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Groover v. Johnston11/10/2005
SMITH, P. J., ELLINGTON and ADAMS, JJ.
In this renewal of a medical malpractice case, we granted Dennis Groover's application for interlocutory appeal from the trial court's denial of his motion for partial summary judgment. Groover, individually and as the representative of his incapacitated wife, Katheryn Groover, asserted claims of negligence and negligence per se against Dr. Edwin Johnston, Jr. and Johnston's employer, Coosa Anesthesia, L.L.C. (collectively "Johnston"). Groover sought partial summary judgment only as to the claim of negligence per se. We conclude that the trial court erred in finding no negligence per se. To the extent that the trial court's order prohibits evidence of negligence per se at trial or implicitly grants summary judgment to Johnston, it is reversed. Nevertheless, because the issue of proximate cause is a jury question even when negligence per se is found, the trial court properly denied summary judgment to Groover as to this issue.
On appeal, we conduct "a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law." (Citations and punctuation omitted.) Blockum v. Fieldale Farms Corp., 275 Ga. 798, 800 (573 SE2d 36) (2002).
So viewed, the record shows that Katheryn Groover underwent a routine, elective hysterectomy at Redmond Regional Medical Center. After surgery, she was transferred to the recovery room, which at Redmond is called the post- anesthesia care unit (PACU). While there, she was under the care of Johnston, an anesthesiologist, who supervised the nurses in the unit. In the PACU she received several narcotic medications for pain. After slightly more than an hour, she was discharged from the PACU in stable condition.
Her PACU nurse transported her to a hospital room at 11:00 a.m. and left her in the care of a floor nurse. At that time, according to the PACU nurse, " er vital signs were stable." Vital signs were again charted by the floor nurse at 11:35 a.m. Approximately a half-hour later, a different floor nurse found Mrs. Groover inexplicably unresponsive. Attempts to revive her were unsuccessful, and she never resumed breathing. She was taken to the Intensive Care Unit and placed on a ventilator, but she suffered brain damage from oxygen deprivation. It is undisputed that she is permanently and totally disabled and requires full time care.
1. In his motion for partial summary judgment, Groover contended that Johnston violated the standard of care established in OCGA § 43-34- 26.1, and that the violation constituted negligence per se. Violation of a statute does not necessarily constitute negligence per se; to determine whether the violation of a statute in a particular instance constitutes negligence per se, a trial court must consider the purpose of the legislation. Brown v. Belinfante, 252 Ga. App. 856, 861 (1) (557 SE2d 399) (2001). The court must then decide whether the person harmed falls within the class of persons the legislation was intended to protect and whether the harm or injury actually suffered was the same harm the statute was intended to guard against. Id. The violation also "must be capable of having a causal connection between it and the damage or injury inflicted." Id.
In relevant part, OCGA § 43-34-26.1 provides that a doctor may delegate to: . . . nurse recognized by the Georgia Board of Nursing as a certified nurse midwife, certified registered nurse anesthetist, certified nurse practitioner, or clinical nurse specialist . . . in accordance with a nurse protocol the authority to order controlled substances sel
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