Health Law and Regulation Update Blog Post by Eric Frisch.

The Georgia Court of Appeals affirmed summary judgment for a defendant hospital in a medical malpractice case in which the plaintiff changed their theory to battery. Plaintiff alleged a nurse employee failed to deflate the balloon in a catheter before removing it in violation of “basic and appropriate standard of care for nursing.” Plaintiff voluntarily dismissed the case without prejudice and then renewed it, without any specificity as to the legal theory of recovery.

Following discovery, defendant moved for summary judgment on the grounds that plaintiff had failed to come forward with expert witness testimony in support of the professional malpractice claim. At a hearing, plaintiff’s counsel moved for an extension of time to obtain expert testimony and argued that the complaint raised an issue as to simple battery. Plaintiff contended that he withdrew consent for removal of the catheter when he “vehemently” protested and telling the nurse to stop after she started the removal.

The trial court granted summary judgment to the hospital on professional malpractice for failure to have expert testimony. The trial court also granted the motion because plaintiff failed to show that it was medically feasible for the nurse to stop withdrawing the catheter when plaintiff withdrew his consent. Plaintiff appealed.

On appeal, plaintiff argued that there was a fact dispute regarding simple battery. The Court disagreed, holding that the absence of evidence on whether it was medically feasible to stop withdrawing the catheter at the point at which consent was revoked justified summary judgment. Also on appeal, plaintiff argued that the trial court should have let the case go forward on a simple negligence theory. The Court again disagreed, holding that plaintiff failed to assert a simple negligence claim in any of the pleadings or in opposition to the motion for summary judgment.

Take-home: this case reaffirms the general rule that the Court of Appeals will not review a matter that was not raised in the trial court and preserved as legal error.

The case is Wentz v. Emory Healthcare, Inc., ___ S.E.2d ____, 2021 WL 2024826 (2021).

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