Ferguson et al. v. Kennestone Hospital, Inc.

Facts

Pro se plaintiff Maxine Ferguson’s husband, Barrington Ferguson, was taken via ambulance to Kennestone Hospital in early November 2017 for a severe toe injury that required the toe to be amputated. In the following days, hospital staff changed his antibiotic from Vancomycin to Cefepime, and Barrington’s condition rapidly declined. His family complained, but Barrington remained on the medicine. 

A week after his admission, Barrington became comatose. In response to Maxine’s continued complaints, a physician said that he had studied the best way to reverse the effects of Cefepime toxicity and decided to proceed with dialysis for that purpose. 

Barrington initially responded well and awoke from his coma, but he then complained of excruciating pain but was determined to be too weak for more dialysis. Maxine learned that he was being treated with Keppra, which she opposed and requested the hospital cease immediately. The hospital discontinued this medicine, and Barrington’s condition improved. 

Maxine then requested that the hospital discharge Barrington or transfer him to another hospital. Maxine asserted that a doctor convinced her to allow Barrington to stay for two more days, but on the condition that he receive only antibiotics and nothing else. 

Days later, Barrington crashed and eventually died. Maxine witnessed Keppra being administered to Barrington the day he passed. 

After being appointed administrator of his estate, she filed a lawsuit alleging negligence, battery, promissory estoppel, and pain and suffering. About 6 weeks after these motions, Kennestone filed a supplemental motion to dismiss or, in the alternative, motion for summary judgment. One month later, the trial court entered an order dismissing the negligence, promissory estoppel, and pain and suffering claims, and granted summary judgment on the battery claim.

Issues & Holdings

The issues in this case were: 

1. Did the trial court err by ruling on Kennestone’s supplemental motion to dismiss or, in the alternative, motion for summary judgment before Maxine’s deadline to respond to the supplemental filing (but after the deadline to respond to the initial filing)?
2. Did the trial court err by dismissing her medical malpractice claim due to her failure to file an expert affidavit?
3. Was it error for the trial court to dismiss the promissory estoppel claim?
4. Did the trial court err by granting summary judgment to Kennestone on the battery claim?

The court determined: 

1. No. The “supplemental filing” was a brief and did not extend the time to respond to the original motion. 
2. No. Maxine’s claims sounded in professional negligence, not ordinary negligence, so an expert affidavit was required.
3. No. The doctor’s alleged promise—to provide only antibiotics—was too vague to enforce. 
4. Yes. Maxine’s verified complaint alleging that the signature of Barrington’s consent form was forged was sufficient evidence to raise a genuine issue of material fact on the battery claim. 

Reasoning

1. The “supplemental filing” was a brief and did not extend the time to respond to the original motion.

The Court of Appeals rejected Maxine’s first argument. Specifically, Maxine argued that she had 33 days to file a response brief to Kennestone’s supplemental brief pursuant to OCGA § 9-11-6 (e) and that the 33 days had not yet expired at the time of the trial court’s ruling.

That is because the filing of a supplemental brief does not extend the time to respond to a motion. Instead, the three-page supplemental “motion” was merely a brief in support of the motion, and the motion was served 73 days before the trial court issued the order. As such, the trial court did not err in ruling on the motion.

2. Maxine’s claims sounded in professional negligence, not ordinary negligence, so an expert affidavit was required.

The Court of Appeals also held Maxine’s negligence and pain and suffering claims sounded in professional negligence, not ordinary negligence, and thus an expert affidavit needed to be filed.

Maxine argued that the crux of her claim was that the hospital failed to adhere to her instructions. That argument was swiftly rejected because the decision to employ prescription medication or medical devices involves professional assessment of medical risks in light of the physician’s knowledge of a patient’s particular need and susceptibilities.

3. The doctor’s alleged promise—to provide only antibiotics—was too vague to enforce.

Maxine’s promissory estoppel was also properly dismissed, according to the Court of Appeals. OCGA § 13-3-44 (a), regarding promissory estoppel, provides relevantly that:

“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” 

There must be an enforceable promise that is not vague or indefinite. 

Here the “promise” to “only provide antibiotic along with [Barrington’s] regular medications to [Barrington] and to not do anything else as to medically” was too vague to support a promissory estoppel claim. There is no way to know what was meant by the promise “to not do anything else as to medically,” let alone any way to enforce such a statement.

4. Maxine’s verified complaint alleging that the signature of Barrington’s consent form was forged was sufficient evidence to raise a genuine issue of material fact on the battery claim.

The Court of Appeals reversed, however, on Maxine’s battery claim, alleging that Kennestone performed surgery on Barrington without consent and forged his signature.

As a general rule, no tort is committed against a person who consents to medical treatment unless that consent is not freely obtained or is obtained by fraud. A claim for battery arises from any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery.

In her verified complaint, Maxine alleged that Barrington’s consent form did not include his signature, and instead included a forged signature. That was sufficient evidence to raise a question of material fact regarding the validity of Barrington’s consent and whether his signature was forged. As such, Kennestone did not establish as a matter of law that it was entitled to judgment on the battery claim. 

Conclusion

Perhaps the most important reminder from this case is that the filing of a “supplemental” motion, regardless of how it is titled, is equivalent to filing a supplemental brief, and does not extend the time to respond to the original motion. Always make sure to respond by the deadline for the initial motion, or seek a court order confirming another time to respond. 

Citation: Ferguson et al. v. Kennestone Hospital, Inc. No. A23A1589 (Ga. Ct. App. March 5, 2024)