The Georgia Court of Appeals on Tuesday affirmed the dismissal of claims against an anesthesiologist and two anesthesiology staffing companies accused of negligently credentialing a certified registered nurse anesthetist who allegedly caused a patient's death during a back pain alleviation procedure.

In a 19-page opinion, a three-judge appellate panel said a trial court rightly granted partial summary judgment to Dr. Marcus Polk and two companies he owns, Anesthesia Consultants of Georgia LLC and Oracle Anesthesia of Georgia LLC, in a suit filed by Calvin Miller after his wife, Jerline Miller, died in 2019 after being administered sedation medications prior to surgery.

Calvin Miller had argued that Polk and the companies failed to ensure that nurse anesthetist Cynthia Hamm was properly credentialed before she treated his wife. However, the panel said the trial court was right to toss that claim as there is no evidence showing Polk or the companies are healthcare institutions with a duty to credential Hamm.

Existing case law shows that "the responsibility to credential doctors and nurses arises from the health care institution's duty to its patients," the panel said, making it the institution's responsibility to ensure that those providing patient care in its facilities are "qualified for the privileges" granted to them.

Here, the panel said neither Polk nor the companies fall into any of the "defined categories" of a healthcare institution laid out in OCGA Section 31-7-1, a Georgia code section that provides definitions for the purpose of regulating hospitals and related institutions. As such, the panel said the trial court correctly freed them from the negligent credentialing claim.

The panel said the trial court also correctly freed Polk and the companies from Calvin Miller's claims that they violated two Georgia statutes by negligently failing to observe Hamm to ensure she provided adequate medical treatment to patients.

The first statute cited by Calvin Miller—OCGA Section 43-26-51—requires nurses to report other nurses to the Georgia Board of Nursing if they believe they have been convicted of "any felony, crime involving moral turpitude, or crime violating a federal or state law relating to controlled substances or dangerous drugs" or are "displaying an inability to practice" in their area of nursing due to the "use of alcohol, drugs, narcotics or chemicals."

That statute does not apply to Polk or the companies, the panel said, as they are not nurses.

The second statute—OCGA Section 43-26-53—requires that similar incidents be reported to the nursing board, but even "assuming, without deciding," that it imposed a reporting duty on Polk or the companies, the panel said Miller hasn't shown they breached any duty because he hasn't shown that a reportable incident occurred.

Although Hamm has a "history of disciplinary actions before the Alabama and Georgia Boards of Nursing" that includes failing to disclose a 2004 positive preemployment drug screen for cocaine, guilty pleas in 2013 for driving under the influence and following too closely, and obtaining prescriptions from doctors who weren't her primary doctor, the panel said Calvin Miller did not provide any evidence showing Hamm was convicted of any felony or crime that would trigger a duty to report under the statute.

Nor, the panel said, did Calvin Miller show that "Hamm displayed or that the defendants were aware that Hamm displayed" any inability to practice nursing due to the use of alcohol, drugs, narcotics or chemicals.

"Miller also argues that the defendants' failure to monitor Hamm amounts to negligence per se, but he fails to cite any statute requiring such monitoring," the panel said.

Court records show that Jerline Miller was scheduled to undergo surgery at Pain Care Center of Georgia in August 2019. Hamm was to provide anesthesia services during the procedure.

Before the surgery, the panel said Jerline Miller was given a sedative and a prophylactic antibiotic, at which point she began coughing and stated she was having difficulty breathing. According to the opinion, Hamm performed a maneuver intended to assist with obstructed breathing and a medical team began life-saving efforts before Jerline Miller was eventually transported to a hospital, where she died the following day.

Calvin Miller subsequently sued Hamm, Pain Care Center of Georgia, the physician who was intended to perform the surgery on his wife and others for negligence. That lawsuit was settled in August 2020, records show, and Calvin Miller filed the instant suit against Polk and the staffing companies that October.