                              FIRST DIVISION
                               DOYLE, C. J.,
                          ANDREWS, P. J., and RAY, J.

                    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


                                                                       July 14, 2016




In the Court of Appeals of Georgia
 A16A1600. GRAHAM et al. v. WELLSTAR HEALTH SYSTEM,
     INC. et al.

      ANDREWS, Presiding Judge.

      This appeal is from the grant of partial summary judgment in an action arising

out of the death of Justin Graham due to liver failure following his arrest for DUI.

The operative facts of the case are fully set forth in a previous appeal and will not be

reiterated here. See Graham v. Cobb County, 316 Ga. App. 738 (730 SE2d 439)

(2012).

      Subsequent to that earlier appeal, Graham’s family (hereinafter Graham) filed

a third amendment to the complaint withdrawing all remaining claims and instead

asserting the following claims: (1) simple negligence as to Dr. Clarence Hendrix as

chief medical officer at the Cobb County Adult Detention Infirmary, and as to David
Howell as Administrator for Wellstar Health Systems; (2) professional negligence as

to Dr. Hendrix; (3) simple negligence as to Wellstar under the doctrine of respondeat

superior based on the acts of Dr. Hendrix and David Howell; (4) Negligence per se

as to Wellstar; (5) wrongful death as to all defendants; and (6) pain and suffering as

to all defendants.

      On February 16, 2015, as clarified on reconsideration on February 23, 2015,

the trial court granted summary judgment for the defendants on the negligence and

wrongful death claims asserted against Wellstar and Howell. This appeal followed.

      1. Negligence per se. Graham contends that by contracting with the Cobb

County Sheriff’s Office to provide medical care for jail detainees, Wellstar owed a

duty under OCGA §§ 42-5-2 (a), 42-4-4 (a) (2), and 42-4-32 (d) to provide needed

medical care for detainees, and breached that duty in its mismanagement of Graham’s

care. However, as noted by the trial court in its order on February 23, 2015, Graham

never pleaded any application and violation of OCGA §§ 42-4-4 (a) (2) or 42-4-32

(d) against Wellstar in the third amended complaint. The amended complaint did

assert a per se violation of OCGA § 42-5-2 (a), but to the extent that statute applied

to Wellstar by virtue of its contract with the Cobb County Sheriff’s Office, it created

an obligation to provide detainees with access to medical care, but did not address the

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issue of proper medical care. Epps v. Gwinnett County, 231 Ga. App. 664, 670 (8)

(499 SE2d 657) (1998). As it is undisputed Graham was provided access to medical

care, the trial court did not err in concluding OCGA § 42-5-2 (a) provides no basis

for a negligence per se claim against Wellstar.

      2. Ordinary negligence or professional negligence. The trial court found

Graham’s ordinary negligence claims actually were claims for professional

negligence and granted summary judgment for the defendants on the basis the expert

affidavits filed in the case were insufficient to support any such claims. Graham

contends the trial court erred in classifying the claims against Wellstar and Howell

as professional negligence, but even so, the expert affidavits specifically incorporated

in the third amended complaint sufficiently stated specific examples of duty and

alleged breach that support claims for professional negligence.

      “Whether a complaint alleges ordinary negligence or professional malpractice

is a question of law for the court, regardless of how the plaintiff categorizes it.”

(Citation and punctuation omitted.) Grady Gen. Hosp. v. King, 288 Ga. App. 101, 102

(653 SE2d 367) (2007). Accord, Burke v. Paul, 289 Ga. App. 826, 828 (658 SE2d

430) (2008). The court must look at the substance of the action, and if the alleged

negligence required exercising professional skill and judgment to comply with a

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standard of conduct, the action will involve professional negligence. Piedmont Hosp.

v. D. M., 335 Ga. App. 442, 445 (779 SE2d 36) (2015); Burke v. Paul, supra at 828.

      The gravamen of the complaint in this case was that the defendants failed to

recognize the severity of Graham’s condition, failed to monitor his condition, and

failed to take appropriate measures to try to forestall the progressive liver failure. In

short, the complaint alleges the defendants, through their inattention, neglected

Graham to the point of irreversible liver failure and death. We find the trial court

properly determined the complaint stated claims for professional negligence instead

of ordinary negligence. However, the trial court erred in concluding the expert

affidavits on file were insufficient to support those professional negligence claims.

      The expert affidavits in the record were originally submitted in support of the

professional negligence asserted against Dr. Hendrix and various members of the

nursing staff, but the affidavits also contain multiple averments pertaining to the

standard of care applicable to Wellstar and the administrator Howell. Dr. Robert

Kaufmann identified a standard of care requiring supervision of healthcare personnel

and policies and procedures that insure timely review of a patient’s care. Based on his

review of Graham’s treatment records, Dr. Kaufmann opined that was not done, and

specifically faulted the Administrator for the failure to actively monitor the medical

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care being provided in the facility. Other specific violations of an applicable standard

of care included the nursing staff’s failure to monitor Graham’s input and output;

failure to monitor changes in Graham’s abdomen for any ascites buildup; failure to

document administration of IV fluids; failure to communicate abnormal lab values to

the physician; and failure to document sufficient data for two Code Blue reports.

      Dr. Mark Griffis averred the same standards of care and failures of the nursing

staff and the Administrator iterated by Dr. Kaufmann. Dr. Griffis emphasized the

standard of care of conscientiously supervising healthcare providers, monitoring the

patient’s care and condition, and intervening when necessary, and noted the breach

of that standard in Graham’s case.

      Based on his review of the records of Graham’s treatment, Patrick Washington,

a registered nurse, listed multiple deficiencies of the nursing staff: the failure to

procure Graham’s transfer to the hospital following two Code Blue incidents; failure

to report lab results or follow-up lab results with the physician on a timely basis;

failure to report to the management elevated lab results and vital sign levels that

indicated the need for immediate intervention; failure to report the continuous

elevation of pulse rates; failure to report alert levels of bilirubin, and non-resolving

jaundice for days; failure to record the patient’s input and output; failure to request

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the physician timely to attend to Graham as his condition worsened; and failure to

document adequately Graham’s status for multiple days.

      These affidavits set forth “at least one negligent act or omission claimed to

exist and the factual basis for each such claim,” OCGA § 9-11-9.1 (a) (3), and thus

the trial court should not have granted summary judgment for the defendants on the

professional negligence claims asserted against Wellstar and the administrator

Howell.

      3. Wrongful death claims. In the order entered on February 23, 2015, the trial

court found that as Graham’s negligence claims against Wellstar and Howell failed,

so, too, must the wrongful death claims asserted against those two defendants. In light

of our decision that the trial court erred in granting summary judgment for Wellstar

and Howell on those negligence claims, the trial court likewise erred in similarly

disposing of the wrongful death claims.

      Judgment affirmed in part and reversed in part. Doyle, C. J., and Ray, J.,

concur.




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