WHOLE COURT
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
November 18, 2016
In the Court of Appeals of Georgia
A16A0763. DOHERTY v. BROWN et al.
A16A0764. BROWN et al. v. SOUTHEASTERN PAIN
SPECIALISTS, P.C.et al.
A16A0765. SOUTHEASTERN PAIN AMBULATORY SURGERY
CENTER, LLC. v. BROWN et al.
A16A0766. SOUTHEASTERN PAIN SPECIALISTS P.C. v.
BROWN et al.
BARNES, Presiding Judge.
These companion appeals arise from a medical malpractice action brought on
behalf of Gwendolyn Lynette Brown, which alleged that she suffered catastrophic
brain damage from oxygen deprivation while undergoing a procedure to relieve back
pain. Mrs. Brown died while this suit was pending, and her complaint was amended
to add a wrongful death claim by her surviving spouse, Sterling Brown, Sr., who was
also added as the administrator of her estate (hereinafter collectively “Brown” unless
otherwise noted.) The defendants included Dennis Doherty, D.O., Southeastern Pain
Specialists, P.C. (“the P.C.”), Southeastern Pain Ambulatory Surgery Center, LLC.
(“the Surgery Center”), Ann Yearian, R.N., and Mary Hardwick, R.N.1
The trial was trifurcated into a liability phase, a punitive liability phase, and a
punitive damages phase. In phase 1 of the trial, the jury found the defendants liable
for Brown’s injury and apportioned fault at 50 percent to Dr. Doherty, 30 percent to
the Surgery Center, 20 percent to the P. C., and 0 percent to Hardwick. In phases 2
and 3 of the trial, the jury found Doherty liable for punitive damages, but awarded
nothing for punitive damages. A final judgment totaling $21,981,093.29 in damages
was awarded to Mr. Brown as the surviving spouse and to Mrs. Brown’s estate.
In Case No. A16A0763, Dr. Doherty contends that the trial court erred in
charging the jury on ordinary negligence, in denying his motion for directed verdict
on any claims for ordinary negligence or for conduct occurring after 5:40 p.m., in
excluding expert testimony, and in failing to declare a mistrial based on improper
character evidence. In Case No. A16A0764, Brown appeals and contends that the trial
court erred during the liability phase of the trial in failing to admit certain evidence
1
The trial court dismissed Yearian with prejudice before trial. She is not a party to
this appeal.
2
about Doherty’s conduct, and in failing to declare a mistrial when Doherty placed
evidence of his financial condition and liability insurance before the jury.
In Case No. A16A0765, the Surgery Center appeals and contends that the trial
court erred in denying its motions for directed verdict and judgment notwithstanding
the verdict (JNOV) because there was no evidence that any agent of the Surgery
Center breached any duty causing an injury to Brown. And, in Case No. A16A0766,
the P.C. contends that the trial court erred in not granting a JNOV based on the jury’s
apportionment of damages against it, and in not granting a directed verdict or JNOV
based on Brown’s failure to establish that the defendants committed any wrongful
acts that proximately caused Brown’s death.
Facts
Dr. Doherty, a board-certified anesthesiologist and pain management specialist,
began treating Mrs. Brown in 2008 for chronic back pain. . Doherty performed two
epidural steroid injection procedures (“ESI”) on Mrs. Brown in the fall of 2008
without incident. During an ESI, steroid medication is injected into the epidural space
in the spine to reduce inflammation and relieve pain. The procedures were performed
at the Surgery Center, which Doherty had opened in 2006, and where Hardwick was
the administrator and nursing director.
3
On September 16, 2008, Mrs. Brown arrived at the Surgery Center with her
daughter-in-law for a 10:00 a.m. appointment for a third bilateral ESI to be performed
under conscious sedation. At approximately 2:45 p.m. Hardwick performed Mrs.
Brown’s patient pre-op, which included taking her medical history, recording her
vital signs, and starting an intravenous line. Afterward, Mrs. Brown napped while she
waited to be taken to the operating room for the procedure.
At approximately 4:40 p.m., Yearian, the operating room nurse, took Mrs.
Brown to the operating room, at which time Yearian gave her “two milligrams of
Versed IV push and 50 mics of Fentanyl.” Fentanyl is a pain reliever, and Versed is
a relaxant. Mrs. Brown was also given oxygen at a flow of 3 to 5 liters through a
nasal cannula. Mrs. Brown’s oxygen level at this point was at 100 percent. Michelle
Perkins, the surgical tech, and Yearian placed Mrs. Brown in a prone position on the
surgical table, and because Doherty was running late, Perkins had to leave the room
three times to tell Doherty that Mrs. Brown was ready for the procedure.2 Doherty
came into the operating room approximately 50 minutes after Mrs. Brown was
brought in, and after administering propofol, a short-acting medication that decreases
2
Perkins testified that Doherty was interviewing another patient for pre-op the first
time she went to get him, and could not recall what he was doing the other two times.
4
consciousness and memory, he started the procedure at 5:30 p.m.. Shortly thereafter,
Mrs. Brown’s oxygen level began to drop “rapidly.”
The pulse oximeter that was used to monitor Mrs. Brown’s blood oxygen
saturation level sounded an alarm, indicating a drop in the level of oxygen in her
blood. Perkins testified that the alarm goes off if the oxygen level drops below 90
percent, and Yearian testified that she is generally alarmed when the oxygen level
drops below “94 or 92.” Doherty responded to the oxygen saturation decline by
instructing Yearian to increase the oxygen flow to 5 liters, and by physically
assessing Mrs. Brown’s breathing and oxygenation level, after which he concluded
that she was still breathing. However, Perkins remained concerned, and believed that
Mrs. Brown was not breathing and asked Doherty several times if she could turn the
oxygen level up higher, but he instructed her to “get back over to the C-Arm.”3
Perkins asked Doherty if she should call Hardwick, but he responded “no,” because
“the patient was breathing and the airway was good.” Still concerned about Mrs.
Brown’s breathing and feeling “helpless,” Perkins surreptitiously sent a text to Nurse
3
A C-Arm is a medical imaging device used during an ESI to help the doctor position
the injection needles in the spine.
5
Hardwick, saying simply, “Come.” Perkins testified that she kept her cell phone in her
pocket while she sent the text so that Doherty could not see her text Hardwick.
When Hardwick arrived, Mrs. Brown was lying face down on the table with
injection needles placed in her back, Doherty was standing at the head of the table
holding her jaw to maintain an airway, and the pulse oximeter was registering zero
while its alarm sounded. In her incident report, Perkins wrote that when Hardwick
walked in “you could see from the way [Yearian] and Dr. Doherty were holding the
[Mrs. Brown’s] airway and looking at the O2 stat [that] there was a problem.”
Hardwick grabbed a stretcher so that Mrs. Brown could be turned on her back
to be resuscitated, but Doherty told Hardwick that the pulse oximeter was
malfunctioning, that Mrs. Brown had a pulse, and that she was breathing. Hardwick
testified that she observed Mrs. Brown’s back “rising and falling in what appear[ed]
to be a normal rhythm.”
Doherty told Hardwick that the “pulse oximeter is not indicative of what her
true oxygen saturation is,” so Perkins retrieved a second pulse oximeter and
Hardwick placed it on Mrs. Brown’s toe, but its alarm also sounded and both
monitors had a reading of zero oxygen saturation. During this time, the blood
pressure monitor was also recycling, which indicated that it was not detecting a blood
6
pressure. Doherty maintained that everything was “fine” and continued to
demonstrate to Yearian how to “hold the airway.”
Yearian took over for Doherty to maintain Mrs. Brown’s airway while Doherty
finished the procedure. Hardwick and another staffer who was called in to assist held
up Mrs. Brown’s shoulders to “help take some weight off her chest to maybe get her
better oxygenated without getting in . . . Doherty’s way . . . so he could finish the
procedure.” After Doherty completed the procedure, and the needles were removed,
Doherty maintained the airway while the others turned Mrs. Brown over and Doherty
administered Narcan and Romazicon, sedation-reversal drugs. Mrs. Brown’s oxygen
flow level was also increased to 15 liters. The procedure was completed at 5:48 p.m.
The “first stats” recorded after the procedure reflected an oxygen level
registering “in the 50s . . . and [Doherty] started bag-masking” her. After a few
minutes of ventilating Mrs. Brown with the airbag, her oxygen levels rose to the 90s.
Hardwick asked if she could call 911, but Doherty replied “no,” that Mrs. Brown was
just heavily sedated.
Mrs. Brown’s daughter-in-law testified that she was brought to the recovery
room and Doherty instructed her to talk to Mrs. Brown and “keep trying to stimulate
her,” but the daughter-in-law testified that Mrs. Brown “would just open her eyes like
7
she was trying to talk and she was spitting.” Doherty reassured the daughter-in-law
that “these things happen with anesthesia.” Eventually, when Mrs. Brown did not
fully wake up or respond normally to “voice or painful stimuli” after almost three
hours, 911 was called at approximately 7:30 p.m. The daughter-in-law testified that
Doherty told the responding emergency medical technicians that Mrs. Brown “was
there that day for an epidural procedure, the procedure went fine and she was having
complications coming out of the anesthesia slowly.” He did not mention any other
complications and did not tell the technicians that Mrs. Brown had possibly
experienced a hypoxic event.
The treating neurologist at the hospital testified that, according to the medical
history provided when Mrs. Brown was brought in, she had undergone an epidural
procedure and “in the recovery room . . . they saw her clenching her mouth and
getting stiff and . . . jerking her legs, so they thought she was having a seizure and
that’s what prompted them to . . . call the EMS.” The neurologist testified that Mrs.
Brown’s behavior was more in line with someone who had an hypoxic or anoxic
injury, so he asked that someone call the Surgery Center to find out what happened.
He was told that “there was no history of hypoxia because she had a pulse ox and
everything was fine.” It was later determined that Mrs. Brown had suffered a
8
catastrophic brain injury caused by oxygen deprivation. As a result of her injury, she
was profoundly cognitively impaired and a quadriplegic until her death six years later,
on September 16, 2014.
Case No. A16A0763
1. Doherty first contends that the trial court committed reversible error by
charging the jury on ordinary negligence. He asserts that the charge was inapplicable
because all of Brown’s theories of liability against Doherty were based on
professional malpractice and violations of the physician standard of care. We do not
agree.
Because
complaints against professionals may state claims based on ordinary as
well as professional negligence, the complaint’s characterization of
claims as stating professional or ordinary negligence does not control.
Where the professional’s alleged negligence requires the exercise of
professional skill and judgment to comply with a standard of conduct
within the professional’s area of expertise, the action states professional
negligence. But where the allegations of negligence do not involve
professional skill and judgment, the action states ordinary negligence.
Whether a complaint alleges ordinary or professional negligence [or
both] is a question of law for the court.
9
(Citations and punctuation omitted; emphasis supplied.) Bardo v. Liss, 273 Ga. App.
103, 103 (1) (614 SE2d 101) (2005). See Candler General Hospital v. McNorrill, 182
Ga. App. 107, 110 (2) (354 SE2d 872) (1987) (“not every suit which calls into
question the conduct of one who happens to be a medical professional is a ‘medical
malpractice’ action.”) A jury charge is authorized if there is some evidence from
which jurors can conduct a legitimate process of reasoning with respect to the charge.
T.G.&Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (2) (334 SE2d 910) (1985).
Further, “[a] jury charge must be adjusted to the evidence, apt, and a correct statement
of the applicable law.”(Citation and punctuation omitted.) Ware v. Henry County
Water & Sewerage Auth., 258 Ga. App. 778, 784 (7) (575 SE2d 654) (2002).
Here, the jury could, without the help of expert testimony, find that certain acts
and omissions associated with Mrs. Brown’s injury were claims of ordinary rather
than professional negligence. A lay person would not need an expert to convey the
implication of two pulse oximeters with readings of zero percent oxygen, or of a
blood pressure monitor that continually recycles without registering a blood pressure.
A lay person would also understand, without the guidance of expert testimony, that
the emergency technicians and medical staff at the hospital where Mrs. Brown was
10
taken by ambulance should have been fully and truthfully informed about the incident
in the operating room that indicated a hypoxic event.
In Dent v. Memorial Hosp., 270 Ga. 316, 318 (509 SE2d 908) (1998), the trial
court’s decision to charge only professional malpractice was erroneous. We held that
the jury could have been misled to believe that it could not return a verdict based
upon ordinary negligence even though the plaintiff’s claims about the nurses’
incorrect operation of an apnea monitor, their failure to follow the doctor’s orders,
and their failure to ensure that the “crash cart” was equipped for pediatric patients
were claims of ordinary, not professional, negligence.
Likewise, in Carter v. Cornwell, 338 Ga. App. 662 (__SE2d__) (2016), in
reversing the dismissal of Carter’s claim for failing to attach an expert affidavit, this
Court held that the medical practice’s on-call doctor “was not utilizing professional
judgment or medical expertise” when the doctor provided Walgreens with inaccurate
information about a prescription, which resulted in Carter’s arrest for altering a
prescription. Id. at 666. We further held that the claim “for failing to properly handle
on-call responsibilities because the physician on call did not make an effort to call
[Carter’s doctor]’s after he or she was contacted by Walgreens or have any procedure
11
to verify the prescription. . . did not require the exercise of professional judgment or
skill.” Id.
Similarly, here a jury could find, without the help of expert testimony, that
certain acts and omissions associated with Brown’s injury — including failing to fully
and accurately disclose the incident to the hospital and ignoring the implications of
two alarming oximeters and a recycling blood pressure monitor— sounded in
ordinary rather than professional malpractice. See Kneip v. Southern Engineering Co.,
260 Ga. 409, 410 (3) (395 SE2d 809) (1990) (“[T]here are instances in which actions
performed by or under the supervision of a professional are nevertheless not
professional acts constituting professional malpractice, but, rather, are acts of simple
negligence which would not require proof by expert evidence.”); Liu v. Boyd, 294 Ga.
App. 224, 226 (1) (668 SE2d 843) (2008) (“Whether a complaint alleges ordinary
negligence or professional negligence is a question of law for the court, regardless of
how the plaintiff categorizes it.”); Brown v. Durden, 195 Ga. App. 340, 340-342 (393
SE2d 450) (1990) (physical precedent only) (jury could determine without the help
of expert evidence whether the “medical assistant exercised due care in leaving
decedent unattended and unrestrained on the examining table after he had been
12
brought to the office suffering from dizziness and nausea following an apparent
seizure”).
Accordingly, the trial court did not err in charging the jury on ordinary
negligence.
2. Doherty also contends that the trial court erred in denying a directed verdict
on the ordinary negligence claims, based on the “same reasons the trial court erred in
charging the jury on ordinary negligence.” “The standard of appellate review of a trial
court’s denial of a motion for a directed verdict . . . is the ‘any evidence’
test.”(Citation omitted.) Galardi v. Steele-Inman, 266 Ga. App. 515, 516 (1) (597
SE2d 571) (2004). “Although the evidence in the case was in some instances
conflicting, it certainly met the criteria of the ‘any evidence’ rule.” Kelly Ford v.
Paracsi, 141 Ga. App. 626, 627 (1) (234 SE2d 170) (1977). As explained in Division
1, because there was some evidence from which the jury could have found ordinary
negligence in Doherty’s actions, the trial court did not err in denying his motion for
directed verdict on this basis.4
4
Although we have reviewed this enumeration of error, we note that Doherty
incorrectly cites the volume and page number for the location of the motions for
directed verdict. The record in this case consists of 41 volumes, and we will not cull
the record on a party’s behalf to locate information in support of the party’s argument.
13
3. Doherty also contends that the trial court erred in failing to grant a directed
verdict on all claims based upon events that occurred after 5:40 p.m. He contends that
there was no evidence that any standard of care violations that happened after 5:40,
including the 911 call at 7:30 p.m. and Brown’s transfer to the hospital, caused any
harm to Brown. We do not agree.
As previously noted, there was some evidence that Brown experienced oxygen
deprivation from about 5:30 p.m. to 5:48 p.m. Doherty’s argument appears to be
premised on the assumption that the injury was complete at 5:40 p.m., at which point
Brown had been deprived of oxygen for 10 minutes and had already suffered brain
damage. Brown’s neurology expert testified that, depending on the degree of hypoxia,
“permanent brain injury can occur as early as three, four, or five minutes . . . and of
course it gets worse the longer the time goes by and the more severe the hypoxia is.”
Brown’s expert anesthesiologist testified that “once five minutes [has] gone by, the
Carlisle v. Abend, 288 Ga. App. 150, 151 (1) (653 SE2d 388) (2007). Rather, it is the
party’s duty in the first instance to cite to “such parts of the record or transcript
essential to a consideration of the errors complained of,” and such “[r]ecord and
transcript citations shall be to the volume or part of the record or transcript and the
page numbers that appear on the appellate record or transcript as sent from the trial
court.” (Emphasis supplied.) Ga. Ct. of App. R. 25 (a) (1).
14
thought is that there has been some neurologic damage. It may get worse and worse
as time goes by.”
Thus, the evidence presented did not demand a finding that no act occurred
after 5:40 p.m. that contributed to Brown’s injury, and the trial court did not err in
denying Doherty’s motion for directed verdict to that effect.
4. We also find no merit to Doherty’s contention that the trial court erred in
excluding the testimony of one of his experts.
The record demonstrates that on February 8, 2012, the trial court issued an
amended case management order. After noting that “all parties [had] identified expert
witnesses, except [Doherty],” the trial court directed Doherty to identify his expert
witnesses, if any, no later than February 29, 2012. The order stated that “[t]here shall
be no extensions of these deadlines by agreement of the parties,” that motions filed
after the deadlines would be untimely and “may not be considered,” and that “failure
to comply with the deadlines set forth in this . . . Order may result in the imposition
of sanctions, including striking pleadings, assessments of attorney’s fees, exclusion
of evidence or witnesses, or other sanction.” (Emphasis supplied.)
The trial was specially set for November 18, 2013, and on August 2, 2013,
Doherty identified Dan Martin, M. D. to testify “that nothing Dr. Doherty did or
15
failed to do caused Mrs. Brown’s injuries.” On November 5, 2013, Brown filed a
motion to “exclude [Doherty’s] untimely designated testifying expert,” asserting that
Dr. Martin was “untimely designated” and also that his testimony that Brown’s injury
was caused by a stroke was scientifically unreliable under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993).5 The case
was not tried that month, but subsequently, on March 1, 2014, the trial court entered
an order resetting the trial for March 10, 2014, and on March 8, 2014, the trial court
entered an order granting Brown’s motion to exclude the testimony of Dr. Martin. In
excluding the testimony, the trial court found that
the deadline to disclose expert witnesses in this case was February 8,
2012 — over 1½ years prior to the designation of Dr. Martin as an
expert in this case. Moreover, at the time Dr. Martin was disclosed as an
expert, this case had already been set for trial in November of 2013, a
mere three months prior to his designation. Prior to his designation,
defendants did not seek leave of court for the late disclosure of an
expert. Furthermore, in their response to the motion, defendants offer
absolutely no reason for the late disclosure, leaving this Court with no
explanation for why they waited until the eve of trial to disclose the
expert witness. Finally, this Court notes that the Case Management
Order filed in this case clearly states that the failure to comply with any
5
Brown deposed Martin after receiving notice of the designation.
16
deadline therein may result in a number of sanctions, including
exclusion of witnesses.
“Trial courts have broad discretionary powers under the discovery provisions
of the Civil Practice Act and appellate courts have consistently refused to interfere
with the exercise of a trial court’s discretion except in cases of clear abuse.” (Citation
omitted.) Opatut v. Guest Pond Club, 188 Ga. App. 478, 482 (9) (373 SE2d 372)
(1988). It is true that we have generally held that the “[e]xclusion of probative trial
evidence is not an appropriate remedy for curing an alleged discovery omission.”
Hunter v. Nissan Motor Co., 229 Ga. App. 729 (1) (494 SE2d 751) (1997). See
Thakkar v. St. Ives Country Club, 250 Ga. App. 893 (1) (a) (553 SE2d 181) (2001).
See also Hart v. Northside Hosp., 291 Ga. App. 208 (661 SE2d 576) (2008) (trial
court abused discretion by granting motion in limine to exclude plaintiff’s expert
medical affidavit in light of discovery violation). But this Court has also explicitly
upheld the authority of the trial court to exclude expert testimony as a sanction for a
discovery violation under some circumstances. See Jones v. Livingston, 203 Ga. App.
99, 102-103 (4) (416 SE2d 142) (1992) (trial court did not abuse its discretion by
refusing to allow expert to testify on a subject not timely revealed to plaintiffs.) In
distinguishing the cases in which exclusion was improper, this Court
17
emphasize[d] that [these are not cases] where a party violated a court
order explicitly directing the party to identify an expert witness for trial,
nor did the order at issue warn parties of potential sanctions for failure
to meet deadlines, such as the exclusion of evidence or the dismissal of
the action.
Hart, 291 Ga. App. at 210 (1) n. 9. Further, we specifically held that these cases do
not “limit a trial court’s authority to issue such orders.” Id.
In the present case, all parties agreed that there would be no extensions of the
deadlines provided for in the case management order, and that the violations of the
deadlines could result in the exclusion of evidence or witnesses. Doherty submitted
Dr. Martin’s name as an expert witness approximately 18 months after the deadline
agreed to in the case management order. “Because the plain terms of the trial court’s
order barred the [extension of deadlines for producing witnesses], the trial court did
not err when it granted the defendants’ motions to exclude [Dr. Martin’s testimony.]”
Collins v. Dickman, 295 Ga. App. 601, 603-604 (1) (672 SE2d 433) (2008).
The imposition of scheduling deadlines for the identification of experts,
and questions regarding the admission or exclusion of expert testimony,
are left to the broad discretion of the trial court. And we have held that
a trial court may exercise its discretion and exclude testimony from an
18
expert not properly identified by a party, when done in violation of an
express court order.
(Footnote omitted.) Moore v. Cottrell, Inc., 334 Ga. App. 791, 794 (2) (780 SE2d
442) (2015). Doherty’s expert was not properly identified in violation of an express
court order. Accordingly, the trial court did not abuse its discretion in excluding the
testimony of Dr. Martin.
Moreover, other than the conclusory statement that the “trial court’s decision
to exclude relevant and probative evidence was prejudicial,” Doherty does not
demonstrate how the exclusion of Dr. Martin’s testimony prejudiced his defense. In
his deposition, Dr. Martin essentially testified that Doherty did not violate the
standard of care in maintaining Brown’s airway and also that Brown’s injury was
caused by a stroke, rather than hypoxia. This testimony was merely cumulative of
other testimony presented at the trial by another defense expert, Dr. Richard Moon,
who also testified that Brown’s cause of injury was a stroke rather than hypoxia.
5. The trial court did not err in failing to grant a mistrial based on comments
made by Brown’s trial counsel that Doherty alleges were in violation of the trial
court’s rulings in limine.
19
Under OCGA § 9-10-185, where counsel in the hearing of the jury make
statements of prejudicial matters which are not in evidence, it is the duty
of the court to interpose and prevent the same. On objection made, the
court shall also rebuke counsel and by all needful and proper
instructions to the jury endeavor to remove the improper impression
from their minds. In its discretion the court may order a mistrial for
improper remarks of counsel.
Sangster v. Dujinski, 264 Ga. App. 213, 216 (590 SE2d 202) (2003). See OCGA § 9-
10-185.6 “In reviewing the trial court’s refusal to grant a mistrial, we consider
whether the remarks affected or infected the verdict, and whether it is apparent that
a mistrial is essential to the preservation of the right to a fair trial.” (Citations and
punctuation omitted.) Id. at 217.
We first note that Doherty complains about several improper comments, but
includes no attendant citation to the eleven-volume trial transcript. As previously
6
Where counsel in the hearing of the jury make statements of prejudicial
matters which are not in evidence, it is the duty of the court to interpose
and prevent the same. On objection made, the court shall also rebuke
counsel and by all needful and proper instructions to the jury endeavor
to remove the improper impression from their minds. In its discretion,
the court may order a mistrial if the plaintiff’s attorney is the offender.
OCGA § 9-10-185.
20
noted in this opinion and repeatedly stated by this Court in the past, “[t]he burden is
on the party alleging error to show it affirmatively by the record.” (Punctuation and
footnote omitted.) Steele v. Atlanta Maternal-Fetal Medicine, 283 Ga. App. 274,
277-278 (3) (641 SE2d 257) (2007). And per
[o]ur Rule 25 (c) (2) (i) . . . each enumerated error shall be supported in
the brief by specific reference to the record or transcript. In the absence
of such reference, the court will not search for or consider such
enumeration.
(Punctuation omitted.) City of Albany v. Pait, 335 Ga. App. 215, 221 (5) (780 SE2d
103) (2015).
The one complained-about comment that we were able to locate in the
voluminous record occurred during Brown’s cross-examination of Dr. Moon:
[BROWN’S ATTORNEY]: If a doctor intentionally misled Saint
Joseph’s Hospital, you would consider that act to be criminal behavior,
wouldn’t you?
[MOON]: Well criminal, I would no. I mean ....
[TRIAL COURT]: Just a minute. Just a minute.
Brown withdrew the question and Doherty said, “[W]e have a motion.” The trial court
replied that it would “take that up in a minute,” and the Surgery Center requested that
21
it be allowed a “couple of quick questions” for the witness. Afterward, when the
witness was excused and the jury released for lunch, the following exchange
occurred:
[TRIAL COURT]: I’m sure there was going to be a motion. [Brown’s
attorney], . . . do you want this case to come back? Because I’m getting
real close. You’re pushing the envelope and you have been. . . . I’ve
given ruling after ruling about what is appropriate and what is not. That
question crossed the line.
[BROWN’S ATTORNEY]: I really don’t your honor. Let me tell you
why. What happened in this case was criminal. We’ve always contended
that it was criminal. It was intentional misconduct, and that’s what
happened in this case.. . . [N]ot just during the procedure, but after the
procedure when he gave false statements to the other doctors.
[TRIAL COURT]: And that is not the issue in this first part of the trial.
I don’t know how many more times I have to say that. But I will say, you
violate that again, and I will strongly, strongly consider a motion for a
new —
[DOHERTY’S ATTORNEY]: mistrial.
[TRIAL COURT]: Thank you.
22
Despite the trial court’s admonition to Brown’s trial counsel after the witness
was excused, defense counsel made no formal objection, no motion for mistrial, and
no request for curative instructions. Under these circumstances, this enumeration of
error presents nothing for review. The trial court did not err by failing to grant sua
sponte a mistrial that was not requested. Upon hearing the prejudicial question, the
trial court interrupted the cross-examination and the question was withdrawn, in
accordance with OCGA § 9-10-185. “[T]o preserve a point of error for the
consideration of an appellate court, counsel must take exception to the alleged error
at the earliest possible opportunity in the progress of the case by a proper objection
made a part of the record.” (Emphasis supplied.) Sharpe v. Dept. of Transp., 267 Ga.
267 (1) (476 SE2d 722) (1996), rev’d on other grounds, 270 Ga. 101 (505 SE2d 473)
(1998).
Case No. A160764
6. Brown contends that the trial court erred in excluding evidence of Doherty’s
“patient safety issues” that were relevant to prove the knowledge that triggered the
duties owed by Hardwick, the Surgery Center and the P. C., to prove the medical
standard of care applicable to Hardwick, and to refute the defense that neither
Hardwick, the Surgery Center, nor the P.C. had any reason to distrust Doherty’s
23
judgment. Brown argues, among other things, that evidence of Doherty’s past
behavior affecting patient safety was relevant to prove that the other defendants had
a duty to intervene based on their knowledge of that behavior.
Hardwick, Doherty, the P. C., and the Surgery Center filed numerous motions
in limine seeking to exclude evidence concerning Doherty’s conduct preceding the
incident at issue, including any alleged impairment, and to exclude evidence of any
corresponding duties related to their knowledge of that conduct. In its order denying
the motions, the trial court noted that the trial was scheduled to begin on March 10,
2014, that argument on the motions in limine were heard on that day, and that the
court had ruled that the “testimony and evidence [about Doherty’s alleged impairment
and the defendants’ duty related to the impairment] would not be admissible.”
The trial court further noted that on the second day of the trial, before opening
arguments, Doherty informed trial counsel that he would not be able to appear
because of a medical issue, and that “[u]pon further inquiry by the Court, it became
apparent that Defendant Doherty had on-going mental and physical issues that
impacted his ability to testify and appear at trial.” The trial court held that upon
reconsideration of the motions in limine that dealt with “evidence and testimony
relating to . . . Doherty’s physical and mental condition,” the motions were denied
24
because “Doherty, through his own conduct, injected his mental and medical
condition into the case.” The trial court then held that Brown could introduce
evidence and testimony regarding Doherty’s medical condition, including the side
effects of cancer treatment, such as dry mouth, speech impairment, fatigue,
drowsiness, and inattentiveness. The trial court dismissed the jury and granted a
mistrial.
On December 15, 2014, upon consideration of the defendants’ renewed
motions in limine to exclude the impairment evidence, the trial court entered an order
granting the motions in part and trifurcating the trial.7 In excluding what it found to
be inadmissible character evidence under OCGA § 24-4-404, the trial court held that,
while Doherty had injected his medical condition and prior acts into the March trial,
[a]t this point, this action is set on a new trial calendar with a completely
different jury pool, in a proceeding that is, essentially, de novo. As a
7
In Webster v. Boyett, 269 Ga. 191 (496 SE2d 459) (1998), the Supreme Court held
that, as a result of the punitive damage bifurcation procedure codified in OCGA § 51-
12-5.1, courts must use their discretion to either bifurcate or trifurcate a trial when
punitive damages are at stake. In a bifurcated proceeding, the jury first addresses
liability, compensatory damages, and liability for punitive damages. Id. at 193. In the
second phase, the jury considers the amount of punitive damages. Id. In a trifurcated
proceeding, the jury decides liability and compensatory damages in the first phase,
liability for punitive damages in the second phase, and the amount thereof in the third
phase.
25
result, . . . Doherty has not, at this time, placed his medical condition
directly in issue in this trial and before this jury.8 Therefore, this Court
finds that OCGA § 24-4-404 (a) (1) does not necessarily apply at this
time.9 (Italics in original.)
The trial court held that, although Brown presented a compelling argument, the
court did not agree with Brown’s contention that evidence of Doherty’s medical
condition and alleged impairment was admissible because the evidence was necessary
to demonstrate the duty owed by the defendants to Brown through the admission of
testimony regarding the other defendants’ knowledge about Doherty’s prior illness,
fatigue, and other issues. The court concluded that
Doherty’s medical history, or whether or not . . . Doherty was impaired
on prior occasions is not essential to demonstrating that, on this
occasion, Defendants committed negligence by violating the standard of
8
The trial court also noted that “[t]he case was originally re-set for trial in September
of 2014; however, . . . Brown passed away shortly before that trial was scheduled to
start, and this Court reset the case to a one week trial calendar in December. Shortly
before the December calendar, this Court became aware that counsel estimated the
case would take 2 weeks to try, and the case had to be re-set yet again to January
2015.”
9
OCGA § 24-4- 404 (a) (1) provides, in pertinent part, that,”[e]vidence of a person’s
character or a trait of character shall not be admissible for the purpose of proving
action in conformity therewith on a particular occasion, except for. . . [e]vidence of
a pertinent trait of character offered by an accused or by the prosecution to rebut the
same.
26
care. The relevant issues are what was . . . Doherty’s conduct in this
instance and whether or not the Defendants’ medical care of
[Gwendolyn] violated the standard of care.. . . [T]he evidence regarding
. . . Doherty’s prior behavior and impairment do not fit within any of the
exceptions for character evidence in regard to proving the medical
malpractice or wrongful death claims asserted herein.
The trial court then held that “to the extent that [Brown] comes forward with
evidence to establish that, on and during his treatment of . . . [Brown], . . . Doherty
exhibited the behaviors at issue (irritability, tardiness, fatigue, etc.), that evidence
would be relevant to the question of what was . . . Doherty’s conduct in this instance”
and therefore admissible. The trial court also found that if Doherty were found liable
during the first phase of the trial, then during the punitive phase, in addition to
opinion testimony about Doherty’s state of mind or mental condition, Brown could
introduce evidence of “Doherty’s [past] medical conditions, including the side-effects
from his cancer treatment and radiation, including dry mouth, speech impairment,
fatigue, drowsiness, irritability, tardiness, and inattentiveness.” We find no error.
The admission or exclusion of evidence is reviewed by an abuse of
discretion standard. Questions of relevance are generally matters within
the trial court’s discretion, and it is not error to exclude evidence that is
not related to an issue at trial. Further, a judge may exercise discretion
in excluding even otherwise relevant evidence if he finds that its
27
probative value is substantially outweighed by the risk that its admission
will create substantial danger of undue prejudice or of confusing the
issues or of misleading the jury.
(Citations and punctuation omitted.) American Association of Cab Companies v.
Olukoya, 233 Ga. App. 731, 733 (1) (505 SE2d 761) (1998).
“OCGA § 51-12-33 (c) requires the trier of fact in cases to which the statute
applies to consider the fault of all persons or entities who contributed to the alleged
injury or damages, meaning all persons or entities who have breached a legal duty in
tort that is owed with respect to the plaintiff, the breach of which is a proximate cause
of the injury sustained by the plaintiff.” (Punctuation omitted.) Zaldivar v. Prickett,
297 Ga. 589, 600 (1) (774 SE2d 688) (2015). Brown contends that the evidence of
Doherty’s past conduct was relevant to establish the defendants’ legal duty to Brown
based on their knowledge about Doherty’s prior conduct that might have affected
patient safety.
The general character of parties and especially their conduct in other
transactions are irrelevant matters. A party’s conduct on the occasion at
issue in the case may be proved only by the facts of that event and not
by evidence of the party’s prior acts or general character for carelessness
or recklessness. Such evidence is not probative of the issue at hand and
may prejudice the jury against that party as to the question of liability in
28
the particular case. One party is not permitted to influence the jury to
find against the other party on account of some act which he may have
committed on another occasion, in a different situation and with other
parties.
(Citations and punctuation omitted.) Taylor v. Racetrac Petroleum, Inc., 238 Ga.
App. 761, 762 (1) (519 SE2d 282) (1999) (decided under former OCGA § 24-2-2).
See OCGA § 24-4-403 (“Relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”)
The balancing test under . . . OCGA § 24-4-403 is a quintessentially
fact-sensitive enterprise, and the trial judge is in the best position to
make such factbound assessments. . . . Only rarely — and in
extraordinarily compelling circumstances — will we, from the vista of
a cold appellate record, reverse a [trial] court’s on-the-spot judgment
concerning the relative weighing of probative value and unfair effect.
(Footnote omitted.) Rivers v. K-Mart Corp., 329 Ga. App. 495, 497 (1) (765 SE2d
671) (2014) (in bifurcated trial, trial court accounted for risk of improper influence
on jury by excluding evidence of criminal record during liability phase.)
29
Whether or not Doherty exhibited questionable conduct on prior occasions, as
alleged, is not essential to demonstrating that defendants deviated from the standard
of care regarding Mrs. Brown’s care if their knowledge was not related to Doherty’s
acts or omissions on the day of the incident. This would not be so if the evidence
demonstrated that on the day of the procedure, Hardwick or others noticed that
Doherty was exhibiting the complained-about behavior. In that instance, their
knowledge of Doherty’s past conduct would be relevant to the defendants’ violation
of the standard of care, in that it would impact the degree to which they should defer
to Doherty’s care of Mrs. Brown. As the trial court found, and we agree, despite the
numerous depositions and testimony, no one “on that day discussed [Doherty’s]
possible impairment or odd behavior.”(Emphasis supplied.) See Webster v. Boyett,
269 Ga. 191 (496 SE2d 459) (1998) (trial court did not abuse discretion in excluding
evidence of prior DUI offense from liability phase of negligence action involving
DUI).
Here,
[t]he issues involved were complex and required the trial court . . . to
consider and synthesize a great deal of factual information, argument,
and law, which that court was uniquely positioned to do. We give trial
courts wide latitude to determine whether to admit or exclude evidence
30
because the answers are not always clear-cut and the trial court is in the
best position to make that determination. In making this ruling here, we
do not find the trial court abused its discretion.
(Punctuation omitted.) Sellers v. Burrowes, 302 Ga. App. 667, 672 (2) (691 SE2d
607) (2010). See Williams v. Booker, 310 Ga. App. 209, 212 (1) (ab (712 SE2d 617)
(2011) (“Absent a factual basis linking Williams’ alcohol addiction or use to the
claimed act of medical malpractice, the evidence is inadmissible because it is both
irrelevant and highly prejudicial”); Hanie v. Barnett, 213 Ga. App. 158, 160 (1) (444
SE2d 336) (1994) (“In view of the great possibility that evidence concerning the other
issues might taint the trial of the professional negligence case,” trial court did not
abuse discretion in omitting evidence of prior conduct during liability phase of trial.)
7. Brown also contends that the trial court erred by not declaring a mistrial after
Doherty placed evidence of his financial condition and liability insurance before the
jury. We do not agree.
“The grant of a mistrial is within the discretion of the trial court, and a mistrial
is required only where the testimony is so obviously prejudicial in its nature that its
adverse effect cannot be eradicated from the minds of the jury or its consequences
31
avoided by proper cautionary instructions from the court.” (Punctuation omitted.)
Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996).
During phase III of the trial to determine punitive damages, the following
exchange took place during direct examination of Doherty:
[DOHERTY’S ATTORNEY]: Now, you understand the jury’s already
awarded a judgment of over $22 million; and 11 million of that will be
— plus you will have to pay. You understand that?
[BROWN’S ATTORNEY]: Objection.
DOHERTY: Yes.
[TRIAL COURT]: Yeah. That’s an inappropriate question.
[DOHERTY’S ATTORNEY]: No, your honor. I think financial
wherewithal, I can go into that and the insurance in the case. I intend to
go into what his financial condition is, which is allowed.
[BROWN’S ATTORNEY]: Objection.
The jury was excused, and during the ensuing bench conference, the trial court
instructed Doherty’s attorney that his line of questioning was improper and that
evidence of liability insurance was inadmissible. Doherty’s attorney responded that
he believed that the “financial condition he’s in, how he has and what he has available
32
to pay, the resources [are] obviously admissible.” The trial court responded that, in
response to defense counsel’s question, it was going to give Brown “an enormous
amount of leeway in responding to what’s available, who settled what, who tried to
settle.” Brown renewed his objection and moved for a mistrial but advised the trial
court, “[Y]ou don’t have to grant it. But for me to preserve it though, I have to ask for
a mistrial.” The trial court denied the motion and Brown responded, “Thank you.”
The trial court informed the attorneys that it would give the jury a curative
instruction, but did not know that any useful instruction existed. Brown replied that
he did not think a curative instruction would help but rather would “ring the bell even
louder.”
While “evidence of the limit of insurance liability coverage should be kept
from a jury since it might prejudice the jurors against a defendant and improperly
motivate them to recklessly award damages to claimants, . . . harmful error does not
necessarily result in every instance where an improper question goes unanswered.”
(Citations and punctuation omitted.) Ashley v. Goss Bros. Trucking, 269 Ga. 449, 450
(499 SE2d 638) (1998). See Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d
917) (1982) (“generally liability or no-fault insurance coverage of a litigant is not
admissible in evidence, and “unnecessary disclosure of such fact is ground for
33
mistrial or reversal.”)10 Here, although Doherty’s attorney argued that he was allowed
to inject evidence of insurance into the case, Brown objected to that line of
questioning before any insurance evidence was introduced, the trial court sustained
the objection, and the jury was excused while the issue was discussed. Brown did not
request a curative instruction nor, arguably, a mistrial, given his comment that the
trial court did not have to grant his motion. See Watson v. Ga. Federal Bank, 201 Ga.
App. 192, 193 (410 SE2d 387) (1991) (unanswered question did not prejudice
proceedings even though it may have been a patent attempt to introduce inadmissible
evidence).
In view of the peculiar circumstances of this case, including the fact that no
insurance evidence was introduced, that the trial court undertook prompt, vigorous,
and emphatic action, and that Brown did not request curative instructions or strongly
demand a mistrial, the trial court did not abuse its discretion in denying the motion
for mistrial. See Ingles Markets v. Kempler, 317 Ga. App. 190, 197 (5) (730 SE2d
444) (2012) (“It is a well-settled appellate rule that one cannot complain about a
10
OCGA § 24-4-411 prohibits the admission of evidence that someone was or was
not insured against liability in a civil damages case, unless the evidence is offered for
a relevant purpose and the trial court “finds that the danger of unfair prejudice is
substantially outweighed by the probative value of the evidence.”
34
ruling of the trial court which the party’s own trial tactics or conduct procured or
aided in causing.”) (punctuation omitted).See Ingles Markets v. Kempler, 317 Ga.
App. 190, 197 (5) (730 SE2d 444) (2012) (“It is a well-settled appellate rule that one
cannot complain about a ruling of the trial court which the party’s own trial tactics
or conduct procured or aided in causing.”) (punctuation omitted).
Case No. A160765
8. The Surgery Center contends that the trial court erred by denying its motions
for directed verdict and JNOV. It maintains that, although the jury found that the
Surgery Center was 30 percent liable for Brown’s injuries, the evidence cannot
sustain the verdict because there was no evidence that Doherty acted as the Surgery
Center’s agent, either as an employee or owner. The Surgery Center contends that
Brown’s assertion that it employed Doherty is inconsistent with Brown’s pre-trial
pleadings, which only alleged that the P.C. employed Doherty, and that there no other
evidence indicated that the Surgery Center employed Doherty. It further asserts that
Brown’s theory of agency based on OCGA § 14-11-301 (a), which makes every
member of a limited liability company its agent, was not properly raised before the
Surgery Center’s motion for JNOV, and thus Brown is precluded from asserting it on
appeal.
35
[A] corporation is held to be vicariously liable for the torts of its
agent that are committed in the prosecution of and within the scope of
its business. Accordingly, one who is damaged as the result of a tort that
is actually committed by a corporate agent may sue either the individual
agent, seeking to establish the agent’s personal liability for the damages,
or the corporation, seeking to establish its vicarious liability for the torts
of its agent, or the injured party can sue both.11
Smith v. Hawks, 182 Ga. App. 379, 384-385 (4) (355 SE2d 669) (1987). Agency is
not limited to the relationship of employee and owner; instead, “the relation of
principal and agent arises whenever one person, expressly or by implication,
authorizes another to act for him or subsequently ratifies the acts of another in his
behalf.” OCGA § 10-6-1. To that end,”[t]he fact of agency may be established by
proof of circumstances, apparent relations, and the conduct of the parties. Direct
evidence of an agency relationship is not required . . . and even scant factual support
may suffice.” (Citations and punctuation omitted.) Nissan Motor Acceptance Corp.
v. Stovall Nissan, 224 Ga. App. 295, 298 (1) (480 SE2d 322) (1997). “The burden of
11
“Every corporation acts through its officers and is responsible for the acts of such
officers in the sphere of their appropriate duties; and no corporation shall be relieved
of its liability to third persons for the acts of its officers by reason of any bylaws or
other limitation upon the power of the officer not known to such third person.”
OCGA § 14-4-64.
36
proof rests with the party asserting an agency relationship[.]” Handy v. DeKalb
Medical Center., 298 Ga. App. 82, 83-84 (679 SE2d 107) (2009).
Here, the record demonstrates that there was evidence from which the jury
could find that Doherty was an agent acting within the scope of the Surgery Center’s
business when Mrs. Brown underwent the ESI procedure. The complaint alleged that
the Surgery Center had “received notice of the institution of this action by virtue of
service of the original complaint on [Doherty].” When deposed about whether he was
employed by the P.C., the Surgery Center, or both, Doherty responded, “Ownership,
employment — I don’t know how — it was — the distinction is not — I owned them”
and further responded that all of the workers had to be employed by both the P.C. and
the Surgery Center “in tandem to meet the State requirements.”
Perkins, the surgical technician who was present during the procedure, testified
that she was not employed by the P.C., but worked with Doherty at the Surgery
Center, and that he was the “Chief Medical Examiner” and owner of the Surgery
Center. Perkins agreed that Doherty was the “owner but also an employee of the
company.” Nurse Hardwick testified that she had helped Doherty open the Surgery
Center, that the P.C. was the office part of the Surgery Center, and that under the
“legal structure” of the businesses, Doherty was “employed by the P.C.” Hardwick
37
also testified that she had resigned from her position at the Surgery Center because
of the way Doherty treated the staff and because he had fired the Surgery Center’s
office manager without her consent.
Given these circumstances, there was ample evidence of Doherty’s agency and
evidence that he was acting within the scope of his authority sufficient to find the
Surgery Center vicariously liable for his acts and omissions. “An agent . . . is some
person authorized to act for another arising when, expressly or impliedly, there has
been a delegation with more or less discretionary power to act, to manage an affair,
and to render an account.” Headrick v. Fordham, 154 Ga. App. 415, 417 (1) (268
SE2d 753) (1980). The existence of agency and the extent of the agent’s authority are
questions of fact for the trier of fact. Wiggins v. Home Owners &c. of Metro. Atlanta,
168 Ga. App. 777 (310 SE2d 554) (1983). See Ins. Indus. Consultants v. Alford, 294
Ga. App. 747 (669 SE2d 724) (2008). (“As long as there is some evidence to support
the verdict, the denial of defendant’s motion for directed verdict, new trial and
[JNOV] will not be disturbed.”) (Punctuation omitted.)
Although the Surgery Center also contends that the pre-trial pleadings did not
allege that Doherty was acting both individually and under the auspices of the
Surgery Center, in the first consolidated pretrial order, Brown alleged that Doherty
38
“managed the . . . Surgery Center,” and that he and Hardwick had “managerial
authority at the Surgery Center.” See Life Care Ambulance v. Hosp. Auth. of Gwinnett
County, 202 Ga. App. 864, 865 (415 SE2d 502) (1992) (pretrial order supersedes the
pleadings and controls the subsequent scope and course of the action).
Given these determinations, we need not address whether Brown’s theory of
agency based on OCGA § 14-11-301 (a) was not timely raised in the court below, as
asserted by the Surgery Center.
9. The Surgery Center also contends that independent of Doherty, who it argues
was not its agent, and Hardwick, who was found not liable, no other independent acts
or omissions sustained the judgment against it. However, this argument is meritless
considering our conclusion in Division 8 that the judgment against the Surgery Center
can be sustained based on Doherty’s conduct as its agent. Thus, we need not consider
whether any other independent acts or omissions, as asserted by the Surgery Center,
were sufficient to sustain the verdict.
Case No. A16A0766
10. The P.C. contends that the trial court erred in denying its motion for
directed verdict and JNOV because Brown did not advance any direct claims against
the P.C., impliedly arguing that Doherty was not its agent, and thus that the
39
apportioning of damages to the P.C. was not proper. It maintains that the only basis
for liability was premised on respondeat superior or the agency of Hardwick, who was
found to have no liability.
Again, on appeal from the denial of a motion for a directed verdict or for
JNOV, the standard of review is whether any evidence supports the jury’s verdict, and
the evidence is construed in the light most favorable to the party opposing the motion.
Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011). In denying the
P.C.’s motion for directed verdict on the ground that there no testimony directly
connecting the P.C. to Brown’s injury, the trial court found that there was evidence
directly connecting the P.C. to the injury, and thus its liability for damages was “a
question of fact for the jury,” although there were “clearly conflicts as to the issue.”
The trial court also found “some testimony” that the actions that caused Brown’s
injury were “connected within the scope and employment of Southeastern P.C.” By
its verdict, the jury found that the P.C. was liable “based on independent acts and/or
omissions” and that Doherty was acting as the P.C.’s agent.
Even assuming without deciding that there were no direct claims alleged
against the P.C., the P.C. remains vicariously liable for the negligence of its agents.
See Foxchase, LLP v. Cliatt, 254 Ga. App. 239, 241-242 (5) (562 SE2d 221) (2002).
40
(“One damaged by the tort of a corporate agent may sue the individual agent, the
corporation or both . . . and the jury could have found them all liable in their separate
capacities for separate acts.”). It is generally true that “where a defendant employer’s
liability is entirely dependent on principles of vicarious liability, . . . a verdict
exonerating the employee also exonerates the employer.” (Footnotes and punctuation
omitted.) PN Express, Inc. v. Zegel, 304 Ga. App. 672, 680 (5) (697 SE2d 226)
(2010). Here, however, the P.C. was not entirely exonerated. While the jury did not
find Hardwick liable, the P.C. is still liable for the acts and omissions of Doherty, the
P.C.’s agent.
The existence of agency and the extent of the agent’s authority are question for
the trier of fact. Wiggins v. Home Owners &c. of Metro. Atlanta, 168 Ga. App. 777
(310 SE2d 554) (1983). As previously demonstrated, Doherty owned and was listed
as the agent of the Surgery Center and the P. C., both over which he exerted almost
full authority and control. Hardwick testified that the P.C. was the office part of the
Surgery Center, that she had helped Doherty open the Surgery Center, and that under
the “legal structure” of the businesses, Doherty was “employed by the P.C.” When
asked about his employment status with the Surgery Center and the P.C., Doherty
responded, “[o]wnership, employment — I don’t know how it was — the distinction
41
is not — I owned them,” and further explained that all of the workers had to be
employed by both the P.C. and the Surgery Center “in tandem to meet the State
requirements.”
Because the P.C. has failed to show that the evidence demanded a different
verdict as to Doherty’s agency status with the P.C., the trial court did not err in
denying its motions for directed verdict and JNOV. See Sims v. Sims, 265 Ga. 55, 56
(452 SE2d 761) (1995). Thus, its claim that it was improper to the apportion a
percentage of the damages to the P.C. is meritless. See OCGA § 51-12-33 (b)
(“Where an action is brought against more than one person for injury to person or
property, the trier of fact . . . shall. . . apportion its award of damages among the
persons who are liable according to the percentage of fault of each person.”);
Zaldivar, 297 Ga. at 600 (1) (the trier of fact should “consider the fault of . . . all
persons or entities who have breached a legal duty in tort that is owed with respect
to the plaintiff, the breach of which is a proximate cause of the injury sustained by the
plaintiff, … regardless of whether such tortfeasor would have actual liability in tort
to the plaintiff.”)
11. We also find no merit to the P.C.’s contention that, the trial court erred in
denying its motion for directed verdict on Brown’s wrongful death claim because
42
Brown failed to prove that any act or omission of any of the defendants proximately
caused Gwendolyn’s death. It contends that none of the expert testimony established
a causal link between the P.C.’s negligence and Mrs. Brown’s death.
Proximate cause “is that which, in the natural and continuous sequence,
unbroken by other causes, produces an event, and without which the event would not
have occurred.” T.J. Morris & Co. v. Dykes, 197 Ga. App. 392, 395-396 (4) (398
SE2d 403) (1990). “[I]t is axiomatic that questions regarding proximate cause are
undeniably a jury question.” Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 687
(2) (572 SE2d 533) (2002). And, in this case,
[w]hether or not [Brown’s death] . . . was the proximate result of the
[P.C.’s] negligent deviation from the appropriate standards of care was
a medical question beyond the ken of laypersons. In such cases,
causation issues can be resolved only by expert medical testimony,
standing alone; in which case the testimony sufficient to establish a
causal connection must at least show there was a reasonable probability
that the negligence caused the injury.
(Citations omitted.) Pilzer v. Jones, 242 Ga. App. 198, 201 (1) (529 SE2d 205)
(2000). “Certainty is not required, but the plaintiff must show a probability rather
than merely a possibility that the alleged negligence caused the injury or death.”
43
Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608, 609 (484 SE2d 257) (1997),
overruled in part on other grounds, Ezor v. Thompson, 241 Ga. App. 275, 279 (526
SE2d 609) (1999) (emphasis in original).
Here, Brown presented expert testimony that certain acts and omissions fell
below the standard of care during Mrs. Brown’s procedure; that as a result she was
deprived of adequate oxygen for 18 minutes; that as a result of the oxygen
deprivation, she suffered a permanent hypoxic brain injury; that the hypoxic brain
injury caused permanent, profound, cognitive impairment and quadriplegia; that until
she died Mrs. Brown required 24-hour care and experienced health complications,
particularly respiratory complications; and that the compromised respiratory ability
resulting from her compromised neurologic status caused her death. The cause of
death on Mrs. Brown’s death certificate was identified as “respiratory complications
of hypoxic encephalopathy due to complication of sedation.”
Under these circumstances, the trial court did not err in denying the P.C.’s
motion for directed verdict on the wrongful death claim.
12. The P.C. also asserts in the argument portion of its brief that a directed
verdict on Doherty’s agency was required because the evidence demonstrating that
Doherty was the P.C.’s agent was not put forth during Brown’s case in chief.
44
However,
[e]ven if the trial judge erroneously failed to direct a verdict at the
conclusion of the plaintiffs’ evidence[,] if thereafter evidence be
admitted without objection, which, when considered with evidence
previously admitted, makes out a case in favor of the plaintiffs[,] it
would be substituting procedure and form for substance to say that the
case ought to be reversed and a new trial granted. To establish such a
rule would manifestly be contrary to the intent of the Civil Practice Act
and of the Appellate Practice Act.
(Citation and punctuation omitted.) John H. Smith, Inc. v. Teveit, 175 Ga. App. 565,
566 (1) (333 SE2d 856) (1985).
Here, there was some evidence in the trial record, taken as a whole, to support
a finding that Doherty was the P.C.’s agent, as discussed supra in Division 10.
Consequently, the P.C. has failed to assert a valid basis for reversal.
Judgment affirmed. Miller, P.J., Ellington, P.J., McFadden, Rickman, and
Mercier, JJ., concur. Andrews, P.J., Branch, and McMillian, JJ., dissent.
45
A16A0763. DOHERTY v. BROWN et al.
A16A0764. BROWN et al. v. SOUTHEASTERN PAIN
SPECIALISTS, P.C. et al.
A16A0765. SOUTHEASTERN PAIN AMBULATORY SURGERY
CENTER, LLC v. BROWN et al.
A16A0766. SOUTHEASTERN PAIN SPECIALISTS, P.C. v.
BROWN et al.
ANDREWS, Presiding Judge, dissenting.
I respectfully dissent from the majority opinion’s conclusion that there was
evidence supporting a claim against Dr. Doherty based on ordinary negligence. The
trial court erred by denying Dr. Doherty’s motion for a directed verdict on the
ordinary negligence claim and by instructing the jury (over Dr. Doherty’s objection)
that it could find Dr. Doherty liable on the basis of ordinary negligence. These errors
entitle Dr. Doherty, Southeastern Ambulatory Surgery Center, LLC, and Southeastern
Pain Specialists, P.C., to reversal of the judgment entered on the jury verdict and
require a new trial. To the extent that issues were raised that are relevant to a new
trial, I otherwise concur in the majority opinion’s analysis and conclusions on other
enumerations of error asserted in Case Nos. A16A0763, A16A0764, A16A0765, and
A16A0766.
It is undisputed that the evidence at trial presented a claim that Dr. Doherty
committed professional negligence which ultimately caused Mrs. Brown’s death.
Whether the evidence was sufficient to also present a claim against Dr. Doherty for
ordinary negligence is a question of law. Dent v. Memorial Hosp., 270 Ga. 316, 318
(509 SE2d 908) (1998). Allegations of negligence against a professional that “involve
the exercise of professional skill and judgment within the professional’s area of
expertise” set forth a claim for professional negligence. Walls v. Sumter Regional
Hosp., Inc., 292 Ga. App. 865, 869 (666 SE2d 66) (2008) (citation and punctuation
omitted). But “[c]laims [against a professional] of allegedly negligent administrative
acts which do not require professional knowledge or skill assert ordinary negligence.”
Wong v. Chappell, 333 Ga. App. 422, 425 (773 SE2d 496) (2015) (citation and
punctuation omitted).
There was evidence that, as a result of professional negligence by Dr. Doherty
while performing an epidural steroid injection (ESI) procedure, Mrs. Brown suffered
oxygen deprivation during the procedure that caused a serious brain injury. The
majority opinion finds support for an ordinary negligence claim based on evidence:
(1) that Dr. Doherty continued the ESI on Mrs. Brown despite readings on medical
instruments (two pulse oximeters and a blood pressure monitor) showing that Mrs.
Brown was oxygen-deprived; and (2) that, when Mrs. Brown was taken to a hospital
after the ESI procedure, Dr. Doherty failed to fully and accurately inform the hospital
that Mrs. Brown had suffered oxygen deprivation during the procedure. None of this
evidence supports a claim for ordinary negligence. The evidence showed that, during
the procedure, Dr. Doherty reacted to instrument readings showing lack of oxygen by
physically assessing Mrs. Brown’s breathing and oxygen level, directing increases in
oxygen flow to Mrs. Brown, and directing staff on how to hold Mrs. Brown to
maintain an open airway while he finished the ESI procedure. Immediately after the
ESI procedure, evidence showed that Dr. Doherty ventilated Mrs. Brown to raise her
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oxygen levels to the 90s. There was also evidence that, after the ESI procedure, Mrs.
Brown did not respond normally in the recovery area and was eventually taken by
ambulance to a hospital. Evidence showed that, in the recovery area, Dr. Doherty
reassured a family member that the lack of normal response was caused by the
anesthesia he administered to Mrs. Brown for the procedure. Other evidence showed
that Dr. Doherty told responding emergency medical technicians that the ESI
procedure went fine and that Mrs. Brown was having trouble coming out of the
anesthesia, and told a physician on call at the hospital that, because of the anesthesia,
Mrs. Brown was “unusually slow to awaken following the procedure.” Supp. R. v. 1,
p. 148 There was no evidence of administrative acts by Dr. Doherty supporting a
claim for ordinary negligence. Rather, the evidence at trial supported a claim that Dr.
Doherty negligently exercised medical skill and judgment in performing the ESI and
assessing, responding to, and reporting Mrs. Brown’s condition during and after the
procedure.
Because there was no evidence to support a theory of recovery against Dr.
Doherty based on ordinary negligence, the trial court erred as a matter of law by
instructing the jury that it could find Dr. Doherty liable on the basis of ordinary
negligence. “[T]he erroneous instruction did not merely draw the jurors away from
the true issues in dispute, but actually authorized them to return a verdict in favor of
the plaintiffs based on a legally invalid theory of recovery.” Ford Motor Co. v. Reese,
300 Ga. App. 82, 87 (684 SE2d 279) (2009) (citation and punctuation omitted).
Based on the plaintiffs’ negligence claims, the jury rendered a general verdict against
Dr. Doherty, and against Southeastern Ambulatory Surgery Center, LLC, and
Southeastern Pain Specialists, P.C., based on vicarious liability for Dr. Doherty’s
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negligence. We will not presume that the jury’s general verdict was rendered on the
legally valid theory of recovery for professional negligence. Id. “Since the jury found
a general verdict for the plaintiff[s] against [the] defendants, the verdict cannot stand
for the reason that this court cannot determine whether the verdict was entered upon
a proper basis.” Georgia Power Co. v. Busbin, 242 Ga. 612, 616-617 (250 SE2d 442)
(1978); Ford Motor Co., 300 Ga. App. at 87. It follows that Dr. Doherty,
Southeastern Ambulatory Surgery Center, LLC, and Southeastern Pain Specialists,
P.C., are entitled to a new trial. Id. at 87-88.
I am authorized to state that Judge Branch and Judge McMillian join in this
dissent.
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