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Henderson v. Gandy11/22/2004
Claire M. Henderson, individually and in her capacity as the representative of the Estate of Herbert Henderson (collectively "Henderson"), appeals the grant of summary judgment to Winston Gandy, Jr., individually, and Atlanta Cardiology Group, P.C. (collectively "Gandy"), in her attempt to amend her medical malpractice complaint against Gandy to assert a cause of action under the Fair Business Practices Act ("FBPA"). See OCGA ยง 10-1-390 et seq. She contends the trial court erred by finding that the FBPA did not apply because the transaction she complains of did not occur "within the public consumer marketplace" and by finding that the FBPA and her fraud claims did not relate back to the filing of her original complaint. We disagree, and affirm.
1. Although Court of Appeals Rule 27 (a) (1) and (c) (111) require that parties cite to the record by specific volume of the record and page number, counsel for both parties have failed to comply with these requirements. Instead, counsel have merely cited to record as "R. ___," or to pages of individual depositions, without regard to the specific volume number of the record in which the page might be found. This may have made counsels' task easier, but counsels' actions have made it infinitely more difficult for this court to decide the case. If, as a result, we have not located some evidence in the record, the responsibility rests with counsel.
2. In Georgia, he standards applicable to motions for summary judgment are announced in Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.
Overton Apparel v. Russell Corporation, 264 Ga. App. 306, 307 (1) (590 SE2d 260) (2003).
3. Giving Henderson the benefit of all reasonable doubts and construing the evidence and all inferences and conclusions arising from the evidence in her favor, the record shows that, while visiting his daughter and son-in-law in Atlanta, Herbert Henderson, an 84-year-old, retired medical doctor, started having medical problems. His son-in-law Dr. Morgan, also a medical doctor, diagnosed Dr. Henderson's condition as possible heart failure, and arranged for Dr. Henderson to see Dr. Gandy the next morning.
After examination and an abnormal EKG that suggested an evolving cardiac event, Dr. Gandy had Dr. Henderson taken to the hospital for a cardiac catheterization. During the catheterization, Dr. Henderson's condition began to deteriorate significantly. As a result, an intra-aortic balloon pump was inserted to maintain blood flow to Dr. Henderson's heart. The same day, successful emergency quintuple by-pass surgery was performed.
Because of the by-pass surgery and his general medical conditions, Dr. Henderson remained in the hospital for over two weeks. During this period, he developed a sacral pressure ulcer or sore. When this was noted, Dr. Gandy called in wound ostomy continence nurses ("WOCNs") who specialize in treating such sores. Although he saw Dr. Henderson every day and reviewed the wound care progress notes and orders, from this point forward, Dr. Gandy left the treatment of the ulcer to the WOCNs.
When treating Dr. Henderson's sore, the WOCNs noted in his patient records that the treatment was conducted pursuant to Dr. Gandy's verbal orders or telephone orders. Subsequently, it was revealed, however, that
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