1 Appellants assertthat Ben H ill Em ergency Group LLC is v icariousl y liabl e solely as Dr. Mahat hre’s alleged employer and assert n o direct cla ims against it
.

2 The other named

defendant s to the law suit included T

he Hospital Authorit

y of Ben Hill Count

y; Ti ft County

Hospital A

uthority ; Tift Co unty

Hospital A

uthority d/b/a Tift Regional Medical Center; Tift Regional Medical Center; Colony Medical Associat es, P.C.; Derrick Tay lor, M. D.; Af

finity Health G roup, LL C; and Chr

istina Rich, M.D. FOURTH D IVISION DOYLE , P. J., MILLER and DIL LA RD, JJ.
N O TICE: Motions for reconsideration must be p hy sically received

in our cl erk’s offi ce within ten days of the date of decision to be deemed timely filed.

http:/ /www .gaappeal s.us/rul es/ July 11, 2014



## In the Court of Appeals of Georgia
A14A0155. REEV ES et al . v. MA HATH RE et al
. D ILL ARD , Judge. In this wrongful-death action premised on medical m alpractice, appel lant s Michael Reeves, Sharon Reeves, and Marcus Reeves, Jr., individually, and Michael Reeves, as execut or of the Estate o f JonelleReeves (collectively, “ Appellants”), sued Dr. Vijay Mahathre

and his em ployer , Ben H ill Em ergency Group LLC (c oll ecti vel y, “Dr. Mahathre”), 1 inter alia , 2 alleging that Dr. Mahathre was negli gent in

the medical3 Se e Carr v. Ki ndred Healthcare Operating, Inc. , 293 Ga. App. 80, 80 (666

SE2d 401) (2008) (“

A de novo standard o f review applies to a

n appeal f rom a grant of summa ry judgm ent, and w e view the evidence , and all reasonabl e conclusio ns and inferences drawn from it, in the light most favorable to the nonmovant.”). 2 care he provided to their mother, Jonelle Reeves (“ Reeves”), in the emer gency department

at Dorm iny Medical Center (“D MC”). Dr. Mahathre, an em ergency -room physic ian, filed a motion for summ ary judgm ent, asserting thathe did not breach the app licable standard o f care w hen he tre ated Ree ves and, f urther, that Appe llants f

aile d to establish

a causal connection betweenhis careof Reeve s and her su bsequent de ath. The trial court granted Dr. Mahathre’s m otion, and Appellants claim that the court erred in doing so. Because

we agre e that the appellate record f ails to esta

blishthat a genuine issue of m

aterial fact exists as to whethe r Dr. M ahathre’ s treatm ent pro xi mate ly ca us ed R eev es’ s d eat h, w e af fir m. Viewed in the light most favorable to Appel la nts as the no nmovan ts, 3 the record shows that

at approxi mate ly 6:20 p .m. on May 21, 2008, Reev es, a 71-ye ar-old with a history of diabete s and hy

pertensi on , presen

ted at the emer

gency room in DMC, compl aining of na usea and se vere pain

in her abdo men a

ndright flan k. Dr. Mahat hre was her attending emergency -room physician. A fter taking a med ica l historyand conduct

ing a physic al exam

ination, D r. Maha

thre orde red a

series of tests,4 Dr. Ma hathre te stified dur

ing his deposition that he discusse d with Reeves, in the presence of Ree ves’s da ughter, t he option of perform

ing a com

putedto mo g raphy

scan (“CT scan”) and that Reeves declined the test. Reeves’s daughter testifiedthat she remem

bered no such conversation. Because w e must c onstrue the evidence and all inferences in the light m ost favora ble to Appe llants, we w il l as su me that Reeves was not offer ed a CT scan. 3 including a complete blood count, blood-chemistry an alysis, urinalysis, a

nd an upright kidney-ureter-bladder x-ray
. He further administered Reeves an int ramuscular injecti on of pain medication and an anti-nausea me dicine, and also gave her an oral antibio tic. Although Reeves’ s white-b lood-cell count w as elevat ed, possibl y indic ating
an i nfection , both her urinalysis and x-ray w ere normal. T he pain medication provided Reeves some relief and, wit hout offe ring a formal dia gnosis , Dr. Mahat hre discharged her in “im proved” co ndition at 8 :45 p.m . with a n antibioticprescrip tion and instruction s to see her

prim ary- care phy sician wi thin two da ys. 4 The following morning, May 22, 2008, Reeves was seen at her primary-care physic ian’s office by an

advanced-practice registered nurse and, later that afternoo n,
was admit

ted as an in

patient at DMC wit

h increas ed abdom

inal pa i n, fever, and an elevated white-blo od-cell co unt. Then, at a pproximately 9:3 5 p.m., an abdominal CT5 The ure te rovesica l junction refers to the point a

t which the

ureter j oins th e bladder.

6 The alternative opt

ion o f tran sferring

Reeves to a hospital in Macon, approximately

10 0 mil es a way, was me nt ioned but app arently ruled out du e to the difficult y of locating a urologi st and effect ing the tr ansfer giv en the late hour. 4 scan was per form ed, whic h showed tha t Reeves w as suffe ring from a 5 m illimeter kidney stone blocking her righ t ureterovesical j unction. 5 After discover ing Reeves ’s diagnos is and, con sequentl y, t he need to consult
a urologist, and given that DMC had n o urologist on -call and available , the att ending physician called D r. Rober

t Gregor y Anderson, a urologist from Tift Regional Medical Center, ap proxim ately 30 mile s away . Dr. Anderson was unable to accept transfer of Reeves that

evening because Tift

Regional d

id not have a

n availabl e bed, but a d ec ision was made to transfer her first thing in the morning and admit her directly into the sur

gery u nit where Anderson could then pl ace a stent to relie ve the blo cka ge t o he r ki dne y. 6 Reeves was tra

nsferre d to Tift R

egional by

ambul ance at a

pproxim ately

8:00
a.m . the f

ollowing m

orning (Ma

y 23, 2 008). Upo n her arr ival to Ti ft Regional, however, Reeves w a s in critic al condition and it wa s determ

ined that sh e was not stable enough

to undergo general ane sthesia. Consequently, s he was not cleare d for5

su rgery and Dr. Anderson was unable to place the stent. Tragically , Re eves was i n septic shock and, at 1:15 a. m. on May 24 , 2008, she

was pronounced dead as a r esult of “urosepsis,” an overwhelm ing infection that developed in her urinary tract due to the block age caused by the kidney sto ne. Appellant s fil ed t he instant wrongful-death lawsuit, alleging medical malpractice against numerous defendants involved in Reeves’s care, including Dr. Mahathre. In support of their claims, Appellants presented experttestimony that Dr. Mahathre was negli gent in fai ling to orde r a CT sc an and/or di agnose R eeves ’s condition prior to dis charging her from the emergency

room during her init ial visit
on May 21, 2008. Dr. Ma hathre filed a motion for sum mary judgment denying that he breac hed a duty

of care to Reeves , but asse rting that, regardless of his purported negligence, there w as no causal co nnection be tween his actions an dReeves’ s tragic death. The tri al court gr anted his motion, and th is appeal f ollows. In order to e stablish lia

bility in a m edical-m

alpracti ce action , a plaint iff m ust prove three es sential el emen ts: “( 1) the duty

inherent in the doctor -patient relations hip; (2) the br

each of th at duty

by failing to exercise

the requis ite degre e of skill and care; and (3) that this failure be the proximate cause of the inj ur y7 Zwiren v. Thompson , 276 Ga. 498, 499 (578 SE2d 862) (2003) (pun ctuation

omitted); see also OCGA § 51-1-27 (“ A person p rofessing to practic e surgery or the admin istering

of me dicine for

compensation m

ust bring to t

he exerc ise of his profession

a reasona ble degre e of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery m ay be had.”).
8 Grantham v. Amin , 221 Ga. App. 458, 458 (471 S E 2d 525) (1996) (punctuati on omitt ed); accord Roseberry v. Brooks , 218 Ga. App. 202, 206 (1) (46 1 SE2d 262) (1995); see Berr

ell v. H amilton , 260 Ga. App. 892, 896 (581 SE 2d 398) (2003) (“A

mere showing

of neglige nce witho ut proof of causat ion is insuff

icient to withstand summary

judgment.”).
9 Grantham , 22 1 Ga. A

pp. at 458 (

punctuation omitte d); accord Ros eberry , 218 Ga. App. at 206 (1); see Berr ell , 260 Ga. App. at

896 (“[A] plaintiff must prove that the defendant s’ negligence was both the cause in fact a nd the proxim

ate cause of his injury.”); Cannon v. Jeffries , 250 Ga. App. 37 1, 3 73 (1) (551 SE2d 777) (2001) (“[T] here must

be a realistic assessment of the likelihood that the alleged negligence caused the injury or death.” (punctuation om itted)).
10 Cannon , 250 Ga. App. at 373 (1); see Antho ny v. Cha mbless , 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998) (“[T] here can be no recovery for m edica l negligence involving an injury to the patient where

the re is no showing

to any reasonabl e degree of

medic al certainty

that the injury coul d have been avoided.” (punctuation omitted)). 6 s ustained .” 7 Significa

ntly, negligence

alone is “ insuffici ent to sustain recove ry fo r wrongful death in a medicalmalpractice actio n.” 8 Rather, it must be proven that “ the de athof a patient proximately resul ted from such want of care or ski ll.” 9 And suc h causation must be establis hed “to a reason able degree of medical certain ty,” 10 cannot11 Cannon , 250 Ga. App. at 373 (1) (punctuation omitted); see La dner v.

Northside

Hosp., Inc ., 314 Ga
. App. 136, 140 (723 SE2d 450) (2012) (“A m ere possibility

of . . . causation is not

enough; and w

hen the matter re mains one of pure speculatio n or

conjecture, or the probabilities are at best evenly balance d, it becomes the duty of the court to grant summ ary judgm en t for t he defenda nt. (punct uation omitted)); Anthony , 231 Ga. App. at 659 (1) (“ Although it i s not neces sary for the plai ntif f’s experts to use the magic words ‘r easonable degree of medical certaint y’ in describing

the decedent’s prospect of survival with appropriat e tr eatment, such prospect must be more than a mere chance or speculation.”).

12 See Zwiren, 276 Ga. a

t 500; see also Moore v. Singh , ___ Ga. App. ___ ( 1) (755 SE2d 31 9) (decided March 18, 2014) (“ [When] the questio n of causa tion is outside the ken of the norm al juror , this show ing mus t be based o n expert te stimon y that is sufficient to support a finding that the deviation from the standardof care to a reasonable degree of medical certainty caused the injury .”)
7 be based upo n “mere chance or specul ation,” 11 and when, as here, it falls ou tside the ken of t he n ormal juro r, re qui res t he s upp ort of ex per t te sti mony. 12 Assuming, as we must under the standard of review , tha t Dr. Mahathre breached the applicable standar d o f care in failing to order a CT scan on Reeves and /or to diagnose the kidney stone and resulting blockage, the record nonetheles s fails to creat e a jury

issu e on the q uestion of causati on. Indeed , Appellant s’ own expert, Dr. Richard Braen, an em ergency-room

physician, testified that, had Dr. Mahathre ordered a CT scan and properly diagnosed Reeves’ s condition, the standard of care required that

he then contact a

urologist a

nd follow t

he urologist ’s instr

uctions13 Although D r. Bra en opined tha t the questi ons e voki ng Dr. An derso n’s depo sition r esponses fa

iled to acc ount for Re eves’s age and history of diabetes, Anderson filed a su

bsequent af

fidavit in w

hich he conf

irme d that he was , in fac t, referr ing specific ally t o Reeves a ndconside ring those f

actors w hen he gave

his deposit ion test imony. 8 as to her tre atme nt. And ha d he done so, accordin g to Dr. Braen, Dr. Ma hathre w ould have satis fied his d uty of care to Reev es. In turn, D r. Maha

thre pres ented the t estim ony of t he urol ogist w ho was ultima tely consulted to care for Ree ves, Dr . Ander son. Dr. Anderson testified that had Dr. Mahathre

perform ed a CT scan and consulted

him w ith the res ults— i.e ., that a 5 millimeter

kidney stone was blocking her

right ureterovesic al junction—on the nig ht that Reeves pr

esented in the em ergency room, he would h ave advise d Mahathre to treat Reeves in the exact

fashion tha

t he, in f act, did. Specifi cally , becaus e Reeve s’s urine was clear, she had

no fever, and she was responding to the pain medicine, Dr. Ande rson would “

have done no thing differently ,” in that he would ha

ve
recomm endedthat Reev es be sent h ome w ith pain medication in order to se e if she could pass the stone independently and ad vised her to follow up with him or her prima ry-c are phy sician in tw o to three days. 1314 Appellants identified Dr. Comiter as an expert witness “expected to testify

regardin g the causal lin

k betwee n the defendant s’ provi sion of m edical treatm ent or failure to provide medical treatment atissue and th e injuri es and dea th of Ms. J onelle Reeves.”

15 See Berrell , 260 Ga. App. at 896 (“ [W]hen the m oving party makes a pr ima facie showing of entitlement to judgment as a m atter of law, the burden then shifts to the respondent

to come forwar

d with reb uttal evidence.”) ; see also OCGA § 9-11-56 (e) (“W hen a m otion

for sum mary judgm ent is made

and supporte d as provide d in this Code section, an advers e party may not rest upo n the m ere alle gations or denials of his ple adi ng, but his resp ons e, by affidavi ts or as other wise prov ided in this C ode section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if ap pr opriate, shall be en tered aga inst him.”); Estate of

Patterson v. Fult

on-DeKal b Hosp. A uth ., 233 G a. App. 706, 709 (2) (505 SE2d 232) (1998) (“ [When] . . . t he defenda

nt hosp it al ma kes a m otion for summar y judgment and the attending physician gives a medical af fidavit that states a medic al opinion tha

t the alle ged deviati on from the standa

rd of care has no causal 9 Add iti ona lly, Dr. Crai g V. Com iter—a ur

ology a nd causatio n expert f

or Appellant s 14 —testifiedthat Reeves had “no o bvi ous sig ns o r sympt oms o f [a u rin ary] infection at her initial ER presentation [to Dr. Mahathre] ,” and that it was only when she returned

to the hospit al for ad

missio n t hat “she wa s displaying signs and symp to ms of infection.” And when Dr. Com iter was dire ctl y a sked whether he had “an opinion [as to] whet her or nor any a ct or om

ission by Dr. Ma hathre ca used or contributed to the patient’s death,” he simply r esponded, “No.” The foregoing testim ony goes directly to the issue of causat

ion, and a ppellants have presente d no expert test im ony to c ontradict it. 15 Although one of Appell ants’connecti o n with the injury or aggravated a pre-e xisting condition, such motion has

pierced t he plaint iff’s pleadings, refuted causation, and shifte d the burden to the plaintiff of com ing forwa rd with som

e evidenc e to crea

te a m aterial issue of fact, because the defendant hospital has disproved the essential element of causation.”).

16 Moreo ver, Dr . Seift er noted th at if pati ents “ are part ially obstructed an d there ’s no infection, they

may go home and with pain medication to try and see if they will pass the stone.”

17 Roberts v . Nessim , 297 Ga. App. 278, 282 (1) (a) (ii) (676 SE2d 734) (2009) (emp hasis omitted) (punctuation omitted); see also Sav annah Valle

y Prod. C

redit Ass’n v. Cheek

, 248 Ga. 745, 746 (4) (285 S E2d 689) ( 1982) (“ [W] hen the def endant produces a

n expert’ s opinion in his favor on m otion for summ ary j udgmen

t and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issu e to be tried by the jury and it is not error to grant summar y judgment to the defendant.” (punctuation omitted)). 10 experts—Dr. Julian L. Seifter , a nephr ologist—opine d gene rally that the f ailure of Dr. Mahathre , am ong various o ther m edical pr ofessional s, to corr

ectly diagnose Reeves and

relieve the obstruc tion “ultima tely led to the developm ent of . . . uroseps is and . . . c aused her de ath,” thi s generalized testimony w as not sufficient to create a jury question on th e issue of c ausation. 16 Indeed, wh en causat i on is involved , “plaintiff has a more com

plex dilemma w

here the defendant has given expert testim ony tha t there was no pro ximat e cause, because t o merely sho w a causa l link does not refute the defendant’s denial of ca usat ion . . . , requir

ing the gra

nt of summary judgment.” 17 And beca use Dr. Mahathre

successf ully pierced App ellants’18 In its order, the trial court invited Appellants to identify any evidence that Dr.

Mahat hre’s care of

Reeves pr

oxima tely c aused her

death, no ting, “Should the Court have misse d seeingany evidence of causation , we would invite a motion to reconsider this rulin g and poin t out evid ence we have mis sed,” and “[w]e neither recall nor find any reference to any

such eviden ce referred to in t he recor d or at oral a rgument on these motion s rega rdin g any medi cal op inio n tha t any act of def endan t Maha thre’s causedany harm to decedent .” As was the case b elow, Appellan ts do not dire ct us to anyevidence creating a genuine issue of material fact as to w hether Dr. Maha thre’s alleged ne gligence w as a proxim ate cause of Reeve s’s dea

th.
19 See Robe rts , 297 Ga. App. at 28 2-83 (1) (a) (ii ) (hol ding plain tiff’s conclusory

affi davit failed to overcome defenda nt’s direct denial of causa tion sufficie ntto createa jury

issue on ca

usation); Berrell , 260 Ga. App. at 896 (affirming grant of sum mary judgm ent becau se plaintif f produce d no direct

expert te stimon

y to counter that of def

endant’ s expert on

the issue of

causation) ; Stewart

v. Palm yra Park Hosp. , 171 Ga. App. 477, 477 (320 SE2d 262) (1984) (same ). 11 pleadings and demonstrated the absence of evidence supporting the essential elem ent of causat ion, 18 summa

ry judgm ent was appropriate in the case sub judice
. 19 Judgment affirmed. Doyle, P. J. , concurs. Miller, J., concurs in judgment only.