- Court
- Court of Appeals of Georgia
- Year
- 2024
- Case
- Ferguson v. Kennestone Hospital, Inc.
- Citation
- 370 Ga. App. 831; 899 S.E.2d 357; 2024 Ga. App. LEXIS 93; 2024 WL 936433
- Decided
- March 5, 2024
The court affirmed dismissal of medical-negligence and promissory-estoppel claims where the plaintiff failed to file a required expert affidavit and alleged an unenforceable vague promise, but reversed summary judgment on a battery claim where the plaintiff's verified complaint alleged signature forgery, creating a material-fact question about consent validity.
Summary
On March 5, 2024, the Georgia Court of Appeals decided Ferguson v. Kennestone Hospital, Inc., a medical-malpractice action brought by Maxine Ferguson, individually and as administrator of her husband Barrington’s estate, against Kennestone Hospital. The trial court dismissed the negligence, promissory-estoppel, and pain-and-suffering claims and granted summary judgment on the battery claim. The appellate court affirmed the dismissals but reversed the summary judgment on the battery claim, finding a material-fact question about whether Barrington’s surgical-consent signature was forged.
Issues Decided
Expert-Affidavit Requirement for Medical-Malpractice Claims
Decision
The court affirmed dismissal of the negligence claim for failure to file a required expert affidavit under OCGA § 9-11-9.1(a), holding that the plaintiff’s allegations about medication administration fell within professional malpractice, not ordinary negligence, and thus required expert-affidavit support.
Facts
Barrington was admitted to Kennestone on November 5, 2017, for a severe toe injury requiring amputation. Over the following days, hospital staff changed his antibiotic from Vancomycin to Cefepime. Barrington’s condition rapidly declined; his family complained to a nurse but he remained on the medication. On November 13, Barrington became verbally nonresponsive and comatose. Maxine questioned staff about the Cefepime but received no clear response. A physician later treated Barrington with dialysis to remove the medication, and Barrington awoke from his coma. Subsequently, Barrington was given Keppra, an anticonvulsant, despite never having suffered seizures. Maxine questioned this medication as well but received no explanation. On November 23, the family requested discontinuation of Keppra over the doctor’s opposition, and Maxine was reprimanded by a physician for ceasing the medication. After Keppra was discontinued on November 24, Barrington’s condition improved. On November 27, a physician promised Maxine that Barrington would receive only antibiotics for two more days before discharge on November 29. However, on November 28, Barrington was taken to surgery, stopped breathing under general anesthesia, was resuscitated, and was moved to the ICU. He died on November 29. Maxine filed suit on January 7, 2022, alleging negligence but providing only a heading for a “Simple Negligence” claim with no detailed allegations.
Reasoning
The court distinguished between ordinary negligence—which does not require an expert affidavit—and professional malpractice, which does. Medical providers owe duties of ordinary care, and breach of those duties is ordinary negligence; however, medical malpractice exists only where the act or omission requires expert medical judgment. The plaintiff’s arguments about whether medication should have been administered, whether it should have been discontinued, and the propriety of medication decisions all involve professional assessment of medical risks in light of the physician’s knowledge of the patient’s particular needs and susceptibilities. These decisions fall squarely within professional malpractice, not ordinary negligence. Because the complaint failed to provide an expert affidavit as required by OCGA § 9-11-9.1(a), dismissal was proper. The related pain-and-suffering claim also failed for the same reason.
Promissory-Estoppel Claim
Decision
The court affirmed dismissal of the promissory-estoppel claim, holding that the alleged promise was too vague and indefinite to be enforceable.
Facts
Maxine alleged that she relied on a promise from the doctor to provide only antibiotics along with Barrington’s regular medications and “to not do anything else as to medically.”
Reasoning
Under OCGA § 13-3-44(a), a promise is binding under promissory estoppel only if the promisor should reasonably expect it to induce action or forbearance and injustice can be avoided only by enforcement. The threshold requirement is an enforceable promise. Promissory estoppel does not apply to vague or indefinite promises or promises of uncertain duration. Here, the promise to “not do anything else as to medically” was too vague to support enforcement; there was no way to know what was meant by that language or how to enforce it. The court compared the claim to similar cases where promises to provide “more time to pay” or incentive compensation in a range of “ten to fifteen percent” were found too vague.
Battery Claim—Signature Forgery and Consent Validity
Decision
The court reversed summary judgment on the battery claim, holding that the plaintiff’s verified complaint alleging signature forgery created a material-fact question about the validity of Barrington’s surgical consent, precluding summary judgment as a matter of law.
Facts
On November 28, 2017, Kennestone called Maxine to inform her that Barrington had been taken to surgery and stopped breathing under general anesthesia. Kennestone resuscitated him, and he was moved to the ICU. He died the next day. In her verified complaint, Maxine stated that after reviewing the medical record, she noticed that the permission document in the hospital’s file was not signed by her husband and that the signature on the document was forged. Kennestone defended by pointing to a signed consent form in Barrington’s medical records.
Reasoning
Battery arises from unauthorized and unprivileged contact by a doctor unless the patient consents freely or consent is not obtained by fraud. A verified complaint serves as both pleading and evidence. Maxine pointed to evidence that Barrington’s signature was a forgery. A witness can give lay-opinion testimony identifying handwriting if the witness knows the handwriting or is familiar enough with it to recognize it. Due to their marital relationship, Maxine could testify regarding her husband’s handwriting. Such testimony is sufficient to raise a question of material fact regarding the validity of Barrington’s consent and whether his signature was forged. Because Kennestone did not establish as a matter of law that it was entitled to judgment, summary judgment was improper.
Commentary
For plaintiff lawyers, the battery reversal underscores a procedural advantage when a verified complaint alleges signature forgery: the court treated the verified pleading itself as evidence sufficient to create a material-fact question, bypassing the need for expert affidavit support and allowing the case to proceed to trial on consent validity. This stands in sharp contrast to the negligence dismissal, where the court required expert affidavit support before any claim could survive. The distinction matters in case evaluation—a plaintiff alleging unauthorized surgery based on forged consent may preserve a viable battery claim even without pre-suit expert review, whereas claims challenging medication decisions or treatment protocols will face immediate dismissal without expert-affidavit compliance under OCGA § 9-11-9.1(a).
