Dowling v. Lopez

Beasley, Presiding Judge,

concurring specially.

I concur in the majority opinion. With respect to the dissent, although Dr. Davis testified in deposition that the decedent had “at the time of presentation (to defendant in 1987), in all likelihood, a terminal cancer that presented with all the symptoms of Crohn’s disease,” he explained his use of the term “in all likelihood” when asked. He said it was a slang term and made clear that “[his] professional opinion is that she had terminal cancer at that time and was not salvageable.” His opinion was that she was at “Stage D ... it would have already had to be metastatic at the time. . . .” It was his opinion that defendant acted with good intent “and did what was an appropriate *582evaluation.” From this, a jury could not reasonably infer that the decedent’s cancer was treatable to such a degree that her life could have been extended.

With respect to Dr. Dupree, a surgeon (defendant is a gastroenterologist), he stated by affidavit that had defendant exercised the requisite care in 1987, the decedent’s cancer would have been diagnosed earlier and that her life “could have, in all likelihood, been prolonged and her pain and suffering eased.” In deposition he testified that surgery should have been done when fluid was found in the culde-sac, to find out what was going on in her abdomen. He said he had other surgery patients who lived six or seven or eight years “if you get to it in time.”

However, when asked if the decedent’s life would have been prolonged had surgery been done when the fluid was discovered, he testified: “Well, it’s kind of difficult to say about that. It probably would have been prolonged because, I mean, I have operated on patients before.” He described a woman on whom he operated who thereafter took chemotherapy treatment and lived about eight years. This is the extent of the “likelihood.”

In my opinion, eveti if there is in Georgia, either within or outside the wrongful death statutory claim, one for loss of a longer life or for one with less pain and suffering, the evidence falls short of supporting it.