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Snider v. Basilio10/24/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
This is an appeal from a directed verdict granted to a doctor in a medical malpractice action. Because there is some evidence that the doctor violated the standard of care, the trial court erred in granting the doctor a directed verdict, and we therefore reverse that ruling.
On Saturday, February 7, 1998, Rebecca and Matthew Snider's six- month-old son Luke was vomiting and had a fever of 103.6 degrees Fahrenheit. Ms. Snider took Luke to Pediatric After Hours in Macon, Georgia, where Dr. Harold Sims diagnosed the child as having a stomach virus. The next day, Sunday, February 8, at about 4:30 in the afternoon, Ms. Snider called the office of Florida Basilio, M.D., the family pediatrician. Dr. Basilio's office is located in Columbus, Georgia, where the Snider family had lived until a temporary job transfer required them to move to the Macon area.
The call was answered by Magelie DeVera, a nurse employed by Dr. Basilio's professional corporation. DeVera graduated from nursing school in the Philippines in 1993, but she has failed the Georgia nursing examination three times, and does not have a nursing license in Georgia or in any other state. During the telephone call, Rebecca Snider reported Luke's fever and vomiting. She also reported that Luke had been seen by Dr. Sims in Macon, who had diagnosed Luke with a stomach virus. DeVera advised Snider to mix Sprite or ginger ale with Pedialyte and start Luke on a diet of bananas, rice, applesauce and toast.
On Monday, February 9, at approximately 3:00 a.m., Ms. Snider called again and spoke with Dr. Basilio, who allegedly said that Luke was probably hungry and to try to give him a bottle. At 8 o'clock that same morning, the mother again called Dr. Basilio, who allegedly said that Ms. Snider could bring the child to the doctor's office in Columbus. Instead, Ms. Snider took Luke to a hospital emergency room in Macon. Luke was eventually diagnosed with bacterial meningitis, which ultimately caused brain damage and rendered him a quadriplegic.
The Sniders sued Dr. Sims, Pediatric After Hours, Dr. Basilio, Dr. Basilio's professional corporation, and DeVera. The case proceeded to a jury trial. At the close of the plaintiff's evidence, the trial court directed a verdict in favor of Dr. Basilio in her individual capacity.
The remaining defendants - Dr. Sims, Pediatric After Hours, DeVera and Dr. Basilio's professional corporation - presented their evidence. During his cross-examination of the final defense expert, the Sniders' attorney asked if the expert had previously given a deposition in a case filed against him as a defendant. Based on the question, the trial court granted a mistrial. The Sniders appeal from the directed verdict granted to Dr. Basilio.
1. The Sniders assert that the trial court erred in granting a directed verdict to Dr. Basilio. We agree.
"A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demand a particular verdict." Dr. Basilio argues that a directed verdict was proper in this case because there is no evidence that she individually committed any act of malpractice. In support of this argument, however, she misconstrues the testimony of the Sniders' two expert witnesses, both of whom testified that Dr. Basilio had violated the medical profession's standard of care by permitting DeVera, an unlicensed nurse, to take calls from and give advice to patients without consulting Dr. Basilio.
The first expert, Dr. Steven Shore, testified that it was a violation
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