Emory Healthcare, Inc. v. Pardue

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
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.
http://www.gaappeals.us/rules/
July 15, 2014
In the Court of Appeals of Georgia
A14A0112. EMORY HEALTHCARE, INC. v. PARDUE.
RAY, Judge.
Vivian Pardue (“Plaintiff”), by and through her daughter Chris Vance as next
friend, filed a complaint for premises liability and ordinary negligence against Emory
Healthcare, Inc.1 (“Defendant”) for injuries sustained when she slipped and fell on
urine on the floor of her room. After the trial court granted the Defendant’s motion
for summary judgment on the premises liability claim, but denied its motion for
summary judgment on Plaintiff’s ordinary negligence claim, the case proceeded to a
jury trial. Defendant appeals from the jury’s verdict in favor of the Plaintiff. On
appeal, Defendant argues that the trial court erred by denying its motion for summary
1
Two additional defendants, Wesley Woods Center of Emory University and
Wesley Woods Long Term Hospital, Inc. were dismissed from the lawsuit prior to
trial.
judgment and its motion for a directed verdict on the grounds that plaintiff’s claims
sound in medical malpractice, not ordinary negligence. Defendant additionally argues
that the trial court erred in failing to take judicial notice of adjudicated facts and in
allowing inadmissible evidence. Finding no reversible error, we affirm.
The record reveals that, in April 2007, the 72-year-old Plaintiff was admitted
to Wesley Woods’ inpatient psychiatric unit to adjust her medications while in an
inpatient setting. At the time of her admission, she was documented to have a history
of dementia. Upon her admission to the facility, a history was taken, a fall-risk
assessment was completed, and various evaluations were performed by Defendant’s
employees, including nurse Pat Terry. These admission documents noted that Plaintiff
had delirium, that her insight and judgment were poor, and that her cognition was
impaired. In the “Fall Risk Assessment” and admission history, nurses noted that
Plaintiff had several sensory and cognitive impairments, including cataracts, hearing
loss, weakness, an unsteady gait and a history of dementia. Terry testified that
Plaintiff was deemed to be a fall risk, and that the fall risk precautions provided that
the patient be assisted getting out of bed. Terry testified that she was aware of
Plaintiff’s conditions as noted in the records.
2
In the early morning hours of April 19, 2007, Plaintiff attempted to climb over
the raised bed rails to go to the bathroom. Plaintiff’s actions triggered a bed alarm in
the nursing station. Terry and nursing assistant Daphne Bridges responded to the
alarm and went to Plaintiff’s room. When they got to the room, they assisted Plaintiff
with her slippers and, with one on each side of her, assisted her in walking to the
bathroom. As they were walking to the bathroom, Plaintiff urinated on the floor. They
then led Plaintiff to the bathroom, sat her on the toilet and told her to stay there while
they cleaned up the floor. Terry and Bridges then left the bathroom and went into the
patient’s room to wipe urine off the floor with bath towels. Nurse Margaret Richards
also entered the room and helped to clean the floor. At some point, Bridges and
Richards left the room to fetch more towels, leaving Terry alone in the room.
Terry testified that she was bent over, with her back to Plaintiff, cleaning up
the urine outside the door of the bathroom when Plaintiff got up, walked across the
wet bathroom floor into her room and fell. Terry testified that she did not see Plaintiff
get up off the toilet, that she did not see her walk through the bathroom, and that she
did not see her fall. After her fall, Plaintiff was transported by ambulance to the
emergency room where she was diagnosed with an ankle fracture.
3
Plaintiff filed suit against Defendant alleging claims of premises liability and
ordinary negligence. Defendant moved for summary judgment on plaintiff’s
negligence claim, arguing that her claims sounded only in professional and not
ordinary negligence. Its motion was denied.2 The trial court then held a bench trial
and determined that, although the statute of limitation for a negligence claim had
elapsed, Plaintiff was not competent at the time of her injury and, thus, that the statute
of limitation as to her negligence claim was tolled pursuant to OCGA § 9-3-90. The
case then proceeded to a jury trial on the ordinary negligence claim, and the jury
awarded a verdict in favor of the Plaintiff.
1. Defendant contends that the trial court erred in denying its motion for
summary judgment and its motion for directed verdict as to Plaintiff’s claim for
ordinary negligence, arguing that Plaintiff’s claim sounds in medical malpractice.
Because no expert affidavit was filed pursuant to OCGA § 9-11-9.1 and because the
tolling provisions of OCGA § 9-3-90 do not apply to medical malpractice actions,
Defendant claims that it was entitled to judgment as a matter of law. We disagree.
2
The trial court granted the Defendants’ motion for summary judgment on
Plaintiff’s claims for premises liability.
4
Simply because a patient’s injury occurs in a hospital setting or calls into
question the actions of a medical professional does not mean that a suit to recover for
that injury is necessarily a “medical malpractice” action. Rather, “[w]e must look to
the substance of the action against a medical professional in determining whether the
action is one for professional or simple negligence.” (Citation and punctuation
omitted.) Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 849 (635 SE2d 184)
(2006). “[I]n cases involving a person’s fall while in the care of medical
professionals, it can be difficult to distinguish professional negligence from ordinary
negligence. This distinction is a question of law for the court.” (Citations and
punctuation omitted.) Id. In such cases, “the distinction between ordinary and
professional negligence turns on whether the decision on how to monitor, assist or
care for the patient was based on a professional assessment of whether the patient,
based on the patient’s medical condition, required assistance of some sort.” (Citation
omitted.) Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 147 (1)
(682 SE2d 165) (2009). “If the specific information known to the defendant was such
that a jury could determine without the help of expert testimony whether the
defendant exercised due care in failing to prevent the patient’s fall, the claim sounds
in ordinary negligence and no expert affidavit is required.” (Citation and punctuation
5
omitted.) Id. See also Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101)
(2005) (Where a medical professional’s alleged negligence involves “the exercise of
professional skill and judgment to comply with a standard of conduct within the
professional’s area of expertise, the action states professional negligence. But where
the allegations of negligence do not involve professional skill and judgment, the
action states ordinary negligence”) (citations omitted.)
In resolving the issue of whether a medical professional is liable for
professional negligence or ordinary negligence, this Court has “focused on the
specific information known to the defendant about the victim’s condition and about
the surrounding circumstances immediately prior to the victim’s fall.” (Citation
omitted.) Brown, supra. In Brown, this Court held that a complaint could be construed
as setting forth ordinary negligence as a basis for recovery when an occupational
therapist exited the bathroom where a patient was showering to retrieve a bathrobe
even though the patient told the therapist that she was slipping and needed help. Id.
at 848-851. Further, the patient’s hospital and medical records indicated that the
patient was prone to fall and needed “maximum assistance” when being bathed and
“significant assistance” when being moved. Id. at 848. Similarly, in Donson Nursing
Facilities v. Dixon, 176 Ga. App. 700, 700-701 (1) (337 SE2d 351) (1985), this Court
6
held that an ordinary negligence theory was authorized, and thus expert opinion
testimony was not required, when there was evidence presented on summary
judgment of defendant nursing home’s knowledge of decedent’s propensities to set
fires while smoking and of the failure of the nursing home to exercise any supervision
of decedent while smoking. See also Brown v. Durden, 195 Ga. App. 340, 340-342
(393 SE2d 450) (1990) (physical precedent only) (action against physician and
physician’s office staff, based on claim that physician’s assistant negligently
permitted patient to remain seated and unrestrained on a high examining table, was
not a medical malpractice action requiring an expert’s affidavit when physician’s
assistant had been informed that patient had recently suffered from dizziness and
nausea following a seizure). Compare General Hospitals of Humana, Inc. v. Bentley,
184 Ga. App. 489, 489-491 (361 SE2d 718) (1987) (claim against hospital for
negligent failure to supervise 72-year-old patient as he exited bathtub was a
professional negligence claim requiring expert testimony as to standard of care, even
though patient fell three days after hernia repair surgery, because the “[m]edical
condition of the patient was the determinative factor as to the degree of supervision
the patient was accorded by the hospital staff,” requiring the exercise of medical
judgment. In holding that the decision not to supervise the patient while exiting the
7
bathtub was an exercise of medical judgment, this Court indicated that the severity
of the patient’s medical condition and the duty to supervise had not been established
by the evidence).
Here, like the defendants in Brown v. Tift County Hosp. Auth., supra, Donson,
supra, and Durden, supra, it was shown on summary judgment and during trial that
the nurses and nursing assistant assisting Plaintiff on the night of her fall were aware
of her medical and cognitive conditions and that a duty to supervise her had been
established prior to her fall. Plaintiff demonstrated that the nurses and the nursing
assistant were aware that she had diminished cognitive condition, and that she had
previously been determined to be a fall risk at the time of her fall. The nurses and the
nursing assistant nevertheless left Plaintiff unattended in the bathroom, despite the
fact that moments before she had been observed trying to get out of her bed by
climbing over the side rails, and notwithstanding medical records reflecting that she
had a history of dementia, presence of delirium, a history of falls in the previous three
months, cognitive impairment, and poor insight and judgment. Under these
circumstances, a jury could, without the help of expert testimony, find that the nurses
and the nursing assistant failed to exercise ordinary care by leaving Plaintiff
unattended in the bathroom while they cleaned her room. See Brown v. Durden,
8
supra. (finding that a jury could determine without the help of expert evidence
whether the “medical assistant exercised due care in leaving decedent unattended and
unrestrained on the examining table after he had been brought to the office suffering
from dizziness and nausea following an apparent seizure”). Accord Brown v. Tift
County Hosp. Auth., supra. The trial court did not err.
2. Defendant contends that the trial court erred in denying its request to take
judicial notice of certain findings of fact and conclusions of law made by the trial
court in the portion of its order granting Defendant’s summary judgment motion
regarding Plaintiff’s premises liability claim. Defendant contends that these findings
foreclose Plaintiff’s alternate claim of ordinary negligence. We disagree.
Defendant first argues that the trial court should have taken judicial notice of
the findings in its summary judgment order pursuant to OCGA § 24-8-821. This
argument is without merit because that Code Section applies only to “allegations or
admissions made in the pleadings” of another party and not to a trial court’s order.3
Defendant next contends that the trial court should have taken judicial notice
of its findings as adjudicative facts under OCGA § 24-2-201. Under this Code
3
OCGA § 24-8-821 provides that “[w]ithout offering the same in evidence,
either party may avail himself or herself of allegations or admissions made in the
pleadings of another.”
9
Section, a trial court may take judicial notice of “a fact which is not subject to
reasonable dispute” in that it is “[g]enerally known within the territorial jurisdiction
of the court;” or “[c]apable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” It is well settled that “the taking
of judicial notice of facts is, as a matter of evidence law, a highly limited process. The
reason for this caution is that the taking of judicial notice bypasses the safeguards
which are involved with the usual process of proving facts by competent evidence in
. . . court.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir.) (1997) (applying Fed. R.
Evid. 201 (b)). Further, “in order for a fact to be judicially noticed . . . indisputability
is a prerequisite.” (Citation omitted.) U. S. v. Jones, 29 F.3d 1549, 1553 (III) (11th
Cir.) (1994) (applying Fed. R. Evid. 201 (b)). “Since the effect of taking judicial
notice . . . is to preclude a party from introducing contrary evidence and in effect,
directing a verdict against him as to the fact noticed, the fact must be one that only
an unreasonable person would insist on disputing.” (Citation omitted.) Id.Here, Defendant asked the trial court to take judicial notice of the following
findings of fact and conclusions of law made in the trial court’s summary judgment
order as they related to Plaintiff’s claim for premises liability:
10
Nurse Terry communicated specific information to [Plaintiff, Ms.
Pardue,] after seating her on the toilet: “Ms. Pardue, we need you to sit
here, we need to clean the urine off the floor for safety, please sit down,
stay there.” (Terry Depo., p. 49) On her own volition Ms. Pardue got up
and walked to the very area she was told to avoid. The hazard was open
and obvious. Ms. Pardue had equal knowledge of the hazard, and she
failed to exercise ordinary care.
Defendant contends that these findings automatically foreclose Plaintiff’s alternate
claim for ordinary negligence because of OCGA § 51-11-7, which provides that “[i]f
the plaintiff by ordinary care could have avoided the consequences to [herself] caused
by the defendant’s negligence, [s]he is not entitled to recover.” However, this
argument is without merit.
Although “[a] trial court may take judicial notice of its own records[,]”
(Citations omitted.) Lee v. State Const. Indus. Licensing Bd. of Ga., 205 Ga. App.
497, 497 (1) (423 SE2d 26) (1992), a trial court cannot take judicial notice of matters
that are the subject of proof in the case. See Eubanks v Rabon, 281 Ga. 708, 711 (3)
(642 SE2d 652) (2007) (trial court committed harmless error in taking judicial notice
of an increase in the needs of children in a child support modification award because
“the question whether there had been an increase in the needs of the children would
be a matter of proof if it were placed in issue, it would not be a proper matter for
11
judicial notice”) (citations omitted); Jones, supra at 1553 (finding that “to deprive a
party of the right to go to the jury with his evidence where the fact was not
indisputable would violate the constitutional guarantee of trial by jury”). As we noted
above, in its analysis of the premises liability claim the trial court found, among other
things, that Plaintiff “had equal knowledge of the hazard, and she failed to exercise
ordinary care.” But in its analysis of the ordinary negligence claim the trial court
found that “whether a plaintiff exercised the care that a prudent person in her
condition and in the same or similar circumstances would exercise” and if “the
plaintiff under the circumstances was so careless for her own safety as to lose her
right to recover,” were questions for the jury.4 The trial court’s analysis and findings
as to the premises liability claim and the ordinary negligence claim may well be
inconsistent, but we do not need to decide that question. Rather, the Defendant cannot
4
In denying Defendant’s motion to take judicial notice of its summary
judgment order the trial court made it clear that it had considered the two claims
separately, noting that
[t]he reason I granted the motion on the premises liability had to do with
an equal knowledge analysis. It was my belief that [Plaintiff] had equal,
if not . . . greater, but at least equal knowledge [of the hazard]. I was not
finding whether or not the nurse’s [sic] had any obligations to her with
respect to how much supervision she needed on a toilet[.]
12
show by reason of the trial court’s order that it was indisputably established for
purposes of the ordinary negligence claim that Plaintiff failed to exercise care for her
own safety. To the contrary, it appears that the trial court intended for the issue of
Plaintiff’s ordinary care for her own safety to be considered by the jury, thereby
leaving the matter in dispute. It follows that the trial court did not err in refusing to
take judicial notice of its findings of fact and conclusions of law as to the premises
liability claim. See, e.g., Eubanks, supra at 711 (3).
3. Defendant next argues that the trial court erred in admitting certain testimony
by Plaintiff’s daughter, Chris Vance, on the grounds that it constituted inadmissible
hearsay. We disagree.
Specifically, Defendant argues that the trial court erred in allowing Chris
Vance, over its objection, to testify that she spoke with a nurse employed by the
Defendant named “Pat” the morning after her mother’s fall.5 The Defendant asserts
that Vance’s testimony did not qualify as an admission by a party opponent under
5
During her deposition, Vance could only identify the speaker as a nurse
named Pat who was in the room when her mother fell. At trial, after seeing nurse
Terry testify, Vance positively identified her as the “Pat” she had spoken to on the
day after her mother’s fall.
13
OCGA § 24-8-801 (d) (2) (D) and that the probative value of the testimony was
outweighed by the danger of unfair prejudice. See OCGA § 24-4-403.
At trial, Vance identified “Pat” as Pat Terry, the first nurse to testify during the
trial. Vance testified that Terry told her that while two employees (not including
Terry) began to assist Plaintiff to the bathroom, she “excessively urinated” on the
floor.6 Vance also testified that Terry stated that the Plaintiff was instructed to stand
by the wall while they cleaned and that Terry was then called into the room only to
bring more towels. Vance then testified that Terry informed her that when the
Plaintiff thought the employees were finished cleaning, she walked around them to
her bed and fell. Vance then stated that Terry “laughed” when she recounted the
events.
6
Although it was not necessarily clear from Vance’s testimony that Terry had
personal knowledge of all of the events about which she spoke, the personal
knowledge requirement of OCGA § 24-6-602 “shall not apply to party admissions.”
Id. This appears to be consistent with prior Georgia law. See Brooks v. Sessoms, 47
Ga. App. 554, 555 (171 SE2d 222) (1933) (finding that “[a]dmissions do not come
in on the ground that the party making them is speaking from his personal
knowledge”) (citation and punctuation omitted). Nor was there multiple hearsay
inasmuch as Vance did not testify that Terry repeated statements made by a third
person. See, e.g., Holiness v. Moore-Handley, Inc., 114 F. Supp. 2d 1176, 1183 n. 7
(N. D. Ala. 1999).
14
The trial court overruled Defendant’s objection to this testimony at trial on the
ground that it constituted an admission of a party opponent under OCGA § 24-8-801
(d) (2) (D). Under Georgia’s Evidence Code, an out-of-court statement offered
against a party will not be excluded under the rule of hearsay if the statement is made
“by the party’s agent or employee. . . concerning a matter within the scope of the
agency or employment, made during the existence of the relationship[.]” OCGA § 24-
8-801 (d) (2) (D).7 See also Law v. BioLab, Inc., 325 Ga. App. 500, 502 (1) (753
SE2d 446) (2013) (“For a statement to be admissible under OCGA § 24-8-801 (d) (2)
(C) or (D), the subject matter of the statement must relate to what the employee would
know because of the employee’s job duties”) (citation omitted). The statement at
issue was allegedly made to Vance by Terry about what happened on the night of
Plaintiff’s fall. Further, it is undisputed that Nurse Terry was an employee of the
defendant and that the statement was a matter within the scope of her employment.
7
To the extent that Defendant also suggests that Vance’s testimony constituted
extrinsic evidence of a prior inconsistent statement by Terry and was not admitted in
compliance with the requirements of OCGA § 24-6-613 (b) (which provides, in part,
that “extrinsic evidence of a prior inconsistent statement by a witness shall not be
admissible unless the witness is first afforded an opportunity to explain or deny the
prior inconsistent statement”), we note that OCGA § 24-6-613 (b) states that it “shall
not apply to admissions of a party-opponent as set forth in paragraph (2) of subsection
(d) of Code Section 24-8-801.”
15
Accordingly, the statement was an admission for purposes of OCGA § 24-8-801 (d)
(2) (D). Pretermitting whether Defendant has shown that it sought to exclude the
evidence under OCGA § 24-4-403 at trial, although Vance’s testimony contained
prejudicial elements, some of which were also arguably unfair, her testimony was
substantially probative in that it provided a version of events surrounding the
Plaintiff’s fall. See, e.g., United States v. Meester, 762 F.2d 867, 875 (11th Cir. 1985)
(“Relevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant
matter[.]”) (Citation and punctuation omitted; emphasis in original) (applying Fed.
R. Evid. 403). Accordingly, the trial court did not abuse its discretion in overruling
Plaintiff’s objection to this testimony.
4. Defendant contends that the trial court erred in allowing evidence of
Plaintiff’s medical expenses to be submitted to the jury over Defendant’s objection
without expert testimony to establish that the medical costs were related to any injury
sustained as a result of Plaintiff’s fall.8 Defendant contends that the admission of
8
Defendant also argues that the trial court erred in allowing a summary list of
Plaintiff’s medical expenses to be admitted into evidence. However, when raised at
trial, that objection was sustained and the summary list was not admitted into
evidence.
16
Plaintiff’s medical bills was in error because there was “absolutely no expert
testimony separating bills related to [Plaintiff’s] ongoing cognitive condition from
those resulting from her unrelated ankle injury.” We disagree.
Plaintiff tendered as evidence the medical bills incurred after Plaintiff’s fall.
Defendant’s contention that Plaintiff “was allowed to admit, without explanation, the
entirety of [Plaintiff’s] medical bills” is belied by the record. At trial, Chris Vance,
Plaintiff’s daughter, testified that she went through each bill item by item and
included only those charges which were obviously directly related to Plaintiff’s ankle
injury and treatment for the ankle injury. Specifically, Plaintiff’s counsel stated that
Vance
[went] through and separated out [bills] related to the injury. . . And . .
. with respect to [bills related to the nursing home, Wesley Woods] we
. . . did not include her entire stay. We only included x-rays of her ankle,
the blood thinning injection . . . [and] [t]he only room charges were the
room charges after the surgery, not before . . . and the physical therapy.
Defendant objected, arguing that expert testimony was required to
distinguish bills that were related to Plaintiff’s ongoing cognitive
condition from those resulting from her injuries sustained during her
fall. The trial court overruled the objection, holding that such distinction
could be determined upon cross-examination.
17
Under OCGA § 24-9-921 (a), a plaintiff patient or the member of her family
responsible for care of the patient “shall be a competent witness to identify bills for
expenses incurred in the treatment of the patient upon a showing by such a witness
that the expenses were incurred in connection with the treatment of the injury . . .
involved in the subject of litigation at trial. . . .” Subsection (b) of the same Code
Section further provides that “it shall not be necessary for an expert witness to testify
that the charges were reasonable and necessary. However, nothing in this Code
section shall be construed to limit the right of a thorough and sifting cross-
examination as to such items of evidence.”
“Where a party sues for damages, he has the burden of proof of showing the
amount of loss in a manner in which the jury . . . can calculate the amount of the loss
with a reasonable degree of certainty. An allowance for damages cannot be based on
guess work.” (Citation and punctuation omitted.) Lester v. S. J. Alexander, Inc., 127
Ga. App. 470, 471 (1) (193 SE2d 860) (1972). Further, “[w]here medical bills include
charges for treatment, drugs, and hospitalization for items other than those arising out
of the cause of action, the plaintiff has the duty to segregate the irrelevant expenses
since he has the burden of proof to show his losses in such manner as can permit
calculation thereof with a reasonable degree of certainty.” (Citation and punctuation
18
omitted.) Daniel v. Parkins 200 Ga. App. 710, 711-712 (4) (409 SE2d 233) (1991).
This Court has held that all that is required is “that it be shown that medical expenses
were incurred in connection with the treatment of the injury, disease or disability
involved in the subject of litigation at the trial, which may be done by lay testimony.”
(Citation and punctuation omitted.) Id. at 712 Accordingly, “[w]hether the edited
medical bills did in fact represent treatment only for [Plaintiff’s injury] and whether
any irrelevant bill for [her] pre-existing . . . condition had been included in those
submitted for admission were topics for appellant to pursue on cross-examination.”
(Citation omitted.) Id. Here, Plaintiff provided lay testimony that the edited bills
admitted into evidence were related solely to the injury at issue in the present
litigation, and Defendant elected not to cross-examine Chris Vance regarding these
bills.9 There was no error in admitting the edited medical bills over Defendant’s
objection.
Judgment affirmed. McFadden, J., concurs and Andrews, P. J. concurs in
judgment only.
9
Compare Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352
SE2d 832) (1987) (affirming trial court’s grant of directed verdict for the
defendant/appellee on the ground that plaintiff had failed to prove through medical
expert testimony a causal connection between the football injury he had sustained
during his 1979-1982 collegiate football career and the physical condition which
underlay the medical expenses he incurred several years later in 1985).
19