Carl Blake v. Kes Inc. , 336 Ga. App. 43 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J, and BOGGS, 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.
http://www.gaappeals.us/rules
March 2, 2016
In the Court of Appeals of Georgia
A15A2207. BLAKE et al. v. KES, INC. et al. DO-108
DOYLE, Chief Judge.
This is the second appearance before this Court of this case, which arises from
a tort claim by plaintiffs Carl and Yvonne Blake (collectively, “the plaintiffs”)
following the death of their son in a day habilitation facility. In our previous opinion,
we vacated the grant of summary judgment to defendants, KES, Inc., Sandra and
Kenneth Browner, Mable Sempler, and Nicole Wise (collectively, “KES”) and
remanded with direction that the trial court consider a specific expert deposition and
certain exhibits in deciding the summary judgment motion.1 Upon remand, after
reconsideration of the motion, including those documents, the trial court again
1
See Blake v. KES, Inc., 329 Ga. App. 742 (766 SE2d 138) (2014).
granted summary judgment to KES. The plaintiffs appeal, and for the reasons that
follow, we vacate the trial court’s order and remand.
In order to prevail on a motion for summary judgment under
OCGA § 9-11-56, the moving party must show that there exists no
genuine issue of material fact, and that the undisputed facts, viewed in
the light most favorable to the nonmoving party, demand judgment as
a matter of law. Moreover, on appeal from the denial or grant of
summary judgment the appellate court is to conduct a de novo review of
the evidence to determine whether there exists a genuine issue of
material fact, and whether the undisputed facts, viewed in the light most
favorable to the nonmoving party, warrant judgment as a matter of law.2
As set forth in our previous opinion, the facts in this case, so viewed
show that Paul Blake was an adult diagnosed with several
developmental disabilities from birth, including organic personality
disorder, moderate intellectual disability, and partial complex seizures.
By 2005, Paul resided with caretakers at a personal care home and
generally spent his days at a KES day habilitation facility, where he
received services pursuant to a contract between KES and his parents.
In addition to his seizures, Paul had a history of leaving his assigned
2
(Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204)
(2006).
2
area without notice or permission, and he needed constant line-of-sight
supervision, in addition to daily medication.
On September 22, 2009, Paul arrived at the KES facility at
approximately 9:00 a.m. and complained of dizziness and feeling poorly.
Paul’s immediate care giver allowed him to rest without joining other
activities. Around noon, while Paul was finishing his lunch, he asked if
he could return to his assigned task of cleaning a computer desk, but he
was asked to stay at the lunch table so he could finish eating and
continue to rest. When the care giver was out of the room, Paul left the
classroom and walked out of the building. Paul was not immediately
followed, but staff began tracing his path thereafter.
At approximately 12:19 p.m., security camera footage shows that as Paul
walked alongside a van parked at the side of the building, he faltered,
leaned into the side of the van, and fell forward down to the ground.
Approximately 22 seconds later, a KES worker arrived at Paul’s body,
and despite the worker’s prompting, Paul remained unresponsive.
Approximately 40 seconds later another worker, Mabel Semper, arrived
and called into the building to advise the staff that they had located Paul.
She had to make two calls to reach someone, and in the minutes that
followed, Semper called 911 and remained on the line with the operator.
During this time, a third employee, Kenneth Browner, arrived and
checked Paul’s mouth for foreign objects, and Paul was observed to be
breathing with a faint pulse. Other employees arrived and they
repositioned Paul to aid in his breathing, and they began CPR chest
compressions as instructed by the 911 operator over speakerphone.
3
There was a several minute time gap between Paul’s fall and the
administration of CPR. Emergency personnel arrived minutes later, took
over emergency care, and prepared him for transport. Treatment
continued en route and at the hospital, but Paul was pronounced dead at
the hospital soon thereafter. The cause of death listed by the emergency
room physician was “cardiac arrest status post likely seizure.”
Based on Paul’s death, the Blakes sued KES, alleging claims for
negligence, negligence per se, wrongful death, intentional infliction of
emotional distress, breach of contract, and negligent supervision and
training. KES answered, discovery ensued, and both parties moved for
summary judgment. Following a hearing, the trial court granted
summary judgment to KES and denied the Blakes’ motion. The trial
court based its ruling, in part, on the exclusion of certain
unauthenticated documents and depositions not filed 30 days before the
hearing.3
The plaintiffs appealed, arguing in part that the trial court erred by failing to
consider an unsigned copy of the deposition of their expert, Dr. Anthony Kimani,4
and certain exhibits.5 This Court vacated the grant of summary judgment to KES and
3
Blake, 329 Ga. App. at 743-744.
4
See id. at 744 (1) (a).
5
Id. at 746 (1) (b).
4
remanded the case with direction that the trial court consider the deposition of Dr.
Kimani and the aforementioned exhibits.6
Following remand, upon reconsideration of KES’s motion for summary
judgment, including Dr. Kimani’s deposition and the plaintiffs’ exhibits, the trial
court again granted summary judgment to KES on all claims. In so doing, the trial
court concluded that there was no evidence in the record “sufficient to create a
dispute that any action or inaction undertaken by [KES] before [Paul’s] collapse on
September 22, 2009[,] caused his subsequent seizure or cardiac arrest, which was
determined to be his cause of death.”7 The court also concluded that there was
insufficient evidence to support the plaintiffs’ claim that KES’s failure to promptly
administer CPR to Paul was a proximate cause of his death. In reaching the latter
conclusion, the trial court found that although Dr. Kimani’s deposition testimony
created a material issue of fact as to causation for wrongful death based on KES’s
6
See id. at 745-746 (1) (a), (b). This Court also affirmed the denial of the
plaintiffs’ motion for summary judgment. See id. at 746 (2).
7
(Punctuation omitted; emphasis in original.) We agree that there is no
evidence in the record that any conduct on the part of KES caused Paul’s seizure or
cardiac arrest.
5
failure to render aid, he was not competent to testify as an expert as a matter of law,
and the trial court therefore disregarded his testimony. This appeal followed.
The plaintiffs contend that the trial court erred by granting summary judgment
to KES on the basis that there was insufficient evidence to support their claim that
KES’s failure to promptly administer CPR to Paul was a proximate cause of his death,
arguing in part that the trial court erred by again excluding the deposition testimony
of Dr. Kimani.
Dr. Kimani testified at his deposition that KES failed to timely provide CPR
to Paul and that had they done so, Paul’s “chance of a successful resuscitation was at
least 50 percent.” The trial court concluded that this testimony “creates a material
issue of fact as to causation for wrongful death for failure to render aid under
Cowart,8 thereby precluding summary judgment for [KES]. . . .” The trial court,
however, disregarded Dr. Kimani’s testimony because he was not competent to testify
as an expert pursuant to OCGA § 24-7-702 (c) (2) (D) (formerly OCGA § 24-9-67.1).
As the plaintiffs point out, KES did not challenge Dr. Kimani’s qualification
to testify as an expert in this case. Instead, the trial court sua sponte determined that
he did not meet the requirements of OCGA § 24-7-702 (c) (2) (D). Pretermitting
8
Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010).
6
whether the trial court erred by excluding his testimony in the absence of such a
challenge,9 we conclude that the trial court erred by finding that Dr. Kimani had to
meet the requirements of that Code section in order to testify as an expert in this case.
“We review a trial court’s decision concerning an expert’s qualifications under
[OCGA § 24-7-702 and] OCGA § 24-9-67.1 for an abuse of discretion.”10
Nevertheless, “in all appeals involving the construction of statutes, our review is
conducted under a de novo standard.”11
Because this case concerns the meaning [and application] of [OCGA §
24-7-702] (c) (2) ([D]), we begin with the familiar and settled principles
9
Certainly, trial judges are assigned a gatekeeping role with regard to expert
testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 589 (II) (B)
(113 SCt 2786, 125 LE2d 469) (1993); Dubois v. Brantley, 297 Ga. 575, 580 (2) (775
SE2d 512) (2015). Nevertheless, “the proffering party bears the burden of presenting
evidence of reliability in order to meet the standards of OCGA § 24-9-67.1.” HNTB
Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770) (2010). In this
case, in the absence of a challenge to Dr. Kimani’s qualifications, the plaintiffs were
not placed on notice that they needed to present such evidence before the trial court
ruled, and they were denied the opportunity to request a hearing on this issue. See
OCGA § 24-7-702 (d) “Upon motion of a party, the court may hold a pretrial hearing
to determine whether the witness qualifies as an expert and whether the expert’s
testimony satisfies the requirements of subsections (a) and (b) of this Code section.
Such hearing and ruling shall be completed no later than the final pretrial conference
contemplated under Code Section 9-11-16.”
10
Hope v. Kranc, 304 Ga. App. 367, 370 (1) (696 SE2d 128) (2010).
11
Hinkle v. Postel, 293 Ga. 692, 693 (749 SE2d 726) (2013).
7
that govern our consideration of the meaning of a statute. A statute
draws its meaning, of course, from its text. When we read the statutory
text, we must presume that the General Assembly meant what it said and
said what it meant, and so, we must read the statutory text in its most
natural and reasonable way, as an ordinary speaker of the English
language would. The common and customary usages of the words are
important, but so is their context. For context, we may look to the other
provisions of the same statute, the structure and history of the whole
statute, and the other law – constitutional, statutory, and common law
alike – that forms the legal background of the statutory provision in
question.12
OCGA § 24-7-702 governs the admissibility of opinion testimony by expert
witnesses in civil actions. The standard for the admissibility of such testimony is
found in subsection (b):
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise,
if: (1) The testimony is based upon sufficient facts or data; (2) The
testimony is the product of reliable principles and methods; and (3) The
witness has applied the principles and methods reliably to the facts of
12
(Citations and punctuation omitted.) Dubois, 297 Ga. at 579 (2).
8
the case which have been or will be admitted into evidence before the
trier of fact.13
Subsection (c) addresses the requirements for expert witnesses in professional
malpractice actions:
Notwithstanding the provisions of subsection (b) of this Code section
and any other provision of law which might be construed to the contrary,
in professional malpractice actions, the opinions of an expert, who is
otherwise qualified as to the acceptable standard of conduct of the
professional whose conduct is at issue, shall be admissible only if, at the
time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or
her profession in the state in which such expert was practicing or
teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional
knowledge and experience in the area of practice or specialty in which
the opinion is to be given as the result of having been regularly engaged
in:
(A) The active practice of such area of specialty of his or her
profession for at least three of the last five years, with sufficient
13
OCGA § 24-7-702 (b).
9
frequency to establish an appropriate level of knowledge, as determined by the
judge, in performing the procedure, diagnosing the condition, or rendering the
treatment which is alleged to have been performed or rendered negligently by the
defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the
last five years as an employed member of the faculty of an educational
institution accredited in the teaching of such profession, with sufficient
frequency to establish an appropriate level of knowledge, as determined
by the judge, in teaching others how to perform the procedure, diagnose
the condition, or render the treatment which is alleged to have been
performed or rendered negligently by the defendant whose conduct is at
issue; and
(C) Except as provided in subparagraph (D) of this paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a
defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard of care
of a defendant who is a medical doctor; and
10
(D) Notwithstanding any other provision of this Code section, an
expert who is a physician and, as a result of having, during at least three
of the last five years immediately preceding the time the act or omission
is alleged to have occurred, supervised, taught, or instructed nurses,
nurse practitioners, certified registered nurse anesthetists, nurse
midwives, physician assistants, physical therapists, occupational
therapists, or medical support staff, has knowledge of the standard of
care of that health care provider under the circumstances at issue shall
be competent to testify as to the standard of that health care provider.
However, a nurse, nurse practitioner, certified registered nurse
anesthetist, nurse midwife, physician assistant, physical therapist,
occupational therapist, or medical support staff shall not be competent
to testify as to the standard of care of a physician.14
Based upon its reading of Dr. Kimani’s deposition transcript and curriculum
vitae, the trial court found that he was not qualified to testify as an expert in this case
because the record “affirmatively reflect[ed] that Dr. Kimani did not, for three of the
five years immediately preceding [Paul’s] collapse in September 2009 supervise,
teach, or instruct medical support staff such as [individual defendants Semper and
14
(Emphasis supplied.) OCGA § 24-7-702 (c).
11
Browner]” as required by OCGA § 24-7-702 (c) (2) (D).15 But, “OCGA § [24-7-702]
(c) (2) by its plain terms applies only in cases of alleged medical malpractice.”16
OCGA § 9-3-70 defines “the term ‘action for medical malpractice’” as
any claim for damages resulting from the death of or injury to any
person arising out of: (1) [h]ealth, medical, dental, or surgical service,
diagnosis, prescription, treatment, or care rendered by a person
authorized by law to perform such service or by any person acting under
the supervision and control of the lawfully authorized person; or (2)
[c]are or service rendered by any public or private hospital, nursing
home, clinic, hospital authority, facility, or institution, or by any officer,
agent, or employee thereof acting within the scope of his employment.
However,
[n]ot all injuries that occur in a hospital, nursing home or other health
care facility are the result of professional negligence; they may be solely
attributable to ordinary or simple negligence. For that reason, our
appellate courts have consistently looked to the claim stated rather than
the entity or person sued when determining whether an action is for
15
(Punctuation omitted; emphasis in original.) The record does establish that
Dr. Kimani was board-certified in internal medicine, with a specialty in pulmonary
and critical care medicine, and he was certified in cardiac life support. He was the
medical director of the respiratory therapy department of the Emory University
geriatric center from 1994 through 1998, and he was in private practice from 1999
through the time of his 2013 deposition.
16
Wilson v. McNeely, 307 Ga. App. 876, 879 (2) (705 SE2d 874) (2011).
12
professional malpractice or ordinary negligence. Simply because an
alleged injury occurs in a hospital setting, a suit to recover for that injury
is not necessarily a medical malpractice action. Likewise, not every suit
which calls into question the conduct of one who happens to be a
medical professional is a medical malpractice action. A professional
malpractice action is merely a professional negligence action and calls
into question the conduct of a professional in his area of expertise.”
Consequently, we must look to the substance of an action against a
medical professional, hospital, or health care facility in determining
whether the action is one for professional or simple negligence.17
In this case, the plaintiffs do not allege medical malpractice, instead asserting
claims for simple negligence and negligence per se, in addition to wrongful death,
intentional infliction of emotional distress, breach of contract, and negligent
supervision and training. Indeed, KES concedes on appeal that “this case is not a
medical malpractice action.” And the record shows that the facility where Paul
collapsed is a day facility that provides “education, life skills, job assistan[ce,] and
rehabilitation services to people with mental and physical disabilities.” The individual
defendants listed in this case were non-medical personnel and personal care givers.
17
(Citations and punctuation omitted; emphasis in original.) Moore v. Louis
Smith Mem. Hosp., 216 Ga. App. 299, 299-300 (454 SE2d 190) (1995).
13
Under these particular circumstances, the plaintiffs were not required to establish that
Dr. Kimani met the requirements of OCGA § 24-7-702 (c) (2) (D), which apply only
to medical malpractice actions, in order to testify as an expert as to causation in this
case. Accordingly, the trial court erred by excluding Dr. Kimani’s testimony on this
basis.
Therefore, we vacate the order granting summary judgment and remand for the
trial court to consider the merits of KES’s summary judgment motion.18
Judgment vacated and remanded. Phipps, P. J., and Boggs, J., concur.
18
Although the trial court already has determined that Dr. Kimani’s deposition
testimony created a material issue of fact as to causation for wrongful death based on
KES’s failure to timely render aid, it has not, to date, ruled upon the multiple
remaining bases for summary judgment as alleged by KES. Although we are mindful
of the delay a remand will cause in this litigation, we decline to review rulings not
made by the trial court in this case. See City of Gainesville v. Dodd, 275 Ga. 834,
838-839 (573 SE2d 369) (2002) (upon appellate determination that the trial court
relied on an erroneous legal theory or reasoning in reviewing an order on summary
judgment involving “a variety of grounds advanced,” the appellate court may remand
the case to the trial court “to issue rulings on grounds advanced, which could then
serve as a basis for appellate review”).
14