Ferguson v. Kennestone Hospital, Inc.

Ferguson v. Kennestone Hospital, Inc.

GA Court of Appeals, 3/5/24

A23A1589, 2024 WL 936433

Chief Judge Mercier

Topics: Battery, Medical Malpractice, Promissory Estoppel, Summary Judgment

Quick Take: A widow and personal representative for her husband’s estate apparently handled a lawsuit pro se and sued a hospital under several theories for treatment that she alleges killed him. Due to (avoidable) errors in pleading and litigating the case, almost all of her claims were dismissed or she lost at summary judgment. The claim of civil battery, however, survived where she alleged in a verified complaint (which is evidence) that her husband’s signature on a consent to surgery form was forged.

Full Take: In 2017, Barrington Ferguson was taken to Kennestone via ambulance due to a severe injury to one of his toes. The toe had to be amputated. Over the following days, “hospital staff changed his antibiotic from Vancomycin to Cefepime,” and Barrington subsequently experienced a rapid decline in his condition. His family complained to a nurse, but he remained on the medicine.

Eight days after his hospitalization, Kennestone Hospital called Maxine Ferguson, Barrington’s wife, to inform her that Barrington was verbally nonresponsive. Shortly thereafter, he became comatose and was moved to the intensive care unit. Maxine questioned staff as to why Barrington was still being treated with Cefepime, but no one ever gave her a clear response.

The following day, a physician told Maxine that he was going to treat Barrington with dialysis to remove all of the medication from Barrington's body. This was an attempt to reverse the effects of Cefepime toxicity.

After 24 hours of dialysis, Barrington awoke from his coma and was transferred out of the ICU. Within a short time, however, Barrington started experiencing excruciating pain, and he begged for pain relief. A nurse told Maxine that Barrington would be taken for more dialysis, but, later that evening, he was taken back to the ICU because he was too weak for dialysis. Maxine learned that Barrington was being treated with an anticonvulsant medication called Keppra. He had never suffered from seizures. She asked why the medication was given, but she received no answers from the nurses.

Barrington was transferred out of the ICU, but he was so weak that he could barely speak. Three days later, the family decided to request that the hospital stop the use of Keppra despite doctor's forceful opposition. The doctor reprimanded Maxine, but she held firm.

Three days after discontinuing Keppra, Barrington's condition improved. His feeding tube was removed. One of the doctors recommended two more days of treatment with an antibiotic before being released from the hospital. Maxine requested to transfer her husband to another hospital, but the doctor assured her that if he stayed just two more days for antibiotic treatment, he could go home. Barrington expressed that he wanted to leave the hospital.

Maxine agreed to let her husband stay for two more days on the condition that the hospital only give him antibiotics. The doctor assured her that Barrington would be discharged in two days. On the following day, however, the hospital called Maxine to tell her that Barrington had been taken to surgery and during the surgery he stopped breathing while under general anesthesia. He’d been resuscitated and taken to the ICU, but he died the next day. Maxine observed Keppra being administered to Barrington on the day he died.

Maxine was appointed administrator of Barrington's estate, and she sued the hospital for negligence, battery, promissory estoppel, and pain and suffering. Kennestone moved to dismiss, or in the alternative, moved for summary judgment.

The trial court dismissed the negligence, promissory estoppel and pain and suffering claims and then granted summary judgment on the battery claim.

Maxine filed a pro se appeal.

Maxine also argues that the trial court did not err in dismissing the negligence claim for lack of a corroborating affidavit because it was a regular negligence claim, not a professional negligence claim. But the claim of negligence for continuing to administer the anticonvulsant medication was clearly a medical malpractice claim.

The trial court also dismissed Maxine’s promissory estoppel claim. The promise by the doctor to only provide antibiotics was too vague to be enforceable. In the Court’s opinion, there was no way to know what was meant by the promise “to not do anything else as to medically,” let alone any way to enforce such a statement.

Finally, Maxine argues that the trial court erred by granting summary judgment to Kennestone on the battery claim. Maxine claims that Kennestone performed surgery on Barrington without consent and forged his signature. A claim for battery arises from any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery. Maxine points to differences in the purported signature and the signature by her husband on an earlier from. A verified complaint serves as both pleading and evidence. A witness can give lay opinion testimony identifying handwriting if the witness knows the handwriting or is so familiar with it that he or she would recognize it. Her verified complaint was sufficient to raise a question of material fact regarding the validity of Barrington's consent and whether his signature was forged. This claim must be reversed. AFFIRMED IN PART, REVERSED IN PART, and remanded.

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