Marshall Lee Smith brought a medical malpractice action against Jill Pottinger, M. D., an emergency room physician, seeking to recover damages arising out of emergency medical care provided to him in April 2005 for a leg fracture incurred in a motorcycle accident. Pottinger moved for summary judgment asserting that she could not be held liable because there was no clear and convincing evidence that her actions in providing emergency medical care to Smith showed gross negligence, as provided by OCGA § 51-1-29.5.1 Pottinger appeals from the trial court’s order denying the motion, and for the following reasons we reverse. Smith was injured in a motorcycle accident and was immediately taken by ambulance to the PlaceNameplaceFloydPlaceTypeMedicalPlaceTypeCenteremergency room at about 10:00 p.m. on April 19, 2005, where he was treated by Pottinger for various injuries, including an injury to his left leg. Pottinger’s expert affidavit in support of her motion for summary judgment states that she ordered various tests for internal injury, including a cranial CT scan, spinal x-rays, and x-rays of the tibia and fibula in Smith’s left leg. The x-rays were read on April 19 by Joseph Burch, M. D., a radiologist, who found “a minimally displaced fracture of the left fibular head” and “no other fracture or subluxation.” Pottinger relied on the radiologist’s findings with respect to the x-rays. According to Pottinger, because the fracture found by the radiologist was not to a weight-bearing bone, no consult with an orthopedic surgeon was required in the emergency room, and she did not request one. Because of possible head and spinal injuries, Pottinger called a neurosurgeon, Mark Murphy, M. D., to examine Smith. At 1:00 a.m. on April 20, Murphy arrived at the emergency room, took over as Smith’s treating physician, and admitted him to the hospital for neurological observation. Pottinger did not treat Smith after he was admitted to the hospital. Smith remained in the hospital until he was discharged on April 23. During that time, no orthopedic consultation was ordered for Smith’s leg fracture, and Smith was ordered to “bear weight on his injured leg as tolerated.” Smith gave deposition testimony that, after he was discharged from the hospital with a rolling walker, he continued to experience severe pain in his left leg. On May 12, 2005, Smith saw an orthopedic surgeon, who examined the x-rays taken at the emergency room on April 19. According to the physician’s expert affidavit filed with Smith’s complaint,2 medical records showed that the orthopedic surgeon examined the April 19 x-rays taken during Smith’s emergency room treatment and found not only the fibular fracture previously found by the radiologist, but an additional serious fracture that required surgery to correct.
Smith brought this medical malpractice action against the emergency room physician, Pottinger; the radiologist, Burch; the neurosurgeon, Murphy, and PlaceTypePlaceTypeFloydPlaceTypeMedicalPlaceTypeCenterThe affidavit of Smith’s physician expert stated that based on review of the certified medical records all three physicians acted below the standard of care. As to Pottinger, the expert stated that her actions were below the standard of care because she misread the x-rays and failed to order a consult with an orthopedic surgeon. The expert characterized Pottinger’s breach of the standard of care as grossly negligent. Based on this record, Pottinger moved for summary judgment under OCGA § 51-1-29.5 and stated in her supporting affidavit that she sought no orthopedic consult because she relied on the radiologist’s findings that the x-rays showed there was no serious fracture that would have required an emergency room consultation with an orthopedic surgeon.
