                               FIRST DIVISION
                                DOYLE, C. J.,
                          PHIPPS, P. J, and BOGGS, 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


                                                                      March 2, 2016




In the Court of Appeals of Georgia
 A15A2207. BLAKE et al. v. KES, INC. et al.                                   DO-108

      DOYLE, Chief Judge.

      This is the second appearance before this Court of this case, which arises from

a tort claim by plaintiffs Carl and Yvonne Blake (collectively, “the plaintiffs”)

following the death of their son in a day habilitation facility. In our previous opinion,

we vacated the grant of summary judgment to defendants, KES, Inc., Sandra and

Kenneth Browner, Mable Sempler, and Nicole Wise (collectively, “KES”) and

remanded with direction that the trial court consider a specific expert deposition and

certain exhibits in deciding the summary judgment motion.1 Upon remand, after

reconsideration of the motion, including those documents, the trial court again




      1
          See Blake v. KES, Inc., 329 Ga. App. 742 (766 SE2d 138) (2014).
granted summary judgment to KES. The plaintiffs appeal, and for the reasons that

follow, we vacate the trial court’s order and remand.

              In order to prevail on a motion for summary judgment under
      OCGA § 9-11-56, the moving party must show that there exists no
      genuine issue of material fact, and that the undisputed facts, viewed in
      the light most favorable to the nonmoving party, demand judgment as
      a matter of law. Moreover, on appeal from the denial or grant of
      summary judgment the appellate court is to conduct a de novo review of
      the evidence to determine whether there exists a genuine issue of
      material fact, and whether the undisputed facts, viewed in the light most
      favorable to the nonmoving party, warrant judgment as a matter of law.2




      As set forth in our previous opinion, the facts in this case, so viewed

      show that Paul Blake was an adult diagnosed with several
      developmental disabilities from birth, including organic personality
      disorder, moderate intellectual disability, and partial complex seizures.
      By 2005, Paul resided with caretakers at a personal care home and
      generally spent his days at a KES day habilitation facility, where he
      received services pursuant to a contract between KES and his parents.
      In addition to his seizures, Paul had a history of leaving his assigned




      2
          (Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204)
(2006).

                                         2
area without notice or permission, and he needed constant line-of-sight
supervision, in addition to daily medication.


On September 22, 2009, Paul arrived at the KES facility at
approximately 9:00 a.m. and complained of dizziness and feeling poorly.
Paul’s immediate care giver allowed him to rest without joining other
activities. Around noon, while Paul was finishing his lunch, he asked if
he could return to his assigned task of cleaning a computer desk, but he
was asked to stay at the lunch table so he could finish eating and
continue to rest. When the care giver was out of the room, Paul left the
classroom and walked out of the building. Paul was not immediately
followed, but staff began tracing his path thereafter.


At approximately 12:19 p.m., security camera footage shows that as Paul
walked alongside a van parked at the side of the building, he faltered,
leaned into the side of the van, and fell forward down to the ground.
Approximately 22 seconds later, a KES worker arrived at Paul’s body,
and despite the worker’s prompting, Paul remained unresponsive.
Approximately 40 seconds later another worker, Mabel Semper, arrived
and called into the building to advise the staff that they had located Paul.
She had to make two calls to reach someone, and in the minutes that
followed, Semper called 911 and remained on the line with the operator.
During this time, a third employee, Kenneth Browner, arrived and
checked Paul’s mouth for foreign objects, and Paul was observed to be
breathing with a faint pulse. Other employees arrived and they
repositioned Paul to aid in his breathing, and they began CPR chest
compressions as instructed by the 911 operator over speakerphone.

                                     3
      There was a several minute time gap between Paul’s fall and the
      administration of CPR. Emergency personnel arrived minutes later, took
      over emergency care, and prepared him for transport. Treatment
      continued en route and at the hospital, but Paul was pronounced dead at
      the hospital soon thereafter. The cause of death listed by the emergency
      room physician was “cardiac arrest status post likely seizure.”


      Based on Paul’s death, the Blakes sued KES, alleging claims for
      negligence, negligence per se, wrongful death, intentional infliction of
      emotional distress, breach of contract, and negligent supervision and
      training. KES answered, discovery ensued, and both parties moved for
      summary judgment. Following a hearing, the trial court granted
      summary judgment to KES and denied the Blakes’ motion. The trial
      court based its ruling, in part, on the exclusion of certain
      unauthenticated documents and depositions not filed 30 days before the
      hearing.3


      The plaintiffs appealed, arguing in part that the trial court erred by failing to

consider an unsigned copy of the deposition of their expert, Dr. Anthony Kimani,4

and certain exhibits.5 This Court vacated the grant of summary judgment to KES and




      3
          Blake, 329 Ga. App. at 743-744.
      4
          See id. at 744 (1) (a).
      5
          Id. at 746 (1) (b).

                                            4
remanded the case with direction that the trial court consider the deposition of Dr.

Kimani and the aforementioned exhibits.6

      Following remand, upon reconsideration of KES’s motion for summary

judgment, including Dr. Kimani’s deposition and the plaintiffs’ exhibits, the trial

court again granted summary judgment to KES on all claims. In so doing, the trial

court concluded that there was no evidence in the record “sufficient to create a

dispute that any action or inaction undertaken by [KES] before [Paul’s] collapse on

September 22, 2009[,] caused his subsequent seizure or cardiac arrest, which was

determined to be his cause of death.”7 The court also concluded that there was

insufficient evidence to support the plaintiffs’ claim that KES’s failure to promptly

administer CPR to Paul was a proximate cause of his death. In reaching the latter

conclusion, the trial court found that although Dr. Kimani’s deposition testimony

created a material issue of fact as to causation for wrongful death based on KES’s




      6
         See id. at 745-746 (1) (a), (b). This Court also affirmed the denial of the
plaintiffs’ motion for summary judgment. See id. at 746 (2).
      7
        (Punctuation omitted; emphasis in original.) We agree that there is no
evidence in the record that any conduct on the part of KES caused Paul’s seizure or
cardiac arrest.

                                         5
failure to render aid, he was not competent to testify as an expert as a matter of law,

and the trial court therefore disregarded his testimony. This appeal followed.

      The plaintiffs contend that the trial court erred by granting summary judgment

to KES on the basis that there was insufficient evidence to support their claim that

KES’s failure to promptly administer CPR to Paul was a proximate cause of his death,

arguing in part that the trial court erred by again excluding the deposition testimony

of Dr. Kimani.

      Dr. Kimani testified at his deposition that KES failed to timely provide CPR

to Paul and that had they done so, Paul’s “chance of a successful resuscitation was at

least 50 percent.” The trial court concluded that this testimony “creates a material

issue of fact as to causation for wrongful death for failure to render aid under

Cowart,8 thereby precluding summary judgment for [KES]. . . .” The trial court,

however, disregarded Dr. Kimani’s testimony because he was not competent to testify

as an expert pursuant to OCGA § 24-7-702 (c) (2) (D) (formerly OCGA § 24-9-67.1).

      As the plaintiffs point out, KES did not challenge Dr. Kimani’s qualification

to testify as an expert in this case. Instead, the trial court sua sponte determined that

he did not meet the requirements of OCGA § 24-7-702 (c) (2) (D). Pretermitting

      8
          Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010).

                                           6
whether the trial court erred by excluding his testimony in the absence of such a

challenge,9 we conclude that the trial court erred by finding that Dr. Kimani had to

meet the requirements of that Code section in order to testify as an expert in this case.

      “We review a trial court’s decision concerning an expert’s qualifications under

[OCGA § 24-7-702 and] OCGA § 24-9-67.1 for an abuse of discretion.”10

Nevertheless, “in all appeals involving the construction of statutes, our review is

conducted under a de novo standard.”11

      Because this case concerns the meaning [and application] of [OCGA §
      24-7-702] (c) (2) ([D]), we begin with the familiar and settled principles

      9
         Certainly, trial judges are assigned a gatekeeping role with regard to expert
testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579, 589 (II) (B)
(113 SCt 2786, 125 LE2d 469) (1993); Dubois v. Brantley, 297 Ga. 575, 580 (2) (775
SE2d 512) (2015). Nevertheless, “the proffering party bears the burden of presenting
evidence of reliability in order to meet the standards of OCGA § 24-9-67.1.” HNTB
Georgia, Inc. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770) (2010). In this
case, in the absence of a challenge to Dr. Kimani’s qualifications, the plaintiffs were
not placed on notice that they needed to present such evidence before the trial court
ruled, and they were denied the opportunity to request a hearing on this issue. See
OCGA § 24-7-702 (d) “Upon motion of a party, the court may hold a pretrial hearing
to determine whether the witness qualifies as an expert and whether the expert’s
testimony satisfies the requirements of subsections (a) and (b) of this Code section.
Such hearing and ruling shall be completed no later than the final pretrial conference
contemplated under Code Section 9-11-16.”
      10
           Hope v. Kranc, 304 Ga. App. 367, 370 (1) (696 SE2d 128) (2010).
      11
           Hinkle v. Postel, 293 Ga. 692, 693 (749 SE2d 726) (2013).

                                           7
      that govern our consideration of the meaning of a statute. A statute
      draws its meaning, of course, from its text. When we read the statutory
      text, we must presume that the General Assembly meant what it said and
      said what it meant, and so, we must read the statutory text in its most
      natural and reasonable way, as an ordinary speaker of the English
      language would. The common and customary usages of the words are
      important, but so is their context. For context, we may look to the other
      provisions of the same statute, the structure and history of the whole
      statute, and the other law – constitutional, statutory, and common law
      alike – that forms the legal background of the statutory provision in
      question.12




      OCGA § 24-7-702 governs the admissibility of opinion testimony by expert

witnesses in civil actions. The standard for the admissibility of such testimony is

found in subsection (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


      12
           (Citations and punctuation omitted.) Dubois, 297 Ga. at 579 (2).

                                           8
      the case which have been or will be admitted into evidence before the
      trier of fact.13


Subsection (c) addresses the requirements for expert witnesses in professional

malpractice actions:

      Notwithstanding the provisions of subsection (b) of this Code section
      and any other provision of law which might be construed to the contrary,
      in professional malpractice actions, the opinions of an expert, who is
      otherwise qualified as to the acceptable standard of conduct of the
      professional whose conduct is at issue, shall be admissible only if, at the
      time the act or omission is alleged to have occurred, such expert:


      (1) Was licensed by an appropriate regulatory agency to practice his or
      her profession in the state in which such expert was practicing or
      teaching in the profession at such time; and


      (2) In the case of a medical malpractice action, had actual professional
      knowledge and experience in the area of practice or specialty in which
      the opinion is to be given as the result of having been regularly engaged
      in:


              (A) The active practice of such area of specialty of his or her


              profession for at least three of the last five years, with sufficient


      13
           OCGA § 24-7-702 (b).

                                            9
      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; or

            (B) 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; and


            (C) Except as provided in subparagraph (D) of this paragraph:

            (i) Is a member of the same profession;


            (ii) Is a medical doctor testifying as to the standard of care of a


                          defendant who is a doctor of osteopathy; or

            (iii) Is a doctor of osteopathy testifying as to the standard of care
      of a defendant who is a medical doctor; and




                                          10
               (D) Notwithstanding any other provision of this Code section, an
       expert who is a physician and, as a result of having, during at least three
       of the last five years immediately preceding the time the act or omission
       is alleged to have occurred, supervised, taught, or instructed nurses,
       nurse practitioners, certified registered nurse anesthetists, nurse
       midwives, physician assistants, physical therapists, occupational
       therapists, or medical support staff, has knowledge of the standard of
       care of that health care provider under the circumstances at issue shall
       be competent to testify as to the standard of that health care provider.
       However, a nurse, nurse practitioner, certified registered nurse
       anesthetist, nurse midwife, physician assistant, physical therapist,
       occupational therapist, or medical support staff shall not be competent
       to testify as to the standard of care of a physician.14


       Based upon its reading of Dr. Kimani’s deposition transcript and curriculum

vitae, the trial court found that he was not qualified to testify as an expert in this case

because the record “affirmatively reflect[ed] that Dr. Kimani did not, for three of the

five years immediately preceding [Paul’s] collapse in September 2009 supervise,

teach, or instruct medical support staff such as [individual defendants Semper and




       14
            (Emphasis supplied.) OCGA § 24-7-702 (c).

                                            11
Browner]” as required by OCGA § 24-7-702 (c) (2) (D).15 But, “OCGA § [24-7-702]

(c) (2) by its plain terms applies only in cases of alleged medical malpractice.”16

      OCGA § 9-3-70 defines “the term ‘action for medical malpractice’” as

      any claim for damages resulting from the death of or injury to any
      person arising out of: (1) [h]ealth, medical, dental, or surgical service,
      diagnosis, prescription, treatment, or care rendered by a person
      authorized by law to perform such service or by any person acting under
      the supervision and control of the lawfully authorized person; or (2)
      [c]are or service rendered by any public or private hospital, nursing
      home, clinic, hospital authority, facility, or institution, or by any officer,
      agent, or employee thereof acting within the scope of his employment.


However,

      [n]ot all injuries that occur in a hospital, nursing home or other health
      care facility are the result of professional negligence; they may be solely
      attributable to ordinary or simple negligence. For that reason, our
      appellate courts have consistently looked to the claim stated rather than
      the entity or person sued when determining whether an action is for

      15
         (Punctuation omitted; emphasis in original.) The record does establish that
Dr. Kimani was board-certified in internal medicine, with a specialty in pulmonary
and critical care medicine, and he was certified in cardiac life support. He was the
medical director of the respiratory therapy department of the Emory University
geriatric center from 1994 through 1998, and he was in private practice from 1999
through the time of his 2013 deposition.
      16
           Wilson v. McNeely, 307 Ga. App. 876, 879 (2) (705 SE2d 874) (2011).

                                           12
      professional malpractice or ordinary negligence. Simply because an
      alleged injury occurs in a hospital setting, a suit to recover for that injury
      is not necessarily a medical malpractice action. Likewise, not every suit
      which calls into question the conduct of one who happens to be a
      medical professional is a medical malpractice action. A professional
      malpractice action is merely a professional negligence action and calls
      into question the conduct of a professional in his area of expertise.”
      Consequently, we must look to the substance of an action against a
      medical professional, hospital, or health care facility in determining
      whether the action is one for professional or simple negligence.17




      In this case, the plaintiffs do not allege medical malpractice, instead asserting

claims for simple negligence and negligence per se, in addition to wrongful death,

intentional infliction of emotional distress, breach of contract, and negligent

supervision and training. Indeed, KES concedes on appeal that “this case is not a

medical malpractice action.” And the record shows that the facility where Paul

collapsed is a day facility that provides “education, life skills, job assistan[ce,] and

rehabilitation services to people with mental and physical disabilities.” The individual

defendants listed in this case were non-medical personnel and personal care givers.


      17
       (Citations and punctuation omitted; emphasis in original.) Moore v. Louis
Smith Mem. Hosp., 216 Ga. App. 299, 299-300 (454 SE2d 190) (1995).

                                           13
Under these particular circumstances, the plaintiffs were not required to establish that

Dr. Kimani met the requirements of OCGA § 24-7-702 (c) (2) (D), which apply only

to medical malpractice actions, in order to testify as an expert as to causation in this

case. Accordingly, the trial court erred by excluding Dr. Kimani’s testimony on this

basis.

         Therefore, we vacate the order granting summary judgment and remand for the

trial court to consider the merits of KES’s summary judgment motion.18

         Judgment vacated and remanded. Phipps, P. J., and Boggs, J., concur.




         18
         Although the trial court already has determined that Dr. Kimani’s deposition
testimony created a material issue of fact as to causation for wrongful death based on
KES’s failure to timely render aid, it has not, to date, ruled upon the multiple
remaining bases for summary judgment as alleged by KES. Although we are mindful
of the delay a remand will cause in this litigation, we decline to review rulings not
made by the trial court in this case. See City of Gainesville v. Dodd, 275 Ga. 834,
838-839 (573 SE2d 369) (2002) (upon appellate determination that the trial court
relied on an erroneous legal theory or reasoning in reviewing an order on summary
judgment involving “a variety of grounds advanced,” the appellate court may remand
the case to the trial court “to issue rulings on grounds advanced, which could then
serve as a basis for appellate review”).

                                          14
