Zeh v. Maso

ZEH et al. v. MASO et al.; and MASO et al. v. ZEH et al.

Nos. A22A1289, A22A1290

Court of Appeals of Georgia, Second Division

February 24, 2023

RICKMAN, C. J., MILLER, P. J., and PIPKIN, J.

Rickman, Chief Judge.

This appeal and cross-appeal arise from a medical malpractice action filed by Carole Maso, individually as surviving spouse and as executrix of the Estate of Eugene Charles Maso (collectively, "Maso"). In Case No. A22A1289 defendants Brian Zeh, M.D., Stephen Hammond, and Northside Anesthesiology Consultants, LLC, (collectively the "Northside defendants") appeal from the trial court's order denying Dr. Zeh's motion for summary judgment. The Northside defendants contend that the trial court erred by finding that the Physician Assistant Act ("PAA"), OCGA § 43-34-100 et seq., creates vicarious liability for physicians for the conduct of physician assistants they supervise. In Case No. A22A1290 Maso cross-appeals from the trial court's order denying her motions to exclude testimony of two defense expert witnesses, arguing that the testimony of both witnesses should be excluded under OCGA § 24-7-702. For the reasons explained below, we reverse in Case No. A22A1289, and we affirm in part and reverse in part in Case No. A22A1290.

Maso's complaint, as amended, alleged that her husband, Dr. Eugene Maso, underwent an elective outpatient endoscopic retrograde cholangiopancreatography ("ERCP") procedure on June 18, 2018. The anesthesia staff for Dr. Maso's procedure included Dr. Zeh, an anesthesiologist, and Hammond, a physician assistant ("PA"). According to Maso, her husband died as a result of inadequate respiratory and ventilatory monitoring by Hammond.

Maso sued Hammond, Dr. Zeh, and their employer, Northside Anesthesiology Consultants, LLC, for medical malpractice claims arising from the medical treatment provided to her husband. Maso subsequently filed motions to exclude testimony from two defense experts, which the trial court denied.

Dr. Zeh filed a motion to exclude vicarious liability testimony and for summary judgment. The trial court denied Dr. Zeh's motion, noting that because Maso had voluntarily withdrawn her direct liability claims against Dr. Zeh and agreed that her experts would not offer testimony regarding whether Georgia law provides a basis for the imposition of vicarious liability against Dr. Zeh, the only remaining issue raised by Dr. Zeh's motion was whether he could be held vicariously liable for Hammond's alleged negligence. The trial court found that, although Dr. Zeh could not be held vicariously liable under an actual agency theory, he was vicariously liable for Hammond's conduct under the PAA. The trial court certified its order for immediate review. After this Court granted Dr. Zeh's interlocutory application, the appeal in Case No. A22A1289 followed. In Case No. A22A1290, Maso cross-appealed from the trial court's order denying her motions to exclude the testimony of the two defense experts.

Case No. A22A1289

1. The Northside defendants contend that the trial court erred in denying Dr. Zeh's motion for summary judgment. Specifically, they argue that the trial court erred in finding that the PAA creates vicarious liability for supervising physicians for the medical acts of their PAs. We agree.

In 2009,

[t]he General Assembly enacted the [PAA] to encourage the more effective utilization of the skills of physicians by enabling them to delegate health care tasks to [PAs] where such delegation is consistent with the patient's health and welfare. OCGA § 43-34-101 (b). Under this Act, a [PA] may be licensed to perform patients' services for which the PA has been found qualified to perform by academic and practical training. OCGA §§ 43-34-102 (5), 43-34-103 (a). The Act establishes an application procedure to be followed to obtain approval by the [Georgia Composite Medical Board], the board charged with overseeing PAs, for the performance of specific medical tasks set forth in the proposed PA's job description. A PA is limited to those tasks set forth in the job description except when the task is performed under the direct supervision and in the presence of the physician utilizing the PA, OCGA § 43-34-105, in which case the [PA] may perform any work authorized for physicians that the assistant is competent to do.

(Citation and punctuation omitted.) Cardio TVP Surgical Associates v. Gillis, 272 Ga. 404, 404-405 (1) (528 S.E.2d 785) (2000).

OCGA § 43-34-102 (9) defines "primary supervising physician" as "the physician to whom the board licenses a physician assistant pursuant to a board approved job description and who has the primary responsibility for supervising the practice of a physician assistant pursuant to that physician assistant's job description." An "alternate supervising physician" is "a physician to whom a board approved primary supervising physician has delegated the responsibility of supervising a physician assistant who is licensed to that primary supervising physician and who agrees to supervise the physician assistant for the primary supervising physician and who is on record with the board." OCGA § 43-34-102 (2).

OCGA § 43-34-109 governs the involvement of a supervising physician in a patient's care and provides as follows:

When a patient receives medical services from a physician assistant, the supervising physician's involvement in the patient's care, including patient evaluation and follow-up care by the supervising physician, shall be appropriate to the nature of the practice and the acuity of the patient's medical issue, as determined by the supervising physician.

The PAA does not directly address the question of whether a supervising physician is vicariously liable for the negligent acts of a PA. Maso's argument that the PAA confers vicarious liability on supervising physicians is based on OCGA § 43-34-103.

OCGA § 43-34-103 (a) (2) provides, in pertinent part:

In order to obtain approval for the utilization of a physician assistant, whether the utilization is in a private practice or through a public or private health care institution or organization, the licensed physician who will be responsible for the performance of such physician assistant shall submit an application to the board which shall include [evidence the PA is licensed, a job description in accordance with 43-34-102 (4); and a fee, if required].

OCGA § 43-34-103 (e.1) (1) provides, in pertinent part:

[A] physician may delegate to a physician assistant . . . the authority to issue a prescription drug order or orders for any device . . . . Delegation of such authority shall be contained in the job description required by this Code section. The delegating physician shall remain responsible for the medical acts of the physician assistant performing such delegated acts and shall adequately supervise the physician assistant.

Maso argues that the terms "responsible" and "liable" are interchangeable, and that by using the word "responsible" in OCGA § 43-34-103, the General Assembly intended to create vicarious liability for supervising physicians. According to Maso, the General Assembly has previously enacted statutes regarding vicarious liability that use the terms "responsible" and "liable" interchangeably. In support of this contention, Maso cites OCGA § 51-2-4, which provides that "[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer." However, Maso has not cited, and we have not found, any Georgia statute that imposes legal liability using solely the term "responsible." By contrast, many Georgia statutes that impose legal liability use the word "liable." See, e.g., OCGA § 51-1-22 (The owner of a vessel shall be liable for any injury or damage occasioned by the negligent operation of the vessel . . . ."); OCGA § 51-2-3 ("Every parent or guardian having the custody and control over a minor child or children under the age of 18 shall be liable . . . for the willful or malicious acts of the minor child . . . ."); OCGA § 51-2-5 ("An employer is liable for the negligence of a contractor . . . [under specific circumstances]."); OCGA § 51-2-7 ("A person who owns or keeps a vicious or dangerous animal . . . and who . . . causes injury to another person . . . may be liable in damages to the person so injured."); OCGA § 51-7-81 ("Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts . . . [w]ith malice; and . . . [w]ithout substantial justification."). Consequently, Maso's argument that the General Assembly intended to create vicarious liability for supervising physicians by using the word "responsible" in OCGA § 43-34-103 is unpersuasive.

The Northside defendants, on the other hand, argue that the PAA was never intended to and does not create new tort liability for supervising physicians. They maintain that nothing in the PAA indicates that the General Assembly meant to enact a fundamental change to existing vicarious liability law when it enacted the PAA.

Before the PAA was passed, physicians could be vicariously liable for the negligence of other medical personnel based on principles of respondeat superior agency, and imputed negligence. See Hendley v. Evans, 319 Ga.App. 310, 315 (2) (a) (iii) (734 S.E.2d 548) (2012) (trial court erred in failing to charge the jury on physician's potential vicarious liability for the negligence of hospital personnel either "by modifying the [plaintiffs'] requested charge on the borrowed servant doctrine, by giving one of the other instructions requested by the [plaintif...