*1 850 (1) (541 653) (2001). “[a]s long 380,
Ga. 382 SE2d Further, as some competent though support exists, contradicted, evidence even uphold each fact to make out the case, State’s we will (Citation omitted.) punctuation factfinder’s verdict.” and (2) (554 Childress 818) (2001). App. State, 873, v. 251 Ga. SE2d Given the case, evidence this this enumeration of error is without merit. Taylor finally 4. contends the evidence was insufficient support his conviction for child 5, molestation on Count which alleged tongue penetrated that the defendant’s the child’s anus. charged Because the indictment that the molestation was committed by penetration by Taylor’s tongue, of the victim’s anus to sustain the charge, penetra- conviction on this the evidence must show actual prosecutions rape, “[t]he necessary penetration In tion. for need be only slight may proved by be indirect or circumstantial evi- (Punctuation omitted.) Lay dence.” State, 483, (1) (591 why SE2d We see no reason a different standard appeal determining should be used in this when whether penetration evidence of was sufficient. presented case, showing however, no evidence was Taylor’s tongue actually
from which it could be inferred that penetrated presented only the victim’s anus. The evidence consisted testimony advocacy from the director of the child center that Taylor [the victim’s] tongue,” “licked the inside of backside with his testimony Taylor put tongue boy’s the victim’s on the Accordingly, behind. the conviction on this count must be reversed. (2) (388 698) (1990) (no State, See 853, Newton v. conviction). penetration compelled rape evidence of reversal of Judgment part part and reversed in with direction. affirmed Phipps, Johnson, J., J., P. concur. — July
Decided July 2008. Reconsideration denied appellant. Bonner, Jr., James C. McCann, Patricia for Attorney, Askew, Steven Howard, District Charles D. Assistant Attorney, appellee. District
A08A0585. DOREIKA v. BLOTNER.
JOHNSON, Presiding Judge. professional negligence
This is a case which Paul Doreika alleged injuries that he chiropractor sustained serious as a result of *2 specifically Gregg Blot- asserted that Blotner’s treatment. Doreika adjustments or neck him about the risks of to inform ner failed adjust- performing a neck his neck before for treatment alternatives pre- aggravated a a herniated disc or either caused ment which existing in favor of a verdict The returned disc condition. refusing alleging appeals, in to erred the trial court
Blotner. Doreika give charges regarding requested jury informed consent. the law on duty the doctrine first determine whether in this case is to Our Georgia. chiropractors applies does, If in it we instructing trial court erred whether the must then decide light trial. at of the evidence introduced on informed Georgia’s Consent Law. Informed 1. Georgia Dorei- to obtain law Dr. Blotner find that
We rendering chiropractic prior In treatment. ka’s informed had Ketchup in old cases that corrected dicta Howard,1 this Court v. Georgia doing brought years. so, we forward
been carried by recognizing law the common 49 states that of the other line with indicating expressly medical that a consent and of informed proposed professional material risks of a inform a must and must be known which are or should treatment treat- available alternatives inform procedure.2 ment or duty First, need look no we is three-fold.
The source of this As the States Constitutions. and United than the further Dept. Health,3 no Supreme Director, Mo. in Cruzan v. Court noted carefully guarded indi than an right the common law is more person possession right own free from of his and control vidual’s Amendment the Fourteenth Process Clause of The Due restraint. the federal constitution constitutionally protected patients’a gives right medical liberty unwanted to refuse which includes the interest recognized Supreme law that the common Court The treatment.4 constitutionally corollary duty consent is a of informed firmly liberty protected these constitu is reflected interest and Georgia by Georgia Supreme rights. tionally protected Likewise, the protected liberty persons interest, have a held that all regarding care, so their medical
Constitution, to make all decisions
constitutionally protected
competent.5
they
legally
long
This
are
as
right
treatment,
liberty
all medical
to refuse
includes the
interest
1
(2000).
371)
(543
App. 54
2
(1).
at 59
Id.
224) (1990).
111 LE2d
SC
497 U. S.
4 Id.
(1989);
Prevatte,
Zant
McAfee,
(286 SE2d patient’s
even the treatment save the life.6 where Clearly, “in the absence of the common law doctrine of informed constitutionally protected liberty consent, the interests indi regarding enjoy make viduals all decisions their medical treatment meaningless.”7 is rendered duty recognized to obtain informed consent is also adopted by professional
ethical standards the various medical fields. While we discussed the ethical standards associated Ameri- with the *3 can Medical Association and American Dental Association Ketchup, analysis applies same to the ethical and standards by policies adopted Chiropractic the American Association. Section V Chiropractic provides of the American Code of Association Ethics as chiropractic employ good of follows: “Doctors their should best faith provide understanding efforts to information and facilitate to enable patient regard the chiropractic make an choice in patient
treatment. The should make his or her own Chiropractic And, on such determination treatment.” the American Policies, Consent,” Association one of is entitled which “Informed note: generally applied, legal
Informed consent is from a standpoint, measuring degree respon- when of sibility liability malpractice doctor in of a and/or words, cases. other fact that a voluntarily submits treatment and so does does liability in itself not lessen of the doctor.
Today, [sic] judged the stand which doctor is By is of meant, “informed that is consent”. degree
what the has been informed of all of potential consequences, dangers, and other given factors, so that his with full knowledge dangers of the inherent to which he is exposed. knowledge Full in this sense could be construed as lieve the doctor of much “informed consent” would re-
liability, as there would be assumption part an of the on the risk of the patient. concept
The applied consent” “informed can also be relationships
to other contractual such as Zant, McAfee,supra; supra. See supra. Ketchup, treatment, are those for examination and which day
every occurrences the doctor’s office. Dental As with American Medical Association and the American Chiropractic stan- Association, the American Association’s ethical policies itAnd dards is a embrace the doctrine of informed consent. principle that the standard of care is determined
well-settled profession, not the courts.8 medical duty consent is to obtain informed also rooted § legislative requires 31-9-6.1, which medical enactment OCGA patients concerning professionals provide to their information procedures. Although all, some, OCGA risks of but medical limited 31-9-6.1 is a codification common law expresses adoption legislature consent, it informed require a clear generally recognized ac- risks disclosure material cepted reasonably prudent physicians to a which, if disclosed position, person patient’s reasonably prudent in the could reason- *4 ably expected be to decline treatment or the injury legislation has no of that could result. This
because of the risk recognition of on the common law doctrine of effect the
consent. adopted position in is the same the dissent this case position by Judge Ketchup special argued in concur- Andrews his rejected majority resoundingly in of that rence the Ketchup wrongly be overruled. was not decided and should not case. represent, adopted, position a in if
The gigantic this case would dissent’s Georgia. only people step Not would backward for the of refusing again only in the be the state nation once recognize consent, the law of but the common liberty constitutionally protected position dissent’s would render our meaningless. rights patient a How can and the medical canons of ethics expected if the make about treatment be a decision his required provide rendering the doctor the treatment is not that the to make
with all the information to enable decision? Albany argument, Urology
Contrary Clinic v. to the dissent’s require in result. The issue addressed Cleveland9 does not a different Albany duty Urology physician had a to his was whether to disclose a drug might namely patients life, use, of his which factors spe- adversely physician’s performance.10 dealt the The case affect cifically applicability not decide OCGA 31-9-6.1 and did with of (2). Ketchup, supra at 60-61 Ga. 296 10Id. at 298. physician duty a has a issue of whether common law to disclose particular proce- the risks associated medical treatment or Clearly, principle mention dure. of the common law of informed Supreme Moreover, case was dicta. Court has recently citing adopted Ketchup, our rationale the case for the proposition expert testimony is in an informed consent particular surgery case whether to establish risks of the were Albany Urology only known have or should been known.11 has been Supreme Court, cited once and it has been cited since Ketchup attempt was decided 2000. The dissent’s to overrule Ketchup misplaced.
2. Jury Instructions. duty Blotner had
Because to obtain Doreika’s informed prior performing adjustment, the neck and because the represented legal theory recovery issue of informed consent of obligated give jury charges case, court trial was on this legal theory recovery. duty of The trial court’s is to instruct the “every controlling, on the law as to issue in the case.”12 material, substantial and vital any charge legal theory
And failure on recovery general is harmful as a rule, matter law.13As a requested charge given should be where it been has raised complete principle evidence, law, embraces a correct and has not substantially general given, been included in the instructions and is specifically adjusted facts the case.14Because the charges may at retrial, issue this case be raised on we address each requested jury of Doreika’s instructions. *5 (a) failing give Doreika contends the trial court erred to proposed charge regarding ambiguity number 12 in consent: you any ambiguity concerning
If find there exists the obtaining prior Defendant’s consent from the Plaintiff to performing procedure manipulation the neck, on Plaintiffs you any against ambiguity are instructed to resolve the you doctor, Defendant if also find that there existed an inequality bargaining position parties. between two the you words, other if find that the doctor Defendant was in superior position respect knowledge proce- of the necessity dure, as well as risks, the benefits and for the (1978). 13 Id. [11] 12 (Citations omitted.) See Nathans v. Diamond, Fowler v. Gorrell, 804, (1), App. 573, n. 2 SE2d (2) (b) (251 121) (2007). See SCM Corp. Thermo Structural Products, Ga. [153] 372, (7) (A) any ambiguities procedure, you concern- then are resolve ing doctor, the and extent of consent obtained nature any, against if him. language this Falconer,15
This was taken from Hubert v. where involving upheld charge in a case a written similar Hubert, doctor
consent form. In the issue turned on whether the had patient’s through in the obtained a ambivalent disclosures present This informed consent form. case does not the same factual scenario. argument, contrary
Here, to Doreika’s no there is evidence any ambiguity jury record of contractual written for the or credibility Rather, witnesses, case turns on the of the determine. charge jury. the trial did claims he did not
which give court Doreika for and Blotner claims he procedure. consent for received informed undisputed any
Given the fact that this case does not involve ambiguity language form, of a written consent the trial court charge correctly proposed jury 12 was determined that number not a adjusted facts of the law and was not to the of this correct statement charge requests error, In order a refusal to be case. for adjusted entirely accurate, must be correct and instructions pleadings, evidence, not covered in the law and otherwise charge.16 any requested charge “inapt, general portion If precisely misleading, confusing, argumentative, incorrect, ad- reasonably justed tailored, raised or not or authored charge
evidence,” error.17 trial a refusal to does not constitute charge. refusing requested jury give court did not err (b) failing give Doreika contends trial court erred jury charges proposed regarding number and number 19 number jury charge Proposed number 17 stated
informed consent.
as follows: failed to obtain
The Plaintiff contends that the Defendant law, a medi- common his informed consent. Under *6 patient’s professional required obtain a cal consent to
prior treating you find him. If that the Defendant to treat failed to informed consent to obtain Plaintiffs you
neck, find that the Defendant was are authorized to 15 (2001). (1) 680) 243, App. Ga. 244 248 16 (3) A.A.L., Co., Pipeline App. Ga. 240 Inc. v. Colonial 280 See (2006). omitted.) (2) (Citations Chapman, punctuation Ga. Roberts (492 SE2d
negligent, you must then determine whether this negligence injuries or caused contributed to Plaintiffs damages.
Proposed jury charge number 18 stated as follows: professional, including chiropractor,
A medical a in- must patient proposed a of the form material risks aof treatment procedure known, which are or should be and he must proposed inform a of available alternatives to the you or treatment. If find that the Defendant did inform Plaintiff of the risks of the treatment at issue you and available alternatives then are to find that procedure. there was no informed consent for the Proposed jury charge number stated as follows: requirement prior
The that there be informed consent to professional, medical treatment is satisfied when a medical including chiropractor, fully a informs a of the risks of and alternatives treatment so that the patient’s right to decide is not diminished a lack of relevant information. proposed jury requests sought jury
These to instruct the about the theory recovery and the effect of Blotner’s any, failure, if to obtain Doreika’s informed consent. As stated previously, refusing any give jury the trial court erred instruc- theory tion recovery. question on Doreika’s informed consent we refusing must address is give whether the trial court erred proposed jury Doreika’s instructions.
Clearly, proposed jury request number 17 is correct statement adjusted of the law and is to the evidence. The trial court erred failing give proposed requests In addition, instruction. num- provide ber description 18 and number 19 theory recovery. proposed jury charges appear However, those two duplicitous, so failing give only the trial court erred in one of requested charges. proposed jury charge In addition, number 18 they should inform the “required” are “authorized” not argues find a lack of informed consent. Blotner that the trial court’s give requested charges refusal was not error because herniated disc was not a material risk of which he needed to inform *7 jury’s province However, it is the is and is Doreika. decide what given not a risk the in the case.18 material evidence charge
juryA on is if informed informed consent theory by legal by plaintiff the consent is a raised the and borne out by refusing give Here, erred a evidence in the case. the trial court legal theory charge informed it was on consent since a recovery in the case.
Judgment Smith, Barnes, J., and reversed case remanded. C. Phipps, Ellington, J., Bernes, JJ., J.,P. Ruffin,
E Adams and concur. J., Andrews, Mikell, JJ.,
Blackburn, P. Miller and dissent. Judge, dissenting. ANDREWS, Assembly the General has defined the doctrine Because § procedures 31-9-6.1, for medical OCGA adjustment chiropractic neck at issue is not a covered § provisions 31-9-6.1, set forth OCGA correctly refused to instruct on the informed trial court consent claim. professional negligence against action
Paul J. Doreika’s for chiropractor, Gregg jury, Blotner, D.C., M. was tried before a which in favor of Dr. Blotner. Mr. Doreika claimed that rendered a verdict performed injured adjustment him neck on him Dr. Blotner causing, aggravating pre-existing a herniated or disc either disc undergo surgery repair required he was condition, and that injury. Dr. did not the manner in which Mr. Doreika claim that adjustment negligent. performed Rather, the neck was Blotner negligent performed Dr. Blotner because claim was that was he history adjustment doing Mr. examination and on neck without an adjustment, adequate basis for the Doreika to establish a clinical adjustm obtaining Mr. informed consent for the without Doreika’s ent.19 opinion Ketchup App.
Citing Howard, v. 247 Ga. this Court’s cause based expert failing performing Blotner respect (1969) parties. and similar on testimony setting (whether See Even inform Mr. Doreika obtain informed lack obtaining generally though OCGA of informed neck matters, misrepresentation Nat. Mr. Doreika’s adjustment. 9-11-15 forth consent was Life consent, should consent, of the varying (b); &c. Ins. Holliday Accordingly, ordinarily the case complaint risk addressed opinions Co. material, of disc v. disputing whether was tried be submitted Crew, Jacky did on during like the standard injury and claim that Dr. Jones questions before the specifically Lincoln-Mercury, trial App. alternative as jury). jury, care standard Blotner was express assert a negligence, proximate for without (1) (168 chiropractors treatment negligence implied negligent objection, that Dr. before claim on *8 371) (2000), Mr. Doreika enumerates as error the trial objection, give requested refusal, to to
court’s over instructions Ketchup Georgia required that to the based on law Dr. Blotner adjustment by Mr. informed consent the neck obtain Doreika’s informing him of the material risks of and the available alternatives proposed Ketchup, Georgia the treatment. Court held to that recognize “will the common law doctrine informed of consent” and professional Georgia “a medical . must inform . . a procedure material risks of a or treatment or which are they known, be must should inform of available proposed procedure alternatives or treatment.” Id. at 59. Ketchup imposed requirements (prospec- informed these consent tively only) performing procedure, though on dentists dental even at was not issue covered the doctrine of informed § provisions consent as defined OCGA under 31-9-6.1. Id. at Relying Ketchup, majority chiroprac- on 54-55. now finds that a performing adjustment profes- tor the neck at issue a “medical performing procedure” sional” “treatment or under the common consent, of informed law that the trial court committed revers- by failing error instruct ible that Dr. Blotner was applying obtain Mr. Doreika’s informed consent. Instead of Ketchup impose requirements new informed consent on a case- by-case recognize authority basis, this should Court that it had no Ketchup adopt a common law version of informed consent at odds Assembly’s with the General definition § OCGA 31-9-6.1. Assembly
The General has consent doc codified § categories 31-9-6.1, trine in of information in OCGA which sets forth six providers be that must disclosed medical care patients patients undergo specified surgical diagnostic before the procedures. by refusing give court The trial did not err Mr. requested Doreika’s informed consent instructions because the neck adjustment performed by chiropractor in this case is not covered § provisions the informed of OCGA 31-9-6.1. Our Su preme Albany Urology Court held in Cleveland, Clinic v. 777) (2000), that there was no common law Georgia prior informed consent to the enactment of OCGA § Assembly 31-9-6.1, and that, after General codified in beyond formed 31-9-6.1, consent doctrine in OCGA it was power Supreme expand upon Court or this Court those statutory provisions. Ketchup, 298-299; Id. at see App. (Andrews, concurring specially joined by 247 Ga. Blackburn, at J., 74-75 E JJ.). Ketchup J., Miller,
R Ruffin and
Court
This
erred in
by disregarding
Supreme
holding Albany Urology
Clinic
(Ruffin,
concurring
Ketchup,
J.,
at 75-76
as dicta. See
J.).
specially joined
Miller,
J., Blackburn,
J., and
*9
Andrews, E
E
subsequent
majority’s
Supreme
Contrary
claim, the
Court’s
to the
121)
(654
(2007),
opinion
Diamond,
did not abandon requirements imposition Ketchup’s in of informed consent endorse § in Rather, the facts forth in OCGA 31-9-6.1. to those set addition doctor case concerned a claim that a medical show that the Nathans surgical requirements comply on failed procedure provisions Id. at 804. of OCGA 31-9-6.1. covered Assembly’s Ketchup contrary to the General that It follows § 31-9-6.1, in consent doctrine OCGA of the informed codification Albany Urology Supreme contrary in Court’s decision and power supra, recognizing that the to define the doctrine Clinic, judiciary, Georgia but with rests, not with the consent representatives through people General elected their majority opinion implies Assembly. to return Nevertheless, that Assem doctrine, as codified the General to the informed Georgia bly, Constitutions, and and the United States would violate step people gigantic represent Geor for the “a backward would requirements preferred expanded gia” from the jurisdiction Ketchup. of this It is not within this Court constitutionality statute, it the of a nor is to hold forth on judgment province Assem of the General to chide the of this Court requires bly. its this Court to conform Constitution Assembly lawfully the General enacted decisions to statutes Georgia. Supreme binding precedents Full Court of 511) (1999); Sivley, Ga. Const. of Ga. wood v. VI, Because Ill; VI, Sec. Far. VI. VI, Y, Far. Art. Art. Sec. Ketchup under the to no deference neither, it is entitled conforms respectfully I overruled. and should be of stare decisis extending majority opinion applying from the dissent holding Ketchup. Presiding Fresiding Judge Ruffin,
I am authorized to state join Judge Judge Judge Mikell this dissent. Blackburn, Miller, — 18, June Decided July 23, 2008 denied Reconsideration appellant. Thornton, Thornton, for
Warshauer, Steven R. Poe & Egan, Sweeney, Owen, Gleaton, III, Jones & Milton B. Satcher Reading, appellee. Melissa P.
A08A0719. MORA THE STATE. Judge. Bernes, Following jury trial, Anderson Stalin Mora was convicted of trafficking marijuana. appeal, argues On Mora that the evidence support was insufficient to his conviction. He also contends the trial *10 denying discharge acquittal court erred in his motion for made granted after the trial court the state’s motion for a continuance of denying trial and in his motion for a mistrial made after a law right enforcement officer commented on Mora’s exercise of his remain silent. We find no reversible error and affirm. appeal
On from a conviction, criminal we view the light support jury’s evidence most favorable to longer enjoys presumption verdict, and the defendant no innocence; of moreover, this Court determines evidence sufficiency weigh and does not the evidence or determine credibility. Resolving evidentiary witness in- conflicts and assessing credibility, consistencies, and witness are the province long factfinder, not this Court. As as there is competent though some evidence, contradicted, even support each element of case, the state’s uphold jury’s Court will verdict. (Punctuation omitted.) State, footnotes Howard v. employed viewed,
So the evidence showed that Mora was as a August truck driver and was the owner of a tractor-trailer. engaged transport shipment goods Mora was from Florida to passing through Georgia, New York. While the state Mora’s truck stopped weigh sergeant was employed at a station with the Georgia Department Safety. being of Public The truck was driven slept Daniel Linares, co-driver, Mora’s as Mora in the cab. After noticing regulatory logbooks deficiencies of both Mora and sergeant performed safety Linares, the inspection a routine part opening truck, checking of which involved the trailer and opened load key securement. The trailer was after Linares obtained a padlock securing sergeant the doors from Mora. The immedi- ately open bags containing twenty-one observed two duffle over pounds marijuana directly located inside of the trailer doors.