Goldstein, Garber & Salama, LLC v. J.B.

• Citation: 779 S.E.2d 484
• Decision Date: 20 November 2015
• Docket Number: No. A15A1491.,A15A1491.
• Court: Georgia Court of Appeals
• Parties: GOLDSTEIN, GARBER & SALAMA, LLC v. J.B.

779 S.E.2d 484

GOLDSTEIN, GARBER & SALAMA, LLC

v.J.B.

No. A15A1491.

Court of Appeals of Georgia.

Nov. 20, 2015.

Reconsideration Denied Dec. 16, 2015.

Hawkins, Parnell, Thackston & Young, H. Lane Young, Matthew F. Barr, Atlanta, for Appellant.

Bird Law Group, William Q. Bird, Houck Regas, Michael G. Regas, Atlanta, Shamp Speed Jordan Woodward, Jennifer A. Jordan, for Appellee.

McFADDEN, Judge.

A jury found Goldstein, Garber & Salama, LLC ("GGS"), a dental practice, liable to J.B. on the theory that GGS's negligence resulted in her being sexually assaulted by Certified Registered Nurse Anesthetist Paul Serdula while she was under anesthesia at GGS's office, and the trial court entered judgment on that verdict. On appeal, GGS contends (1) that the trial court erred in denying its motion for directed verdict because J.B. did not establish that GGS was liable under either a theory of negligence per se or professional negligence; (2) that the trial court erred in making numerous evidentiary rulings; and (3) that the jury's assignment of no fault to Serdula on the verdict form requires a new trial. We find, however, that the trial court did not err either in allowing the jury to decide the issue of GGS's liability or in her evidentiary rulings, and that GGS has waived its challenge to the jury's verdict. Accordingly, we affirm.

1. Facts.

We review the judgment entered by the trial court after approval of a jury verdict using the "any evidence test, absent any material error of law." Boston Men's Health Center v. Howard, 311 Ga.App. 217, 218, 715 S.E.2d 704 (2011) (punctuation omitted). So viewed, the record reflects that on September 16, 2009, J.B. underwent a three-phase dental procedure at GGS. In one phase of the procedure, Dr. Maurice Salama surgically installed a post for a tooth implant. Nurse Serdula administered anesthesia

to J.B. for this phase. In a subsequent phase, Dr. David Garber placed a temporary dental prosthetic device in place of the future implant.

Between the conclusion of Dr. Salama's surgical procedure and the beginning of Dr. Garber's cosmetic procedure, J.B. remained in a heavily sedated state for approximately two hours. At some point during this period, J.B. was left alone with Serdula, who made three brief video recordings of her: one in which he looked down her shirt at her breasts, another in which he moved her underwear to reveal her vagina, and a third in which he placed his penis between her lips. These videos of J.B. were later discovered when Serdula's hidden cell phone was found recording employees in GGS's office restroom. Examination of the phone also revealed videotapes of Serdula sexually molesting other anesthetized patients. Serdula eventually pleaded guilty to numerous charges related to the vile acts he perpetrated against J.B. and other victims, and he was sentenced to life in prison.

J.B. sued GGS, asserting, among other things, that GGS was liable for negligence per se and professional negligence. The case proceeded to trial, at which expert evidence was presented that GGS had violated certain statutory requirements for dentists supervising certified registered nurse anesthetists and had violated certain standards of care for monitoring patients under anesthesia. The trial court denied GGS's motion for directed verdict, and the jury awarded $3.7 million to J.B. and apportioned 100 percent of the liability to GGS and none to non-party Serdula. (J.B. had initially sued Serdula, but voluntarily dismissed him from the action before trial.)

2. Directed verdict.

GSS argues that the trial court erred in denying its motion for directed verdict because J.B. did not prove liability by negligence per se or professional negligence. GGS argues that there was not evidence to show the proximate cause required for both causes of action. It further argues that J.B.'s negligence per se claim fails because the statute at issue did not intend to prevent the harm she suffered, and that her professional negligence claim fails because the conduct at issue did not involve the exercise of professional judgment and skill. We find no merit in these arguments. There was evidence upon which the jury could find the proximate cause required for both of these causes of action, and GGS's other arguments related to these causes of action lack merit.

a. Proximate cause.

We first address proximate cause because it is an element required for both negligence per se and professional negligence. Allen v. Family Medical Center, 287 Ga.App. 522, 524(1), 652 S.E.2d 173 (2007) ; Norman v. Jones Lang LaSalle Americas, 277 Ga.App. 621, 628(2)(b), 627 S.E.2d 382 (2006).

No single standard exists to determine proximate causation. Atlanta Obstetrics & Gynecology Group v. Coleman, 260 Ga. 569, 398 S.E.2d 16 (1990). Instead, as our Supreme Court has explained, "proximate cause is always to be determined on the facts of each case upon mixed considerations of logic, common sense, justice, policy and precedent." Id. (citation and punctuation omitted). This determination

requires both factfinding in the "what happened" sense, and an evaluation of whether the facts measure up to the legal standard set by precedent. Ordinarily, both determinations are appropriately made by a jury upon appropriate instructions from the judge. The decision may be made by the trial judge or the appellate court only if reasonable persons could not differ as to both the relevant facts and the evaluative application of legal standards (such as the legal concept of "foreseeability") to the facts.

Id. (citation omitted). Stated another way, questions regarding proximate cause "may only be determined by the courts in plain and undisputed cases." Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 686(2), 572 S.E.2d 533 (2002) (citations and punctuation omitted).

"[T]he proximate cause of an injury may be two separate and distinct acts ... acting concurrently and ... the mere fact that the plaintiff's injuries would not have been sustained had only one of the acts ... occurred will not of itself operate to limit the other act as constituting proximate cause."

Granger v. MST Transp., 329 Ga.App. 268, 270(1), 764 S.E.2d 872 (2014) (citation and punctuation omitted). While Granger involved two acts of negligence, the rule it sets out applies where, as here, there is a negligent act and an intervening criminal act. Georgia Dept. of Transp. v. Owens, 330 Ga.App. 123, 131(2), 766 S.E.2d 569 (2014) ; Granger, 329 Ga.App. at 270 –272(1), 764 S.E.2d 872.

For an intervening act to become the sole proximate cause of a plaintiff's injuries, the intervening act must not have been foreseeable by the defendant, must not have been triggered by the defendant's act, and must have been sufficient by itself to cause the injury. If the character of the intervening act was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken.

Zaldivar v. Prickett, 297 Ga. 589, 601–602(2), 774 S.E.2d 688 (2015) (citations and punctuation omitted; emphasis supplied); see also Ontario Sewing Machine Co., 275 Ga. at 686(2), 572 S.E.2d 533. Moreover, J.B., the plaintiff in this case,

need not prove that [GGS] could foresee the precise manner in which [someone took advantage of her vulnerable state while anesthetized]. The foreseeability analysis is not that specific: the relevant inquiry is not whether the exact ... intervening act was foreseeable, but whether, as a general matter, the original negligent actor should have anticipated that this general type of harm might result.

Granger, 329 Ga.App. at 271(1), 764 S.E.2d 872 (citation and punctuation omitted). And as with the broader question of proximate cause, "the question of reasonable foreseeability of a criminal act is generally for a jury's determination rather than ... adjudication by the courts." Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997) (citation and punctuation omitted).

This is not a plain and undisputed case suitable for adjudication by the courts. The evidence does not show, as a matter of law, that GGS could not have reasonably anticipated that its patient might be victimized if left sedated to a medically-unjustifiable degree and for medically-unjustifiable amount of time without proper supervision. The record in this case is "replete with factual disputes [that pertain to the foreseeability of the intervening act] and the legal inferences to be drawn from those facts." Atlanta Obstetrics & Gynecology Group, 260 Ga. at 570, 398 S.E.2d 16 (footnote omitted).

The evidence must be viewed in the light most favorable to J.B. See Mathews v. Cloud, 294 Ga. 415, 416(1), 754 S.E.2d 70 (2014) (in reviewing whether trial court erred in denying motion for directed verdict, we construe evidence in light most favorable to prevailing party). So viewed, the evidence showed that Serdula sedated J.B. at an unnecessarily deep level and for two hours more than necessary. This not only rendered her a more vulnerable target, but also constituted a violation of the standard of care and placed her at unnecessary risk of medical complications, which fortunately did not materialize.

The evidence, viewed most favorably to J.B., also showed that the dentists purporting to supervise Serdula were not qualified or competent to do so. They had not undergone the training or earned the certifications required of dentists who would supervise nurse anesthetists, see OCGA § 43–11–21.1 (governing qualifications required for dentist to supervise certified registered nurse anesthetist administering general anesthesia

), which an expert witness opined rendered them unable to recognize J.B.'s level of sedation. They did not know how to read an anesthesia chart, and they depended upon Serdula to make decisions regarding J.B.'s anesthesia.

This evidence created jury questions as to whether it was foreseeable that the GGS dentists' failure to...