University Health Services, Inc v. Christopher Shawn Clancy

                              FIRST DIVISION
                               BARNES, P. J.,
                           GOBEIL and MARKLE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.

                   THE TIMES SET BY OUR COURT RULES.

                                                                       July 1, 2021

In the Court of Appeals of Georgia
 A21A0076. MEKOYA v. CLANCY et al.
     CLANCY et al.

      BARNES, Presiding Judge.

      After Christopher Shawn Clancy suffered a pericardial effusion resulting from

a microperforation caused by a pacemaker lead, Clancy and his wife, Linda G. Clancy

(“appellees”) filed the instant action against Dr. Abiy Mekoya and University Health

Services (“UHS”). The appellees essentially alleged that the professional negligence

of Dr. Mekoya and certain other medical staff in failing to timely diagnose and treat

the microperforation resulted in pain and suffering to Clancy, emergency surgical

intervention, and other complications. The trial court denied Dr. Mekoya and the
UHS’s motions for summary judgment, and this Court granted interlocutory review

from the denials of their motions, resulting in these appeals.

      In Case No. A21A0076, Dr. Mekoya challenges the trial court’s exercise of its

discretion in the denial of his motion to exclude the standard-of-care opinion of the

appellees’ expert, and also its denial of his motion for summary judgment based on

his assertion that the appellees failed to offer expert testimony, to a reasonable degree

of medical probability, that Dr. Mekoya’s alleged delay in diagnosing pericardial

effusion proximately caused any harm. In Case No. A21A0077, UHS also challenges

the denial of its motion for summary judgment, contending that there remain no

genuine issues of material fact regarding the negligence theories, proximate

causation, and the reliability of the expert’s testimony. UHS also contends as error the

trial court’s reliance on certain inadmissible evidence. For the reasons set forth below,

we affirm the trial court’s judgment in both appeals.

      “To prevail at summary judgment under OCGA § 9-11-56, the moving party

must demonstrate that there is no genuine issue of material fact and that the

undisputed facts . . . warrant judgment as a matter of law.” (Citation omitted.)

Anthony v. Chambless, 

231 Ga. App. 657

, 658 (1) (500 SE2d 402) (1998). An

appellate court’s “review of the grant or denial of summary judgment is de novo, and

we view the evidence, and all reasonable conclusions and inferences drawn from it,

in the light most favorable to the nonmovant.” Abdel-Samed v. Dailey, 

294 Ga. 758


760 (1) (755 SE2d 805) (2014). Consequently, we construe the evidence in both of

these cases in the light most favorable toward the plaintiffs.

      So viewed, the facts demonstrate that on July 26, 2015, Clancy visited the

emergency department of UHS and was admitted with a diagnosis of sick sinus

syndrome. Dr. Peter Bigham, a cardiologist, implanted a pacemaker in Clancy’s chest

on July 28, and he was discharged on July 29, 2015.1 On August 3, 2015, Clancy

visited Dr. Bigham’s office complaining about chest discomfort and pain, and was

advised to go to UHS’s emergency department, which he did. Clancy was evaluated

by a nonparty emergency room physician and referred to a hospitalist, Dr. Heera

Motwani,2 who, based on images from a CT and blood work, admitted Clancy with

a diagnosis of a pulmonary embolism (“PE”), a blood clot in the lungs. The recent

pacemaker placement was noted, and because of the PE diagnosis, Clancy was treated

       Dr. Bigham is employed by a cardiology practice, University Cardiology
Associates, a subsidiary of UHS. Through an arrangement between the practice and
UHS, he provided “a certain amount of hospital duty,” including performing
procedures, and providing on-call or consultation services to UHS.
        Dr. Motwani was later dismissed from the action with prejudice, and is not
a party to the appeal.

with anticoagulants, also known as blood thinners, which prevent further clot

formation. According to Dr. Motwani, there were no symptomatic indications of a

pericardial effusion (fluid accumulation in pericardial space resulting from

pericarditis) or cardiac tamponade (when the fluid in pericardial space compresses the

heart ) at that time, so he did not consider either in his differential diagnosis. Dr.

Motwani testified that other than the nature of the pain Clancy was experiencing,

“there was no other suggestion of pericarditis [,inflamation of the pericardium

membrane surrounding the heart,] based on the laboratory finding and the exam.” He

also testified that he also ruled out any complications associated with Clancy’s recent

pacemaker placement.

      Dr. Mekoya, also a hospitalist,3 whose shift was from 7:00 a.m. until 7:00 p.m.,

first assessed Clancy the next day, on August 4. His initial notes on Clancy’s progress

were entered at 1:55 p.m., but Dr. Mekoya testified that it was likely not the first time

he would have seen Clancy that day; it would have been “earlier than this time.” Dr.

Mekoya examined Clancy, noted his history, his continued pleuritic chest pain (“pain

        Dr. Motwani recounted that the duties of the hospitalist included, “to evaluate
these patients, diagnosing them, treat them and . . . make a safe disposition with the
help of the health care team which includes the social worker, the case managers, you
know, and the family as well.”

that gets worse during breathing, coughing, or chest movement”), and his PE

diagnosis, and he continued the anticoagulant treatment with blood thinners. He also

noted on Clancy’s chart that he had discussed his treatment plan with Clancy’s wife

and daughter.

      That same evening of August 4, at approximately 7 p.m., Dr. Bigham visited

Clancy and noted that he was being treated for a PE, and was receiving blood thinners

and pain medication. After speaking with Clancy and his wife, he examined Clancy

and, according to Dr. Bigham, “it seem[ed[ like [the doctors] were on the right track

with their medications, [and] their diagnosis.” Dr. Bigham, however noted on

Clancy’s chart:

      While not formally consulted, I am struck by the degree of discomfort
      compared to the reported findings. There is also of a report of a low
      heart rate in the ER. May consider pacemaker evaluation by Boston
      Scientific for pacemaker function. May consider repeat echo for
      pericarditis/pericardial effusion, although no rub.

He testified, however, that despite the suggestion in his note, had he believed that

Clancy was suffering from pericarditis or a percardial effusion, he would have

informed Dr. Mekoya or the on-call hospitalist.

       Dr. Mekoya next saw Clancy on August 5 at 10:52 a.m., and noted no

significant changes in Clancy’s symptoms. Clancy was still experiencing pleuritic

chest pain and nausea, but Dr. Mekoya charted that the pain was better. Dr. Mekoya

testified that he read Dr. Bigham’s note, but assumed that Dr. Bigham’s note referred

to a “plan in the future . . . if things change.”

       That evening, at approximately 6:30 p.m., Clancy experienced low blood

pressure, and a registered nurse, Jennifer Brooks Edwards, paged Mekoya twice “to

advise of lowering BP.” When she received no response, she advised the charge

nurse, and “continued to monitor” Clancy’s blood pressure. That night, Clancy was

prescribed intravenous fluids to address his low blood pressure by the on-duty

hospitalist. The next morning, August 6, Edwards was concerned that Clancy’s blood

pressure remained low, and that he also had a low pulse rate, which, according to

Edwards, was unusual for someone with a pacemaker.

       Dr. Mekoya ordered an evaluation of Clancy’s pacemaker, an EKG, which was

abnormal , and a consult with a non-party cardiologist, Dr. Kellie Lane. Based on her

review of Clancy’s chart and his symptoms, Dr. Lane suspected that he was suffering

from pericarditis and an associated cardiac tamponade. Ensuing tests revealed that a

pacemaker lead tip had caused a microperforation of the pericardium with resultant

pericarditis, and pericardial effusion, which, in turn, had been enhanced by the

prescribed anticoagulants.4 Dr. Lane told the family that the pericarditis was

misinterpreted as a PE. Clancy received further treatment – including the surgical

interventions of a pericardiocentesis (insertion of needle in pericardial space to

remove fluid ) and pericardial window (removal of part of the pericardium ) – to

address these issues. Clancy was discharged on August 12, 2015, but continued to

experience further complications from his hospital stay.

      The appellees brought the underlying action for medical malpractice and loss

of consortium, alleging, in relevant part, that UHS’s nursing staff and Dr. Mekoya

deviated from the standard of care in multiple ways, which resulted in a failure to

timely or accurately diagnose his medical condition. The appellees essentially

claimed that Clancy was misdiagnosed with a PE, when instead he had pericarditis

that was caused by a pacemaker lead microperforation into the pericardium, which

resulted in surgical and emergent interventions and continuing complications.

      The appellees sought damages for injuries alleged to have been sustained from

the procedures, and the associated complications, including temporary renal failure,

         Dr. Bignham’s progress notes entered on August 10 reflected that the
“[e]ffusion accumulated over several days to tamponade (bleeding enhanced by
anticoagulants, bleeding from pericarditis.)”

the additional medical/surgical procedures, a longer and more complicated hospital

stay, and the resulting pain, and physical limitations.

      Attached to the complaint was the affidavit of Dr. Lisa A. Gillespie, an internal

medicine physician and hospitalist. Dr. Gillespie averred that the minimum standard

of care for a hospitalist “in like and similar circumstances” as Clancy’s required an

evaluation and work-up consistent with symptoms, an appropriate medical and

surgical history, radiologic studies, and consultations with specialists. She detailed

the various instances in which Dr. Mekoya and UHS deviated from the standard of

care, including failing to recognize that Clancy’s symptoms were inconsistent with

a PE but were more closely associated with complications from his pacemaker, failing

to recognize that the chest CT was suggestive of chronic emboli, failing to order the

proper radiologic tests, failing to order certain coronary tests, failing to obtain a

pulmonary or cardiac consult, and failing to act upon Dr. Bigham’s progress report

which indicated inconsistencies in his diagnosis and symptoms and requested further

cardiac evaluation.

      Dr. Gillespie opined that

      the acts and omissions of the part of University Hospital . . . and [Dr.
      Mekoya] . . . resulted in harm to Mr. Clancy. As a result of these failures

      and breaches in the standard of care, Mr. Clancy experienced a delay in
      diagnosis and treatment of his pericardial effusion related to pacemaker
      lead placement and significantly contributed to Mr. Clancy’s
      complications, continued pain and extended hospitalization.

      In addition to Dr. Gillespie, the appellees submitted the affidavit of

cardiologist, Dr. Randal Zusman, who also proffered his standard of care opinion. A

board-certified cardiologist since 1974 and associate professor at Harvard Medical

School and Massachusetts General Hospital, Dr. Zusman averred his familiarity with

“the standard of care applicable to physicians as well as acute care hospitals in the

provision of medical and nursing services to patients who present to a hospital like

University Hospital with symptoms or complaints similar to those as being

experienced by Mr. Clancy on August 3, 2015.” According to Dr. Zusman, Dr.

Mekoya breached the standard of care as early as August 4, when Clancy came to the

hospital with chest pains, opining that “all of the information Dr. Mekoya required

to make the diagnosis of pericarditis was available to him.” He recounted several

other specific instances in which he believed Dr. Mekoya had deviated from the

standard of care, including diagnosing Clancy with an acute PE and treating him with

anticoagulants, failing to note Clancy’s change of condition as he developed renal

dysfunction and failure, failing to respond to repeated pages from nurses to evaluate

Clancy, and failing to request pulmonary and cardiology consults.

       Following discovery, UHS and Dr. Mekoya moved for summary judgment.

They alleged that the appellees had not established that any alleged negligence by

UHS or Dr. Mekoya proximately harmed Clancy. Dr. Mekoya also moved to exclude

the standard-of-care opinions of Dr. Zusman on the ground that Dr. Zusman lacked

the qualifications required by OCGA § 24-7-702 (“Rule 702”). The trial court denied

the motions in a single order, finding that as to UHS’s motion, “there are genuine

issues of material facts concerning both the alleged negligence of [UHS] and the

causal connection between [UHS’s] negligence and Plaintiffs’ injuries.” As to Dr.

Mekoya’s motion, the trial court held that “genuine issues of material fact exist

concerning Mekoya’s alleged negligence. These factual disputes prohibit the entry

of summary judgment in this case as to Mekoya.” The trial court also denied Dr.

Mekoya’s motion to exclude Dr. Zusman’s standard-of-care opinion, and expressed


       [a]lthough Dr. Mekoya is a hospitalist and Dr. Zusman is a cardiologist,
       there is ample evidence to show that the knowledge and recent
       experience of Dr. Zusman is sufficient to allow him to reliably give
       opinions about the care that Dr. Mekoya provided to Clancy. Based on

      Dr. Zusman’s affidavit and deposition testimony, this Court finds that
      Dr. Zusman has the necessary knowledge and experience to give
      standard of care testimony concerning Dr. Mekoya’s potential
      negligence as defined under [OCGA § 24-7-702.]

      The trial court certified the order for immediate review, we granted the

application for interlocutory appeal, and these appeals ensued.

                          Case No. A20A0076

      1. Dr. Mekoya first contends that the trial court abused its discretion in denying

his motion to exclude Dr. Zusman’s standard-of-care opinions. According to Dr.

Mekoya, pursuant to Rule 702, Dr. Zusman – a cardiologist – lacked the required

knowledge and experience in the area of hospitalist medicine to render

standard-of-care opinions against Dr. Mekoya.

      This Court reviews a trial court’s ruling admitting or excluding expert

testimony only for an abuse of discretion. Aguilar v. Children’s Healthcare of


320 Ga. App. 663

, 664 (739 SE2d 392) (2013). In the exercise of its

discretion, Rule 702 “requires a trial court to sit as a gatekeeper and assess the

reliability of proposed expert testimony” before admitting it into evidence. (Citation

and punctuation omitted.) Dubois v. Brantley, 

297 Ga. 575

, 580 (2) (775 SE2d 512)


             The usual standard for the admissibility of such testimony is
      found in Rule 702 (b): If scientific, technical, or other specialized
      knowledge will assist the trier of fact to understand the evidence or to
      determine a fact in issue, a witness qualified as an expert by knowledge,
      skill, experience, training, or education may testify thereto in the form
      of an opinion or otherwise, if:

             (1) The testimony is based upon sufficient facts or data;

             (2) The testimony is the product of reliable principles and
      methods; and

             (3) The witness has applied the principles and methods reliably to
      the facts of the case which have been or will be admitted into evidence
      before the trier of fact. OCGA § 24-7-702 (b).


      Rule 702 (c) (2) provides additional guidance specific to a medical malpractice

action. It requires

      among other things, that at the time the act or omission is alleged to
      have occurred, the expert had actual professional knowledge and
      experience in the area of practice or specialty in which the opinion is to
      be given. OCGA § 24-7-702 (c) (2). Such knowledge and experience
      must result from the expert having been regularly engaged in either the
      active practice of such area of specialty of his or her profession for at

      least three of the last five years, with sufficient frequency to establish an
      appropriate level of knowledge, as determined by the judge, in
      performing the procedure, diagnosing the condition, or rendering the
      treatment which is alleged to have been performed or rendered
      negligently by the defendant whose conduct is at issue, OCGA §
      24-7-702 (c) (2) (A), or the teaching of his or her profession for at least
      three of the last five years as an employed member of the faculty of an
      educational institution accredited in the teaching of such profession,
      with sufficient frequency to establish an appropriate level of knowledge,
      as determined by the judge, in teaching others how to perform the
      procedure, diagnose the condition, or render the treatment which is
      alleged to have been performed or rendered negligently by the defendant
      whose conduct is at issue. OCGA § 24-7-702 (c) (2) (B). The statute
      also requires that the expert be a member of the same profession as the
      defendant. OCGA § 24-7-702 (c) (2) (C) (i).

(Punctuation omitted.) Graham v. Reynolds, 

343 Ga. App. 274

, 277 (2) (807 SE2d

39) (2017). Rule 702 “ensure[s] that an expert on the standard of care in a medical

malpractice case has an informed basis for testifying about the standard of care that

presently prevails in the specific profession and specialty at issue” and “has

significant familiarity with the area of practice in which the expert opinion is to be

given.” (Citation and punctuation omitted.) Dubois, 297 Ga. at 586 (2). “[E]ven if an

expert is generally qualified as to the acceptable standard of conduct of the medical

professional in question, the expert cannot testify unless he also satisfies the specific

requirements of [Rule 702] (c) (2).” (Citation and punctuation omitted.) Id at 586 (2),

n. 12.

         Dr. Mekoya challenges not only Dr. Zusman’s area of practice, but also his

practical experience during the relevant time period – which he argues is “three of the

last five years preceding the alleged negligent care.”(Emphasis in original.) He

argues that Dr. Zusman’s lack of any experience actually practicing hospitalist

medicine and sporadic interactions and consultations with hospitalists does not satisfy

the Rule 702 requirements with regard to proffering admissible standard-of-care


         Admittedly, Dr. Zusman had never practiced as a hospitalist. In his role as

Chief of the Division of Hypertension and Vascular Medicine at Massachusetts

General, he primarily treated patients with hypertension. Although he saw “60 to 75

percent” of his patients for hypertension, Dr. Zusman testified that he also treated

“people with the whole spectrum of heart disease, coronary artery disease, atrial

fibrillation, hypocholesterolemia[, and] [a]rrhythmias of other sorts. In particular with

reference to [the Clancy case], pericardial disease [and] [p]atients who undergo

surgical procedures or interventional procedures.” He further testified that his

nonclinical cardiology tasks included “teaching and the supervision of interns,

residents, and fellows.” The appellees note that Dr. Zusman does not have privileges

to perform a pericardiocentesis, and Dr. Zusman admitted that he had last performed

the procedure in the “79 to 80 academic year” and that he had last supervised the

procedure “more than ten years ago.” However, there was evidence that, in his current

role at Massachusetts General, Dr. Zusman acted in a consultant capacity to access

the need for a pericardiocentesis procedure, and testified that he had done so as

recently as 2018. As to the frequency of his consultant role in an emergent situation

to access suspected pericarditis, he testified that he acted in that capacity “maybe

once a year where there’s a suspicion, but perhaps between two and five times per

year in a patient with documented pericarditis where there’s been the need to evaluate

and treat and/or intervene because of the pericardial disease.” He was also called to

consult in the emergency room “up to five times per year” for suspected pericardial


      As explained in Dubois,

      [n]o doubt, the simplest way to demonstrate that an expert has an
      appropriate level of knowledge in performing a procedure or teaching
      others how to perform a procedure is by proof that the expert actually
      has done these things himself. Moreover, it may be that, in many cases,

      if an expert has not actually performed or taught a procedure himself, he
      will be found lacking an appropriate level of knowledge. But by the
      plain terms of the statute, the pertinent question is whether an expert has
      an appropriate level of knowledge in performing the procedure or
      teaching others how to perform the procedure, not whether the expert
      himself has actually performed or taught it.

(Citations and punctuation omitted.) Dubois, 297 Ga. at 585. With that being so, “a

medical doctor in one specialty may have the requisite knowledge and experience

under OCGA § 24-7-702 (c) (2) to give expert opinion testimony regarding the acts

or omissions of a medical doctor in another specialty.” Graham v. Reynolds, 

343 Ga.

App. 274

, 278 (2) (a) (807 SE2d 39) (2017). And, pertinent to that inquiry is whether

the expert has “sufficient knowledge about [diagnosing the condition] — however

generally or specifically it is categorized, so long as it is the [condition] that the

defendant is alleged to have [diagnosed] negligently.” Dubois, 297 Ga. at 587 (2). In

this context, “the area of specialty is dictated by the allegations in the complaint, not

the apparent expertise of the treating physician.” Toombs v Acute Care Consultants,

326 Ga. App. 356

, 360 (756 SE2d 589) (2014) (explaining that “the area of specialty

in [that] case concern[ed] the standard of care applicable to [deep vein thrombosis

(“DVT”)] prophylaxis in a hospitalized patient who is at increased risk for DVT and

[pulmonary embolism]”).

      The appellees alleged negligent acts and omissions including, but not limited

to, failing to accurately, adequately, and timely assess, diagnose, monitor, and treat

Clancy’s condition, failing to “recognize and appreciate” that Clancy’s chest pain and

other symptoms were inconsistent with an acute PE diagnosis, failing to relate the

chest pain to complications related to Clancy’s recent pacemaker implantation, failing

to recognize that Clancy’s chest CT was suggestive of a chronic emboli, and failing

to obtain appropriate consultations with specialists. The appellees did not allege that

Dr. Mekoya was negligent in his capacity as a hospitalist, but that he had failed to

properly assess and diagnose a specific medical condition. In his affidavit, Dr.

Zusman opined that Dr. Mekoya had deviated from the standard of care in several

regards, including diagnosing and treating Clancy with an acute PE, and treating him

with anticoagulants, and failing to timely make the diagnosis of pericarditis. See

Cotten v. Phillips, 

280 Ga. App. 280

, 287 (633 SE2d 655) (2006) (noting that the

plaintiff did not allege “that [the doctor] was negligent in his performance of the total

knee replacement surgery, only in his failure to assess the vascular issues involved,

particularly in light of [the plaintiff’s] medical history. Therefore, the evidence in the

record supports the trial court’s determination that the area of practice in which the

opinion is to be given is vascular surgery, which was [the expert’s ] specialty, and that

[the expert] was qualified to give an opinion in that area.”) As the Court explained

in Dubois, in the exercise of its discretion, the trial court utilizes a “flexible”

approach in the determining the expert’s “appropriate level of knowledge” that is

tailored not only to the expert’s speciality, but to the nature of his opinion, and the

alleged negligent act. Dubois, 

297 Ga. 586

-587 (2).

      Here, considering the scope of the allegations of negligence in the complaint

and the nature of Dr. Zusman’s averments and testimony regarding his medical

background, experience, and area of expertise, we conclude that the trial court did not

abuse its discretion in determining “that [Dr. Zusman] had knowledge and experience

in a practice or specialty relevant to [Dr. Mekoya’s] alleged negligence.” Graham,

343 Ga. App. at 279 (2) (b). See Robles v. Yugueros, 

343 Ga. App. 377

, 386 (2) (b)

(807 SE2d 110) (2017) (finding that “the trial court was authorized to conclude that

[radiologist] was qualified to give expert testimony about the accepted standard of

medical care applicable to a physician interpreting the type of x-ray at issue here and

to render an opinion whether [the emergency physician’s] interpretation of [the

patient’s x-ray] breached that standard of care”); Cotten, 280 Ga. App. at 282-284

(trial court did not abuse discretion in holding that vascular surgeon was qualified to

testify as to orthopedic surgeon’s failure to properly assess, monitor, and respond to

patient’s vascular condition during orthopedic treatment and surgery); Mays v. Ellis,

283 Ga. App. 195

, 196-199 (1) (641 SE2d 201) (2007) (concluding that

gastroenterologist was qualified to render opinion that OB/GYN — who performed

surgery on patient based on OB/GYN’s diagnosis that patient was suffering from

pancreatitis — had committed negligence by misdiagnosing patient’s pancreatitis;

and that if timely diagnosed, patient’s condition could have been treated

nonsurgically); MCG Health v. Barton, 

285 Ga. App. 577

, 580-582 (1) (647 SE2d 81)

(2007) (a medical doctor in one specialty may have the requisite knowledge and

experience under Rule 702 (c) (2) to give expert opinion testimony regarding the acts

or omissions of a medical doctor in another specialty).

      2. Dr. Mekoya also challenges the denial of his motion for summary judgment,

arguing that there is no expert testimony establishing causation to a reasonable degree

of medical certainty. To that end, he contends that there is no evidence that his

alleged breach of the standard of care caused Clancy’s injuries. Dr. Mekoya asserts

that the breached standard of care identified by Dr. Gillespie – diagnosing pericardial

effusion “sometime” on August 5, 2015 – could not have proximately caused

Clancy’s need for pericardiocentesis or pericardial window and his related subsequent

complications and claimed pain and suffering. According to Dr. Mekoya, this was

evidence that by the time he saw Clancy on August 5, the pericardiocentesis and

associated claimed damages were unavoidable, and it could not be demonstrated to

a reasonable degree of medical probability that the medical condition and

complications could have been avoided.

      On summary judgment, “the burden on the moving party may be discharged by

pointing out by reference to the affidavits, depositions and other documents in the

record that there is an absence of evidence to support the nonmoving party’s case.”

(Citation and punctuation omitted.) Ellison v. Burger King Corp., 

294 Ga. App. 814


819 (3) (a) (670 SE2d 469) (2008); see OCGA § 9-11-56 (c). “If the moving party

discharges this burden, the nonmoving party cannot rest on its pleadings, but rather

must point to specific evidence giving rise to a triable issue.”(Citation and

punctuation omitted.) Ellison, 294 Ga. App. at 819 (3) (a); see OCGA § 9- 11-56 (e).

      To establish a claim for medical malpractice, a plaintiff must prove that
      the defendant’s negligence in the diagnosis and treatment of the plaintiff
      was the actual and proximate cause of the injuries he sustained. The
      causation element requires the plaintiff to establish to a reasonable

      degree of medical certainty that the injury to the plaintiff would have
      been avoided in the absence of the alleged medical negligence.

(Citations and punctuation omitted.) Hosp. Auth. of Valdosta/Lowndes County v.


342 Ga. App. 13

, 19 (1) (b) (802 SE2d 346) (2017), overruled in part on

other grounds by statute as stated in Quynn v. Hulsey, 

310 Ga. 473

 (850 SE2d 725)

(2020). See also Walker v. Giles, 

276 Ga. App. 632

, 638 (624 SE2d 191) (2005) (“To

recover in a medical malpractice case, a plaintiff must show not only a violation of

the applicable medical standard of care but also that the purported violation or

deviation from the proper standard of care is the proximate cause of the injury

sustained. In other words, a plaintiff must prove that the defendants’ negligence was

both the cause in fact and the proximate cause of his injury”) (citations and

punctuation omitted.)

      With regard to

      causation in a medical malpractice case[, it] must be proven through
      expert testimony because the question of whether the alleged
      professional negligence caused the plaintiff’s injury is generally one for
      specialized expert knowledge beyond the ken of the average layperson.
      However, Georgia case law requires only that an expert state an opinion
      regarding proximate causation in terms stronger than that of medical
      possibility, i.e., reasonable medical probability or reasonable medical

      certainty. Moreover, causation may be established by linking the
      testimony of several different experts and must be determined in light of
      the evidentiary record as a whole. And questions regarding causation are
      peculiarly questions for the jury except in clear, plain, palpable and
      undisputed cases.

(Citations and punctuation omitted.) Hosp. Auth. of Valdosta/Lowndes County, 342

Ga. App. at 19 (1) (b).

      Dr. Mekoya contends that there was evidence that the pericardiocentesis could

not have been avoided by August 5, the date he alleges Dr. Gillespie identified as

when the breach of the standard of care occurred, and thus not attributable to his

actions.5 Dr. Zusman opined that “Dr. Mekoya breached the standard of care when he

first took responsibility for [Clancy’s] care on the morning of August 4th”and that at

that time Dr. Mekoya had the information necessary to make a “diagnosis of

pericarditis” and failed to do so (Emphasis supplied.). He further opined that to a

reasonable degree of medical probability that as early as the August 4, had Clancy not

       But Dr. Gillispie also responded “yes” when asked whether,
      given the progressive nature of the bleeding . . . and the fact that this
      occurred in a confined space, to wit, the pericardial sac, would you
      expect that if Dr. Mekoya had . . . conducted the appropriate diagnostic
      tests to aid in that diagnosis, that the – that more probably than not that
      pericardiocentesis would have been avoided?

“been anticoagulated . . . I don’t believe this all would have happened.” According

to Dr. Zusman, Clancy’s injuries resulted from Dr. Mekoya “failing to make the

proper diagnosis and then by failing to get the proper folks involved to provide

assistance, [with the result that Clancy] was anticoagulated inappropriately, and that’s

what led to cardiac tamponade due to hemopericardia.”

             Credibility determinations, the weighing of the evidence, and the
      drawing of legitimate inferences from the facts are jury functions, not
      those of a judge, whether he is ruling on a motion for summary judgment
      or for a directed verdict. The evidence of the nonmovant is to be
      believed, and all justifiable inferences are to be drawn in his favor.

(Citation and punctuation omitted.) Johnson, 294 Ga. at 77. Thus, despite the experts

offering conflicting evidence regarding causation, it is the province of the jury to

decide which testimony is most believable. See Brooks v. Cellin Mfg. Co., 

251 Ga.


, 398 (306 SE2d 657) (1983). Applying the foregoing standards regarding

causation, we conclude that the experts’ testimony in this case presented a genuine

issue of material fact as to whether the pericardiocentesis and attendant complications

Clancy experienced could have been avoided if Dr. Mekoya had properly diagnosed

the condition in compliance with the applicable standard of care. See Walker, 276 Ga.

App. at 641(1) (concluding that a jury issue as to causation was presented in the

patient’s medical malpractice action based upon combined expert testimony that the

rupture of the patient’s appendix could have been avoided if she had not been

misdiagnosed upon her first admission into the hospital, and noting that rather than

establishing that negligence affirmatively caused the ruptured appendix, “the standard

applicable in medical misdiagnosis cases . . . only required [appellants] to come

forward with some evidence showing that if appellees had abided by the standard of

care, the rupture of [patient’s] appendix would have been avoided”); MCG Health,

285 Ga. App. at 583-584 (3) (finding jury question regarding causation existed where

the delayed diagnosis led to the loss of the patient’s testicle; the fact that the medical

expert could not identify the exact point in time in which the condition became

unsalvageable did not render the testimony speculative).

      Thus, as a genuine question of fact as to causation exists, summary judgment

was precluded.

                           Case No. A21A0077

      3. UHS also challenges the trial court’s denial of its motion for summary

judgment, contending that the trial court erred in considering any other negligence

claims other than the two claims of negligence alleged by the appellees’ experts. UHS

asserts that the only two claims of its negligence for the trial court to consider, as

established by the evidence, were the failure to promptly contact a physician at or

shortly after 6:00 p.m. on August 5, 2015, in response to hypotension, and the failure

to advocate for the appellees’ alleged request for a cardiology consult. Purportedly,

as also asserted by UHS, these two claims were belied by testimony from the

appellees own experts. Specifically UHS references the following testimony from Dr.


              Q: Other than the criticism you voiced about the escalation of
      information to the doctor in the 6:00 to 7:00 p.m. range on August the
      5th, do you have any other standard of care criticisms of the nursing

              Dr. Gillespie: I - I don’t have any. Like I said, based upon what
      I’m reading, it’s the idea that the family is at the - because, again, I – I
      - the nurses versus the family. If the family was addressing it, that there
      was a need for a consult, that they wanted a consult and that . . . was
      being related to someone outside of the direct MD and that was a nurse,
      ultimately I would be just like they’re addressing the issue with - about
      the blood pressure with the charge nurse. Then you’d be addressing,
      “I’ve got this family who continues to come to me that essentially says
      they need a consult and the doctors ignore them,” because that’s usually
      what leads to a call by the chief nursing officer, the CMO, that’s
      escalating care to get the family what they want to prevent any ongoing

      They also reference responses made during Dr. Zusman’s deposition testimony,

including the following:

            Q. Doctor, do you feel you are competent to offer standard of care
      opinions regarding the nursing care on the med-surg floor at University
      Hospital in 2015?

            Dr. Zusman. No, I don’t think I’m going to offer standard of care
      opinions about the nurses.

            Q. Okay. So at the trial of this case you do not intend to offer any
      opinions that any of the nurses fell below the standard of care in their
      care and treatment of Mr. Clancy, is that correct?

            Dr. Zusman. Well, the one - the one issue I guess I should
      mention is the nurses noted there was some, an inability to reach Dr.
      Mekoya when Mr. Clancy’s blood pressure was low. And that they twice
      tried to page him and there was no answer. And I believe they then went
      to the nurse manager or charge nurse on the floor to report their inability
      to do so and then eventually they got to Dr. Chan. So it was their
      responsibility under those circumstances to pursue, . . . a physician’s
      input into what should be done to or for Mr. Clancy. And I believe that
      that would be sort of standard of care.

      Thus, based in part on this testimony, on motion for summary judgment UHS

asserted that the appellees’ claim regarding the UHS’s nursing staff’s failure to

properly respond to a drop in Clancy’s blood pressure failed for lack of causation

because by the time of the alleged negligence, nothing could have been done to avoid

the complications that followed. As did, UHS asserted in the motion, the appellees’

claim that UHS’s nursing staff failed to escalate the appellees’ requests for a

cardiology consult. According to UHS, appellees’ expert testimony did not establish

within a “degree of medical certainty that the alleged negligence caused or

contributed to [Clancy’s] alleged injuries.”

      In denying UHS’s motion for summary judgment, the trial court rejected UHS’s

“narrow construction”of the appellees’ negligence claims against the hospital and

instead noted that the appellees had put forth other allegations of negligence. The

other claims identified by the trial court, and alleged by appellees, included the

“failure to review and act upon Dr. Bigham’s progress note, which indicated that

Clancy’s symptoms were disproportionate to his diagnosis and requested further

cardiac evaluation,” and the “failure to ensure timely compliance with policies,

procedures, and/or protocols to minimize and prevent harm to patients, including


      Indeed, in their response to UHS’s motion for summary judgment, to establish

that UHS breached the standard of care, the appellees presented evidence that as early

as August 4, members of Clancy’s family repeatedly and with no avail, requested a

cardiology consult, and continued to do so as his condition deteriorated. The family

further testified that their repeated request to UHS staff for a hospitalist to attend to

Clancy as his conditioned worsened were also ignored.

      The appellees’ experts, Dr. Gillespie and Dr. Zusman, both testified that UHS’s

failure to adequately respond to Clancy’s emergent medical condition in various

ways, including not responding to the family’s repeated requests for a cardiac

consultation or responding appropriately to his declining medical status were

breaches of the standard of care. Dr. Gillespie’s testimony reflected that she agreed

that the standard of care would require “notification of the next higher authority of

the request made by the family, and if that did not yield results, moving on up the

chain of command to the next higher authority in an effort to achieve that[.]” Dr.

Zusman further opined that, “[t]o the extent that [the nurses] failed to actually reach

[Dr. Mekoya] they fell below the standard of care. Or the hospital fell below the

standard of care.”

      Edwards, a registered nurse at UHS, acknowledged that nurses can request

consultations based on a patient’s symptoms and their judgment, and would ordinarily

make such request to the hospitalist. According to Edwards’ testimony, patients can

also request consultations, at which point the nurse should notify the hospitalist of the

request. According to the family, the UHS staff did not make the requests.

      As noted previously, as to proximate cause, similar to his testimony as to Dr.

Mekoya’s alleged negligent delay in properly diagnosing Clancy and acquiring a

consultation, Dr. Zusman expressed that the UHS staff’s negligent delay and failure

to intervene or to obtain consultations or appropriate medical care led to the

worsening of Clancy’s condition, resulting surgeries, and other complications. Dr.

Zusman affirmed that “to a reasonable degree of medical probability that as early as

the 4th, the end result and procedures which Mr. Clancy had to go through could not

have been avoided[.]” Dr. Zusman further testified that had UHS staff followed the

standard of care and the proper and appropriate consults been obtained, such actions

“would have changed the course of [Mr. Clancy’s] hospitalization,” as the problem

would have been recognized, and immediate reversal of anticoagulation would have

occurred, which would have prevented Clancy’s cardiac complications, including

cardiac tamponade.

      It is important to note that while “a summary judgment cannot be obtained by

a movant which rests entirely on opinion evidence, a summary judgment may be

successfully contested by use of opinion evidence.” (Citations omitted.) Equity Nat.

Life Ins. Co. v. Shelnutt, 

128 Ga. App. 849

, 851 (3) (198 SE2d 350) (1973) (physical

precedent only). Further, as this Court has held, summary judgment “cannot deprive

a party of the opportunity to have a trial of a genuine issue as to any material fact, and

it is indeed a great responsibility to say that ‘in truth there is nothing to be

tried.’”Holland v. Sanfax Corp., 

106 Ga. App. 1

, 5 (1) (126 SE2d 442) (1962). To that

end, the jury is tasked with that responsibility in the making of

      [c]redibility determinations, the weighing of the evidence, and the
      drawing of legitimate inferences from the facts . . . [rather than] a judge,
      whether he is ruling on a motion for summary judgment or for a directed
      verdict. The evidence of the nonmovant is to be believed, and all
      justifiable inferences are to be drawn in his favor.

(Citation and punctuation omitted.) Johnson, 294 Ga. at 77.

      Here, the trial court rightly refused to make such determinations. Thus,

construed in the light most favorable to the appellees, we cannot find, as a matter of

law “that there is no evidence sufficient to create a jury issue on at least one essential

element of [the appellees’] case.” Lau’s Corp. v. Haskins, 

261 Ga. 491

, 491 (405

SE2d 474) (1991). As such, summary adjudication of UHS’s claims in this regard was

also precluded. See Walker, 276 Ga. App. at 641-642 (1); MCG Health, 285 Ga. App.

at 583-584.

      4. In related enumerations of error, UHS contends that the trial court erred in

denying its motion for summary judgment, if in doing so, it considered certain

testimony from Dr. Zusman about the “avoidability” of the pericardial window; it

considered Dr. Zusman’s responses to leading questions; or it considered any

evidence of any alleged statements made by healthcare providers regarding mistakes

or apology.

      [I]t is well settled that the trial court on summary judgment need not
      limit its inquiry to the pleadings, depositions, answers to interrogatories,
      and admissions on file, together with affidavits set out in OCGA §
      9-11-56 (c). Those forms of evidence are not the exclusive means of
      presenting evidence on a motion for summary judgment. The trial court
      may consider any material which would be admissible or usable at trial.

(Citations and punctuation omitted; emphasis in original.) Dalton v. City of Marietta,

280 Ga. App. 202

, 204 (1) (633 SE2d 552) (2006). And, unless otherwise shown, “[a]

trial judge is presumed to have considered only legally admissible evidence.”

(Citations and punctuation omitted.) 1st Nationwide Collection Agency v. Werner,

288 Ga. App. 457

, 461 (4) (654 SE2d 428) (2007). See generally OCGA § 24-7-702

(requiring that the trial court act as “gatekeeper” of expert testimony.) Here, UHS’s

claims of error translate into mere conjecture and speculation about the trial court’s

judgment, and as we are a Court for the correction of actual error, such claims warrant

nothing for our consideration. See generally Crippen v. Outback Steakhouse Intl., 


Ga. App. 167

, 170 (1) (741 SE2d 280) (2013) (“[T]his is a court for correction of

errors of law committed by the trial court where proper exception is taken.”)

      Judgments affirmed. Gobeil and Markle, JJ., concur.


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