                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                              RAY and RICKMAN, 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.
                                http://www.gaappeals.us/rules


                                                                    October 10, 2018




In the Court of Appeals of Georgia
 A18A1360. PHAM v. BLACK.
 A18A1361. BLACK v. TRINH et al.

      RICKMAN, Judge.

      Following the death of Jonathan Black (“the decedent”), his sister and

administratrix of his estate, Nicolette Black, sued Drs. Hai Hong Trinh, James S.

Abraham, Lily Lan-Nhu Huyen Pham, Newton Medical Center (“NMC”), and others,

alleging, inter alia, that the individual doctors committed medical malpractice in their

treatment of the decedent and violated their legal duty under the Federal Emergency

Medical Treatment and Active Labor Act (“EMTALA”) 42 USC § 1395dd by, inter

alia, failing to stabilize the decedent prior to transferring him to another hospital.1


      1
       This is the second appearance of this case before this Court. In Abraham v.
Black, ___ Ga. App. ___ (816 SE2d 351) (2018) (physical precedent only), we
concluded that the state court had jurisdiction to determine that Black was the proper
Pham filed a motion for summary judgment alleging that Black’s claims against her

must fail because she and the decedent did not have a doctor-patient relationship.

Additionally, the doctors filed motions to dismiss Black’s claim of violation of a legal

duty because EMTALA imposes a legal duty only upon hospitals, not individual

doctors. Following a hearing, the trial court denied Pham’s motion for summary

judgment but granted the motions to dismiss Black’s claim of violation of a legal

duty.

        On appeal in A18A1360, Pham contends that the trial court erred by denying

her motion for summary judgment because she had no doctor-patient relationship

with the decedent. In A18A1361, Black contends that the trial court erred in

dismissing her claim of violation of a legal duty. For the following reasons, we

reverse the trial court’s denial of Pham’s motion for summary judgment and we affirm

the trial court’s grant of the doctors’ motion to dismiss.

        We apply a de novo standard of review to an appeal from a grant of
        summary judgment and view the evidence, and all reasonable
        conclusions and inferences drawn from it, in the light most favorable to
        the nonmovant. A defendant may obtain summary judgment by showing




party to bring this lawsuit.

                                           2
      an absence of evidence supporting at least one essential element of the
      plaintiff’s claim.


(Citation and punctuation omitted.) Donastorg v. Rainbow USA, Inc., 342 Ga. App.

215, 215-216 (802 SE2d 425) (2017)

      So viewed, the record shows that on February 19, 2013, the 23-year-old

decedent arrived at the NMC emergency department by ambulance complaining of

a racing heart rate. On that evening, Pham was the only night-shift hospitalist on duty,

and her responsibilities included admitting patients to NMC and taking care of

emergent issues that developed with any patients who had already been admitted.

Pham had the ability to admit patients from the emergency department.

      Trinh, the emergency department doctor who treated the decedent, paged Pham,

described the decedent’s symptoms, and informed her that he had spoken with

Abraham, the on-call cardiologist. Pham told Trinh that she was reluctant to admit the

decedent until his heart rate could be lowered. Pham exchanged text messages with

Abraham about the decedent’s condition, and Abraham recommended that the

decedent be placed in the ICU, Pham replied that she was concerned about the

decedent staying at NMC because of his symptoms at his young age. Trinh diagnosed




                                           3
the decedent as suffering from a thyroid storm. Trinh had never previously treated a

patient with a thyroid storm.

      In a second conversation, Trinh informed Pham about the thyroid storm and

advised her that Abraham recommended the decedent be admitted to the ICU. This

conservation was cut short when the decedent “coded.” Pham then had a third

conversation with Trinh during which Trinh advised her that the decedent had

“coded” and was on life support. Pham suggested that Trinh inform Abraham about

the decedent’s change in condition. Pham decided that the decedent should not be

admitted to NMC. Abraham told Trinh that he decided to transfer the decedent to

Emory University Hospital so that he could receive a higher level of care. Trinh

signed the transport form which indicates that the transfer was due to “lack of needed

services.” While the decedent was treated at NMC, Pham never saw him.

      The decedent was transported via helicopter to Emory and “coded” during the

flight. The following morning, Pham sent a text message to Abraham inquiring if he

had heard anything about the decedent’s condition. Abraham responded that the

decedent was, “[a]live but very sick . . . I guess you [have] learned not to trust that

idiot [Trinh].” Pham replied, “Most definitely. Trinh is a moron and an



                                          4
embarrassment to my race.” Once at Emory, the decedent was stabilized, however he

died the next day.

                                      A18A1360

      1. Pham contends that the trial court erred in denying her motion for summary

judgment because she had no doctor-patient relationship with the decedent. We agree.

      It is well settled Georgia law that proof of three essential elements is
      required to establish liability in a medical malpractice action: (1) the
      duty inherent in the doctor-patient relationship; (2) the breach of that
      duty by failing to exercise the requisite degree of skill and care; and (3)
      that this failure be the proximate cause of the injury sustained.


(Citation and punctuation omitted.) Tomeh v. Bohannon, 329 Ga. App. 596, 598 (765

SE2d 743) (2014). See OCGA § 51-1-27. “[T]here can be no liability for malpractice

in the absence of a physician-patient relationship. Doctor-patient privity is essential

because it is this relationship which is a result of a consensual transaction that

establishes the legal duty to conform to a standard of conduct.” (Citation and

punctuation omitted.) Anderson v. Houser, 240 Ga. App. 613, 615 (1) (523 SE2d 342)

(1999). “The relationship is considered consensual where the patient knowingly seeks

the assistance of the physician and the physician knowingly accepts him as a patient.”

(Citation and punctuation omitted.) Id.

                                          5
      “Although a doctor who has agreed to be on-call makes himself available to be

consulted regarding a patient’s condition, that fact alone does not indicate that the

doctor has agreed to establish a doctor-patient relationship with any patient who

presents herself to the hospital for diagnosis and treatment.” Anderson, 240 Ga. App.

at 619 (1). “Indeed, there may be many circumstances where an on-call physician who

is consulted about a particular patient does not feel competent to diagnose and treat

the patient.” Id. “Clearly, in those circumstances, the mere fact that the doctor has

agreed to be on call for consultation does not establish a consensual doctor-patient

relationship.” Id. “A plaintiff has to show more than that a doctor was the on-call

physician at the time of the patient’s injury. Georgia law requires some evidence of

an actual doctor-patient relationship.” Tomeh, 329 Ga. App. at 601 (b).

      Here, Pham was the hospitalist on duty at the time the decedent was being

treated at NMC and was called for consultation by Trinh and Abraham. Pham never

met the decedent and did not participate in his diagnosis or his treatment.

Additionally, Pham deposed that she had never treated anyone with a thyroid storm,

and while she was familiar with the medications required to treat a thyroid storm, she

did not know when the medication should be administered. Pham believed that NMC

did not have the capacity to treat a patient suffering from a thyroid storm because

                                          6
there was not an endocrinologist on staff. Abraham arranged the decedent’s transfer

to Emory and Trinh signed the transfer document.

      Under these facts and circumstances where Pham’s sole involvement with the

decedent was consulting with his treating doctors regarding whether he should be

admitted to NMC and ultimately refusing to admit him, we do not find that Pham and

the decedent had an actual doctor-patient relationship. See Tomeh, 329 Ga. App. at

600-601 (b) (holding that there was no doctor-patient relationship where pediatrician

who was on call during baby’s birth did not diagnose or treat the baby); see also

Anderson, 240 Ga. App. at 620-621 (1) (finding that the on-call doctor who did not

diagnose or treat patient was not in privity with patient); Minster v. Pohl, 206 Ga.

App. 617, 620 (1) (426 SE2d 204) (1992) (where the trial court properly granted

summary judgment in favor of the emergency room doctor on duty because

“[a]lthough [the doctor] unquestionably took action with respect to the decedent,

viewing the x-ray and making a notation on her chart, nothing in the record justifies

the inference that Pohl was acting as her doctor.”) (emphasis in original).

Accordingly, the trial court erred in denying Pham’s motion for summary judgment.




                                         7
                                      A18A1361

      2. Black contends that the trial court erred in dismissing her violation of a legal

duty claim because EMTALA imposes a legal duty on the individual doctors but does

not provide a cause of action and, thus, the claim was properly brought pursuant to

OCGA § 51-1-6.

      “This appeal presents a question of law, which we review de novo.” (Citation

and punctuation omitted.) Atlanta Women’s Health Group, P. C. v. Clemons, 299 Ga.

App. 102 (681 SE2d 754) (2009).

      “EMTALA . . . was intended to prevent “patient dumping,” the practice of

some hospital emergency rooms turning away or transferring indigents to public

hospitals without prior assessment or stabilization treatment.” Harry v. Marchant,

291 F3d 767, 772 (III) (B) (11th Cir. 2002). EMTALA imposes certain requirements

on hospitals with emergency departments, including “if any individual . . .comes to

the emergency department and a request is made . . .for examination or treatment for

a medical condition, the hospital must provide for an appropriate medical screening

examination within the capability of the hospital’s emergency department . . . to

determine whether or not an emergency medical condition. . . exists.” 42 USC §

1395dd (a). Should the hospital determine that the individual is suffering from an

                                           8
emergency medical condition, EMTALA imposes an additional duty upon the

hospital to “stabilize the medical condition” or “transfer of the individual to another

medical facility.” 42 USC § 1395dd (b) (1) “The term ‘to stabilize’ means . . . to

provide such medical treatment of the condition as may be necessary to assure, within

reasonable medical probability, that no material deterioration of the condition is likely

to result from or occur during the transfer of the individual from a facility[.]” 42 USC

§ 1395dd (e) (3) (A). “The term ‘transfer’ means the movement (including the

discharge) of an individual outside a hospital’s facilities at the direction of any person

employed by . . . the hospital[.]” 42 USC § 1395dd (e) (4).

      The hospital may not transfer an individual whose emergency condition has not

been stabilized absent certain defined exceptions. See 42 USC § 1395dd (c) (1). “The

term ‘stabilized’ means, with respect to an emergency medical condition . . . that no

material deterioration of the condition is likely, within reasonable medical

probability, to result from or occur during the transfer of the individual from a

facility[.]” 42 USC § 1395dd (e) (3) (B). “Any individual who suffers personal harm

as a direct result of a participating hospital’s violation of a requirement of

[EMTALA] may, in a civil action against the participating hospital, obtain those



                                            9
damages available for personal injury under [Georgia law] . . .” 42 USC § 1395dd (d)

(2) (A).

       Because EMTALA only provides relief in a personal injury action against the

participating hospital, Black brought this action under OCGA § 51-1-6 which

provides that “[w]hen the law requires a person to perform an act for the benefit of

another or to refrain from doing an act which may injure another, although no cause

of action is given in express terms, the injured party may recover for the breach of

such legal duty if he suffers damage thereby.” “By its express terms, tort liability

under OCGA § 51-1-6 mandates that the alleged tortfeasors have breached a legal

duty to perform a beneficial act or to refrain from doing an injurious act.” Wells

Fargo Bank, N. A. v. Jenkins, 293 Ga. 162, 164 (744 SE2d 686) (2013).

      However, EMTALA only imposes a legal duty upon hospitals, not individual

doctors. The legal duty to perform the medical screening, stabilize the patient, and

restrict transfers until the patient is stabilized fell upon the hospital by the plain

language of the statute. See 42 USC § 1395dd; see also Roberts v. Galen of Virginia,

525 U. S. 249, 250 (119 SCt 685, 142 LE2d 648) (1999) (EMTALA “places

obligations of screening and stabilization upon hospitals and emergency rooms”);

Quinney v. Phoebe Putney Memorial Hosp., 325 Ga. App. 112, 121 (3) (751 SE2d

                                         10
874) (2013) (EMTALA imposes legal duties upon hospitals). Because EMTALA

imposes no legal duty on individual doctors, Black cannot maintain a cause of action

against the individual doctors under OCGA § 51-1-6 and, thus, the trial court properly

granted the doctors’ motions to dismiss her violation of a legal duty claim. See Wells

Fargo Bank, 293 Ga. at 164-165; see also Best Jewelry Manufacturing Co. v. Reed

Elsevier Inc., 334 Ga. App. 826, 833-834 (1) (b) (780 SE2d 689) (2015); U. S. Bank,

N. A. v. Phillips, 318 Ga. App. 819, 825-826 (3) (734 SE2d 799) (2012).

       Judgment affirmed in part; reversed in part. McFadden, P. J., concurs in

Division 2 and dissents in Division 1. Ray, J., concurs.*



*DIVISION 1 OF THIS OPINION IS PHYSICAL PRECEDENT ONLY.

COURT OF APPEALS RULE 33.2(a).




                                         11
In the Court of Appeals of Georgia
 A18A1360. PHAM v. BLACK.
 A18A1361. BLACK v. TRINH et al.

      MCFADDEN, Presiding Judge, concurring in part and dissenting in part.

      I concur in Division 2 of the majority opinion, affirming the dismissal of

Black’s claim under EMTALA. I disagree, however, with the majority’s conclusion

that, as a matter of law, no doctor-patient relationship existed between Pham and the

decedent, so I respectfully dissent to Division 1.
      As the majority points out, “the mere fact that [a] doctor has agreed to be on

call for consultation does not establish a consensual doctor-patient relationship.”

Anderson v. Houser, 240 Ga. App. 613, 615 (1) (523 SE2d 342) (1999), Instead, the

on-call doctor must have “done something, such as participate in the patient’s

diagnosis and treatment, that supports the implication that she consented to a

physician-patient relationship.” Id. The record in this case contains evidence that

Pham did something that supported such an implication — as she acknowledges,

Pham made a medical decision regarding the decedent’s care by determining that he

should not be admitted to Newton Medical Center. Viewing this evidence most

favorably to Black, as we must, “there is an issue of fact regarding an implied

physician-patient relationship” that precludes summary judgment to Pham. Rindsberg

v. Neacsu, 317 Ga. App. 269, 273 (730 SE2d 525) (2012). So I would affirm the trial

court’s denial of Pham’s summary judgment motion.

      I note that, given Pham’s limited role as a hospitalist, any duty Pham would

owe an emergency room patient to whom she merely denied admission would be

limited in scope. It is not apparent to me from the record that Black will be able to

point to evidence creating genuine issues of material fact regarding Pham’s alleged

breach of that limited duty and whether any such breach proximately caused the

                                         2
decedent’s death. But this is a different ground than the ground advanced by Pham

in support of her motion for summary judgment, and the trial court did not rule upon

this ground. “Although this court can sometimes review a summary judgment ruling

to determine if it was right for some reason other than that given by the court below,

this court cannot also consider whether the trial court was wrong for any reason.”

HA&W Capital Partners, LLC v. Bhandari, 346 Ga. App. 598, 607 (2) (b) (816 SE2d

804) (2018) (citation and punctuation omitted).




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