Sterling Tyrone Brown, Sr., as Surviving Spouse v. Southeastern Pain Specialists, P.C.
339 Ga. App. 567
Ga. Ct. App.2016Background
- Plaintiff Gwendolyn L. Brown underwent a bilateral epidural steroid injection (ESI) under conscious sedation at Southeastern Pain Ambulatory Surgery Center on Sept. 16, 2008; during the procedure her pulse-ox readings fell rapidly to zero and blood pressure monitor recycled. She later suffered catastrophic hypoxic brain injury and died in 2014; suit continued as survival and wrongful-death actions brought by her spouse/administrator.
- Trial was trifurcated (liability; punitive liability; punitive damages). Jury found liability and apportioned fault: 50% to Dr. Dennis Doherty, 30% to the Surgery Center, 20% to Southeastern Pain Specialists, P.C.; Hardwick (RN) assessed at 0%.
- Key factual disputes: whether Doherty ignored or misinterpreted alarming monitors, whether staff/administration should have intervened, and whether post-procedure communications to hospital/EMS were accurate.
- Pretrial/discovery issues: Doherty belatedly disclosed an expert (Dr. Martin) and the trial court excluded his testimony as a discovery-sanction; the court also limited evidence of Doherty’s prior medical condition/character for liability phase but allowed contemporaneous conduct evidence and later punitive-phase evidence of past conditions if liability were found.
- Defense argued stroke causation and challenged ordinary-negligence theories, agency/vicarious-liability theories against the Surgery Center and the P.C., and sought directed verdicts/JNOVs; plaintiffs presented expert testimony linking hypoxia during the procedure to permanent brain injury and later death from respiratory complications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jury should have been charged on ordinary negligence in addition to professional malpractice | Brown: some acts/omissions (e.g., ignoring two oximeters reading zero, failure to fully inform hospital) are within lay jurors’ understanding and state ordinary negligence | Doherty: all theories arise from professional medical judgment and thus require malpractice-only charge | Court: charge on ordinary negligence proper — some alleged acts did not require expert proof and jurors could reasonably evaluate them without expert testimony |
| Whether trial court erred denying directed verdicts/JNOV as to ordinary-negligence claims | Brown: evidence (alarms, monitor failures, misstatements) supports ordinary negligence and causation | Doherty: no evidence of ordinary negligence or that acts after 5:40 p.m. proximately caused injury | Court: denied directed verdicts — “any evidence” standard satisfied; experts showed hypoxia could cause injury within minutes so post-5:40 acts could still have contributed |
| Whether trial court properly excluded Doherty’s untimely expert (Dr. Martin) | Brown: expert designated late and unreliable; exclusion appropriate | Doherty: exclusion prejudicial; testimony relevant and cumulative to another defense expert | Court: exclusion was within trial court’s broad discovery-discretion given enforcement of case-management order and sanctions warning; no abuse of discretion |
| Admissibility of evidence of Doherty’s prior medical condition/character and whether mistrial needed after insurance/financial remark | Brown: prior conduct/impairment evidence relevant to others’ duty to intervene; mistrial required when insurance/financial condition mentioned | Defendants: prior-conduct evidence was character evidence and unduly prejudicial; single remark about financial wherewithal did not introduce insurance and court promptly sustained objection | Court: trial court did not abuse discretion — excluded prior-character evidence for liability phase absent contemporaneous link; allowed evidence of on-day behavior; denial of mistrial proper because objection sustained, jury excused, and no insurance evidence actually introduced |
| Whether Surgery Center and P.C. fault and vicarious liability were supported | Brown: evidence supported agency/respondeat superior (ownership, management overlap, testimony that Doherty owned/managed entities) | Surgery Center/P.C.: no evidence Doherty was their agent; pre-trial pleadings did not allege such; JNOV/directed verdict warranted | Court: evidence (testimony, corporate structure, pre-trial order) provided some basis to find agency and to apportion fault; denial of directed verdicts/JNOVs affirmed |
| Causation for wrongful death | Brown: experts linked hypoxic brain injury from procedure to chronic complications and death; death certificate lists respiratory complications of hypoxic encephalopathy | P.C.: no proof tying its conduct to proximate cause of death | Court: causation was a jury question resolved by expert testimony; evidence sufficient to deny directed verdict/JNOV |
Key Cases Cited
- Bardo v. Liss, 273 Ga. App. 103 (explains when ordinary negligence vs. professional malpractice applies)
- Dent v. Memorial Hosp. of Adel, 270 Ga. 316 (liability-phase malpractice-only charge can be erroneous when ordinary negligence claims exist)
- Carter v. Cornwell, 338 Ga. App. 662 (acts not requiring professional judgment may state ordinary negligence)
- Jones v. Livingston, 203 Ga. App. 99 (upholding exclusion of untimely expert witness under court order enforcement)
- Moore v. Cottrell, Inc., 334 Ga. App. 791 (trial court may exclude an expert not properly identified in violation of an express court order)
- Zaldivar v. Prickett, 297 Ga. 589 (trier of fact must consider fault of all persons/entities whose breach proximately caused injury)
- Ashley v. Goss Bros. Trucking, 269 Ga. 449 (evidence of insurance or limits generally inadmissible; not every improper question requires mistrial)