National Emergency Medical Services d/b/a National EMS v. Smith et al.

Facts

On April 19, 2019, National EMS received a transferred 911 call from the Athens-Clark Police Department, in which the caller reported that his girlfriend “was dying in his bed and needs help.” Then the call disconnected. The National EMS operator was unable to reach the caller again. Using GPS data from the original 911 call, the police department was able to locate the address of the caller and National EMS dispatched a paramedic and medical technician to the scene.

When the National EMS crew arrived on scene, they were approached by a police officer who directed the two paramedics to wait at the end of the driveway. The officer said he was familiar with the address and told the paramedics that one of the occupants of the home was “very anti-public safety,” and a woman at the residence had previously been designated as a “mental health flag.” The officer approached the home and knocked five times on a back door, stated law enforcement’s presence, radioed dispatch to try calling the 911 phone number again, and shined his flashlight into the window. Dispatch was unable to reach the caller and the officer designated the call as a “Status 2” which meant an unfounded complaint. The officer returned to the National EMS paramedics and told them they could “10-22” the call which meant they could cancel the call as the officer told them, “no one wants to come to the door.”

It was later determined that the 911 caller, Dustin Eddy, was Smith’s boyfriend. He testified that earlier on the 19th, he and Smith had been drinking heavily and that night, she “poured a pile of pills in her hand and swallowed them.” Eddy called 911 but said that Smith told him not to and took the phone away from him. They then laid down and Eddy said he did not hear the police knocking, see any light from the flashlight, nor did he hear the phone ring. Eddy said he woke up the next morning and Smith was cold. After being unable to wake her, Eddy called 911 again. When officials arrived, Smith was pronounced dead at the scene.

Smith’s estate filed suit against National EMS for negligence. Following a ruling from the trial court on several issues, National filed for an interlocutory review. Smith’s estate then cross-appealed a separate part of the trial court’s order. The Court of Appeals consolidated the cases for review.

Issues & Holdings

There were multiple issues considered by the Court on this appeal. 

First, did Smith’s expert, who opined regarding the standard of care National EMS provided, meet the requirement of showing the expert’s opinion was the product of reliable principles and methods? The Court ruled that Smith’s expert did not meet the standard and the trial court erred in denying National’s motion to exclude the expert testimony regarding the standard of care.

Second, did the trial court err in failing to grant National’s motion to exclude expert testimony regarding Smith’s expert’s opinion on National’s training procedures? Yes, the Court ruled that the trial court erred in failing to grant the motion because McCans’ (Smith’s expert) opinion regarding National’s training procedures was not based on sufficient facts or data. 

Third, did the trial court err in denying summary judgment for National regarding whether National had a recognized duty to Smith? Yes, the Court held that Smith’s estate failed to establish that National had a duty or obligation to Smith, and therefore summary judgment should have been granted. 

Fourth, did the trial court err in denying a motion for summary judgment regarding the estate’s negligent hiring and training claims against National? Yes, the Court held that Smith’s estate did not bring any evidence to support this claim, nor did the estate address this claim in their brief.

Lastly, did the trial court err in granting National’s motion for summary judgment on punitive damages and attorneys’ fees? No, the trial court did not err in its granting of the motion on this issue. The Court held that, based on their rulings from National’s appeal, Smith did not prevail on her underlying claims; therefore, the estate’s claim for punitive damages and attorneys’ fees also failed.

Reasoning

Expert Opinion Regarding Standard of Care

O.C.G.A. § 24-7-702(b) establishes the framework for allowing expert testimony and it is the trial court’s responsibility to determine whether expert testimony be admitted. Scapa Dryer Fabrics v. Knight, 299 Ga. 286, 289. O.C.G.A. § 24-7-702(b) has three prongs that must be met, one of which is that the expert’s testimony is “the product of reliable principles and methods.” The Eleventh Circuit has noted that assessment of an expert is a three-part inquiry and should be “rigorous.” United States v. Frazier, 387 F3d 1244, 1260 (11th Cir. 2004). 

National argued that Smith’s expert, McCan, lacked methodology when he opined that National’s behavior fell below the standard of care. In reaching his conclusion, McCan relied on his education, his training, his experience working as an EMT in Pennsylvania, and Pennsylvania’s rules, policies, and procedures regarding the EMS field. McCans admitted that he did not rely on any treatises, articles, or publications in forming his opinion. 

The Court felt that the main question in this case boiled down to whether EMS personnel have a duty to make their own independent efforts to locate an injured person when law enforcement investigates a scene and then tells EMS to leave. The Court was unconcerned that McCans didn’t rely on any treatise-like material when making his opinion, as the Georgia Supreme Court has determined that experts can rely on professional experience. However, experience alone does not make all opinions reliable. HTNB Ga.Inc. v. Hamilton-King, 287 Ga. 641, 644-45 (2010). The Court of Appeals noted that if a witness is relying either only or primarily on experience, then the witness must be able to show how their experience led them to their conclusion, why their experience creates a sufficient basis for their opinion, and how that experience is reliably applied to the facts at hand. United States v. Frazier, 387 F3d at 1261. 

The Court believes that the professional experience McCans had described in using to come to his opinion was not similar enough to the question presented by this case. Specifically, McCans testified that he did not know of any standards, regulations, or protocols, either nationally or locally, that addressed the precise situation of this case and that his personal experience did not amount to any standard or duty of care. The Court determined that McCans had not defined a reliable standard of care through his own experience that would be applicable to the facts of this case, and therefore, the trial court should have excluded his testimony on this issue of standard of care.

Expert Opinion Regarding National’s Training Procedures

National also argued that McCans’ opinion regarding National’s training policies and procedures should have been excluded because his opinion was not based on sufficient facts or data. One of the other requirements of O.C.G.A. § 24-7-702(b) is that an expert’s testimony be based on sufficient facts or data. National argued that McCans had not been given any agreements, policies, or guidance from National on what to do in a situation when law enforcement cancels a call, nor did McCans have any information on what the National EMS team had been told, trained on, whether the crew had any continuing education, or whether the team had appropriate extraction tools and if they were trained on how to use such tools. 

The Court of Appeals relied on Evans v. Dept. of Transp., in which the court stated “an expert may not render an opinion that is wholly speculative or conjectural,” and United States v. 0.1616 Acres of Land, where the 11th Circuit stated that “where an expert’s testimony amounts to no more than mere guess or speculation, a court should exclude his testimony.” 331 Ga. App. 313, 318 (2015); 837 F.2d 1036, 1040 (11th Cir. 1988). 

The Court found that McCans knew nothing about National EMS’s training, yet he was opining that it was inadequate. Due to his lack of knowledge regarding National EMS’s specific training policies and procedures the Court ruled that McCans did not have sufficient facts or data to base his opinion and the trial court should have excluded his testimony on this matter.

A Legal Duty for National EMS

National had filed a motion for summary judgment arguing that the Estate’s negligence claim should fail because National EMS did not have a legal duty to find Smith. The Court looked to the elements of negligence, one of which is the existence of a legal duty, and the question of a legal duty is a question of law. Boller v. Robert W. Woodruff Arts Center, Inc., 311 Ga. App. 693, 695-96 (2011). The Court defined a legal duty as one that is “an obligation to conform to a standard of care under the law for the protection of others against unreasonable risk of harm.” Stanley v. Garrett, 356 Ga. 812, 816 (2020). 

The Estate argued that there is a viable action under O.C.G.A. § 51-1-27 when medical providers fail to comply with the standard of care and that their expert McCans opined to what would be required under the standard of care in this context. The Court was not receptive to this argument. 

The Court agreed that there is action in tort when medical providers fail to uphold the standard of care, however, the Estate had failed to identify any statutory duty or applicable case law that exists for this specific situation – what duty emergency responders have when law enforcement has cleared the scene and instructed responders to cancel the call. As such, the Estate failed to establish a legal duty for National EMS and National’s motion for summary judgment on the issue should have been granted.

Punitive Damages and Attorney Fees for Smith’s Estate

As part of their appeal, Smith’s Estate argued that the trial court erred in granting National’s motion for summary judgment regarding punitive damages and attorneys fees. The Court held that the trial court ruled correctly. The Court of Appeals determined that, because Smith’s Estate could not prevail on their underlying claims, the Estate’s claims for punitive damages and attorney fees also failed.

Conclusion

This case is an example of why it is important to ensure your expert’s opinions meet the requirements of O.C.G.A. § 24-7-702(b). If your expert is relying mainly on experience for basis of his or her opinion, be sure that your expert can explain how their expert’s experience informs their standard of care opinion. As for the requirement of showing reliance on sufficient facts or data, make sure your expert has evidence of the subject matter they are opining about. An expert relying too much on generalities may lead to them not meeting the standards of O.C.G.A. § 24-7-702(b) and, as a result, their opinions may be excluded.

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Citation: National Emergency Medical Services d/b/a National EMS v. Smith et al., No. A23A0291 (Ga. Ct. App. June 7, 2023)