Jessie Mae Austin, a 60-year-old woman, underwent a routine lumbar diskectomy for correction of a herniated disc at the L4-L5 level. During the course of the operation, defendant Dr. G. Phillip Kaufman severed the patient’s left iliac artery and extensively injured the left iliac vein. Mrs. Austin began hemorrhaging during surgery, and after several unsuccessful surgical attempts were undertaken to repair the damage to her vascular system, Mrs. Austin died. This medical malpractice action was brought against Dr. Kaufman and Cobb Neurological Associates, P.C., by the decedent’s husband Jessie R. Austin, individually and in a representative capacity for the couple’s nine children, and Carolyn Austin, administratrix of the decedent’s estate. The case was tried before a jury and a verdict in favor of plaintiffs was returned. Defendants moved for a judgment n.o.v. and, in the alternative, for a new trial. The trial court granted both motions, and plaintiffs appeal.
Res ipsa loquitur is not applicable in medical malpractice cases in Georgia. “In a medical malpractice case, ‘the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. “The . . . jury must have a
standard
measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill.” ’ [Cits.]”
Horney v. Lawrence,
During the trial of the case, plaintiffs’ expert witness testified on direct examination that, during a procedure of this kind, there is an implied requirement that the surgeon confine himself to the operative field and not stray from the field of surgery into a body cavity where he has no business being. From this testimony, the parameters of acceptable professional conduct for this procedure were clearly established — a doctor should not stray from the operative field and enter the abdominal cavity where he can injure the patient’s vascular system. The expert witness also testified that in his opinion Dr. Kaufman deviated from the applicable standard of care.
The trial court erred in holding that plaintiffs improperly relied on the doctrine of res ipsa loquitur to establish negligence in this case. Plaintiffs did not themselves raise the doctrine to establish an inference of negligence in this case. Cf.
Young v. Yarn,
“Negligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony. Although expert opinion testimony may be required in a medical malpractice case to prove the applicable standard of care and a breach thereof, we are aware of no rule which prevents circumstantial evidence from being used to prove those facts upon which the expert relies in formulating his opinion that such negligence occurred. It is for the jury to determine whether the facts upon which the expert bases his opinion do exist and, if so, whether the expert’s opinion that those facts constituted medical malpractice should be accepted. In determining medical malpractice, the jury may consider
all
the attendant facts or circumstances which may throw light on the ultimate question. . . . And where, measured by the method shown by medical witnesses to be negligence, the evidence shows a bad result, it is the province of the jury to say whether the result was caused by negligence.” (Emphasis in original; citations and punctuation omitted.)
Packer v. Gill,
The trial court also concluded that because Dr. Kaufman and the other expert witnesses testifying on his behalf agreed that injury to the iliac vein and artery is a recognized complication of this procedure, Dr. Kaufman could not, as a matter of law, have been negligent in causing Mrs. Austin’s injury. In support of this position, the trial court also referred to plaintiffs’ expert witness’ testimony on cross-examination, in which he stated he could not teach defendant how to avoid the injury, this injury could be caused by a careful neurosurgeon, and he had never caused such an injury because he had been lucky. Yet, the plaintiffs’ expert witness, Dr. Kaufman, and one of defendants’ expert witnesses indicated that this kind of injury to the vascular system was extremely rare, and in most instances, a lumbar diskectomy is performed without any injury occurring to a patient’s iliac vein or artery. This expert testimony created a factual dispute as to whether Mrs. Austin’s injury and death were merely expected complications of the procedure which under any set of circumstances
“[A] motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a ‘one-way’ verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.)
Famiglietti v. Brevard Medical &c.,
2. We next address the trial court’s grant of a new trial to defendants. “ ‘While ordinarily the first grant of a new trial will not be disturbed by this court, where . . . the first grant of a new trial is based on a special ground involving a question of law, the trial court’s order is reviewable on appeal.’ [Cit.]” Famiglietti v. Brevard Medical &c., supra at 169. Because defendants’ motion for new trial raised eight specific allegations of error authorizing the grant of a new trial, none of which was the general grounds, we conclude that the trial court’s order granting a new trial in this case is reviewable by this court.
We reject defendants’ argument that the trial court’s order impliedly contained a grant of new trial on the general grounds. “In all civil cases in which a new trial is granted, if the grant of a new trial is based on the discretion of the judge, the judge shall set forth by written order the reason or reasons for the exercise of his discretion.” OCGA § 5-5-51. Because the trial court’s order contains no reference to the reasons for the exercise of its discretion, we must conclude that a new trial was granted on the special grounds raised by defendants. Thus, we will review each of the special grounds raised below.
3. Defendants first argued the trial court erred in submitting evidence to the jury in the form of res ipsa loquitur. In accordance with our holding in Division 1 of this opinion, this argument is without merit.
4. Defendants next contended the trial court erred by allowing testimony concerning the issue of informed consent and indicating that Dr. Kaufman was required to disclose to Mrs. Austin the risks of this procedure. The challenged testimony was admitted during cross-
Defendants asserted that at the time of Mrs. Austin’s surgery, the informed consent doctrine was not a viable principle of law in Georgia because the general rule at that time was that an executed consent form was conclusively presumed to be valid.
(Holbrook v. Schatten,
5. Defendants also contended that the trial court erred by allowing testimony which put before the jury the issue of fraudulent misrepresentation. Mrs. Austin’s surgery occurred on August 24, 1987, which was prior to the effective date of OCGA § 31-9-6.1. At that time, a duly executed consent to surgery which disclosed the general terms of the treatment given was “conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.” OCGA § 31-9-6 (d). After Dr. Kaufman testified on direct examination that injury to the iliac veins and arteries is a recognized risk of the procedure performed on Mrs. Austin, plaintiffs’ counsel cross-examined Dr. Kaufman regarding his notation on Mrs. Austin’s medical records that he had discussed with the patient the risks, goals and alternatives of treatment “in depth.” Mrs. Austin’s daughter was called as a witness to testify that she had been present during Mrs. Austin’s conference with Dr. Kaufman and had not heard him discuss the risk of bleeding and death with her mother. In support of their motion for new trial, defendants sought to persuade the trial court, based on
Kelly v. Reid,
6. Defendants also claimed the trial court erred in refusing to allow defendants during trial to produce and refer to the medical literature upon which Dr. Kaufman based his expert opinion that he had not negligently performed this procedure. Defendants contended that the medical literature should have been admissible as evidence. “An expert may testify as to his opinions derived from a book, [cit.], and his credibility may be tested by reference to a standard treatise in his field of expertise. [Cit.]”
Dean v. State,
7. Defendants next argued the trial court erred in allowing expert testimony from the medical examiner who signed Mrs. Austin’s death certificate. The medical examiner had not been identified by plaintiffs as an expert witness during discovery but had been identified as an expert witness on the pretrial order. OCGA § 9-11-26 (b) (4) (A) (i) requires a party to identify during discovery each expert who will appear at trial, provide a summary on which the expert is expected to testify, and state the substance of the facts and opinions to which the expert is expected , to testify and a summary of the grounds for each opinion. However, this court has held that the requirements of this Code section apply only to experts whose knowledge of the facts and opinions held were acquired or developed in anticipation of litigation or for trial, and not to an expert witness who is in fact an actor or observer of the subject matter of the suit.
Candler General Hosp. v. Joiner,
8. Defendants also raised as error the trial court’s refusal to give defendants’ requested charges 12, 13, 14 and 17. However, we find that each of these requests was adequately covered by the court in its own charge to the jury.
Skipper v. Dept. of Transp.,
9. Defendants also urged the trial court to grant a new trial because the trial court included plaintiffs’ request to charge concerning
“ ‘A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to [defendants], and is error requiring the grant of a new trial.’ [Cit.]” (Citations and punctuation omitted.)
McCoy v. Alvista Care Home,
10. Defendants lastly argued the trial court erred because the jury verdict form did not contain special interrogatories on the issues of fraudulent misrepresentation and informed consent. In Division 9 of this opinion, we held that the issues of informed consent and fraudulent misrepresentation were improper for jury consideration. Consequently, the trial court did not err by failing to include special interrogatories addressing these issues on the jury verdict form.
Judgment affirmed in part and reversed in part.