Dorothy Barham, an incapacitated adult, by her legal guardian and next friend, Christine Harris, appeals the judgment, based on a jury verdict in favor of Robert M. Levy, M.D., in Barham’s action against Dr. Levy for medical malpractice. Barham’s complaint alleged that Dr. Levy’s negligence caused her to have a stroke and become incapacitated.
After Barham collapsed, she was taken to the hospital where the neurologist on call performed a cerebral arteriogram. This procedure was only partially successful, and the neurologist directed Dr. Levy to conduct a second arteriogram. Unfortunately, during the second procedure Barham suffered a stroke and incurred permanent brain damage. Initially, Barham sued the neurologist, Dr. Levy, the hospital involved, and others alleging various claims, including professional negligence. The complaint alleged that the physicians were liable because they negligently performed the first arteriogram and that negligence combined with Dr. Levy’s negligence in performing the second arteriogram caused Barham’s stroke.
The defendants moved for summary judgment .on various grounds, but the only ground relevant here is that they contended that the first arteriogram did not cause Barham’s stroke. The trial court granted this motion. On appeal to this Court, although the grant of summary judgment to Dr. Levy was reversed, the grant of summary judgment regarding the first arteriogram was affirmed in an unpublished opinion. In relevant part this Court held that Bar-ham had produced no evidence that the first arteriogram caused her any injury because her own evidence negated her claim that the first procedure led to her stroke.
Upon remand the trial court granted Dr. Levy’s motion in limine excluding evidence of alleged malpractice in the first arteriogram because that procedure had been determined as a matter of law not to have caused Barham’s stroke. Evidence was introduced, however, regarding the facts surrounding the first procedure.
After a jury trial, a defense verdict resulted. Upon the denial of *595 Barham’s motion for ¡a new trial, these appeals followed.
In Case No. A97A1622, Barham contends the trial court erred by instructing the jury that Dr. Levy could not be held liable for medical complications, by excluding evidence that Dr. Levy participated in an improper medical procedure that allegedly contributed to Barham’s injury, and by refusing to charge on concurrent negligence. In Case No. A97A1623, Barham appeals the trial court’s order denying her affidavit of indigence. She contends the trial court erred by doing so because she is permanently disabled in a nursing home, has no assets, and is unable to pay the costs and expenses of an appeal because of her indigence. Dr. Levy did not contest Barham’s affidavit and has not filed a traverse. Nevertheless, the trial court denied her affidavit, and Barham contends the trial court had no authority to do so sua sponte without conducting a hearing, without stating factual findings, and without traverse or challenge by the other party. Held:
Case No. A97A1622
1. Barham contends the trial court erred by giving the following charge: “I charge you that in the event a patient develops a certain condition, or an event occurs which is recognized to be an accepted risk or known complication of medical treatment, that alone is not proof of negligence. I charge you that a stroke is a recognized complication of an arteriogram procedure.” Barham does not contest the first sentence of this charge, and it is a correct statement of the law. See
Chavous v. Richmond County Hosp. Auth.,
Instead, Barham focuses on the trial court’s failure to charge the jury that a stroke was a
possible
complication of an arteriogram. It is a fundamental rule that jury instructions must be considered as a whole in determining whether there was error in the charge.
Hambrick v. State,
2. We also find no error in the trial court’s excluding the evidence regarding the first arteriogram procedure. The trial court had earlier concluded that there was no proof that this procedure caused Bar-ham’s injury, and this decision was affirmed by this Court on appeal. Therefore, this evidence was not relevant to the jury’s determination of whether Dr. Levy should be held liable for his alleged negligence in the second arteriogram.
Because of the law of the case rule (OCGA § 9-11-60 (f)), the earlier decision of this Court affirming the trial court concerning the lack of causation was binding on the trial court on this issue, and it is also binding on this Court.
Eastgate Assoc., Ltd. v. Piggly Wiggly Southern,
Further, as a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.
Whisnant v. State,
3. We also find no error in the trial court’s refusal to charge on concurrent negligence. This charge is based on the allegation that the negligence in the first procedure operated in combination with Dr. Levy’s concurrent negligence to produce Barham’s injury. Because the first procedure was determined as a matter of law not to cause any injury to Barham, that negligence could not have been concurrent negligence with the negligence alleged in the second arteriogram. Therefore, a charge on concurrent negligence was not authorized by the evidence. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If
any portion
of the request is inapt or incorrect, denial of the request is proper.” (Punctuation omitted; emphasis in original.)
Mattox v. MARTA,
Case No. A97A1623
4. Although the trial court’s ruling on all issues of fact concerning the ability of a party to pay costs is not subject to review (OCGA § 9-15-2 (b)) and a hearing is not required
(Morris v. Dept. of Transp.,
Judgment affirmed in Case No. A97A1622. Judgment reversed with direction in Case No. A97A1623.