Perry v. GILOTRA-MALLIK
314 Ga. App. 764
| Ga. Ct. App. | 2012Background
- Ronald Perry sued emergency room pediatrician Shalini Gilotra-Mallik and Mallik's practice for his seven-month-old daughter's wrongful death.
- Gabrielle was treated in the ER for high fever; triaged as urgent and Mallik examined her and ordered tests and treatment.
- Three hours later the child was discharged under the mistaken impression the fever had fallen, though records showed the fever remained elevated.
- Home within an hour, Gabrielle stopped breathing and died at the hospital; the claim focused on Mallik's discharge while the child was unstable.
- Perry initially sued the hospital and Mallik in DeKalb County; the case was transferred to Fulton County and the hospital suit was dismissed without prejudice.
- Mallik remained the sole defendant; the pretrial order identified the issues as standard of care, causation, and damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether nurses should have been declared adverse for cross-examination | Perry sought cross-examination of nurses as adverse witnesses. | Nurses were former hospital employees and not proper cross-examination subjects unless hostile. | Waived; Perry did not preserve the issue by requesting hostile designation during testimony. |
| Admissibility of evidence related to nurses and hospital policies | Nurses' conduct and hospital policies were relevant to Mallik's standard of care and credibility. | Hospital-employees' negligence and policies were not proper jury issues; risk of prejudice. | No abuse of discretion; rulings were proper as nurses' negligence was not at issue. |
| Duty to give joint tortfeasor instruction | Joint liability should be charged because hospital and Mallik may be jointly negligent. | Pretrial order did not identify joint liability; hospital negligence not at issue for the jury. | No error; instruction was not properly tailored to pleadings and evidence. |
| Daubert motion to exclude causation testimony | Mallik's experts used unreliable methods; causation testimony should be excluded. | Experts employed differential diagnosis and reliable, peer-reviewed methods; testimony admissible. | Denied; trial court did not abuse its discretion in admitting causation testimony. |
Key Cases Cited
- Dept. of Transp. v. Mendel, 237 Ga.App. 900 (Ga. App. 1999) (evidentiary rulings reviewed for abuse of discretion)
- Cooper Tire & Rubber Co. v. Crosby, 273 Ga.454 (Ga. 2001) (context for understanding trial-court evidentiary discretion)
- Ahmed v. Clark, 301 Ga.App. 426 (Ga. App. 2009) (waiver and preservation principles in appellate review)
- Gates v. Navy, 274 Ga.App. 180 (Ga. App. 2005) (trial court's charge alignment with pleadings and evidence)
- Smith v. Finch, 285 Ga.709 (Ga. 2009) (differential diagnosis methodology in expert causation testimony)
- Hankla v. Jackson, 305 Ga.App. 391 (Ga. App. 2010) (Daubert standard applied to expert testimony)
- Moran v. Kia Motors America, 276 Ga.App. 96 (Ga. App. 2005) (qualification of expert testimony as a legal determination)
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (Supreme Court 1993) (federal gatekeeping for expert testimony)