Constance Owensby v. Jason Williams

FOURTH DIVISION
DILLARD, P. J.,
RICKMAN and BROWN, 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 28, 2020

In the Court of Appeals of Georgia
A20A0652. OWENSBY v. WILLIAMS.

RICKMAN, Judge.

Following the grant of her application for interlocutory appeal, Constance

Owensby appeals the trial court’s order sustaining Jason Williams’s pre-trial

objections to her treating physician’s second medical narrative.1 She contends that the

trial court abused its discretion in sustaining Williams’s objections to the narrative

because the physician’s discussion of future treatment was not “too speculative,

inconclusive, or vague,” the physician’s opinion that Owensby was not a malingerer

was part of his diagnosis, and the physician properly expressed an opinion on

causation. For reasons that follow, we reverse and remand the case with direction.

1
We note that Williams has not filed an appellate brief.
On October 12, 2016, Owensby and Williams were involved in a multi-vehicle

collision. Owensby subsequently brought a personal injury suit against Williams and

sought several types of damages, including past and future medical expenses.

Williams admitted to his negligence in causing the collision but denied responsibility

for any injuries claimed by Owensby.

During the litigation, Owensby filed a notice of intent to introduce at trial

medical records in narrative form pursuant to OCGA § 24-8-826. She attached a

medical narrative from a treating physician, which included an estimate of the

approximate cost of future medical treatment, and medical records from the

physician’s office. Williams objected to the narrative on numerous grounds – the

physician’s statement of need for future treatment was too inconclusive, speculative,

and vague; the statement regarding the cost of future medical treatment was too vague

and speculative; there was no foundation for the physician’s statements relating his

treatment to the collision; the narrative contained unexplained medical terms; the

attached medical records were not submitted in narrative form; and the narrative was

not presented under oath. Williams also challenged the constitutionality of the statute

authorizing the use of medical reports in narrative form in lieu of live testimony,

OCGA § 24-8-826. The trial court ruled that certain portions of the narrative,

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including the cost of future treatment, were too vague, speculative, and conjectural

in nature. The court also ruled that the attached medical records did not fall within the

definition of a narrative report and stated that it was concerned with the foundation

for the physician’s opinion on proximate cause. The court’s order did not mention the

other issues raised by Williams.

Following the trial court’s ruling, Owensby filed a second notice of intent to

introduce medical records in narrative form and attached a revised medical narrative,

which omitted any estimate of the approximate cost of future medical treatment. The

second narrative was submitted without medical records attached. Williams objected

and asserted that the second narrative’s discussion of the need for future treatment

was too inconclusive, speculative, and vague; the new statement that, in the

physician’s opinion, Owensby is not a malingerer was not appropriate for a medical

narrative; and the physician’s opinion on causation was not based on first-hand

knowledge and was not admissible. The trial court ruled that the second narrative was

substantially similar to the first narrative and that certain portions of the narrative

were inadmissible as too vague, speculative, and conjectural in nature and could not

form the basis of a claim for future medical expenses. The trial court also agreed that

the physician’s opinion that Owensby is not a malingerer was not appropriate for a

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medical narrative. Finally, the trial court stated that it was “concerned” about the

foundation for the physician’s opinion on the issue of proximate cause.

“We review a trial court’s decision on the admissibility of evidence under an

abuse of discretion standard.” Lott v. Ridley, 285 Ga. App. 513, 514 (1) (647 SE2d

292) (2007). “An abuse of discretion occurs where a ruling is unsupported by any

evidence of record or where that ruling misstates or misapplies the relevant law.”

(Citation and punctuation omitted.) Eagle Jets, LLC v. Atlanta Jet, Inc., 347 Ga. App.

567, 576 (2) (c) (820 SE2d 197) (2018).

Georgia law allows medical narratives to be used as evidence under certain

conditions. Pursuant to OCGA § 24-8-826 (a),

Upon the trial of any civil proceeding involving injury or disease, any
medical report in narrative form which has been signed and dated by an
examining or treating licensed physician . . . shall be admissible and
received in evidence insofar as it purports to represent the history,
examination, diagnosis, treatment, prognosis, or interpretation of tests
or examinations, including the basis therefor, by the person signing the
report, the same as if that person were present at trial and testifying as
a witness; provided, however, that such report and notice of intention to
introduce such report shall first be provided to the adverse party at least
60 days prior to trial. . . . [T]he opinion of the person signing the report
with regard to the etiology of the injury or disease may be included as
part of the diagnosis. Any adverse party may object to the admissibility

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of any portion of the report, other than on the ground that it is hearsay,
within 15 days of being provided with the report. Further, any adverse
party shall have the right to cross-examine the person signing the report
and provide rebuttal testimony. The party tendering the report may also
introduce testimony of the person signing the report for the purpose of
supplementing the report or otherwise.

“The medical narrative shall be presented to the jury as depositions are presented to

the jury and shall not go out with the jury as documentary evidence.” OCGA § 24-8-

826 (b).

Here, in his second medical narrative, Owensby’s physician initially set out his

qualifications as a licensed medical doctor. He stated that Owensby was first seen

approximately six months after the collision and noted that she complained of low

back, neck, and shoulder pain. After physically examining Owensby and reviewing

her MRI, the physician found what he “believed to be consistent with cervical and

lumber facet syndrome.” The physician prescribed medication to address her pain,

swelling, and muscle spasms. No objections were made to this part of the narrative.

(a) In his discussion of medical treatment, the physician identified what he had

determined to be the best course of intervention for Owensby’s lower back pain,

lumbar intra-articular facet injections, which he described as diagnostic procedures

5
to determine if the facet joint was the source of the pain that could also be therapeutic

for this condition. He also described the process for performing the injections. The

physician further explained that if relief was obtained after the injection, “a

subsequent and more permanent surgery called a medial branch radiofrequency

ablation or RFA may be considered for long-term pain relief,” and described how the

RFA would provide pain relief. The second medical narrative also included a

conclusion in which the physician stated that, in his opinion, Owensby’s condition

would not improve without the recommended treatment, that he believed the

procedures would provide her with long term but not permanent relief, and that he

anticipated that the procedures would need to be repeated in the future. The trial court

ruled that these portions of the narrative were “inadmissible as too vague, speculative,

and conjectural in nature,” and “too inconclusive to form the basis of a claim for

future medical expenses.”

OCGA § 24-8-826 (a) provides that a medical report in narrative form “shall

be admissible and received in evidence insofar as it purports to represent the history,

examination, diagnosis, treatment, prognosis, or interpretation of tests or

examinations, including the basis therefor, by the person signing the report.” The

portions of the medical narrative ruled inadmissible as too vague, speculative, and

6
conjectural in nature represent the physician’s recommended treatment, based on his

diagnosis of Owensby’s condition, and his prognosis. As a result, they were

admissible under OCGA § 24-8-826 (a). See generally Dalton v. City of Marietta, 280

Ga. App. 202, 204 (1) (633 SE2d 552) (2006) (“So long as medical narrative reports

express the relevant information in prose language that is more readily

understandable to laymen, they are admissible.”) (citation and punctuation omitted).2

(b) The second medical narrative also included the physician’s opinion that

“Owensby is not a malingerer. Throughout her treatment and recovery, I believe that

she experienced real pain in her neck, back and shoulder.” The trial court excluded

these statements based on its conclusion that they did not relate to Owensby’s history,

examination, diagnosis, treatment, prognosis, or interpretation of tests or

examinations. We conclude that the trial court misapplied the relevant law on this

issue. The contested statements were made after the physician had examined

Owensby and were admissible as his interpretation of that examination. See OCGA

§ 24-8-826 (a); see also Wildstein v. Gray, 146 Ga. App. 222, 223 (2) (246 SE2d 130)

(1978) (“Whether appellant was feigning injury was a relevant query, and expert

2
Dalton was decided under former OCGA § 24-3-18, which is virtually
identical to OCGA § 24-8-826.

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testimony relative thereto was properly admitted over a relevancy objection.”);

General Gas Corp. v. Whitner, 110 Ga. App. 878, 879 (4) (140 SE2d 227) (1965)

(trial court did not err in permitting physicians to respond to the question “whether

they observed anything about the plaintiff that would indicate he was a malingerer,”

over objection that such testimony would be a conclusion of the witness and invade

the province of the jury); Tifton Brick & Block Co. v. Meadow, 92 Ga. App. 328, 333

(5) (88 SE2d 569) (1955) (testimony of physician that the witness did not give “any

evidence of being a malingerer” was admissible).

medical narrative states:

Owensby treated for pain as a result of a motor vehicle collision on
10/12/2016. I personally provided medical treatment to . . . Owensby for
symptoms and injuries that were directly and proximately caused by the
motor vehicle collision [in which] she was involved. I have a first-hand
account of this patient and her symptoms.

The trial court’s order states that the court is “concerned with the foundation of [the

physician]’s opinion expressed on the ultimate issue of proximate causation,” but fails

to make a specific ruling on this issue.

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“[A]n appellate court is, among other things, a court for the correction of errors

of law,” and “[a]n error of law has as its basis a specific ruling made by the trial

court.” (Citation and punctuation omitted.) City Of Gainesville v. Dodd, 275 Ga. 834,

837 (573 SE2d 369) (2002). Because there has been no definitive ruling by the trial

court on this issue, there is no ruling to review for legal error. See id; see also Findley

v. City of Atlanta, 345 Ga. App. 649, 652 (2) (814 SE2d 781) (2018) (when the trial

court has not ruled on an issue, we will not address it). This issue must be resolved

before the second medical narrative can be admitted, and we therefore remand the

case for the trial court to make a definitive ruling on this issue that can be reviewed

if necessary.

Judgment reversed and case remanded. Dillard, P. J., and Brown, J., concur.