*1 original forum from the forum to another ous transfer of case (a) original § is to return the case to under OCGA 9-10-31.1 forum.12 appellant(s) appeal, to estab- however, the burden is on the
On not be cause error, harm; error which is harmless will lish as well as deciding, assuming, the venue without for reversal.13 Even County Superior by error, Court was the Lambs transfer the Fulton they simply asserted no harm the transfer. Nor have shown County Superior any any other error the Cobb trial error or they Consequently, have demonstrated no basis to disturb Court. upon County jury’s verdict. entered the Cobb Judgment Bernes, J., Smith, J.,P concur. affirmed. 30, 2010
Decided March Wayne Bryan, Jr., Cave, Goldstein, Wood, Grant, L. Lin Powell & Kinberly appellants. Grant, W. O’Mahoney, Gary Jr., Allen,
Allen, R. McCain & Hunter S. Ashley Phillips, Hall, Booth, Slover, McCain, D. Simuel F. Smith & appellees. Dosier, Jr., for v. BOOKER et al.
A09A2269. NAIK Judge. Barnes, interlocutory granted application We Dr. Madhav Naik’s appeal when it denied to determine whether the trial court erred malpractice summary judgment action to Dr. Naik this medical arising Because we find from the death of Mrs. Helen C. Robinson.1 Booker’s was that the and affidavit of genuine fact over whether sufficient to establish a Dr. Naik’s issue material professional negligence of Mrs. Robinson’s cause death, we affirm the trial court. § prevail summary judgment 9-11-
To at under OCGA moving party there is no must demonstrate that Hosp. County, supra See Auth. Gwinnett at 298 (1) (322 Svcs., County Ambulance DeKalb v. Metro Robinson, initially by surviving spouse brought The action was James W as of Mrs. estate, upon her but his death Linda Gail Booker and Jamie M. Robinson and as executor of party-plaintiffs. Folds were substituted as *2 genuine undisputed issue of material fact facts, and that the light nonmoving party, viewed most favorable to the [T]he warrant as matter law. . . burden moving party may discharged by pointing out depositions affidavits, reference to the and other documents support in the record that there is absence of evidence nonmoving party’s moving party discharges If case. nonmoving party plead- burden, this ings, cannot rest on its point specific giving but rather must evidence rise to a triable issue. (Citations omitted.) Lau’s Haskins, April 55-year-old viewed,
So 16, record shows that on 1997, Helen C. Robinson was involved in a head-on automobile collision in LaGrange Georgia treating and taken to West Medical Center. The emergency physician room determined that Robinson had suffered a neurologist stroke. A confirmed this and noted that Robinson’s left artery carotid was blocked and she from suffered cerebrovascu- lar disease. April primary physician
On Robinson’s care consulted Dr. concerning Naik abdominal Dr. Naik observed that Robin- unresponsive son was unconscious and and that her left carotid artery blocked; noted strokes; evidence of additional and ordered any abdomen, a scan of Robinson’s which did not show evidence of ongoing bleeding. observations, abdominal Based on these Dr. Naik surgery appropriate. Unfortunately, experts concluded that was suffering concluded, later Robinson was from an internal bleed spleen, repaired. continuing her liver or which could have been After physicians, May to receive care from several Robinson died on suffering pathologist attack, 1997 after a heart and the concluded spleen ruptured, causing hematoma in Robinson’s had her death. summary judgment, plaintiffs presented
At both an affidavit and deposition testimony by Reilly. Dr. James Dr. surgically,
averred that if Dr. had Naik intervened Robinson “would have had less cerebral anoxia and within a reasonable survived,” would have and concluded Dr. Naik’s deviations from standard care “caused contributed anoxia, to the cerebral and the ultimate death of Helen Robinson.” deposition, Reilly repeated operated At Dr. that Dr. Naik should have Reilly However, on Robinson. could not that she would have immediately hospitalization afterward: survived given probably about a 50-50 her A. I would have [A] hospital good leaving ... condition. chance of you that] [think patients finish the sur- when lot of gery, she And I think that done. safe. She’s . . . She’s likely to been more She would have survived. would have *3 survive hospitalization?
Q. But not hospital, get she leave[,] to out of But to A. . . . Yeah. great [a] chance. such didn’t have lady way: and Putting this If Dr. Naik had taken this Q. it patient surgery he did and on this . abdominal done . going patients patients, to are of those this on ultimately you during hospitalization; would die say? that be correct? Would Probably so.
A. patient was, isn’t it? this that’s how sick Q. Because A. Yes.Yes. subject: Reilly
Shortly returned to this afterward, Dr. say any degree of medical You can’t
Q. likely patient operated more she had Dr. Naik have] [not kind of cerebral suffered the you? ultimately from, . . . You died can suffered and she lady operated on this Dr. Naik that had cannot tell us likely survived this would have than not she that more you? hospitalization? that, can You can’t I No, A. cannot.
In Zwiren governing Georgia of Supreme the use out the law set malpractice follows: cases as in medical plaintiff being malpractice action, a civil cause Medical cause) (i.e., proximate liability duty, negligence, prove must “Preponderance by preponderance of the of the evidence. weight superior statutorily “that defined as is evidence” enough upon involved, which, while issues evidence yet wholly doubt, is reasonable mind from a to free the impartial mind to one a reasonable to incline sufficient side of the issue § 24-1-1 the other.” OCGA rather than to requires of fact be that the finder The standard other. one side or the the evidence toward inclined (Citation omitted.) proceeded Id. at Our 499. Court then apply this well-established as law follows:
[T]o by preponderance establish cause of the malpractice plaintiff evidence in action, a medical must expert testimony use because the of whether the alleged professional negligence plaintiffs injury caused the generally specialized expert knowledge beyond one average layperson. Using specialized ken of the knowl- edge training present field, of his role a realistic assessment of the likelihood that the alleged negligence plaintiffs injury. defendant’s In caused the presenting causation, is re- quired express some basis for both the confidence with formed, which his conclusion is and the that his Perhaps conclusion is accurate. nothing in the world of medicine *4 absolutely Nevertheless, certain. it is the intent expert of if our law that the medical form cannot opinion certainty an with sufficient so as to make a medical judgment, nothing there is on the record with which a certainty can make a decision with sufficient so as to make legal judgment. (Citations omitted.) punctuation Id. at 500-501. The court went say, however, on to that degree certainty,” accept-
“reasonable of medical while an expert may express able means an which the confidence expert probability the has in the conclusion formed and the required Georgia accurate, that it is is not the standard. requires only expert
case law that an state regarding stronger causation in terms than that possibility, probability i.e., reasonable medical or certainty. reasonable medical
Id. at 503. argument operated
The thrust of Dr. Naik’s is that even if he had repaired bleeding spleen, competent on Mrs. Robinson and her no prove hospital- evidence exists to that she would have survived her rely upon ization. For this conclusion Dr. Naik and the dissent the testimony any degree of Booker’s that he could not with of medical that Mrs. Robinson would not have suffered the injury ultimately kind cerebral that caused her death she that hospitalization. would have survived this
Focusing only testimony, ignores however, surgical been ordered and should have intervention
affidavit that surgery, performed Robinson would Mrs. if Dr. Naik had probably affidavit, stated: “If Mrs. In his survived. have stopped hemorrhage sooner been identified and had Robinson’s surgical had less cerebral intervention, she would have Dr. Naik of medicad within a reasonable anoxia and Dr. Naik caused or further stated that survived.” The Mrs. Robinson’s ultimate anoxia and to the cerebral contributed death. expert’s deposition disregards the
The dissent also leaving “great although chance” of that, hospital, did not have a she leaving chance of and would did have a Mrs. Robinson 50/50 According expert, likely Dr. Naik have survived hypovolent diagnose shock, and in that Mrs. Robinson was failed to spleen. in bleed her liver or in because of an internal she was shock major- expert recognized “vast that the While the injury hypovolemia ity” before from the occurred Mrs. Robinson’s responsible recognized, and Dr. Naik was not her condition injury, portion that Mrs. he also stated his affidavit of the spleen operated upon removed to and her should have been Robinson stop bleeding. autopsy pathologist performed
Additionally, on Mrs. who or insult was her vascular accident testified that cerebellar Robinson not the cause of her death. opinion, hematoma her In his she had a spleen spleen ruptured caused her death. to her *5 According pathologist, admitted to the Mrs. Robinson was to the rapid April April hospital sudden, 22 16 and on she suffered opinion, physical well-being. In this deteriora- his deteriation of her by spleen rupturing. tion was caused testimony expert regarding Although Booker’s may surgery Robinson would have survived whether Mrs. is not an issue this court can affidavit, this conflict conflict with (1) (644 App. Whitley Hosp., Ga. v. Piedmont resolve. (determination 514) (2007) jury’s credibility is the of witness SE2d (526 province). SE2d In Ezor v. Prophecy self-contradictory testimony rule of we held the 680) (1986), Rossignol, Inc., Ga. 27 v. Charles testimony nonparty expert apply witness, of a and to the did holding Ezor, in v. was affirmed credibility, go solely expert’s “[C]ontradictions weighing by jury when are to be assessed and testimony.” Id. at 853. deposition testimony
Accordingly, and satisfied that the we are that Dr. Naik’s were sufficient to state affidavit of Booker’s professional negligence Robinson’s and was the cause of Mrs. probability death within a “reasonable medical medi- reasonable certainty.” by denying cal Therefore, the trial court did not err Dr. summary judgment.
Naik’s motion for Judgment Ellington, Miller, J., Johnson, J., C. P. and affirmed.
J., specially. Blackburn, J., Mikell, J., Andrews, P. and concur concur.
J.,P. dissents. Judge, concurring specially. MIKELL,
Although agree majority opinion, I with the because outcome by Thompson separately urge is mandated I Ezor,2 write our Supreme Court to reconsider the rule set out in that In case. County Hosp.
addition, I believe that we should address Richmond upon denying Auth. v. as the trial court relied it in Naik’s Dickerson,3 summary judgment. motion for Significantly, §
1. the OCGA 9-11-9.1 affidavit in this case was given by expert, Jimmy negligence Pruitt, one D. who addressed only, expert, Reilly, while a different Dr. James E submitted an opposition summary judgment to Naik’s motion for negligence parties addressed both and causation. Both relied arguing summary judgment. affidavit when the motion for Reilly “[i]f swore his affidavit that Mrs. Robinson’s hemor- rhage stopped by had been identified sooner Dr. Naik with surgical intervention, she would have had less cerebral anoxia within a reasonable of medical sur- deposition, Reilly significantly away Later, vived.” in his backed patient probably from his statement that the would have survived fifty-fifty and instead swore that she had chance of survival. majority opinion, noted in the
As the “conflict” between the expert’s deposition testimony and his affidavit creates
fact for the resolve. concur because this outcome is mandated the decision our As Thompson,4 explained by “[t]he Sears, Justice fact that an witness’s testimony contradictory is . . has never rendered that inad- [S]uch missible. . . contradictions . are assessed *6 jury.”5 respectfully urge Supreme Thompson. our Court to overrule writing Sears,
Justice
in
court,
a unanimous
error when she
party
responsible
Prophecy
stated that “the
held
should not be
under
inevitably
testimony
expert
when
.
. . contradictions
in
arise
[2]
4 Supra.
[3]
[5] (Footnote omitted.) Id. at 853 (2).
288 single Experts other, but a each can and do contradict witnesses.”6 party expert If is harmed oath. a himself under should not contradict lawyer, party, by his hired all, the or contradiction, so be it. After expert.7 particular this alleging professional mal in cases be that all
The rule should
subject
testimony
practice,
of an
under oath
the latest
motion for sum
the outcome of a
should control
cross-examination
they
mary judgment.
contradict the
Affidavits,
extent that
to the
testimony,
disregarded.
deposition
expert’s
Under this rule
should
judge
Thompson
In Ezor v.
would have been affirmed.
in
the trial
physician
Thompson,
to the com
affidavit was attached
whose
testimony.8
plaint
in
affidavit
contradicted the
later
explain
the contradiction.
affidavit to
a second
The
submitted
correctly disregarded
first and second
The
court
trial
subject
they
to cross-examination.9
had not been
because
affidavits
Sherpas
everybody
drafted
knows, most affidavits are
As
but the
secretary,
by
lawyer’s
lawyer, typed
and then sent
signature
notary’s
signature.
a
At some later time
witness
subject
testimony given
equate
stamp
an affidavit
are added. To
wrong. An
redirect,
cross-examination, and to
Lumpkin
point.
testimony
Justice
evidence,
acknowledged
call it
stretches
but to
Georgia’s jurisprudence
early
he wrote:
when
judge
every
presided
. . will doubtless
as a
one who has
“Indeed
infrequently
recognize
be reached
the truth can
fact that not
though may
questions,
pertinent
and obscured
it
be beclouded
a few
recently,
carefully prepared
pages
United
More
affidavits.”10
writing
Scalia,
for an almost
Antonin
Court Justice
States
approval
quoted with
v. Washington,11
unanimous
Crawford
njothing
“[
“prominent
can be more
who wrote that
Antifederalist”
cross-examining
. . . Written evi-
of witnesses.
than the
essential
parte,
frequently
ex
and but
useless; must be
taken
is almost
it
dence
proper discovery
very
of truth.”12
seldom leads to the
6
(343
680) (1986).
Inc.,
Id., citing
Rossignol,
Prophecy
v. Charles
7
experts
applying
Prophecy
rule to
advanced in
for not
One of the reasons
power
prevent
party
his or her
disturbing.
“is without
Justice Sears writes that
is
witnesses from
supra. Why
penalized. Thompson,
contradicting
should not be
themselves” and therefore
party
make his witness lie on
of a
who is unable to
should we be solicitous
witnesses, expert
of their
deposition?
not be able to control the
Parties should
be able to correct it
a mistake in his affidavit should
An
witness who makes
otherwise.
in his
truth,
prevail.
speak
deposition.
and the truth should
should
Witnesses
8
609)
aff'd,
275,
The would have been and trouble of a trial. plaintiff strong competent expert
A who has case and a will difficulty complying my proposed plaintiff no rule. But a wavering expert summary with a weak case and a will at lose judgment. appeal
In the case now on below should obey controlling precedent I reversed. But must therefore specially. concur solely denying
2. Because the trial court relied on Dickerson13in summary judgment, Naik’s motion for we should address “[pjroximate decision. The Dickerson states that cause is not by merely establishing by expert opinion patient eliminated that the fifty percent negligence had less not occurred.”14This than chance of survival had the
precedent directly point with the case at appears by implication, bar.15 The case to have been overruled however. panel attending physician’s
In Dickerson, inferred from the affidavit that death was not inevitable.16It then ruled that the record 13 Supra. (1) (b). at Id. probably using “proximate phrase synonym The Dickerson court was cause” as for cause-in-fact. 16Dickerson, supra.
290 hospital of staff the “actions or inactions not establish that the
did contributing proximate of Mrs. Dickerson’s cause not a were carry hospital its of did . . burden not. death,” so that “the movant years summary proof judgment.”17 was decided several Dickerson on Corp. Supreme v. in Lau’s landmark decision the Court’s before proof summary Corp. of reallocated the burden Lau’s Haskins.18 nonmoving party “point specific require to to the giving has issue,”19 once movant rise a triable the evidence nonmoving support the of evidence to an absence demonstrated today, party’s be different of Dickerson would case. The outcome comport regarding “proximate” with does not cause the statement recognize urge my colleagues I Lau’s law after case by implication. has overruled Dickerson been that Presiding Judge joins in Blackburn state that I am authorized to special this concurrence. Judge, Presiding dissenting.
ANDREWS, opinion majority respectfully the because from the dissent legally required say with the case could medical alleged certainty from stan- deviations the Dr. Naik’s of proximate of Helen Robinson’s death. the cause dard of care were 862) (578 Thompson, 498 SE2d In v. 276 Ga. Zwiren held: by preponderance cause In order to establish plaintiff malpractice action, evidence a medical whether must because use negligence alleged professional caused the expert knowledge specialized generally one [I]t average layperson. beyond . . is the ken plaintiff’s cannot law medical intent of our if certainty so to make a as with sufficient form nothing judgment, with which there record so as to make can a decision sufficient legal judgment. make a (Citations supplied.) punctuation emphasis at omitted; Id. Emory App. Abdul-Majeed Hosp., citing 225 Ga. 500-501, v. Univ. (484 257) (1997), grounds, other Ezor overruled on 608, 609 SE2d 609) (1999). omitted.) (1) (Citations (b). at 603 Id. Ga. 491 19Id. majority despite holds that The refusal to *9 likely any previous Robinson would intervention, have survived affidavit is sufficient to create a of fact as to causation. See 749) (2000) (Prophecy Ezor, rule apply contradictory testimony nonparty does not to exclude the of a witness). pointedly But Dr. refuses to con proximate clude that Dr. Naik’s acts or omissions were the her “ultimate cause of “previously death,” which it instead attributes to her insufficiency.” entirely documented cerebrovascular The affidavit is subject silent, moreover, on the broached for the first time at deposition: hospitaliza whether Robinson would have survived the any topic, tion certain to follow abdominal On this Dr.
Reilly’s deposition he is clear: could not with a sufficient certainty hospitalization, that she would have survived that which means that he could not render Dr. Naik’s considered refusal to proximate intervene as the cause of Robinson’s death. recently repeated, “conclusory
As we have when the state- ments” of medical affidavit are contradicted in detail deposition testimony, “simply his own those statements are genuine summary sufficient create a fact,” issue of material granted Beasley must be to the defendant. v. Northside Hosp., Here, certainty “could not form an with sufficient judgment.” so as to make a medical Id. result, at 690. As a “there is nothing jury [could] on the record with which a make a decision with —(id.) legal judgment” sufficient is, so as make a alleged negligence Naik’s was the cause of the evidentiary decedent’s death. Because would have had no basis reaching for a lawful Booker, verdict favor of the trial court erred summary judgment when it denied to Dr. Naik. therefore dissent.
Decided March
Willis, McKenzie, Cronic, & Alford, DeGennaro Nathan D.
appellant. Daugherty
Greer, Klosik, Swank, Klosik, Jr., & Frank J. Robert Egan, McCune, Sweeney, Owen, Gleaton, J. Jones & H. Andrew King Spalding, appellees. Owen, Jr., Cohn, & Halli D.