves as Polk, Oracle Anesthesia of Georgia, LLC, and
Anesthesia Consultants of Georgia, LLC, and stated that they had been improperly
named, but they did not raise this alleged misnomer as a ground entitling them to any
relief.
2
violation of certain statutes did not amount to negligence per se. But he has failed to
point to evidence of any violation of a statute. Miller argues that the trial court erred
by granting summary judgment on his claim that the defendants failed to report the
CRNA’s misconduct. But he has abandoned this enumeration by failing to support it
with argument.
So we affirm the trial court’s grant of partial summary judgment to Dr. Polk and
the companies.
1. Factual and procedural background
“We review de novo a grant or denial of summary judgment, viewing the
evidence and all reasonable conclusions and inferences drawn from it in the light most
favorable to the nonmovant.” Miller v. Polk, 363 Ga. App. 771, 775 (872 SE2d 754)
(2022).
So viewed, the record shows that Dr. Polk owns both Anesthesia Consultants
of Georgia, LLC and Oracle Anesthesia of Georgia, LLC. The companies provide
licensed anesthesia professionals to ambulatory surgical centers that perform out-
patient surgical procedures that require anesthesia services. The companies enter
professional service agreements with licensed anesthesiologists and CRNAs, whom
3
they assign to the ambulatory surgical centers with which the companies have
contracts.
CRNA Cynthia Hamm entered a professional services agreement with both
Anesthesia Consultants and Oracle Anesthesia. Oracle Anesthesia had entered a
contract to assign anesthesia providers to Pain Care Center of Georgia, and from 2015
to 2019, Oracle Anesthesia assigned Hamm to Pain Care Center of Georgia to provide
anesthesia services.
Appellant’s deceased, Jerline Miller, was scheduled to undergo a procedure
with a physician from Pain Care Center of Georgia to relieve back pain. Hamm was
present to provide anesthesia services during the scheduled procedure.
Before the procedure began, Jerline Miller was administered a sedative and a
prophylactic antibiotic. While she was prone on the operating table, she began
coughing and stated that she was having trouble breathing. Hamm performed a chin
lift jaw thrust, a movement performed when breathing is obstructed. The medical
team turned Jerline Miller onto her back and unsuccessfully began life saving efforts.
Emergency medical services transported Jerline Miller to a hospital, where she died
4
the next day. Her procedure at Pain Care Center of Georgia had been aborted with no
incision having been made.
Miller filed a lawsuit that alleged negligence on the part of the medical
professionals who were in the operating room when Jerline Miller died. The
defendants in that action were Hamm, the physician who intended to perform the
scheduled procedure, Pain Care Center of Georgia, and others. Miller settled that
lawsuit. See Miller v. Polk, 363 Ga. App. at 774.
He filed this separate action against Polk and Anesthesia Consultants of
Georgia, LLC d/b/a Oracle Anesthesia of Georgia, alleging claims for negligence,
professional negligence, and corporate negligence; claims for imputed and vicarious
liability for Hamm’s alleged negligence; a claim for negligent hiring, credentialing, and
retention; a claim for negligence per se; and a claim for failing to report Hamm’s
alleged misconduct. Miller sought damages, punitive damages, and attorney fees.
The defendants moved for summary judgment, and the trial court granted the
motion on most of those claims. Miller then filed his first appeal to this court.
As to the claims for negligent credentialing and the derivative claims for
punitive damages and attorney fees, we reversed and remanded. Miller v. Polk, 363 Ga.
5
App. 771, 778-780 (3) (a) & 782 (7) (872 SE2d 754) (2022). We directed the parties
on remand to address the question of “whether a negligent credentialing claim may
lie against an entity such as [the companies] (which, on the current record, does not
appear to be a hospital, clinic, or similar medical facility) or its owner.” Id. at 780 (3)
(a) (iii).
We affirmed the grant of summary judgment to the defendants on Miller’s
claims based on imputed or vicarious liability, Miller v. Polk, 363 Ga. App. at 777 (1)
(d), and corporate liability, id. at 778-778 (2) (b); his claims for negligent hiring,
retention, training, and supervision, id. at 781 (3) (b); and his claim for professional
negligence (or, more particularly, as we noted in the opinion, medical malpractice)
against Polk. Id. at 782 (5).
We noted that the trial court had not addressed three of Miller’s claims against
Anesthesia Consultants of Georgia, LLC d/b/a Oracle Anesthesia — his claims for
medical malpractice, negligence per se, and the negligent failure to report Hamm’s
alleged misconduct. So those claims remained pending before the trial court. Miller
v. Polk, 363 Ga. App. at 782 (6).
6
On remand, the defendants again moved for summary judgment. The trial court
denied the defendants’ motion for summary judgment on Miller’s claim for medical
malpractice against Anesthesia Consultants of Georgia, LLC d/b/a Oracle Anesthesia,
but granted the defendants’ motion on Miller’s claims for negligent credentialing,
negligence per se, and failure to report alleged misconduct. The court also granted
summary judgment to Polk, but not to Anesthesia Consultants of Georgia, LLC d/b/a
Oracle Anesthesia, on Miller’s claims for punitive damages and attorney fees. Miller
filed this appeal.
2. Negligent credentialing
Miller argues that the trial court erred by granting summary judgment to the
defendants on his negligent credentialing claim, disputing the trial court’s
determination that they had no duty to credential Hamm. We agree with the trial
court.
“Whether a duty exists upon which liability can be based is a question of law.”
City of Rome v. Jordan, 263 Ga. 26, 27 (1) (426 SE2d 861) (1993). The duty of care
“can arise either from a valid legislative enactment, that is, by statute, or be imposed
7
by a common law principle recognized in the case law.” Diamond v. Dept. of Transp.,
326 Ga. App. 189, 194 (2) (756 SE2d 277) (2014) (citation and punctuation omitted).
The duty upon which Miller relies for his negligent credentialing claim is a duty
recognized in the case law. In Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140 (189
SE2d 412) (1972), our Supreme Court held that “a [h]ospital [a]uthority operating a
public hospital has authority to examine the qualifications of any physician seeking
staff privileges and to limit his practice to those areas in which he is deemed qualified
to practice or to completely bar him from such practice if he is incompetent,
unqualified, inexperienced or reckless.” Id. at 142. So, the court concluded, a plaintiff
could hold a hospital authority liable based on its “independent negligence in
permitting the alleged negligent physician to practice his profession in the hospital,
when his incompetency is known.” Id. at 141.
This court later held that “a hospital has a direct and independent responsibility
to its patients to take reasonable steps to ensure that staff physicians using hospital
facilities are qualified for privileges granted.” McCall v. Henry Med. Center, 250 Ga.
App. 679, 681 (1) (551 SE2d 739) (2001) (citation and punctuation omitted). See also
Candler Gen. Hosp. v. Persaud, 212 Ga. App. 762, 766 (2) (442 SE2d 775) (1994) (“a
8
hospital has a direct and independent responsibility to its patients to take reasonable
steps to ensure that staff physicians using hospital facilities are qualified for privileges
granted”) (physical precedent only). So “[i]t follows that a cause of action for
negligent credentialing of staff physicians and other medical care providers is an
independent cause of action that arises out of that responsibility.” Ladner v. Northside
Hosp., 314 Ga. App. 136, 138 n.4 (723 SE2d 450) (2012). We have held that the duty
also applies to the credentialing and granting of privileges to nurses. Wellstar Health
Systems v. Green, 258 Ga. App. 86, 88 (1) (572 SE2d 731) (2002) (affirming the partial
grant of summary judgment to a plaintiff who asserted a claim against a health care
institution for the negligent credentialing of a nurse practitioner who was not properly
licensed, noting that “[a] cause of action for negligent credentialing is an independent
cause of action arising out of a health care institution’s direct responsibility to its
patients to take reasonable steps to ensure that medical care providers are qualified”).
These negligent credentialing cases establish that the responsibility to credential
doctors and nurses arises from the health care institution’s duty to its patients. The
cases describe the duty as the health care institution’s responsibility to ensure that the
individual medical care providers using its facilities to provide medical care to patients
9
are qualified for the privileges granted by the health care institution. This accords with
provisions in our Code regarding the regulation of hospitals and related institutions,
such as ambulatory surgical centers like Pain Care Center of Georgia. See OCGA §
31-7-1 (4) (C) (including ambulatory surgical treatment centers in the definition of
“institution” for purposes of Title 31, Article 1 concerning the regulation of hospitals
and related institutions). Specifically, OCGA § 31-7-15 (a) (3) provides:
A[n] ambulatory surgical center shall provide for the review of
professional practices in the . . . ambulatory surgical center for the
purpose of reducing morbidity and mortality and for the improvement of
the care of patients in the . . . ambulatory surgical center. This review
shall include, but shall not be limited to, . . . [t]he evaluation of medical
and health care services or the qualifications and professional
competence of persons performing or seeking to perform such services.
Paragraph (e) of the statute provides that, “Nothing in this or any other Code section
shall be deemed to require any hospital or ambulatory surgical center to grant medical
staff membership or privileges to any licensed practitioner of the healing arts.” OCGA
§ 31-7-15 (e). In other words, the health care institution has the authority to decide
whether or not to grant privileges to licensed medical practitioners. Our Supreme
Court has held that the broad language of this statute “encompass[es] the
10
credentialing process[.]” Hosp. Auth. of Valdosta and Lowndes County v. Meeks, 285
Ga. 521, 524 (678 SE2d 71) (2009). In keeping with the requirements of the statute,
the contract between Pain Care Center of Georgia and the appellee companies
provides that Pain Care Center had the right to determine whether a medical care
provider had clinical privileges at its facility.
From this we conclude that to succeed on a claim for negligent credentialing,
a plaintiff must prove, among other things, that the defendant is a health care
institution and that the plaintiff was a patient of that health care institution.
Pretermitting whether Miller has provided evidence that Jerline Miller was a patient
of the defendants, he has not demonstrated that the defendants, individually or
collectively, are a health care institution.
We find support in our Code for this conclusion. OCGA § 31-7-1 includes the
following definitions for the purpose of the regulation of hospitals and related
institutions:
(4) “Institution” means:
(A) Any building, facility, or place in which are provided two or more
beds and other facilities and services that are used for persons received
for examination, diagnosis, treatment, surgery, maternity care, nursing
11
care, assisted living care, or personal care for periods continuing for 24
hours or longer and which is classified by the department, as provided for
in this chapter, as either a hospital, nursing home, assisted living
community, or personal care home;
(B) Any health facility wherein abortion procedures under subsections
(b) and (c) of Code Section 16-12-141 are performed or are to be
performed;
(C) Any building or facility, not under the operation or control of a
hospital, which is primarily devoted to the provision of surgical
treatment to patients not requiring hospitalization and which is classified
by the department as an ambulatory surgical treatment center;
(D) Any fixed or mobile specimen collection center or health testing
facility where specimens are taken from the human body for delivery to
and examination in a licensed clinical laboratory or where certain
measurements such as height and weight determination, limited audio
and visual tests, and electrocardiograms are made, excluding public
health services operated by the state, its counties, or municipalities;
(E) Any building or facility where human births occur on a regular and
ongoing basis and which is classified by the department as a birthing
center;
12
(F) Any building or facility which is devoted to the provision of
treatment and rehabilitative care for periods continuing for 24 hours or
longer for persons who have traumatic brain injury, as defined in Code
Section 37-3-1; or
(G) Any freestanding imaging center where magnetic resonance imaging,
computed tomography (CT) scanning, positron emission tomography
(PET) scanning, positron emission tomography/computed tomography,
and other advanced imaging services as defined by the department by
rule, but not including X-rays, fluoroscopy, or ultrasound services, are
conducted in a location or setting not affiliated or attached to a hospital
or in the offices of an individual private physician or single group
practice of physicians and conducted exclusively for patients of that
physician or group practice.
The term “institution” shall exclude all physicians’ and dentists’ private
offices and treatment rooms in which such physicians or dentists
primarily see, consult with, and treat patients.
(5) “Medical facility” means any licensed general hospital, destination
cancer hospital, or specialty hospital, institutional infirmary, public
health center, or diagnostic and treatment center.
OCGA § 31-7-1. The record contains no evidence that the defendants fall into any of
these defined categories or that the appellee companies have ever provided
13
“examination, diagnosis, treatment, surgery, maternity care, nursing care, assisted
living care, or personal care” for any patients. OCGA § 31-7-1 (4) (A).
Miller argues, without citation to the record, that the defendants “are a
healthcare entity that is granted privileges to treat the patients of their affiliated
hospitals and Ambulatory Surgery Centers and the patients of their respective
insurance company.” Again without citation to the record, Miller argues that the
defendants provided anesthesia services to Jerline Miller. But the record shows that
the defendants assigned anesthesia professionals, such as Hamm, to the health care
institutions with which they had contracts and that those health care institutions
treated patients. Our review of the record has not disclosed any evidence that
Anesthesia Consultants of Georgia, LLC d/b/a Oracle Anesthesia or Polk in his
capacity as principal provided medical care to patients.
Miller argues that the defendants had a duty to credential Hamm because they
are a direct pay beneficiary of Medicare-Medicaid. Miller cites no statute that imposes
such a duty. He generally cites 42 USC §§ 1395-1395ccc. But he does not cite any
provision in that Title that addresses a credentialing duty. Neither paragraph of the
14
only statute Miller specifically cites, 42 USC § 1395x (s) (2) (K) (ii) & (s) (2) (L),
concerns a credentialing duty.
Miller attempts to establish a duty through expert testimony. Those efforts “fail
because what duty a defendant owes is a question of legal policy to be decided as an
issue of law. Because the existence of a legal duty is a question of law, an expert’s
testimony does not, and cannot, create a legal duty where none existed before.”
Diamond, 326 Ga. App. at 195 (2) (citations and punctuation omitted).
Because Miller has not pointed to evidence that the defendants are a health care
institution, he has not demonstrated that the defendants had a duty to credential
Hamm.
3. Negligence per se
Miller argues that the defendants violated OCGA §§ 43-26-51 and 43-26-53,
that these violations amount to negligence per se, and so that the trial court erred in
granting summary judgment on his negligence per se claim. That argument fails
because Dr. Polk and the companies are not subject to those statutes and because
Miller has not introduced evidence of an incident that a person who is subject to them
would be required to report.
15
OCGA § 43-26-51 provides:
A nurse shall report names of subject individuals to the board if the nurse
has reasonable cause to believe that any other nurse has violated any of
the grounds for discipline provided for in Code Section 43-26-53. A
nurse need not duplicate a report if he or she has reasonable cause to
believe that such report has been made to the board. A licensed health
care professional shall not be required to report a nurse to the board
under this Code section as a result of professional knowledge obtained
in the course of the health care professional-patient relationship when
the nurse is the patient.
Neither Polk nor Anesthesia Consultants of Georgia, LLC d/b/a Oracle Anesthesia
is a nurse, so by its terms, this statute does not apply to the defendants.
OCGA § 43-26-53 lists specific incidents that “shall be reported to the
[Georgia] [B]oard [of Nursing]. . ...” Paragraph (a) (7) describes the following
reportable incident:
While holding a license as a nurse, [a person is] convicted of any felony,
crime involving moral turpitude, or crime violating a federal or state law
relating to controlled substances or dangerous drugs in the courts of this
state, any other state, territory, or country, or in the courts of the United
States, including, but not limited to, a plea of nolo contendere entered to
the charge[.]
16
OCGA § 43-26-53 (a) (7). Paragraph (a) (8) describes the following reportable
incident:
While holding a license as a nurse, [a person is] currently or previously
displaying an inability to practice nursing as a registered professional
nurse, an advanced practice registered nurse, a licensed undergraduate
nurse, or a licensed practical nurse with reasonable skill and safety due
to use of alcohol, drugs, narcotics, or chemicals.
OCGA § 43-26-53 (a) (8). Assuming, without deciding, that OCGA § 43-26-53
imposed a reporting duty on the defendants, Miller has not shown that they breached
that duty because he has not shown a reportable incident.
In Miller v. Polk, 363 Ga. App. at 772-773, we described Hamm’s history of
disciplinary actions before the Alabama and Georgia Boards of Nursing. Hamm was
the subject of disciplinary actions before the Alabama Board for failing to disclose a
1998 arrest for driving under the influence; for failing to disclose a 2004 positive pre-
employment drug screen for cocaine; for entering guilty pleas in 2013 to driving under
the influence and following too closely and a plea of nolo contendere to criminal
trespass; for obtaining prescriptions from doctors who were not her primary doctor;
for testing positive for a prescription drug that she had not been prescribed; and for
17
failing to satisfy work supervision and reporting requirements. Id. As a result of the
Alabama Board proceedings, Hamm was also the subject of disciplinary actions before
the Georgia Board. Id. at 773.
In spite of this history, Miller has not pointed to any evidence that Hamm was
“convicted of any felony, crime involving moral turpitude, or crime violating a federal
or state law relating to controlled substances or dangerous drugs,” that would trigger
a duty to report under OCGA § 43-26-53 (a) (7). See Miller v. Polk, 363 Ga. App. at
772 (describing the 1998 arrest and 2013 conviction for driving under the influence —
without specifying the substance of which Hamm was under the influence). Miller has
not pointed to any evidence that Hamm displayed or that the defendants were aware
that Hamm displayed “an inability to practice nursing . . . with reasonable skill and
safety due to use of alcohol, drugs, narcotics, or chemicals,” so as to trigger a duty to
report under OCGA § 43-26-53 (a) (8).
Miller also argues that the defendants’ failure to monitor Hamm amounts to
negligence per se, but he fails to cite any statute requiring such monitoring. See
generally R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. 419, 424 (1) (705
SE2d 223) (2010) (“[N]egligence per se arises when a statute or ordinance is violated.
18
The violation of certain mandatory regulations may also amount to negligence per se
if the regulations impose a legal duty.”) (citation and punctuation omitted).
In his reply brief, Miller argues that the defendants committed negligence per
se by violating OCGA §§ 43-26-9 (which concerns the renewal of nursing licenses)
and 43-34-26.1 (b) (which concerns vaccine protocol agreements). But “this [c]ourt
will not consider arguments raised for the first time in a reply brief.” Barron v. Wells
Fargo Bank, 332 Ga. App. 180, 187 (4) (769 SE2d 830) (2015).
4. Failure to report conduct
Miller enumerates as error the grant of summary judgment to the defendants
on his claim based on their failure to report Hamm’s allegedly negligent conduct. But
he makes no argument in support of this claim. So we deem it abandoned. Court of
Appeals Rule 25 (d) (1).
Judgment affirmed. Mercier, C. J., and Rickman, J., concur.
19