WHOLE COURT
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http://www.gaappeals.us/rules
October 26, 2017
In the Court of Appeals of Georgia
A15A1566. ROBLES et al. v. YUGUEROS et al.
BARNES, Presiding Judge.
In Yugueros v. Robles, 300 Ga. 58 (793 SE2d 42) (2016), the Supreme Court of
Georgia reversed our decision in Robles v. Yugueros, 335 Ga. App. 324 (779 SE2d
139) (2015), then remanded the case to this Court for proceedings consistent with its
opinion. Yugueros, 300 Ga. at 67. We thus vacate our earlier decision, and for reasons
discussed below, we affirm.
As set forth by the Supreme Court, this case arose from the following facts.
Iselda Moreno, wife of Rudy Robles, received liposuction, buttock
augmentation, and abdominoplasty surgery performed by Dr. Patricia
Yugueros of Artisan Plastic Surgery, LLC (“[medical practice group]”)
on June 24, 2009. Suffering abdominal pain, Moreno went to the
emergency room at Gwinnett Medical Center (“GMC”), where Dr.
Michael Violette ultimately discharged her after determining her
abdominal x-ray was unremarkable. A GMC radiologist, Dr. James York,
who later saw Moreno’s abdominal x-ray, could not rule out the
possibility of “free air” in her abdomen, which could be a normal post-
operative condition or could indicate a more serious issue. He
recommended a CT scan and posted this opinion in Moreno’s electronic
medical record.
Moreno’s pain worsened and Robles contacted Dr. Yugueros on
Moreno’s behalf, who directed him to take Moreno to Northside Hospital,
where Dr. Yugueros had privileges; there, Dr. Yugueros provided certain
treatment, but did not order a CT scan or procure the radiology report
from GMC. Dr. Yugueros, in concert with various other medical
professionals, ordered other tests, including an abdominal x-ray, which
showed evidence of abdominal free air. Several hours later, on June 28,
2009, Moreno died.
Yugueros, 300 Ga. at 58.
Robles, individually, as Moreno’s surviving spouse, and as administrator of
Moreno’s estate, sued Dr. Yugueros and the medical practice group. He alleged that
his wife had died of abdominal compartment syndrome, caused by abdominal free air
that had resulted from a perforated stomach. Robles claimed that Dr. Yugueros had
committed medical malpractice – not during the surgery, but thereafter – by failing to
recognize clinical evidence of his wife’s post-operative complications that arose and
caused her death.1 Robles sought to hold the medical practice group vicariously liable.
1
As Robles’s counsel would later demarcate at a pretrial hearing, “The
allegations of negligence as against Dr. Yugueros relate[ ] solely to how she handled
2
Dr. Yugueros and the medical practice group denied liability; further, they
designated Drs. Violette and York, as well as GMC, as nonparties at fault.
The case proceeded to trial in November 2014. The jury returned a defense
verdict, and judgment was entered thereon. Robles appealed to this Court, contesting
various evidentiary rulings, curtailment of his closing argument, and the placement of
nonparties on the verdict form for purposes of apportionment.
When this case was initially before us, Robles, 335 Ga. App. at 324, this Court
found as reversible error the trial court’s exclusion of certain deposition testimony
given by the medical practice group’s designated OCGA § 9-11-30 (b) (6) witness. In
light of the Supreme Court’s reversal based on that issue, see Yugueros, 300 Ga. at 67,
we resume our review of this case.
1. First, we revisit Robles’s contention that the trial court erred by excluding
certain testimony given by the OCGA § 9-11-30 (b) (6) witness, Dr. Diane Z.
Alexander, a physician, founder, and co-owner of the medical practice group. Pertinent
here, she deposed that when Dr. Yugueros was told about Robles’s wife’s ongoing,
the post-operative complications that developed on the 27th and 28th.”
3
post-surgical abdominal pain, the standard of care required the physician to employ a
CT scan to ascertain the underlying cause.2 As noted above, however, Dr. Yugueros
neither ordered a CT scan, nor procured the radiology report from GMC.
Dr. Yugueros and the medical practice group moved to exclude the cited
deposition testimony. At a pretrial hearing conducted in January 2014, their counsel
argued that Robles had failed to establish that the deponent’s standard-of-care opinion
was “based upon sufficient facts or data” as required by OCGA § 24-7-702 (b),3 which
is applicable when determining the admissibility of expert testimony.4
2
Dr. Alexander’s exact testimony is provided at Yugueros, 300 Ga. at 62.
3
OCGA § 24-7-702 (b) (1) (“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise, if . . . [t]he
testimony is based upon sufficient facts or data.”) (emphasis supplied).
4
Specifically, they cited that Dr. Alexander had never been identified as an
expert; they asserted that she had never reviewed the medical records, had never been
privy to any of the information that Dr. Yugueros had at the time, and had not
conducted any meaningful analysis of the standard of care or of “the causation
question.” As they posited, Dr. Alexander had been proffered “as a fact witness only.
It was only given for that purpose and . . . we don’t intend to identify her or use her or
attempt to use her as an expert in the case.” Counsel for the medical practice group
added, “[Dr. Alexander is] going to be available for trial only to the extent of possibly
these agency issues and business-related issues with the – someone has got to be here
for the practice and that’s going to be her. . . .”
4
In response, Robles’s counsel made no assertion that the statutory provision was
met. Counsel instead took the position,
[We] raised in our 30 (b) (6) notice [that] [the medical practice group]
provide someone that can give testimony about the care and treatment
rendered by Patricia Yugueros M.D. to [Robles’s wife]. So, whether Dr.
Alexander took to that seriously, whether she did enough preparation,
that’s her risk. [The medical practice group] is bound by the designee that
they put to testify on their behalf. That’s black letter law. . . . I can
understand why they don’t want that to come in but she is bound by the
fact she’s designated as a 30 (B) (6) witness. . . . That’s not my problem
in terms of admissibility.
After additional argument on behalf of the parties – including a proposal by
counsel for Dr. Yugueros that Dr. Alexander be allowed to “review the medical records
and be able to respond to . . . questions,” the trial court ruled that the cited deposition
testimony would be excluded, but that such ruling was “without prejudice to raising
[the issue]” at trial. As the court explained, Robles could seek to introduce Dr.
Alexander’s medical opinion at trial, based upon “what the actual evidence is” at that
time. But at trial, Robles’s counsel merely reasserted his previous argument, and the
deposition testimony was not presented to the jury.
5
When this case was initially before us, this Court determined that the exclusion
of the deponent’s medical opinion was reversible error. Robles, 335 Ga. App. at 325.
We pointed out that the evidence was not offered as expert testimony under OCGA §
24-7-702 (b); noted that Robles sought to introduce the testimony as a party’s
admission against interest under OCGA § 9-11-32 (a) (2); and recited that such
statutory paragraph provided for a properly-noticed deposition of an OCGA § 9-11-30
(b) (6) witness to be admitted against a party who was represented at the deposition,
subject to the rules of evidence. Robles, 335 Ga. App. at 328. Thereupon, this Court
concluded, “[Robles] was entitled under OCGA § 9-11-32 (a) (2) to introduce the
deposition testimony into evidence.” Robles, 335 Ga. App. at 329.
The Supreme Court granted certiorari to determine,
whether [the Court of Appeals] was correct in holding that deposition
testimony of an organizational representative taken under OCGA § 9-11-
30 (b) (6) may be admitted into evidence at trial under OCGA § 9-11-32
(a) (2), without regard to the rules of evidence governing admissibility of
expert testimony, see OCGA § 24-7-702.
Yugueros, 300 Ga. at 58. After examining the interplay among several Code sections,
the Supreme Court held,
6
OCGA § 9-11-32 (a) (2) . . . does not create a rule of evidence that allows
any deposition taken under OCGA § 9-11-30 (b) (6) to be admitted at trial
in its entirety as “an admission against interest,” but provides for the
admission of the deposition when that admission is permitted under
relevant rules of evidence. And, when testifying as to the medical
standard of care, OCGA § 24-7-702 is a relevant rule of evidence[.]
(Footnote omitted.) Yugueros, 300 Ga. at 67.
In light of that holding, we conclude that Robles has failed to demonstrate
reversible error. As the proponent of the expert testimony, Robles had the duty to show
its admissibility. HNTB Ga. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770)
(2010) (“[R]egardless of an expert’s experience or qualifications, the proffering party
bears the burden of presenting evidence of reliability in order to met the standards of
[OCGA § 24-7-702].”); accord United States v. Frazier, 387 F3d 1244, 1260 (III) (A)
(11th Cir. 2004) (reiterating that the proponent of the expert opinion has the burden of
showing its admissibility).5 Yet, Robles made no claim to the trial court that Dr.
Alexander’s medical opinion met the cited requirement of OCGA § 24-7-702 (b),
choosing instead to seek admission of the evidence solely on the ground that it was
5
See generally OCGA § 24-7-702 (f).
7
obtained during the deposition of the medical practice group’s OCGA § 9-11-30 (b)
(6) witness. But as the Supreme Court has since clarified, the trial court’s role of
gatekeeper under OCGA § 24-7-702 “is not extinguished simply because deposition
testimony, including expert testimony, is secured under OCGA § 9-11-30 (b) (6).”
Yugueros, 300 Ga. at 67.
In his opening brief to this Court, Robles asserts that “Dr. Alexander is an
experienced plastic surgeon,” that “[she] satisfied both prongs of OCGA § 24-7-702
(c),” that any lack of personal knowledge about the underlying events and Robles’s
wife’s medical record “does not impact Dr. Alexander’s qualifications,” and that “[he
(Robles)] should not be penalized because Dr. Alexander was insufficiently prepared.”6
These conclusory assertions, however, do not respond to the specific challenge raised
under OCGA § 24-7-702 (b). See generally HNTB Ga., 287 Ga. at 646 (2) (concerning
proffering party’s burden in the trial court); Dixon v. MARTA, 242 Ga. App. 262, 266
6
(Emphasis supplied.) In his reply brief, Robles reaffirms his position, “This
testimony was provided not in Dr. Alexander’s individual capacity but in her capacity
as a Rule 30 (b) (6) designee. As a result, the question of the admissibility of her
testimony does not arise in the context of testimony obtained from an individual or
from a hired expert.”
8
(4) (529 SE2d 398) (2000) (reiterating that legal analysis requires “at a minimum, a
discussion of the appropriate law as applied to the relevant facts”). Moreover, Robles
has made no effort to cite this Court to any evidence that the trial court failed to
consider in deciding the issue of admissibility. And this Court has no duty to “cull the
record – in this case [35] volumes – on an appellant’s behalf” to support a position not
advanced below. Carlisle v. Abend, 288 Ga. App. 150, 151 (1) (653 SE2d 388) (2007);
see Burrell v. State, 301 Ga. 21, 26 (3) (799 SE2d 181) (2017) (refusing to reach merits
of evidentiary issue because “[i]t is not this Court’s job to cull the record on behalf of
Appellant to find alleged errors”); Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402,
405 (2) (597 SE2d 494) (2004) (deciding that the appellant, “[h]aving taken [one]
position throughout the entire course of this litigation [concerning expert testimony],
cannot raise the contrary argument for the first time on appeal”); see generally Pfeiffer
v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (reiterating
principles that “[a litigant] must stand or fall upon the position taken in the trial court”
and that “[f]airness to the trial court and to the parties demands that legal issues be
asserted in the trial court”) (citation and punctuation omitted); Mays v. Ellis, 283 Ga.
App. 195, 199 (2) (641 SE2d 201) (2007) (finding waiver of whether expert testimony
9
was admissible under expert witness statute, where party failed to properly preserve
issue); Cherokee Nat. Life Ins. Co. v. Eason, 276 Ga. App. 183, 187 (2) (622 SE2d
883) (2005) (reciting principle that a party cannot “complain of an error which its own
conduct procured or aided in causing”).
For all these reasons, Robles has failed to carry his burden as appellant to show
an abuse of discretion by the trial court.7 Consequently, this contention provides no
basis to disturb the judgment.
2. Robles’s remaining challenges to the judgment – which we did not reach
when this case was initially before us8 – relate to the alleged fault of nonparties and
other matters of apportionment.
7
See HNTB Ga., 287 Ga. at 642 (1) (trial court’s determination whether witness
is qualified to render opinion as expert will not be disturbed “absent a manifest abuse
of discretion”) (citation and punctuation omitted); Meacham v. Franklin-Heard County
Water Auth., 302 Ga. App. 69, 76 (3) (690 SE2d 186) (2009) (“The issue of the
admissibility or exclusion of expert testimony rests in the broad discretion of the trial
court, and, consequently, the trial court’s ruling thereon cannot be reversed absent an
abuse of discretion.”) (citation and punctuation omitted).
8
See Robles, 335 Ga. App. at 329 (“Because the case must be retried, we do not
reach the remaining enumerations of error.”).
10
As noted above, the defendants designated three nonparties as having fault in
this case: (i) GMC, which operated the emergency room facility where Robles’s wife
sought relief from her pain on June 27, three days after her surgery; (ii) Dr. Violette,
the emergency medicine physician at GMC’s emergency room who ordered an
abdominal x-ray of Robles’s wife’s kidney, ureter and bladder (“KUB”), which he
interpreted as unremarkable, then prescribed her pain medications and discharged her;
and (iii) Dr. York, the radiologist who later reviewed the same KUB at GMC,
identified a suspicion of abdominal free air, posted in Robles’s wife’s electronic
medical record his recommendation for a CT scan, but did not otherwise communicate
his findings and recommendation to Dr. Violette (or to Dr. Yugueros). According to
Dr. York, GMC’s policies and procedures had not required him to do so.
At trial, to evince their position that these three nonparties bore fault, the
defendants presented the expert testimony of Dr. Henry J. Krebs, a radiologist, who
stated that Robles’s wife’s KUB was not unremarkable. Focusing on “a number of
findings that kind of jump out at you,” Dr. Krebs pointed out that Robles’s wife’s
stomach was “massively distended, probably four or five time what a normal stomach
should look like,” that her transverse colon was severely displaced, and that her bowel
11
gas pattern was “very abnormal.” These collective circumstances, Dr. Krebs testified,
revealed an 85 to 90 percent probability that free air existed in Robles’s wife’s
abdomen – a condition that Dr. Krebs described as a “critical result,” an “absolutely.
. . emergency type of thing” that required immediate evaluation by a CT scan. As Dr.
Krebs explained, a CT scan would have confirmed whether the suspicious area was
“free air or not.”
Dr. Krebs opined that, given what Robles’s wife’s KUB revealed, Dr. Violette
had breached the standard of care by, inter alia, misinterpreting Robles’s wife’s KUB
as unremarkable. Additionally, Dr. Krebs opined that GMC had breached the standard
of care, citing deficiencies in the reporting and communication processes, and further
asserting that GMC’s policies and procedures should have required that abnormal
findings be communicated immediately and directly to treating physicians. (While Dr.
Krebs went on to render medical opinions as to Dr. York, those opinions are not at
issue in this appeal.)
In several overlapping claims of error, Robles complains about the admission
of Dr. Krebs’s testimony as follows.
12
(a) Robles contends that the trial court erred by denying his pre-trial motions to
exclude Dr. Krebs’s medical opinions about the emergency medicine physician at
GMC, Dr. Violette. Robles argues that because Dr. Krebs was a radiologist who had
never practiced emergency medicine, he was not qualified under OCGA § 24-7-702 (c)
to give expert testimony about the care and treatment rendered by Dr. Violette.
OCGA § 24-7-702 (c) pertinently provides,
[T]he opinions of an expert, who is otherwise qualified as to the
acceptable standard of conduct of the professional whose conduct is at
issue, shall be admissible only if, at the time the act or omission is alleged
to have occurred, such expert . . . had actual professional knowledge and
experience in the area of practice or specialty in which the opinion is to
be given as the result of having been regularly engaged in. . . [t]he active
practice of such area of specialty of his or her profession for at least three
of the last five years, with sufficient frequency to establish an appropriate
level of knowledge, as determined by the judge, in performing the
procedure, diagnosing the condition, or rendering the treatment which is
alleged to have been performed or rendered negligently by the defendant
whose conduct is at issue. . . .
(Emphasis supplied.) OCGA § 24-7-702 (c) (2) (A). Interpreting that language, the
Georgia Supreme Court has explained,
13
[T]he requirement that the expert have “actual professional knowledge
and experience in the area of practice or specialty in which the opinion is
to be given” means that the . . . expert does not have to have knowledge
and experience in the same area of practice/specialty as the defendant
doctor. Instead, under the foregoing language, the issue is whether the
expert has knowledge and experience in the practice or specialty that is
relevant to the acts or omissions that . . . allege[dly] constitute[d]
malpractice and caused the plaintiff’s injuries. However, it is not
sufficient that the expert have just a minimum level of knowledge in the
area in which the opinion is to be given. Instead, the expert must have
“regularly engaged in the active practice” of the area of specialty “in
which the opinion is to be given” and must have done so “with sufficient
frequency to establish an appropriate level of knowledge . . . in
performing the procedure, diagnosing the condition, or rendering the
treatment which is alleged to have been performed or rendered
negligently by the defendant whose conduct is at issue.”
(Citation and punctuation omitted; emphasis omitted and supplied.) Nathans v.
Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007);9 see Bonds v. Nesbitt, 322 Ga.
App. 852, 857 (3) (757 SE2d 40) (2013) (same).10 Broadly speaking, “Rule 702 is
9
In Nathans, the Court was reviewing OCGA § 24-6-67.1 (c) (2) (A), but the
statutory language does not differ from that set forth in OCGA § 24-7-702 (c) (2) (A).
10
In Bonds, 322 Ga. App. at 857 (3), this Court noted that OCGA § 24-7-67.1
(c) was replaced with OCGA §24-7-702 (c).
14
designed to ensure that an expert genuinely knows of that of which he speaks.” Dubois
v. Brantley, 297 Ga. 575, 586 (2) (775 SE2d 512) (2015). “No doubt, the simplest way
to demonstrate that an expert has an appropriate level of knowledge in performing a
procedure[, diagnosing the condition, or rendering the treatment] . . . is by proof that
the expert actually has done these things himself.” (Punctuation omitted.) Id. at 585 (2).
During his deposition, Dr. Krebs stated that he had been practicing radiology for
nearly three decades. During those years, he had read many images ordered by
emergency medicine physicians. Routinely, the emergency medicine physicians would
first interpret images such as a KUB and other abdominal x-rays; and thereafter, those
same images/studies were read and reduced to a written report by him as the
radiologist. Dr. Krebs recounted, “I have worked in many emergency rooms alongside
emergency room physicians for many, many years. So I have many, many emergency
room physicians that I know very well and how they practice.” In some of his previous
working environments, Dr. Krebs recalled, he was “physically located” in the
emergency medicine department.
Given Dr. Krebs’s medical background and experience, which included reading
the exact type of x-ray at issue here – and doing so in collaboration with emergency
15
medicine physicians, the trial court did not abuse its discretion in rejecting Robles’s
contention that, because Dr. Krebs was a radiologist who had never practiced
emergency medicine, he was not qualified under OCGA § 24-7-702 (c) to render
opinions regarding Dr. Violette’s interpretation of Robles’s wife’s KUB.11 See Dubois,
297 Ga. at 587 (2) (“[A]n expert has an “appropriate level of knowledge . . . in
performing the procedure” to the extent that the expert has sufficient knowledge about
the performance of the procedure — however generally or specifically it is
characterized, so long as it is the procedure that the defendant is alleged to have
performed negligently — to reliably give the opinions about the performance of the
procedure that the expert proposes to give.”); Mays, 283 Ga. App. at 196-199 (1)
(concluding that gastroenterologist was qualified to render opinion that OB/GYN –
who performed surgery on patient based on OB/GYN’s diagnosis that patient was
suffering from pancreatitis – had committed negligence by misdiagnosing patient’s
11
See Dubois, 297 Ga. at 587 (2) (“Whether the experience of a particular expert
witness is enough to establish that the expert has an ‘appropriate level of knowledge’
is a question committed to the discretion of the trial court.”); Nathans, 282 Ga. at 806
(1), n. 8 (reciting that a trial court’s determination on the qualifications of an expert
witness will not be reversed absent a clear abuse of discretion).
16
pancreatitis; and that if timely diagnosed, patient’s condition could have been treated
nonsurgically). Accord McDowell v. Brown, 392 F3d 1283, 1297 (III) (11th Cir. 2004)
(“The proffered physician need not be a specialist in the particular medical discipline
to render expert testimony relating to that discipline.”) (citation and punctuation
omitted); Mitchell v. United States, 141 F3d 8, 12-16 (I) (C) (1st Cir. 1998) (explaining
that although the putative expert must be “qualified by knowledge, skill, experience,
training, or education,” proffered expert physician need not be a specialist in a
particular medical discipline to render expert testimony relating to that discipline);
Holbrook v. Lykes Bros. S.S. Co., 80 F3d 777, 782 (I) (B) (3d Cir. 1996) (“[T]he
district court erred by finding that [internist] was not qualified to render a diagnosis or
to discuss the pathology report because he was not a pathologist, oncologist or expert
in ‘definitive cancer diagnosis.’”).
(b) Another ground upon which Robles sought to exclude Dr. Krebs’s medical
opinions about Dr. Violette was premised upon certain statements made by Dr. Krebs
during his deposition that “I’m not an ER physician so I’m not really qualified to talk
about any of his standard of care treating the patient,” and “[a]gain, I can’t speak to
standard of care for an ER physician.” Robles urged below that Dr. Krebs was
17
consequently unqualified under OCGA § 24-7-702 (c) to opine about the standard of
care. In making this argument, Robles cited further subsection (c) of Georgia’s ER
statute, OCGA § 51-1-29.5.12
But when the flagged statements are viewed in the context of Dr. Krebs’s entire
deposition, it is readily apparent that Dr. Krebs was not referring to the specific
(alleged) negligence that the defense sought to attribute to Dr. Violette. While Dr.
Krebs repeatedly explained that his opinions would not encompass each and every
aspect of Dr. Violette’s practice of emergency medicine, Dr. Krebs maintained, “What
I am prepared to discuss is when [Dr. Violette] interprets radiographs that does cross
between what my area of expertise is.” The flagged statements, hence, did not render
Dr. Krebs unqualified under OCGA § 24-7-702 (c).
In relevant part here, OCGA § 24-7-702 (c) provides for the admission of the
opinions of an expert “who is otherwise qualified as to the acceptable standard of
12
OCGA § 51-1-29.5 (c) (“In an action involving a health care liability claim
arising out of the provision of emergency medical care in a hospital emergency
department or obstetrical unit or in a surgical suite immediately following the
evaluation or treatment of a patient in a hospital emergency department, no physician
or health care provider shall be held liable unless it is proven by clear and convincing
evidence that the physician or health care provider’s actions showed gross
negligence.”) (emphasis supplied).
18
conduct of the professional whose conduct is at issue.”13 That language contemplates
that the expert is “generally familiar with the standard of conduct of the medical
professional in question.” Nathans, 282 Ga. at 804, 807 (1). In light of Dr. Krebs’s
medical background and experience, the trial court was authorized to conclude that Dr.
Krebs was qualified to give expert testimony about the accepted standard of medical
care applicable to a physician interpreting the type of x-ray at issue here and to render
an opinion whether Dr. Violette’s interpretation of Robles’s wife’s KUB breached that
standard of care.14
Although Robles relies further on the ER statute, nothing therein purports to
change the accepted standard of care for any medical professional. See Johnson v.
Omondi, 294 Ga. 74, 81 (1) (751 SE2d 288) (2013) (“By its enactment of OCGA § 51-
1-29.5, the General Assembly did not divorce the generally accepted standards of
medical care from the cases to which the statute applies.”) (Blackwell, Justice,
concurring specially, joined by Justice Nahmias). Rather, by enacting that statute, “the
13
See further OCGA § 24-7-702 (b) (denoting “a witness qualified as an expert
by knowledge, skill, experience, training, or education”) (emphasis supplied).
14
See Division 2 (a), supra.
19
General Assembly . . . placed a higher evidentiary burden on [parties alleging certain
medical malpractice to show] that any departure from accepted standards of medical
care must be shown, by clear and convincing evidence, to be gross negligence.”
Johnson, 294 Ga. at 74.15 Thus, a party may present expert testimony that a physician’s
actions violated the accepted standard of medical care, and the jury may consider such
expert testimony, along with other evidence presented, in deciding whether there was
gross negligence. See, e.g., Johnson, 294 Ga. at 78-79 (discussing evidence that
plaintiff presented that created a jury issue over gross negligence, which evidence
included expert testimony that the physician’s actions “did not meet the standard of
care in the medical profession generally under like and similar circumstances”). Hence,
15
“Indeed, OCGA § 51-1-29.5 itself makes this point quite plainly, insofar as it
applies only with respect to ‘health care liability claim[s],’ OCGA § 51-1-29.5 (c), and
it expressly defines a ‘health care liability claim’ as ‘a cause of action against a health
care provider or physician for treatment, lack of treatment, or other claimed departure
from accepted standards of medical care . . . .’” Johnson, 294 Ga. at 81 (1) (Blackwell,
Justice, concurring specially, joined by Justice Nahmias). Additionally, “other
jurisdictions have recognized [that] [t]he medical standard of care is the same for
ordinary negligence and gross negligence, the difference being the extent to which the
physician breached the standard. To be grossly negligent, the defendant must breach
the ordinary standard of care to a greater degree.” (Citations and punctuation omitted.)
Johnson, 294 Ga. at 83 (1) (Blackwell, Justice, concurring specially, joined by Justice
Nahmias).
20
contrary to Robles’s contention, the cited provision of the ER statute, together with the
flagged deposition statements made by Dr. Krebs, did not mandate the trial court to
conclude that Dr. Krebs was unqualified under OCGA § 24-7-702 (c) to give expert
testimony with respect to the accepted standard of medical care that applied to Dr.
Violette’s interpretation of Robles’s wife’s KUB.16 Nothing in Bonds, 322 Ga. App.
at 858 (3) – which Robles cites for the general principle that “an expert must be . . .
familiar with the standard of care” – required an evidentiary ruling in his favor.
For all these reasons, this contention shows no abuse of discretion in the trial
court’s denial of Robles’s pretrial motions to exclude Dr. Krebs’s medical opinions.
(c) Robles contends that the trial court erred in denying his pretrial motions to
preclude Dr. Krebs from giving expert testimony on whether GMC had been negligent
with respect to its policies and procedures that pertained to how radiologists’ findings
were communicated to treating physicians.
16
“[T]he heightened evidentiary burden imposed in cases falling under OCGA
§ 51-1-29.5 (c) must necessarily be considered [if raised, for instance] on a motion for
summary judgment. [And when] faced with such a heightened burden, a trial judge
must bear in mind the actual quantum and quality of proof necessary to support
liability.” Johnson, 294 Ga. at 77. At issue here, however, was whether the proffered
expert (Dr. Krebs) was qualified under OCGA § 24-7-702 (c) to opine about the
standard of medical care.
21
(i) Robles maintains that Dr. Krebs was not qualified under OCGA § 24-7-702
(c) to give the aforementioned opinions about GMC, asserting that the radiologist had
never developed any such policies or procedures for a hospital. Pretermitting whether
expert testimony was required,17 we find no abuse of discretion, given Dr. Krebs’s
background and experience, as previously discussed.18
(ii) Robles contends that the trial court erred by allowing Dr. Krebs to testify
about GMC’s policies and procedures, asserting that the defense failed to supplement
their discovery responses to reflect their intent to present such evidence during the trial.
This contention is unavailing.
The record shows that Robles’s counsel appeared at Dr. York’s deposition,
during which Dr. York detailed GMC’s policies and procedures in explaining why his
own findings of suspected free air, together with a recommendation for a CT scan, had
17
Robles relied upon Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010),
for the general principle, that while expert evidence is not typically required to prove
causation in a simple negligence case, “expert evidence is required where a ‘medical
question’ involving truly specialized medical knowledge (rather than the sort of
medical knowledge that is within common understanding and experience) is needed
to establish a causal link between the defendant’s conduct and the plaintiff’s injury.”
(Emphasis omitted.) Id.
18
See Division 2 (a).
22
not been communicated immediately/directly to any physician. Additionally, the
pretrial order entered in this case, which Robles’s counsel signed, identified GMC’s
policies/procedures as possible trial exhibits. And at a subsequent pretrial hearing on
the parties’ motions to exclude the testimony of proffered experts (including Dr.
Krebs), Robles’s counsel reported to the trial court, “I have got the policies and
procedures if you would like them. They are in the record.”
This contention presents no basis to disturb the judgment entered by the trial
court.
3. Robles contends that the trial court erred by allowing the defense to place Dr.
Violette and GMC on the verdict form (for purposes of apportionment). Robles
maintains that there was no competent evidence that these nonparties were at fault for
the injuries alleged in this case.
This contention hinges on Robles’s arguments that Dr. Krebs was not qualified
to render expert testimony, which arguments lack merit.19 Moreover, the jury found for
19
See Division 2, supra.
23
the defendants as to liability, and thus did not reach the apportionment issues set forth
on the verdict form.20 This contention shows no reversible error.21
4. Robles contends that the trial court erred by instructing the jury, sua sponte,
to disregard a certain portion of Dr. Krebs’s testimony.
When Robles’s counsel was cross-examining Dr. Krebs, the following exchange
occurred:
Q: Now you would agree with me, Dr. Krebs, that it was not gross
negligence for Dr. Violette to not appreciate the possibility of free air –
[Counsel for Dr. Yugueros]: Objection.
Q: – on the KUB?
20
Part I of the verdict form allowed the jury to find for either the plaintiff or the
defendants, and instructed the jury that if it found for the defendants, it should stop
there and sign and return the verdict. If it found for Robles, the jury was instructed to
continue to Part II regarding the damages award and the apportionment of fault among
the defendants and nonparties listed on the verdict form.
21
See generally U. S. Indus. v. Austin, 197 Ga App. 74, 75 (2) (397 SE2d 469)
(1990) (explaining that errors in “the giving of a charge or [in] the admission or
exclusion of evidence, which go only to the matters of damages or the measure of
damages, are harmless and afford no ground for reversal where a verdict was returned
in favor of the defendant”) (citations and punctuation omitted); Johnson v. Amerson,
179 Ga. App. 75, 76 (2) (345 SE2d 94) (1986) (same).
24
A: I don’t think so.
[Counsel for Dr. Yugueros]: This is calling for a legal conclusion.
The Court: I’m going to overrule the objection.
A: I think it does borderline gross negligence not to see that.
Later, just before re-direct examination began, the trial court gave the sua sponte
instruction that Robles now contests:
There was an objection previously about the doctor testifying to a legal
standard and I made the wrong call on that one. That is that should not –
he is not qualified to testify as to a legal standard. He’s qualified to testify
to the standard of care . . . a physician should utilize in an area relevant
to whatever his testimony is but he is not entitled to testify about the legal
standard. The court will provide you with the law at the end of the case
and then you will apply the fact[s] as you find them to be to the law that
the court will provide. So I want to instruct you to disregard that
testimony and do not consider it in any way in your deliberations with
regards to the doctor’s comments on the legal standard required of a[n]
emergency room physician.
Pretermitting whether Robles’s counsel waived the issue by neither countering
the objection when lodged, nor objecting to the court’s sua sponte ruling/instruction,
we find no reversible error. Questions of gross negligence are usually for the facfinder.
25
Johnson, 294 Ga. at 78. Here, the cited ruling/instruction essentially struck from the
jury’s consideration Dr. Krebs’s explicit opinion that Dr. Violette’s misinterpretation
of the KUB constituted “borderline gross negligence.” Robles has provided no
explanation of how he was prejudiced by the striking of evidence that a nonparty
(someone other than the named defendants) was at fault; consequently, this contention
falls short of providing a basis to disturb the judgment.
5. Robles contends that the trial court erred by truncating that part of his closing
argument that would have explained the monetary effects of apportionment.
During closing arguments, Robles’s attorney said to the jury, “But when you go
back and talk about apportionment understand this: The Court is gonna instruct you
that anything you assign to these nonparties – we didn’t sue them –.” Opposing counsel
cut short this passage with an objection. Outside the jury’s presence, defense counsel
argued that it was improper to tell the jury that nonparties are not responsible to pay
any portion of a damages award. Agreeing, the trial court sustained the objection.
Robles complains of that ruling on appeal, but has shown no error. Georgia’s
apportionment statute, OCGA § 51-12-33, “directs the trier of fact in certain cases to
‘consider the fault of all persons or entities who contributed to the alleged injury or
26
damages’ . . . regardless of whether such tortfeasor would have actual liability in tort
to the plaintiff.” (Citation and punctuation omitted; emphasis supplied.) Walker v.
Tensor Machinery, 298 Ga. 297, 297 (779 SE2d 651) (2015), quoting OCGA § 51-12-
33 (c); Zaldivar v. Prickett, 297 Ga. 589, 600 (1) (774 SE2d 688) (2015) (same).
Because it was unnecessary for the jury to consider that the nonparties would have no
responsibility to pay any damages awarded, the trial court did not err in curtailing the
cited portion of the closing argument. See Cotton v. Cotton, 272 Ga. 276, 278 (3) (528
SE2d 255) (2000) (“[A] trial court is authorized to require counsel to eliminate from
argument a reference to matters which are unnecessary for the jury to consider.”).
Robles has demonstrated no basis for disturbing the judgment.
Judgment affirmed. Ray, P.J., Andrews, Doyle, McMillian, Reese, Self, JJ.,
concur.
27