Chybicki v. Coffee Reg'l Med. Ctr., Inc.

361 Ga.App. 654

865 S.E.2d 259

CHYBICKI et al.

v.COFFEE REGIONAL MEDICAL CENTER, INC. et al.

A21A1023

Court of Appeals of Georgia.

October 27, 2021

Andrew John Lavoie, Atlanta, Gerald M. Edenfield, Susan Warren Cox, Statesboro, for Appellant.

Spencer Armpstead Bomar, Thomas Michael Burke Jr., Wayne D. McGrew III, Anthony Ashley Rowell, Tifton, for Appellee.

Brown, Judge.

Donald Brian Chybicki, in his capacities as the surviving spouse of Sandra Chybicki, as well as the executor of her estate, along with Ms. Chybicki's two adult children (collectively "plaintiffs"), appeal from two summary judgment orders entered by the trial court in this medical malpractice/wrongful death case brought against numerous persons and entities, including the appellees in this appeal, Coffee Regional Medical Center, Inc. ("the hospital") and Myra Belk, R. N. (collectively "hospital defendants"). Plaintiffs contend that the trial court erred in (1) concluding that a treating physician, Dr. William Paul Ives, was an independent contractor for whom the hospital could not be held liable and granting partial summary judgment to the hospital on this ground; (2) finding that the hospital defendants were entitled to summary judgment in their favor based upon an alleged lack of admissible causation evidence; and (3) entering an order excluding the opinion of Meg Warren, R.N., pursuant to OCGA § 27-7-702, which governs the admissibility of expert testimony.

For the reasons explained below, we affirm.

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.

(Citations and punctuation omitted.) Swint v. Alphonse , 348 Ga. App. 199, 199-200, 820 S.E.2d 312 (2018). So viewed,¹ the evidence shows that on June 28, 2016, Ms. Chybicki, who was 57 years old, was admitted to the hospital after showing "signs/symptoms of sepsis." For many years, Ms. Chybicki had been diagnosed with hypertension, diabetes, and high cholesterol; she was also morbidly obese. A CT scan revealed kidney stones, and she underwent surgery, performed by Dr. Alfred Walter Mazur, to remove them.

Dr. Ives was the anesthesiologist for Ms. Chybicki's surgery. He started work at 7:00 a.m. on the day of the surgery, and her surgery was the last case of the day. Dr. Ives stated in his interrogatory responses that "a certified registered nurse anesthetist ["CRNA"] was not necessary during [the] surgery [because he] personally attended to Mrs. Chybicki for anesthesia care." He explained that the hospital typically had four operating rooms running with the anesthesiologists in and out of the operating room in which CRNAs delivered anesthesia. As the day winds down, his practice was to let other providers (CRNAs and the other anesthesiologist) go home. After the other anesthesiologist and CRNAs left for the day, the only other medical provider in the hospital who could have attempted an intubation of a patient in addition to Dr. Ives was an emergency room physician. Since Ms. Chybicki was the last case of the day, Dr. Ives provided her anesthesia by himself. He described her as being "moderately difficult" to intubate before the surgery, but was able to do it on his first try. He explained that she was harder to intubate because of "redundant tissue ... everywhere" secondary to her obesity.

Following her surgery and after determining that she met all of the respiratory criteria, Dr. Ives extubated Ms. Chybicki in the operating room around 4:32 p.m. Dr. Ives testified that he did not believe her respirations were shallow or labored in any way after he extubated her, but he nonetheless placed a nasal airway device on her while she was still in the operating room, perhaps because she was snoring or making upper airway noises. At 4:39 p.m., she was admitted to the post-anesthesia care unit ("PACU"), which was located approximately 30 feet away from the operating room. Dr. Ives "immediately" removed the nasal airway device and remained at her bedside. A vital sign report completed at 4:39 p.m. stated that Ms. Chybicki had a fever of 102.7 degrees Fahrenheit, an elevated heart rate (160) and blood pressure (152/122), and "labored" respirations. A note indicated that an oxygen saturation percentage ("O2 Sat") was unable to be obtained even though "multiple sites" were attempted. While Dr. Ives did not know why this reading could not be obtained, he thought that one explanation could be that early in Ms. Chybicki's postoperative course in the PACU, she began complaining of flank pain and became agitated, "[n]ot holding still, pulling off monitors, pulling off oxygen." Dr. Ives acknowledged that other than an end-tidal CO2 measurement, which was not available in the PACU, the O2 Sat reading would be the next best way to determine if a person was receiving sufficient positive ventilation.

Five minutes later, at 4:44 p.m., the vital sign report states "unable to get [O2] sat reading" and Ms. Chybicki's respirations were still "labored," her pulse was 159, and her blood pressure was 172/123. By 4:49 p.m., her blood pressure was 263/128, her breathing was "labored," her pulse was 161, and her O2 Sat was 80 percent.

A note on the vital sign report states that at 4:49 p.m., Dr. Ives was bedside and assisting ventilations with an Ambu bag. Dr. Ives testified that approximately fifteen minutes after Ms. Chybicki arrived in the PACU, he decided he needed to reintubate her because she was getting septic, her O2 Sats were diminishing, and she needed a definitive airway. Dr. Ives was unable to successfully reintubate her after numerous attempts, documented as anywhere between four and eight times. Dr. Ives testified that he only actually attempted to intubate Ms. Chybicki four times, explaining that "looks" were mischaracterized as an actual attempt.²

In between intubation attempts which lasted approximately 20 to 30 seconds, Dr. Ives used the Ambu bag and Ms. Chybicki's O2 Sat levels ranged from 96 to 97 between 4:54 p.m. and 5:09 p.m. Dr. Ives called a code blue at 5:19 p.m. when Ms. Chybicki did not have a pulse, which he described as "fairly sudden" and "unexpected." CPR was immediately initiated with continued ventilation by Dr. Ives. Dr. Brulte, an emergency room physician who responded to the code, successfully reinutubated Ms. Chybicki on his second try at 5:30 p.m. Dr. Ives testified that he thought Dr. Brulte was able to successfully reintubate Ms. Chybicki "because he had two pairs of hands because [Dr. Ives] was helping him with head position and supporting her head," something that had not been available to him during his attempts before the code was called; he did not know if nurse Belk could have done this for him. Dr. Ives testified that Ms. Chybicki's O2 "[S]ats were consistently suboptimal but not — that's not what caused the code. She lost her pulse."

After intubation, Ms. Chybicki stabilized and was transferred to the ICU. The plaintiffs’ complaint alleges that she was subsequently diagnosed as being in a " ‘vegetative state’ " and remained in the hospital until her death on July 23, 2016, from cardiopulmonary arrest.

Dr. Thomas Mitros, a standard of care expert retained by the plaintiffs, testified that Dr. Ives never should have done the anesthesia for the surgery by himself and should have had another anesthesiologist or CRNA attending the surgery with him. When Dr. Ives was unable to reintubate Ms. Chybicki on his second attempt, he should have called for additional help from a surgeon or the emergency room. He also opined that Dr. Ives "should have taken this patient back into the [operating room where he has better equipment] ... when he didn't get his second intubation.... It gives you so much more information in a difficult situation like this." But this would have been difficult to do with only one nurse in the PACU and Dr. Ives using the Ambu bag on the patient; if there had been four people, she could have gone back to the operating room "lickety split."

With regard to Dr. Ives’ inability to intubate Ms. Chybicki, the expert explained that "he did not perform to the level of an average, competent anesthesiologist" due to one or a combination of his lack of experience, the development of tunnel vision due to panic, or fatigue. "All I know is [an emergency room doctor] who is not supposed to be as skilled as he is, you know, as we view it in the medical community, came up and easily intubated this patient, did it in a couple minutes."

He also criticized that the PACU was staffed with only Dr. Ives and nurse Belk. If there had been another anesthesia provider there and another nurse, Dr. Ives would not have had to call for help. In his view, it was a violation of the American Society of Post Anesthesia Nurses for nurse Belk to be in the PACU alone. Another nurse would have enabled them to get an oxygen monitor reading faster. While he believed the lack of another nurse "wasn't good" for Ms. Chybicki, he could not say "how much the delay contributed to the ultimate outcome." He also asserted that nurse Belk improperly scored Ms. Chybicki on an Aldrete score used to appraise a patient in the post-operative, post-anesthesia environment, but acknowledged that it probably did not contribute to her injuries.

He also had no criticism of the timing of Dr. Ives’ decision to extubate Ms. Chybicki after surgery or the timing of his decision to attempt to reintubate her. He agreed that a...