Zephaniah v. Ga. Clinic, P.C.

368 Ga.App. 325

890 S.E.2d 86

ZEPHANIAH v. GEORGIA CLINIC, P.C.

A23A0057

Court of Appeals of Georgia.

June 22, 2023

annie I zephaniah zephaniah, for Appellant.

Terrell William Benton III, William Richard Story, Thomas Michael Haswell, Atlanta, for Appellee.

Brown, Judge.

In the second appearance of this case before this Court, ¹ Annie Zephaniah appeals pro se from the trial court's order granting the Georgia Clinic, P. C.’s ("the defendant") motion for summary judgment. She contends that the trial court should not have considered the motion for summary judgment as there were outstanding discovery requests and that summary judgment was not appropriate on her battery and ordinary negligence claims. ² For the reasons explained below, we affirm in part and reverse in part.

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 Regional Med. Center , 361 Ga. App. 654, 655, 865 S.E.2d 259 (2021). So viewed, ³ the record shows that Zephaniah went to the defendant's office "for a routine blood draw checkup." After seeing the doctor, a nurse named Dina, with whom Zephaniah was familiar, led her to the lab where blood draws are completed. Zephaniah sat "in the lab chair in anticipation for Dina to draw [her] blood as usual" and "extended [her] right arm out in anticipation of the blood draw." When Dina left without explanation, an unknown "technician ... tied the tourniquet to the upper right arm and she proceeded to pat the elbow a number of times." When Zephaniah explained that blood had not been taken in that location for 20 years and that the back of her hand was usually used, the technician moved the tourniquet below her elbow and attempted to draw blood from a vessel in Zephaniah's forearm. According to Zephaniah: "The needle pierced the tendon bone ..., [the technician] kept pushing the needle [until] it couldn't go any further, striking a nerve that immediately fired an electric shock that radiated through [her] arm, into [her] elbow and [her] ... brain." When Zephaniah "cried, ‘You hit my bone,’ " the technician withdrew the needle and reinserted it into a vein and drew blood into a vial. Afterward, Zephaniah held her arm "sling-like because of the pain in [her] forearm." After a period of time, she informed Dina about her pain, who responded that the technician "took it in the wrong place," and obtained ice for her.

Zephaniah claims that she saw a doctor the following week because of "the pain in [her] forearm" and inability to sleep. She asserts that she has "lived with numbness that [has] lasted years" in her right arm and that her "anatomy was invaded by burning, swelling, crawling nerves, pins and needles, different texture of needle tips, sweat, wasting muscles, [and] symptoms [of] inflammation [that] affected [her] body in various paths unimaginable." Her second amended complaint lists almost 50 medical conditions ⁴ and approximately 20 symptoms ⁵ that she contends resulted from or were triggered by the blood draw incident. While Zephaniah failed to include formal legal theories of recovery, her complaints, liberally construed, assert claims for negligence, intentional infliction of emotional distress, invasion of privacy, and battery.

After the close of discovery, the defendant moved for summary judgment on all claims asserted by Zephaniah. Following a hearing in which Zephaniah presented her own sworn testimony, the trial court granted summary judgment in an abbreviated order that does not explain its reasoning.

1. Zephaniah contends that the trial court should not have ruled on the defendant's motion because the defendant's failure to provide her with discovery "stymied her ability to retain expert witnesses" and respond to the motion for summary judgment. Our review of this enumeration of error is hindered by Zephaniah's failure to include any citations to the record or legal authority to support her contention. See Georgia Court of Appeals Rule 25 (d). A review of the transcript of the hearing held on the defendant's motion for summary judgment and her written response to the motion shows that she never raised the issue of outstanding discovery as a ground to delay the trial court's ruling on the motion for summary judgment. Having failed to seek a continuance from the trial court below, Zephaniah cannot complain on appeal that the trial court's ruling on the summary judgment motion was premature. See Godwin v. Mizpah Farms , 330 Ga. App. 31, 34-35 (1), 766 S.E.2d 497 (2014). We therefore find no merit in this claim of error.

2. Zephaniah asserts that genuine issues of material fact exist with regard to her battery claim because her "consent to [the] blood draw was far exceeded by the individual who first forced a needle into a nerve" and then battered her again by attempting a second blood draw without her consent. We disagree.

In a medical context, consent encompasses two distinct legal principles: "basic" consent and "informed" consent. Informed consent ... essentially involves a medical professional fully informing a patient of the risks of and alternatives to the proposed treatment so that the patient's right to decide is not diminished by a lack of relevant information. A medical provider's failure to obtain proper informed consent sounds in professional negligence and requires an expert affidavit .... With respect to basic consent, a medical touching without consent constitutes the intentional tort of battery for which an action will lie.

(Citations and punctuation omitted.) Paden v. Rudd , 294 Ga. App. 603, 605 (2), 669 S.E.2d 548 (2008). "Continued treatment of a patient after consent has been withdrawn also will give rise to a medical battery claim." Doctors Hosp. of Augusta v. Alicea , 332 Ga. App. 529, 544 (3), 774 S.E.2d 114 (2015).

Our case law establishes clear standards for determining whether consent has been effectively withdrawn. Those standards require that the patient act or use language which can be subject to no other inference and that these actions and utterances be such as to leave no room for doubt in the minds of reasonable [persons] that in view of all the circumstances consent was actually withdrawn.

(Citation and punctuation omitted.) Prince v. Esposito , 278 Ga. App. 310, 313-314 (1) (c), 628 S.E.2d 601 (2006). "To permit a lesser standard would be to subject the medical profession to an endless possibility of harassment. The possibility of irresponsible harassment is something the medical profession should not be called upon to bear, dealing as it does with human life and human frailty." Mims v. Boland , 110 Ga. App. 477, 484 (1) (b), 138 S.E.2d 902 (1964).

In this case, the undisputed evidence demonstrates that Zephaniah consented to a blood draw, as demonstrated by her conduct in going to the clinic for the purpose of "a routine blood draw checkup" and in extending her arm so that the blood draw could be performed. It also shows, without dispute, that she never clearly communicated that her consent to a blood draw was withdrawn. Accordingly, the trial court did not err by granting summary judgment on her battery claim. See Prince , 278 Ga. App. at 313-314 (1) (c), 628 S.E.2d 601. ⁶

3. In related enumerations of error, Zephaniah contends that the trial court erred by granting summary judgment on her ordinary negligence claim based on the defendant's argument that all of her damages require the testimony of an expert witness to establish causation. She asserts that expert testimony would not be required to establish the pain she experienced when the needle was inserted so deeply it felt like it hit the bone. We agree.

As the Supreme Court of Georgia explained at length in Cowart v. Widener , 287 Ga. 622, 697 S.E.2d 779 (2010) :

[M]ost "medical questions" relating to causation are perfectly capable of resolution by ordinary people using their common knowledge and experience, without the need for expert testimony. Thus, in a wrongful death action based on the theory that the defendant proximately caused the decedent's death by stabbing her in the gut, the plaintiff is not required, in response to a motion for summary judgment, to come forward with expert testimony explaining in medical terms precisely how the wound led to her death. Where the causal link between the defendant's conduct and the decedent's injury can be determined by a lay jury without expert guidance, no expert evidence need be produced to defeat a defense motion for summary judgment. See, e.g., Jester v. State , 250 Ga. 119, 119-120, 296 S.E.2d 555 (1982) ("[T]hat a stab wound penetrating entirely through the heart causes death, is not a matter ... which should even require expert testimony."); [ Allstate Ins. Co. v.Sutton , 290 Ga. App. [154,] 159-160, (2008) ("[W]hether a blow to the head could cause death [is] a question that we have held to be within a lay person's knowledge"); Jordan v. Smoot , 191 Ga. App. 74, 74, 380 S.E.2d 714 (1989) (holding that whether an automobile collision

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