Adams v. Piedmont Henry Hosp., Inc.

365 Ga.App. 257

878 S.E.2d 113

ADAMS et al.

v.PIEDMONT HENRY HOSPITAL, INC. et al.

A22A0990

Court of Appeals of Georgia.

September 2, 2022

The Moore Law Firm, Sidney Leighton Moore III, Atlanta; Trask Law Firm, Thomas Dixon Trask, for Appellant.

Bendin Sumrall & Ladner, Timothy H. Bendin, Anam I. Justus, Atlanta; Huff Powell & Bailey, Sharonda B. Barnes, Zachary Hodge Fuller, for Appellee.

Brown, Judge.

In this medical malpractice/wrongful death case, the plaintiffs, Carole Anne Adams, David Aaron Stephenson, Seth Patrick Conyers, and Kyle Russell Conyers, the surviving children of the decedent, Mary Patricia Conyers, sued Piedmont Henry Hospital, Inc., Piedmont Healthcare, Inc. d/b/a Piedmont Henry Hospital (collectively "Piedmont Henry"), Thomas R. Fitzsimmons, M.D., Dr. Thomas R. Fitzsimmons, P.C. d/b/a Eagle's Landing Surgery, and Eagle's Landing Surgery, P.C. d/b/a Eagle's Landing Surgery (collectively "Dr. Fitzsimmons"), after Ms. Conyers allegedly died from a pulmonary embolism following an appendectomy performed by Dr. Fitzsimmons at Piedmont Henry.¹ As to Piedmont Henry, the plaintiffs alleged that its nurses breached the standard of care owed to Ms. Conyers in failing to adequately assess her risk of thrombosis following surgery to ensure that she received necessary anticoagulants. The plaintiffs also alleged that the nurses did not appropriately use the sequential compression devices ordered by Dr. Fitzsimmons and failed to administer a pre-operative dose of Heparin.

The trial court granted summary judgment to Piedmont Henry, concluding that the plaintiffs failed to present sufficient evidence of causation as to the nurses.² The trial court also granted Dr. Fitzsimmons’ motions to exclude the testimony of two of the plaintiffs’ experts, and granted in part Dr. Fitzsimmons’ motion to exclude the plaintiffs’ rebuttal expert, ruling that he is permitted to give expert testimony at trial, but not permitted to offer new opinions on the standard of care that were not previously offered by the plaintiffs’ experts. The plaintiffs appeal these rulings. For the reasons explained below, we reverse the trial court's grant of summary judgment to Piedmont Henry. As to the trial court's rulings on the expert witnesses, we: (1) vacate the trial court's order limiting Dr. Caprini's testimony and remand the case with direction that the court re-evaluate its ruling as discussed below; (2) reverse the trial court's order excluding Dr. Hayes’ standard-of-care opinions; and (3) affirm the trial court's order excluding the causation testimony of Dr. Freeman.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions. Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. In doing so, we bear in mind that 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.

(Citation and punctuation omitted.) Chybicki v. Coffee RegionalMed. Center , 361 Ga. App. 654, 655, 865 S.E.2d 259 (2021). So viewed, the evidence shows that on September 20, 2014, Ms. Conyers, who was 60 years old, was admitted to the hospital complaining of abdominal pain. Dr. Fitzsimmons diagnosed perforated appendicitis with abscess formation and scheduled surgery for the following morning. Dr. Fitzsimmons testified that he performed a pre-operative "VTE" (venous thromboembolism ) or "DVT" (deep vein thrombosis ) risk assessment of Ms. Conyers using the Caprini Scale,³ and that she had a Caprini score of four. The next day, Ms. Conyers underwent a diagnostic laparoscopy, an open appendectomy, and an open drainage of intra-abdominal abscess.

According to Dr. Fitzsimmons, he ordered "Heparin 5000 units sub cu pre operatively."⁴ He explained that he did not know the length of Ms. Conyers’ surgery — but knew that it would be complicated — and that he wanted Heparin "onboard" because "longer surgeries have higher DVT/PE risks" and because clots form usually at induction and/or maintenance of anesthesia. When asked if he ordered the Heparin one hour before surgery, Dr. Fitzsimmons explained as follows: "It is just before the operation. The computer changes that to a plus one hour or something. It is kind of goofy in the computer, but the bottom line is you order it before surgery."⁵ Dr. Fitzsimmons concluded that the use of Heparin or chemical prophylaxis post-operatively was contraindicated for Ms. Conyers due to the risk of bleeding as well as the fact that she was unsteady on her feet; "you put somebody on Heparin, they fall, hit their head, and you have got an intracranial bleed. That can be devastating.... So Heparin is a double-edged sword that needs to be respected fully." Dr. Fitzsimmons learned much later that his order to give Heparin pre-operatively was never followed.

Dr. Fitzsimmons also ordered sequential compression devices ("SCDs") to be placed and functioning by the time of surgery, and to stay on through Ms. Conyers’ hospitalization. He reasoned that "[f]or a moderate risk patient, SCDs, sequential compression devices, are adequate alone." On September 25, 2014, four days following her appendectomy, Ms. Conyers developed an intra-abdominal abscess which was drained in a second procedure. Dr. Fitzsimmons testified that a patient's risk assessment can change daily and that he reevaluated Ms. Conyers daily, except for September 26, 27, and 28, when another surgeon, Dr. Patrick, covered for him. Dr. Fitzsimmons testified that "[i]t [is] part of [his] daily thing to look at people's feet and look at their squeezers and make sure they are on and ...in this case, every time [he] visited [Ms. Conyers], [he] made no remarks [saying] there was anything - you know, anything different than that." He further testified that "[s]he had no signs of DVT on exam, multiple times documented throughout her hospital course[;]...she never had any evidence of DVT.... No clinical evidence of it. No swelling, no pain." According to Ms. Conyers’ daughter, however, while she was staying with her mother in the hospital on September 27, 28, and 29, her mother complained that "her legs [were] hurting her ... her calves and her feet." The daughter relayed this information to nursing staff, but could not remember which nurse. According to Dr. Fitzsimmons, Ms. Conyers was clearly getting better and was up and "ambulating in [the] hall" and preparing for "discharge planning issues."

On the morning of October 2, 2014, Ms. Conyers developed acute respiratory distress, and medical staff had difficulty intubating her. She was transferred to the intensive care unit, where she coded and was unable to be resuscitated. Dr. Fitzsimmons’ notes from the October 13, 2014 Discharge Summary indicate that "[n]o confirmed definitive cause of death was able to be elucidated and family refused autopsy." The death certificate indicates the immediate cause of death as cardiac arrest due to respiratory failure, and lists other significant conditions contributing to death as pneumonia, obesity, and perforated appendicitis history. While the plaintiffs’ experts opine that Ms. Conyers died as a result of a pulmonary embolism, Dr. Fitzsimmons could not definitely say that a pulmonary embolism caused Ms. Conyers’ death; he testified that there were "five or six things that pointed away from pulmonary embolism," including that Ms. Conyers had elevated platelets, no hypotension, no signs of DVT on exam, and no hemoptysis (blood in the sputum).

The plaintiffs brought the underlying action for medical malpractice/wrongful death, alleging, in relevant part, that Piedmont Henry's nursing staff deviated from the standard of care by failing to appropriately evaluate Ms. Conyers’ thrombosis risk following her surgery to ensure that she received necessary anticoagulants, and that this negligence proximately caused Ms. Conyers’ death. Attached to the complaint were the affidavits of Dr. Michael Quinones, a general surgeon, and Judith Climenson, a certified registered nurse. Dr. Quinones averred that the care provided by the nursing staff at Piedmont Henry fell below the standard of care in multiple respects, including their failure to adequately assess Ms. Conyers’ risk of thrombosis following surgery. According to Dr. Quinones, had the nursing staff not deviated from the standard of care, and had Ms. Conyers received proper and timely care from the nursing staff and Dr. Fitzsimmons, "she would have received adequate deep venous thrombosis prophylaxis and she would not have suffered the pulmonary embolism that caused her death on October 2, 2014."

Climenson averred in her affidavit that the Piedmont Henry nursing staff did not exercise the degree of care and skill employed by the nursing and medical profession generally under similar surrounding circumstances and like conditions and that they breached the standard of care in multiple respects, including but not limited to failing to appropriately evaluate Ms. Conyers’ thrombosis risk following surgery to ensure that she received necessary anticoagulants. In Climenson's opinion, had Ms. Conyers been properly evaluated, she would have received anticoagulants and she would not have suffered the pulmonary embolism and would not have died. In her deposition, Climenson testified that in addition to ordering SCDs, Dr. Fitzsimmons had an order in place for the nurses to assist Ms. Conyers with ambulation and to increase her activity in order to prevent DVT or VTE. According to Climenson, the record reflects that the nurses did not comply with this order. In her opinion, the nurses breached the standard of care in a...