Patrick Edokpolor v. Grady Memorial Hospital Corporation

FOURTH DIVISION
ELLINGTON, P. J.,
MERCIER and GOBEIL, JJ.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 14, 2018
In the Court of Appeals of Georgia
A16A1031. EDOKPOLOR et al. v. GRADY MEMORIAL
HOSPITAL CORPORATION et al.
MERCIER, Judge.
Rose Edokpolor died at Grady Memorial Hospital on July 28, 2008. Following
her death, Edokpolor’s surviving relatives, Patrick Edokpolor and Linda Patrick
(collectively, “appellants”), sued Grady Memorial Hospital Corporation and Shirley
Singh, R. N. (collectively, “Grady”), for medical malpractice. Grady subsequently
moved for summary judgment, arguing inter alia that appellants had failed to raise
genuine issue of material fact as to causation. The trial court granted the motion, and
appellants challenge that ruling on appeal. We affirm.1
1
This Court originally dismissed the appeal as untimely. See Edokpolor v.
Grady Mem. Hosp. Corp., 338 Ga. App. 704 (791 SE2d 589) (2016). The Supreme
Court of Georgia reversed our decision and remanded the case for us “to determine
1. Summary judgment is appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the grant of summary
judgment de novo, construing the evidence and all reasonable inferences in favor of
the non-moving party. See Beasley v. Northside Hosp., 289 Ga. App. 685, 685-686
(658 SE2d 233) (2008).
So viewed, the record shows that Edokpolor, who had a history of cardiac
disease and other medical complaints, was admitted to Grady Memorial Hospital on
May 17, 2008. She remained hospitalized, and on June 17, 2008, Edokpolor’s treating
physicians determined that she needed a colonoscopy. Prior to the test, a doctor
prescribed Golytely, a liquid bowel preparation medication. Although Golytely
normally is taken by mouth, Edokpolor had a nasogastric-feeding tube (nose-to-
stomach “NG” tube) in place, and the doctor ordered that the medication be
administered through the “NG tube when started,” rather than orally.
the merits of [appellants’] contention that the trial court erroneously awarded summary
judgment to Grady.” Edokpolor v. Grady Mem. Hosp. Corp., 302 Ga. 733, 736 (808
SE2d 653) (2017). We now address appellants’ substantive claims.
2
Despite this order, a Grady Hospital nurse gave the Golytely to Edokpolor by
mouth throughout the day on June 17, 2008. At some point Edokpolor aspirated,
resulting in a “code blue” that evening. Edokpolor died six weeks later. The death
certificate listed “Aspiration Pneumonia” as the immediate cause of death.
Appellants sued Grady Memorial Hospital Corporation and Shirley Singh, the
nurse who administered the Golytely to Edokpolor, for medical malpractice. Pursuant
to OCGA § 9-11-9.1 (a), appellants attached the affidavit of Kelly Thrasher, M. D., to
their complaint.2 Thrasher testified that the applicable standard of care required Singh
and other nursing personnel to “follow the doctor’s orders to administer the Golytely
through the NG tube rather than by mouth.” He asserted that their failure to do so was
negligent and breached the standard of care. And he concluded that this negligence
“proximately caused the death of Rose Edokpolor.”
Grady moved for summary judgment on several grounds, including that
appellants failed to show that the alleged negligence proximately caused Edokpolor’s
death. Grady acknowledged Thrasher’s causation testimony, but characterized it as
2
OCGA § 9-11-9.1 (a) requires a plaintiff in a professional malpractice action
“to file with the complaint an affidavit of an expert competent to testify, which affidavit
shall set forth specifically at least one negligent act or omission claimed to exist and
the factual basis for each such claim.”
3
unsupported, conclusory, and insufficient to raise a genuine question of material fact.
The trial court agreed and granted the motion. We find no error.
“[A] plaintiff cannot recover for medical malpractice, even where there is
evidence of negligence, unless the plaintiff establishes by a preponderance of the
evidence that the negligence either proximately caused or contributed to cause plaintiff
harm.” Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003) (citations and
punctuation omitted). To meet this burden, a medical malpractice plaintiff must present
expert testimony “because the question of whether the alleged professional negligence
caused the plaintiff’s injury is generally one for specialized expert knowledge beyond
the ken of the average layperson.” Id. (citation omitted). Ultimately, the causation
evidence must rise above mere chance, possibility, or speculation. See id. at 506. As
we have explained:
A plaintiff must show that the purported violation or deviation is the
proximate cause of the injuries sustained. He must prove that the injuries
complained of proximately resulted from such want of care or skill. A
bare possibility of such result is not sufficient. There can be no recovery
where there is no showing to any reasonable degree of medical certainty
that the injuries could have been avoided.
Beasley, supra at 689 (footnotes omitted).
4
With respect to expert testimony, appellants’ summary judgment response relied
solely on Thrasher’s OCGA § 9-11-9.1 (a) affidavit, which asserted that Edokpolor
“had aspirated the Golytely,” that “it had gone into her lungs,” and that she died “as
a direct result of the aspiration.” Thrasher then concluded, with little explanation, that
the nursing staff’s negligent decision to administer Golytely by mouth, rather than NG
tube, proximately caused Edokpolor’s death by aspiration. Nothing in the record,
however, indicates that Edokpolor aspirated while ingesting the medication by mouth,
as opposed to after it entered her stomach. Appellants have pointed to no evidence
that Edokpolor had difficulty swallowing the liquid. And Singh, who dispensed the
Golytely by holding a cup from which Edokpolor sipped the medication, was not
present when Edokpolor aspirated.
In contrast, Grady offered expert testimony that nausea and vomiting are know
risks of Golytely, regardless of how the medication is ingested. Grady’s expert, David
H. Goldstein, M. D., noted from the medical records that Edokpolor was vomiting
during the code blue, and he explained that “[a]spiration can occur as a result of
vomiting.” Goldstein further testified: “[U]sing a feeding tube to administer Golytely
bowel preparation does not eliminate the risk of aspiration. Stomach content can still
enter the airway via regurgitation.” He concluded:
5
It is my medical opinion to a reasonable degree of medical certainty that
Rose Edokpol[o]r would have vomited regardless of how her stomach
content accumulated, whether by mouth or through an NG tube. . . . It
is my medical opinion to a reasonable degree of medical certainty that on
June 17, 2008, Rose Edokpol[o]r’s stomach content (vomitus) refluxed
back into her throat and was thereafter inhaled or aspirated into her lungs.
Thrasher’s affidavit does not address the possibility that Edokpolor vomited
and aspirated after the Golytely entered her stomach. It offers no facts linking the
aspiration to oral ingestion of the medication. And it does not show, to any reasonable
degree of medical certainty, that Edokpolor’s death could have been avoided had
Grady’s nursing staff administered the Golytely via the NG tube. Simply put,
Thrasher’s bare and conclusory assertion that alleged negligence by Grady
proximately caused Edokpolor’s death does not raise a genuine issue of fact as to
causation. See Swint v. Mae, 340 Ga. App. 480, 485 (2) (798 SE2d 23) (2017)
(“Speculation and conjecture by an expert is still speculation and conjecture, and will
not support a verdict.”). Summary judgment for Grady, therefore, was appropriate.
See Roberts v. Nessim, 297 Ga. App. 278, 282-283 (1) (a) (ii) (676 SE2d 734) (2009)
(conclusory and unsupported expert affidavit insufficient to establish genuine issue of
6
fact as to causation in medical malpractice case); Beasley, supra (“There can be no
recovery [in a medical malpractice action] where there is no showing to any reasonable
degree of medical certainty that the injuries could have been avoided.”).
2. After the trial court entered summary judgment, appellants moved for
reconsideration and filed the “Supplemental Affidavit of Kelly Thrasher, M. D.,” which
offered new and expanded opinion testimony. The trial court refused to consider the
supplemental affidavit, noting that appellants submitted it post-judgment. Appellants
question this ruling on appeal. Again, we find no error.
“[I]t is the duty of each party at the hearing on the motion for summary
judgment to present his or her case in full.” Patel v. Kensington Community Assn.,
340 Ga. App. 896, 898 (1) (797 SE2d 235) (2017) (citation and punctuation omitted).
Grady explicitly raised the causation issue on summary judgment, challenging the
sufficiency of appellants’ expert evidence and citing affidavit testimony from its own
expert. In response, appellants made no effort to supplement or revise Thrasher’s
affidavit, choosing instead to rest on its conclusory assertions. Their belated attempt
to amend that testimony did not occur until one year after Grady moved for summary
judgment and following the adverse summary judgment ruling. Under these
circumstances, the trial court properly refused to consider the supplemental affidavit.
7
See Intl. Auto Processing v. Glynn County, 287 Ga. App. 431, 434 (2) (651 SE2d
535) (2007) (trial court acted within its discretion in refusing to consider affidavit filed
by plaintiff over 30 days after defendant moved for summary judgment and following
entry of summary judgment); see also Patel, supra (“If [the non-moving party] had
evidence that created a genuine issue of material fact and precluded summary judgment
. . . , she should have presented that evidence in opposition to the motion for summary
judgment, before the trial court ruled on the motion.”).
Judgment affirmed. Ellington, P. J., and Gobeil, J., concur.
8