Pruette v. Ungarino
326 Ga. App. 584
Ga. Ct. App.2014Background
- Decedent Janie Vinson, 79, with end-stage COPD was hospitalized and entered respiratory distress on March 18, 2002; a code was called and multiple physicians responded.
- Dr. Kay Kitchen (attending) ordered 2 mg morphine PRN after consulting family and pulmonologist; Dr. Thomas Ungarino (not previously involved) later changed the chart to order a single 20 mg dose without consulting the team or family.
- Nurse Linda Hurdle administered 20 mg per Ungarino’s order; Vinson lost consciousness and died about three hours later.
- Plaintiff sued Ungarino and Phoebe Putney Hospital for wrongful death/medical negligence (vicarious liability for the nurse). First jury found for plaintiff; trial court granted defendants’ motions for new trial, reasoning plaintiff’s expert injected informed-consent issues into standard-of-care testimony.
- On retrial the jury found for Ungarino but against Phoebe Putney; Phoebe Putney’s second motion for new trial was denied. Appeals followed, consolidating three appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived objection to admission of testimony/argument invoking informed-consent doctrine | Plaintiff: defendants failed to contemporaneously object at trial, so they waived the issue on appeal | Defendants: preserved the issue via written Motion in Limine No. 18 and ruling thereon, so no renewal was required | Court: defendants preserved objection as to testimony by plaintiff and plaintiff’s witnesses/experts via the written motion and denial ruling; but failure to object to opening/closing waived those objections |
| Whether expert testimony improperly injected informed-consent into negligence case against Dr. Ungarino | Plaintiff: expert’s testimony addressed basic communication duties, not informed consent under statute | Defendants: expert equated duty to inform family/patient about comfort measures and risk of hastening death with informed-consent doctrine, which is inadmissible here | Court: affirmed grant of new trial as to Ungarino — expert testimony impermissibly put informed-consent issues (risks/alternatives) before the jury |
| Whether trial court erred in granting new trial as to Phoebe Putney (vicarious liability for nurse) | Plaintiff: no testimony asserted nurse had duty to obtain informed consent; thus grant as to hospital was error | Phoebe Putney: prejudiced by Hyers’s testimony about informed consent injected against all defendants | Court: reversed grant of new trial as to Phoebe Putney — nursing expert’s testimony did not assert nurse had to obtain informed consent (she testified only that nurse should inform patient of med/dose and side effects as routine safety), so no impermissible informed-consent testimony against hospital |
| Whether appeal from denial of Phoebe Putney’s second motion for new trial (after retrial) should proceed | Phoebe Putney: raises trial errors from second trial | Plaintiff: earlier rulings control | Court: appeal rendered moot because court reversed first new-trial grant as to Phoebe Putney, so second-motion appeal is dismissed as moot |
Key Cases Cited
- Blotner v. Doreika, 285 Ga. 481 (Georgia Supreme Court) (failure to reveal risks inadmissible as negligence evidence when informed-consent statute does not apply)
- Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296 (Georgia Supreme Court) (explaining categories covered by OCGA § 31-9-6.1)
- Hyles v. Cockrill, 169 Ga. App. 132 (Georgia Court of Appeals) (expert testimony about informing patients of risks improperly injects informed-consent issue into malpractice trial)
- Pope v. Davis, 261 Ga. App. 308 (Georgia Court of Appeals) (definition of informed consent: disclosure of material risks and alternatives)
- Reno v. Reno, 249 Ga. 855 (Georgia Supreme Court) (ruling on preservation via motion in limine)