FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
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
May 10, 2017
In the Court of Appeals of Georgia
A17A0243. CENTRAL GEORGIA WOMEN’S HEALTH CENTER,
LLC et al. v. DEAN et al.
BARNES, Presiding Judge.
Katherine B. Dean and Lester Harold Dean, IV, individually and as
administrators of the estate of their deceased child, filed this medical malpractice action
against several defendants, including Dr. Henry J. Davis and Central Georgia Women’s
Health Center, LLC (collectively, the “Davis Defendants”), seeking damages for the
wrongful death of their child and for the pain and suffering of their child and Mrs.
Dean. Following a seven-day trial, the jury awarded the plaintiffs over $4 million in
damages and apportioned 50 percent of the fault to the Davis Defendants.1 The Davis
Defendants now appeal, contending that the trial court erred in denying their motions
for directed verdict and for judgment notwithstanding the verdict (“j. n. o. v.”) because
1
The jury apportioned the remaining 50 percent of the fault to a different
defendant physician, who is not a party to this appeal.
the plaintiffs failed to present evidence to a reasonable degree of medical certainty that
the child’s premature delivery and death could have been prevented by Dr. Davis. The
Davis Defendants also contend that the trial court erred in denying their motion for new
trial because the plaintiffs should not have been permitted to cross-examine Dr. Davis
about an entry he made in Mrs. Dean’s hospital chart that the plaintiffs alleged was
probative of his untruthfulness. For the reasons discussed below, we affirm.
Construed in favor of the jury’s verdict,2 the evidence shows that in April 2007,
Mrs. Dean became a patient at the Central Georgia Women’s Health Center, LLC
(“Women’s Health Center”), an obstetrics-gynecology practice in Macon. Mrs. Dean
was 33 years old and 6 weeks pregnant at her first visit. She had two prior miscarriages
and had previously undergone a loop electrosurgical excision procedure (“LEEP”) to
remove abnormal tissue from her cervix. Undergoing a LEEP procedure can place a
woman at risk for a medical condition known as an “incompetent” or “insufficient”
cervix in which the cervix is too weak, without medical intervention, to support a
pregnancy to term. Administering progesterone and/or performing a “cerclage,” a
2
See Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011).
2
surgical procedure in which the cervix is sewn closed during pregnancy, were known
treatments for cervical incompetence in 2007.
On her initial office visit at the Women’s Health Center, Mrs. Dean saw Dr.
Kerry Holliman and informed her of her medical history. Because of Mrs. Dean’s prior
LEEP procedure, Dr. Holliman ordered that ultrasounds be performed at an increased
frequency throughout the pregnancy. The ultrasounds would show whether Mrs.
Dean’s cervix abnormally shortened in length and/or exhibited funneling,3 which are
prominent markers for cervical incompetence and preterm delivery.
The July 25, 2007 Ultrasound. Over the course of her pregnancy, Mrs. Dean’s
ultrasounds showed a progressive shortening of her cervix. At Mrs. Dean’s first
ultrasound visit on April 2, 2007, her cervical length was 4.4 centimeters. By July 11,
2007, her cervical length was 3.6 centimeters. A subsequent ultrasound on July 25,
2007 showed that Mrs. Dean’s cervix had shortened to 1.9 centimeters with funneling
at one point during the ultrasound.
Mrs. Dean was 22 weeks, 4 days pregnant at the time of the July 25 ultrasound.
A cervical length of less than 2.5 centimeters at that early stage of a pregnancy is
3
Funneling refers to dilation at the internal orifice of the uterus, with protrusion
of the amniotic sac into the cervical canal.
3
considered “critical” and increases the risk of premature delivery (i.e., before 34 weeks)
to greater than 50 percent. A baby born prematurely at 22 weeks has approximately a
10 percent chance of survival. Based on the July 25 ultrasound results, Dr. Holliman
told Mrs. Dean to “take it easy,” not lift any heavy objects, and come back to the office
in one week for an additional ultrasound.
The July 31, 2007 Hospital Visit and Call to Dr. Davis. After the July 25
ultrasound, Mrs. Dean stayed home from work and rested. However, before the week
passed, on the evening of July 31, 2007, Mrs. Dean began to have thick, dark vaginal
discharge. Mrs. Dean and her husband drove to the hospital emergency room. On the
way to the hospital, Mrs. Dean spoke on the telephone with Dr. Davis, who was the
obstetrician-gynecologist on-call that night for the Women’s Health Center. Mrs. Dean
informed Dr. Davis of her prior LEEP procedure, the shortening of her cervix shown
on the July 25 ultrasound, her week of bed rest, and the thick brown discharge. Dr.
Davis told Mrs. Dean that the thick brown discharge was probably “old blood” from
the ultrasound, that the hospital would likely send her home, and that she could just
come to her scheduled office visit at 9:00 a.m. the following morning.
Mrs. Dean and her husband decided to continue to the hospital for an
evaluation, where Mrs. Dean was seen by a nurse in the labor and delivery department.
4
The nurse took down Mrs. Dean’s medical history, questioned her about her symptoms,
and conducted a vaginal examination. Mrs. Dean explained to the nurse that she had
dark, brown vaginal discharge, vaginal spotting, cramping, and urinary frequency and
burning. The nurse noted from her vaginal examination that Mrs. Dean’s cervix was
not dilated and that she was having no contractions.
The nurse called Dr. Davis and spoke with him about the results of the
examination. Dr. Davis did not come to the hospital to evaluate Mrs. Dean or order any
diagnostic tests such as an ultrasound or urinalysis. He recommended that Mrs. Dean
continue with bed rest and gave the nurse orders over the phone to discharge Mrs.
Dean from the hospital. Mrs. Dean was told to follow-up the next morning with the
Women’s Health Center at her previously scheduled 9:00 a.m. office visit. The nurse
told Mrs. Dean that Dr. Davis had diagnosed her with a urinary tract infection and
checked a box on her discharge instructions for her to drink more fluids for such an
infection.
The August 1, 2007 Premature Delivery. After her discharge from the hospital,
Mrs. Dean experienced worsening symptoms throughout the night, including pelvic
pressure, urinary frequency and burning, and lower abdominal pain. Early on the
morning of August 1, 2007, Mrs. Dean called Dr. Davis and reported her worsening
5
symptoms, but Dr. Davis reiterated that he believed she had a urinary tract infection,
that if she went to the emergency room again she would simply be sent back home, and
that she should come to the office for her regular appointment at 9:00 a.m. that
morning.
Mrs. Dean arrived at the Women’s Health Center for her 9:00 a.m. appointment
and was seen by another obstetrician in the group, who examined her and ordered an
ultrasound. When the ultrasound showed increased cervical shortening from the
previous July 25 ultrasound, the obstetrician diagnosed Mrs. Dean with “possible
incompetent cervix” and recommended that Mrs. Dean go directly to the nearby office
of Dr. Mark Boddy, a maternal fetal medicine specialist with whom obstetricians in the
area routinely consulted. Before Mrs. Dean could see Dr. Boddy at his office, however,
she was sent to the hospital labor and delivery department because of her increased
complaints of pain.
At the hospital, Mrs. Dean went into premature labor, and Dr. Holliman
delivered her baby by emergency Caesarian section that night because of the baby’s
transverse (or sideways) position. Postoperative hospital records listed Mrs. Dean’s
diagnosis as incompetent cervix. The baby was at a gestational age of 23 weeks, 4 days
and weighed 1 pound, 4 ounces at the time of delivery. The baby subsequently died in
6
the hospital neonatal intensive care unit because of extreme prematurity. The pathology
report found no signs of infection and listed incompetent cervix under Mrs. Dean’s
clinical history. A urinalysis performed on Mrs. Dean in the hospital tested negative
for infection.
The August 2, 2007 Physician Note. On August 2, 2007, as Mrs. Dean was
recovering in the hospital from her Caesarian section, Dr. Davis wrote a physician
progress note at 10:00 a.m. reflecting that he had physically examined her (the “August
2 Physician Note” or “Note”). Mrs. Dean, however, had no memory of Dr. Davis ever
coming into her room that day, and Mr. Dean testified that a different physician from
the Women’s Health Center visited his wife’s hospital room on August 2, but not until
that evening. Dr. Davis, at some unknown time after making the August 2 Physician
Note, struck through the entire entry and wrote “error pt [patient] not seen[,] out of
room” followed by his signature. In contrast, other medical records prepared by a nurse
on August 2 reflect that Mrs. Dean and her husband had been in the hospital room that
morning, and Mrs. Dean testified that she did not leave her hospital room that day.
The August 4, 2007 Physician Note. On August 4, 2007, Dr. Davis documented
in his physician progress notes at 9:15 a.m. that he performed a physical exam of Mrs.
Dean that included listening to her lungs and bowel sounds with a stethoscope and
7
checking her extremities for swelling. Mrs. Dean, however, testified that Dr. Davis had
lifted up her patient gown and looked at her surgical incision, but had done nothing
else that day to physically assess her condition. Mr. Dean, who was in the hospital
room at the time, testified that Dr. Davis had simply looked under his wife’s gown at
the surgical incision, and that if the physician progress note documented a more
thorough exam, it was inaccurate.
Discharge from the Hospital and Subsequent Pregnancy. On August 4, 2007,
after Dr. Davis visited her hospital room, Mrs. Dean was discharged from the hospital.
The discharge summary prepared by Dr. Davis listed incompetent cervix as the clinical
reason for Mrs. Dean’s hospitalization.
Mrs. Dean gave birth again in 2009. Mrs. Dean was seen by an obstetrician in
a different practice, who administered progesterone and performed a cerclage to treat
her condition of incompetent cervix. Mrs. Dean went into labor at 34 weeks and gave
birth to a healthy baby.
The Wrongful Death Suit. In 2009, Mr. and Mrs. Dean, individually and as
administrators of the estate of their deceased child, filed this medical malpractice action
against several defendants, including the Davis Defendants, in which they sought
damages for the wrongful death of their child and for the pain and suffering of their
8
child and Mrs. Dean.4 Before trial, the Davis Defendants filed two motions in limine
seeking to prevent the plaintiffs from presenting any evidence regarding the August 2
Physician Note. The plaintiffs responded that the August 2 Physician Note reflected
false entries in the medical record by Dr. Davis that were probative of his character for
untruthfulness and could be inquired into during his cross-examination under OCGA
§ 24-6-608 (b) (1). The trial court agreed with the plaintiffs and denied the motions.
At the ensuing jury trial, the plaintiffs’ theory of the case with respect to the
Davis Defendants was that in light of Mrs. Dean’s medical history, symptoms, and July
25, 2007 ultrasound, Dr. Davis violated the standard of care on July 31 by failing to go
to the hospital to examine Mrs. Dean and diagnose her condition of cervical
incompetence. According to the plaintiffs, if Dr. Davis had come to the hospital and
properly diagnosed Mrs. Dean with cervical incompetence, Dr. Davis then would have
been required under the standard of care to have a cerclage performed or administer
progesterone to prevent preterm delivery. The plaintiffs further contended that if Dr.
Davis had taken these steps, Mrs. Dean’s pregnancy would have been prolonged and
4
Among other defendants, the plaintiffs also sued Dr. Holliman. The jury
apportioned 50 percent of the fault to Dr. Holliman in its verdict, and the plaintiffs’
claims against Dr. Holliman subsequently were resolved by a satisfaction of judgment
entered in October 2015.
9
the premature delivery and death of her child would have been avoided. The Davis
Defendants denied that Dr. Davis violated the standard of care or that any treatments
or interventions on July 31 or August 1 could have avoided the outcome in this case.
At the close of all the evidence, the trial court heard several motions for directed
verdict brought by the Davis Defendants. Among other things, the Davis Defendants
sought a directed verdict on the ground that the plaintiffs had failed to prove that Dr.
Davis’s acts or omissions caused the premature delivery and death of the child. The
trial court declined to enter a directed verdict on the issue of causation.
After hearing conflicting testimony of the parties, the various experts, and other
witnesses, the jury found in favor of the plaintiffs and awarded over $4 million in
damages. Following the entry of final judgment on the jury verdict, the Davis
Defendants filed a motion for j. n. o. v. and for new trial, contending that the plaintiffs
had failed to prove causation and that the trial court had erred in denying their motions
in limine relating to the August 2 Physician Note. The trial court denied the motion in
a detailed order, and this appeal by the Davis Defendants followed.
1. The Davis Defendants contend that the trial court erred in denying their
motions for directed verdict and j. n. o. v. According to the Davis Defendants, the
plaintiffs failed to present evidence to a reasonable degree of medical certainty that the
10
child’s premature delivery and death could have been prevented by Dr. Davis, even if
he had complied with the standard of care espoused by the plaintiffs’ medical expert.
(a) As an initial matter, before turning to the merits of the Davis Defendants’
enumerated error, we note that in addition to the live testimony of multiple experts and
witnesses, excerpts from four videotaped depositions were played at the jury trial. The
video recordings of the depositions, however, were not transmitted with the appellate
record. And while the written transcripts of the entire depositions were included in the
appellate record, the record is confusing and incomplete as to which particular portions
of the depositions were played for the jury, and the parties have not addressed the issue
in their appellate briefs. Rather, the plaintiffs and the Davis Defendants have simply
cited to portions of the deposition transcripts in their briefs without any objection or
comment from the opposing party.
Under these circumstances, in reviewing the Davis Defendants’ enumeration of
error, we have limited our consideration of the depositions to those portions cited by
the parties without objection in their appellate briefs. To the extent that other portions
of the depositions were played at trial and might have supported the arguments raised
by the Davis Defendants on appeal, we point out that the Davis Defendants, as the
appellants, “bore the burden of ensuring an accurate and complete record on appeal”
11
and of taking steps to have the record supplemented with any necessary materials.
(Citation and punctuation omitted.) Griffin Builders v. Synovus Bank, 320 Ga. App.
307, 309 (739 SE2d 760) (2013). See State v. Young, 339 Ga. App. 306, 306, n.5 (793
SE2d 186) (2016) (citing Court of Appeals Rule 18 (b) and noting that the burden is
on the appellant to ensure that a complete record is transmitted to this Court, including
the transmission of audio and video recordings).
(b) We now turn to the merits of the Davis Defendants’ claim that the trial court
erred in denying their motions for a directed verdict and for j. n. o. v. on the issue of
causation. “On appeal from the denial of a motion for a directed verdict or for j. n. o.
v., we construe the evidence in the light most favorable to the party opposing the
motion, and the standard of review is whether there is any evidence to support the
jury’s verdict.” (Citation and punctuation omitted.) Park, 307 Ga. App. at 845 (2). A
directed verdict or j. n. o. v. should not be granted “unless there is no conflict in the
evidence as to any material issue and the evidence introduced, with all reasonable
deductions therefrom, demands a certain verdict.” (Citation omitted.) James E. Warren,
M.D., P.C. v. Weber & Warren Anesthesia Svcs., 272 Ga. App. 232, 235 (2) (612 SE2d
17) (2005). In determining whether the record demanded a particular verdict, we
“consider all relevant admissible evidence of record whether admitted or elicited during
12
the plaintiffs’ case in chief or subsequent thereto.” (Citation and punctuation omitted.)
Fowler v. Smith, 230 Ga. App. 817, 819 (1) (b) (498 SE2d 130) (1998).
To recover in a medical malpractice case, a plaintiff must show not
only a violation of the applicable medical standard of care but also that
the purported violation or deviation from the proper standard of care is
the proximate cause of the injury sustained. In other words, a plaintiff
must prove that the defendants’ negligence was both the cause in fact and
the proximate cause of his injury.
(Citations omitted.) Walker v. Giles, 276 Ga. App. 632, 638 (624 SE2d 191) (2005).
See Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003). Medical
negligence without proof of causation is insufficient to withstand a motion for directed
verdict and j. n. o. v., and causation cannot be based on speculation or guesswork.
Walker, 276 Ga. App. at 638 (1). “[T]here can be no recovery for medical negligence
involving an injury to the patient where there is no showing to any reasonable degree
of medical certainty that the injury could have been avoided.” (Citations and
punctuation omitted.) Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d
402) (1998).
Causation in a medical malpractice action must be established through expert
testimony “because the question of whether the alleged professional negligence caused
13
the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken
of the average layperson.” (Citation omitted.) Zwiren, 276 Ga. at 500. But “Georgia
case law requires only that an expert state an opinion regarding proximate causation
in terms stronger than that of medical possibility, i.e., reasonable medical probability
or reasonable medical certainty.” Id. at 503. And “[c]ausation may be established by
linking the testimony of several different experts” and “must be determined in light of
the evidentiary record as a whole.” (Citation omitted.) Walker, 276 Ga. App. at 642 (1).
Furthermore, it is well-established that “[q]uestions regarding causation are peculiarly
questions for the jury except in clear, plain, palpable and undisputed cases.”
(Punctuation and footnote omitted.) Moore v. Singh, 326 Ga. App. 805, 809 (1) (755
SE2d 319) (2014).
Applying these principles, we conclude that the plaintiffs came forward with
evidence of causation and thus were entitled to have the jury decide the issue. At trial,
the plaintiffs presented the expert testimony of Dr. Frank Bottiglieri, a board certified
obstetrician-gynecologist who had delivered approximately 6,000 babies and
performed over 75 cerclages during the course of his career. Dr. Bottiglieri testified
that in light of the information available to Dr. Davis about Mrs. Dean’s medical
history and condition, Dr. Davis violated the standard of care by failing to go to the
14
hospital and personally examine Mrs. Dean on July 31, 2007, and by failing to properly
diagnose her with cervical incompetence on that date. Dr. Bottiglieri further testified
that if Dr. Davis had properly diagnosed Mrs. Dean with cervical incompetence on July
31, the standard of care would have required Dr. Davis to have a cerclage performed
on Mrs. Dean or administer progesterone. The plaintiffs also presented evidence that
all obstetricians are routinely trained to perform cerclages during medical school and
that Dr. Davis had been shown how to perform the procedure, although he had not
previously performed one on a patient.
With respect to the harm caused by Dr. Davis’s failure to come to the hospital
on July 31, diagnose Mrs. Dean with cervical incompetence, and develop a plan to
have a cerclage performed or administer progesterone, Dr. Bottiglieri testified:
Q: Do you have an opinion whether or not -- if Dr. Davis had come to the
hospital and examined Katie in person, whether or not it would have
made a difference in whether Katie and [her husband]’s baby lived or
died?
A: Would have made a difference if he did something, if he came up with
a plan. I mean, yeah, it would have made a difference.
Q: And how do you know it would have made a difference?
15
A: Because a stitch would have saved this pregnancy, as far as I’m
concerned. You’d have prolonged those critical days. You just can’t keep
watching this progression. You have to do therapy. You have to do --
whether it be progesterone or a cerclage, you have to take action. We’re
running out of time. It’s only getting worse with each ultrasound. There
will be a point of no return, happened later. Have to do something. . . .
Q: The opinions that you’ve given us, Dr. Bottiglieri, regarding Dr. Davis
and Katie’s presentation at [the hospital] on 7/31/07, do you hold those
to a reasonable degree of medical probability and certainty?
A: I do.5
Regarding the success of cerclages in increasing the changes of infant survival
in at-risk pregnancies, the plaintiffs also presented the expert testimony of Dr. Brian
Carter, who was board certified in pediatrics and neonatal / perinatal medicine. Dr.
Carter testified that cerclages can be performed on a pregnant woman from 16 weeks
to 25 weeks of pregnancy and that “the likelihood of gained time [before delivery of
5
To the extent that Dr. Bottiglieri gave other, conflicting testimony that was
more equivocal on the issue of causation, “the ‘self-contradictory testimony rule’ is not
applicable to an expert witness,” and it was the jury’s role to resolve those conflicts.
(Citation and punctuation omitted.) Aleman v. Sugarloaf Dialysis, 312 Ga. App. 658,
662 (2) (719 SE2d 551) (2011). See Moore, 326 Ga. App. at 811 (2) (“Contradictions
go solely to the expert’s credibility, and are to be assessed by the jury when weighing
the expert’s testimony.”) (punctuation and footnote omitted).
16
the baby] would be in the order of two weeks to two months.” Dr. Carter further
testified regarding infant survival rates when premature delivery is postponed:
A: [G]enerally speaking, from 28 weeks and about two pounds forward,
there’s a 90 percent chance of survival. . . .
Q: Let me ask you, was that true in 2007?
A: Yes, that was true in 2007. So if a baby -- if a pregnancy can make it
to 28 weeks, and the baby weighed over two pounds, 900 grams, there’s
greater than 90 percent likelihood that a, the baby’s going to survive . .
. and b, would only have about a 15 percent likelihood of disability of any
sort . . . . At 24 weeks, you’re up to somewhere between 40 and 60
percent survival, at 25 weeks, you’re certainly 50 to 60 on the low end to
as high as 70 or 80, and at 26 weeks, you’re pretty consistent 70 to 80
percent, and 27, 28 weeks, like I said, you’re taking off, and have a far
brighter future.
Dr. Carter further testified that a “two to four percent likelihood of survival is
conferred on the fetus every day that he or she stays longer in the womb between 23
and 25 weeks,” and that all of the statistics he had provided would be applicable to
Mrs. Dean’s baby:
Q: Now, the statistics that you were giving us earlier about survival rates
and percentages, if [Mrs. Dean’s baby] had been able to stay in the womb
17
until let’s say 25 or 26 weeks, 27 weeks, would you expect [the baby’s]
survival rate to match these statistics that you have given us?
A: Yes. I think anywhere across the states where modern neonatology is
practiced, there’s every reason to expect that type of outcome, and having
practiced in Georgia before, I know here in Macon, there’s good
capability for taking care of premature babies.
Q: Did you see anything about the medical records as it relates to [the
baby] that would suggest to you that he would not have been able to
match those statistics?
A: No, sir. I saw no evidence for him not matching those statistics.
Dr. Carter testified that his opinions and testimony were to a reasonable degree of
medical probability.
Regarding the success of administering progesterone to prevent preterm birth,
Dr. Davis conceded on cross-examination that “the recent studies and the current
thinking is that [progesterone] does make a difference in preterm birth.” Additionally,
Dr. Davis’s expert, Dr. Jonathan Weeks, admitted that he was one of the authors of a
paper entitled “Vaginal Progesterone is Associated with a Decrease in Risk of Early
Preterm Birth and Improved Neonatal Outcome in Women with a Short Cervix: a
Secondary Analysis from a Randomized Double-Blind Placebo Controlled Trial,”
18
which was published in August 2007. Dr. Weeks’ paper concluded that “vaginal
progesterone may reduce the rate of early pre-term birth and improve neonatal outcome
in women” with a short cervical length revealed in ultrasounds. Moreover, Dr. Weeks
acknowledged that a prior study referenced in his 2007 paper had found that
“[p]rogesterone treatment was associated with a significant reduction in pre-term birth
at less than 34 weeks,” and that “women with a short cervical length identified in
midtrimester by transvaginal [ultrasound] are less likely to deliver preterm if they are
treated with vaginal progesterone.”
Based on this combined expert testimony, construed in the light most favorable
to the plaintiffs with all inferences drawn in their favor, we conclude that the plaintiffs
presented evidence from which a jury could find that if Dr. Davis had followed the
standard of care on July 31, 2007 by having a cerclage performed on Mrs. Dean or
administering progesterone, there was a reasonable medical probability that it would
have postponed the birth of Mrs. Dean’s baby to a point in time when the baby would
have survived. Based on the record before us, we cannot say that the evidence
regarding causation was so “clear, plain, palpable and undisputed” as to demand a
verdict in favor of the Davis Defendants. (Punctuation and footnote omitted.) Moore,
326 Ga. App. at 809 (1). See Walker, 276 Ga. App. at 638-642 (1) (reversing grant of
19
directed verdict to defendant physicians where plaintiffs presented evidence that the
physicians’ deviations from the standard of care caused the premature birth and death
of the baby “by linking the testimony of several different experts” and reviewing “the
evidentiary record as a whole”).
In arguing that the record demanded a verdict in their favor because of
insufficient evidence of causation, the Davis Defendants rely on Reeves v. Mahathre,
328 Ga. App. 546 (759 SE2d 926) (2014). Reeves was a wrongful death suit where the
plaintiffs sued an emergency room physician and his practice for failing to properly
diagnose and treat a blockage in the decedent’s kidney caused by a kidney stone,
allegedly resulting in the decedent’s septic shock and death. Id. at 547-548. The
plaintiffs’ expert testified that the defendant physician would have met the standard of
care if he had ordered a CT scan, had properly diagnosed the decedent’s kidney
blockage, and had then consulted with a urologist and followed the urologist’s
instructions regarding the treatment of the decedent. Id. at 549. However, the urologist
who would have been consulted on the night in question testified that, if the defendant
physician had performed a CT scan and consulted with him about the results, he would
have advised the physician to treat the decedent “in the exact fashion that [the
physician], in fact, did.” Id. We concluded that in light of the urologist’s testimony and
20
the plaintiffs’ failure to present any expert testimony contradicting it, the plaintiffs had
failed as a matter of law to prove that the defendant physician’s violation of the
standard of care proximately resulted in the decedent’s death. Id. at 550.
Relying on Reeves, the Davis Defendants maintain that the plaintiffs’ expert, Dr.
Bottiglieri, essentially testified that Dr. Davis could have met the standard of care by
consulting a maternal fetal medicine specialist on July 31, 2007 and following the
specialist’s recommendations. The Davis Defendants further emphasize that Dr. Boddy,
the maternal fetal medicine specialist with whom Dr. Davis would have consulted on
July 31, 2007 if he had sought a consultation, testified that he would not have
recommended that a cerclage be performed or progesterone be administered to Mrs.
Dean. Based on Dr. Bottiglieri and Dr. Boddy’s testimony, the Davis Defendants
contend that Reeves is factually on point and controls the outcome here.
The Davis Defendants’ reliance on Reeves is misplaced. As an initial matter, one
of the three appellate judges in Reeves concurred only in the judgment, and thus the
case is physical precedent only and not binding on this Court. See Court of Appeals
Rule 33 (a); Groth v. Ace Cash Express, 276 Ga. App. 350, 353 (623 SE2d 208)
(2005). In any event, Reeves is factually distinguishable. Unlike in Reeves, the
plaintiffs’ expert, Dr. Bottiglieri, testified that Dr. Davis would have met the standard
21
of care by performing a cerclage on Mrs. Dean, having another physician perform the
cerclage, or administering progesterone. Dr. Bottiglieri also testified that he “would
expect anyone, whether it be a maternal fetal medicine specialist or a generalist to
either consider the cerclage or do the progesterone” in this case, v38. 12 and that if a
specialist was consulted and declined to do a cerclage, Dr. Davis could have disagreed
with the specialist and would have needed to make the “final decision” about his
patient’s care. Hence, this is not a case where the sole testimony of the plaintiff’s
expert was that the standard of care could be met by the physician simply consulting
a specialist and then following the specialist’s recommendations. Therefore, Reeves is
not controlling.
Accordingly, for all these reasons, the evidence did not demand a finding in
favor of the Davis Defendants on the issue of causation, and the matter was properly
submitted to the jury for resolution. The trial court thus committed no error in denying
the Davis Defendants’ motions for directed verdict and j. n. o. v.
2. The Davis Defendants also contend that the trial court should have granted
their motion for new trial. According to the Davis Defendants, a new trial was
warranted because the trial court abused its discretion by denying their motions in
22
limine seeking to exclude any evidence of the August 2 Physician Note. More
specifically, the Davis Defendants contend that the trial court erred in concluding that
evidence regarding the August 2 Physician Note was probative of Dr. Davis’s
untruthfulness under OCGA § 24-6-608 (b) (1) (“Rule 608”) because the Note involved
an innocent mistake rather than deliberate deception. The Davis Defendants also
maintain that the August 2 Physician Note was not relevant to any issues raised in the
case and that the plaintiffs introduced evidence of the Note simply to attack Dr. Davis’s
general character. Consequently, the Davis Defendants contend that the probative value
of the Note was not substantially outweighed by the danger of unfair prejudice and thus
should have been excluded under OCGA § 24-4-403 (“Rule 403”).
“If evidence is admissible for any purpose, its admission will not cause a new
trial.” (Citation and punctuation omitted.) West v. West, 199 Ga. 378, 387 (4) (34 SE2d
545) (1945).
We review the trial court’s decisions on the admissibility of evidence,
including a denial of a motion in limine, for an abuse of discretion. And
motions in limine should only be granted with great care and when there
is no circumstance under which the evidence at issue could be admissible
at trial[.] By its very nature, the grant of a motion in limine excluding
evidence suggests that there is no circumstance under which the evidence
under scrutiny is likely to be admissible at trial. In light of that absolute
23
the grant of a motion in limine excluding evidence is a judicial power
which must be exercised with great care.
(Citations and punctuation omitted.) One Bluff Drive v. K. A. P., Inc., 330 Ga. App. 45,
51-52 (3) (766 SE2d 508) (2014).
The Davis Defendants have failed to show that the trial court abused its
discretion in concluding that evidence regarding the August 2 Physician Note was
admissible under Rule 608 (b) (1) and in denying their motion in limine to exclude any
reference to the Note at trial. Under Rule 608 (b) (1) of Georgia’s revised Evidence
Code,6 a trial court may allow questioning about specific instances of conduct by a
witness on cross-examination, if the conduct is probative of the witness’s character for
truthfulness or untruthfulness. OCGA § 24-6-608 (b) (1).7 See Gaskin v. State, 334 Ga.
6
Because the trial in this case occurred in April 2015, Georgia’s revised
Evidence Code, effective January 1, 2013, applies. See Ga. Laws 2011, Act 52, § 101
(revised evidence code “shall become effective on January 1, 2013, and shall apply to
any motion made or hearing or trial commenced on or after such date”).
7
OCGA § 24-6-608 (b) (1) provides:
Specific instances of the conduct of a witness, for the purpose of attacking
or supporting the witness’s character for truthfulness, other than a
conviction of a crime as provided in Code Section 24-6-609, or conduct
indicative of the witness’s bias toward a party may not be proved by
extrinsic evidence. Such instances may however, in the discretion of the
court, if probative of truthfulness or untruthfulness, be inquired into on
cross-examination of the witness:
24
App. 758, 761-763 (1) (a) (780 SE2d 426) (2015) (discussing Rule 608 (b)). However,
a party “may not use impeachment as a guise for submitting to the jury substantive
evidence that is otherwise unavailable.” (Citation and punctuation omitted.) Gaskin,
334 Ga. App. at 763 (1) (a). Thus, the specific instances of conduct must involve “acts
probative of untruthfulness,” including “misconduct such as perjury, fraud, swindling,
forgery, bribery, and embezzlement.” (Citations and punctuation omitted.) Id. See
United States v. Morgan, 505 F3d 332, 340 (II) (C) (2) (5th Cir. 2007); United States
v. Novaton, 271 F3d 968, 1006 (II) (F) (11th Cir. 2001).8 We will reverse a trial court’s
ruling regarding whether specific instances of conduct fall within the ambit of Rule 608
(b) only if there is a clear abuse of discretion. Gaskin, 334 Ga. App. at 762 (1) (a).
Applying these principles, we conclude that the trial court acted within its broad
discretion in finding that the August 2 Physician Note was probative of Dr. Davis’s
character for untruthfulness. As previously noted, Dr. Davis originally charted in his
(1) Concerning the witness’s character for truthfulness or
untruthfulness[.]
8
“[B]ecause the provisions of OCGA § 24-6-608 borrowed from the Federal
Rules of Evidence, we look to decisions of the federal appeals courts construing and
applying the Federal Rules, especially the decisions of the Eleventh Circuit.”
(Citations, punctuation, and footnote omitted.) Gaskin, 334 Ga. App. at 762 (1) (a).
25
August 2 Physician Note that he had physically examined Mrs. Dean at the hospital on
that date, and then, at some unknown time after making the Note, Dr. Davis struck
through the entire entry and wrote “error pt [patient] not seen[,] out of room.”
However, other hospital records prepared by a nurse and introduced without objection
during the trial reflect that Mrs. Dean was in her hospital room and could have been
examined by Dr. Davis, had he in fact chosen to do so on August 2, and Mrs. Dean
confirmed that she did not leave her hospital room that day. Furthermore, Dr. Davis’s
original charting and subsequent revision to the August 2 Physician Note occurred
against the backdrop of Dr. Davis having previously failed to examine and treat Mrs.
Dean on the evening of July 31 and early morning of August 1.
Under these circumstances, the trial court was authorized to find that the jury
could reasonably decide that Dr. Davis’s August 2 Physician Note involved deliberate
deception rather than simply a mistake. We therefore cannot say that the court abused
its discretionary authority by allowing inquiry into the Note during Dr. Davis’s cross-
examination for purposes of probing his character for untruthfulness.9
9
Rule 608 (b) provides that if the witness denies the specific bad act on cross-
examination that bears on the witness’ character for untruthfulness, the act “may not
be proved by extrinsic evidence and the questioning party must take the witness’
answer, unless the evidence would be otherwise admissible as bearing on a material
26
Nor did the trial court abuse its discretion in finding that the probative value of
evidence regarding the August 2 Physician Note was not substantially outweighed by
the danger of unfair prejudice. Rule 403 provides in part that “[r]elevant evidence may
be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice,” but Rule 403 is “an extraordinary remedy which the courts should invoke
sparingly, and the balance should be struck in favor of admissibility.” (Citation
omitted.) Kim v. State, 337 Ga. App. 155, 158 (786 SE2d 532) (2016).
issue of the case.” (Citation omitted.) United States v. Matthews, 168 F3d 1234, 1244
(II) (11th Cir. 1999). See Gilmer v. State, 339 Ga. App. 593, 599 (2) (c) (794 SE2d
653) (2016). During trial, the plaintiffs introduced into evidence all of Mrs. Dean’s
medical records of her hospitalization from August 1 to August 4, 2007, including all
of the physician notes and nurse records for August 2, and both plaintiffs also testified
about the care and treatment received by Mrs. Dean at the hospital on August 2. Hence,
extrinsic evidence was introduced that went to the falsity of the August 2 Physician
Note beyond the testimony of Dr. Davis on the issue. However, in their appellate
briefing, the Davis Defendants have not challenged the use of this extrinsic evidence
at trial and thus have abandoned any argument in that regard. See Leatherwood v.
State, 212 Ga. App. 342, 345 (5) (441 SE2d 813) (1994) (evidentiary issues not argued
on appeal “are deemed abandoned”). Furthermore, Mrs. Dean’s hospital records, and
the testimony of Mrs. Dean and her husband about her care and treatment (or lack
thereof) during her hospital stay, were material to Mrs. Dean’s substantive claim for
her own pain and suffering arising out of the alleged medical malpractice. Thus, the
extrinsic evidence was admissible on the independent ground that it bore “on a material
issue of the case.” Matthews, 168 F3d at 1244 (II).
27
The “extraordinary remedy” of exclusion of the August 2 Physician Note under
Rule 403 was not demanded under the circumstances of this case, where the accuracy
of Dr. Davis’s physician notes and his credibility were hotly disputed. At trial, Dr.
Davis repeatedly testified that he could not personally remember his conversations with
Mrs. Dean on the telephone leading up to the premature delivery of her baby. Instead,
Dr. Davis relied on the accuracy of his transcribed physician notes of his July 31, 2007
and August 1, 2007 conversations with Mrs. Dean as providing a true account of their
conversations and his recommendations to her.
Mrs. Dean’s testimony of her conversations with Dr. Davis, however, conflicted
in several material respects with Dr. Davis’s physician notes from July 31 and August
1. For example, Mrs. Dean testified that during her conversation with Dr. Davis on the
evening of July 31, he discouraged her from going to the hospital emergency room
after noticing the dark, brown discharge, but Dr. Davis’s note stated, “I suggested the
patient go to the hospital to be evaluated.” Mrs. Dean further testified that during her
telephone conversation with Dr. Davis on the morning of August 1, he reiterated to her
his belief that she had a urinary tract infection and told her to come to the office for her
regularly scheduled appointment at 9:00 a.m., but Dr. Davis’s note made no reference
28
to a urinary tract infection and stated that he gave Mrs. Dean the option of coming to
the office earlier that morning when it first opened.
In light of these circumstances, the accuracy of Dr. Davis’s physician notes
regarding his interactions with Mrs. Dean and his character for truthfulness or
untruthfulness were clearly relevant, and the trial court was authorized in its discretion
to strike the balance in favor of admissibility and find that the probative value of the
August 2 Physician Note outweighed the risk of any unfair prejudice. Accordingly, the
trial court did not abuse its discretion in denying the Davis Defendants’ motion in
limine on the ground that inquiry into the Note during the cross-examination of Dr.
Davis was permissible under Rule 608 (b) (1).10 Judgment affirmed. McMillian and
Mercier, JJ., concur.
10
The Davis Defendants also argue that the plaintiffs’ questioning of Dr. Davis
about the August 2 Physician Note during his cross-examination was excessive and
showed that the plaintiffs were simply trying to impugn Dr. Davis’s general character
before the jury. But control over the length and scope of cross-examination is a matter
within the sound discretion of the trial court. See Lott v. Hatcher, 275 Ga. App. 424,
424 (620 SE2d 651) (2005). Here, the trial court acted within its discretion in
concluding that the length and scope of the plaintiffs’ questioning of Dr. Davis about
the August 2 Physician Note was not excessive, given that the accuracy of Dr. Davis’s
notes and his character for truthfulness or untruthfulness were of central import to the
parties’ different versions of what transpired before Mrs. Dean prematurely delivered
her baby.
29