Allison v. Patel

• Decision Date: 30 November 1993
• Docket Number: No. A93A1095,A93A1095
• Citation: 438 S.E.2d 920,211 Ga.App. 376
• Parties: ALLISON v. PATEL.
• Court: Georgia Court of Appeals

Page 920

438 S.E.2d 920

211 Ga.App. 376

ALLISON v. PATEL.

No. A93A1095.

Court of Appeals of Georgia.

Nov. 30, 1993.

Reconsideration Denied Dec. 15, 1993.

Certiorari Denied March 10, 1994.

Donald R. Andersen, Atlanta, for appellant.

Beck, Owen & Murray, Samuel A. Murray, Bradford W. Thomas, Griffin, for appellee.

BEASLEY, Presiding Judge.

Plaintiff Allison, widow of defendant Patel's patient, appeals from a defendant's verdict and judgment in a medical negligence claim. Motion for new trial was denied. Two subjects of evidence and argument, i.e., settlements with other defendants and the doctor's justification for absence, and the jury charges related to each, are at issue.

On June 30, 1986, Allison went to defendant, vascular surgeon Manhar Patel, complaining of pain and swelling of his lower right leg. Defendant was on the active staff of AMI Griffin Spalding Hospital and was the only vascular surgeon in Griffin. Defendant conducted an office examination and recommended that Allison be admitted to the hospital immediately for further tests, specifically, an arteriogram.

The arteriogram procedure was performed by radiologist Hayes on July 3, the delay being occasioned by the patient's respiratory disease. Dr. Hayes had a policy of not performing the procedure unless defendant was available to treat any complications, even if someone else had ordered the particular test. Hayes did this because only a vascular surgeon such as defendant could treat some of the possible complications resulting from an arteriogram.

Dr. Hayes notified defendant when the procedure had been completed. She perceived no need to request that defendant examine Allison. Thereafter, defendant received a telephone call from his brother-in-law, who told him that defendant's mother-in-law had slurred speech, was non-responsive, and was dying. Defendant knew she had diabetes and a heart condition, so he contacted a doctor in Griffin and went with his wife to Jonesboro to see about the mother-in-law. Once there, defendant resumed contact with the doctor, an internist, and came back to Griffin with his mother-in-law that night to take her to the doctor's office. He remained with her to reassure her (she was visiting from her home in India) and had dinner with the family. During the time defendant was away he could not be contacted by the hospital, Dr. Duke or Dr. Hayes, and he did not attempt to call the hospital because he knew Dr. Duke was covering him, which was in fact true. He learned the next morning that Allison had complications.

Dr. Duke and defendant had previously discussed what to do in case a vascular emergency arose when defendant was unavailable. The covering arrangement between Dr. Duke and defendant allowed either of them, without contacting the other, to take time off or leave town and have the other cover for him. The two had agreed that vascular emergency patients would be transferred to the location of doctors recommended by defendant. A patient could be put in the hands of another vascular surgeon in an Atlanta hospital within one to two hours at any time. Dr. Duke was qualified to handle 90 to 95 percent of complications arising from an arteriogram. Only defendant could perform the procedure necessary to treat Allison's thrombosis, and thus use of the transfer plan was necessary. The particular complication suffered by Allison occurred in approximately one out of a thousand administrations of an arteriogram.

When Allison returned to his hospital room following the arteriogram, he complained of severe pain in his right leg. He was given pain medication, but the severe pain continued. Around 5:30 p.m., a hospital nurse contacted general surgeon Duke and informed him that Allison's right leg was cold and pulseless. Dr. Duke diagnosed a thrombosis, believed that a vascular surgeon was needed, and determined that Allison would have to be transferred to another facility because defendant was not available. Allison's wife gave her permission for the transfer.

At approximately this same time, Dr. Hayes came to see Allison, either because nurses contacted her or as a matter of course. She, too, diagnosed a thrombosis in Allison's right leg and attempted unsuccessfully to locate defendant. She learned that Dr. Duke was covering for defendant and received a call from Duke. Both physicians agreed that a vascular surgeon was needed immediately.

After attempting for over an hour to locate another vascular surgeon, Duke located a cardiovascular surgeon at Emory University Hospital in Atlanta who would take Allison. The county ambulance was unable to transport Allison and a Life Flight helicopter flew him to Georgia Baptist Hospital, from which he was taken to Emory.

Allison arrived at Emory about 10:00 p.m., and surgery commenced at 12:10 a.m. He received several thrombectomies over a period of a month in an attempt to avoid amputation of his right leg. At the end of that time, the leg was amputated above the knee. While still in intensive care, Allison suffered further complications resulting in cardiac failure and his death on September 4.

Plaintiff filed suit against Patel, the medical institutions, other physicians, and nurses involved in her husband's treatment, as joint tortfeasors even though there was not a concert of action. See Posey v. Medical Center-West, 257 Ga. 55, 354 S.E.2d 417 (1987). All defendants except Patel were voluntarily dismissed before trial. As to Dr. Hayes and as to the hospital in Griffin and its nurses, plaintiff agreed to releases and indemnity in consideration of $125,000 and $195,000 respectively, a total of $320,000.

Each of the two releases was expressly limited to the party or parties to whom it was given and stated that plaintiff would seek further recovery from others until full satisfaction was obtained. Plaintiff agreed to indemnify each in the event contribution was sought from any other defendant and to hold each harmless in the event of other suits based on this occurrence. Each agreement expressly provided that it was in settlement and compromise and that the releasee denied liability. Consent judgments were entered, stating that plaintiff sought further damages against other parties so as to achieve full satisfaction.

The plaintiff specified two grounds of professional negligence against defendant. The first alleged that ordering and performing the arteriogram was a deviation from the standard of care in that it was not proper to give such a test at that time. The second alleged that defendant deviated from the standard of care by leaving the hospital and failing to make alternative arrangements, thus making himself unavailable to treat any complications resulting from the arteriogram.

Plaintiff filed a motion in limine to exclude evidence of (1) the fact of settlement of her claims against Hayes and the hospital and nurses; (2) the fact of dismissal of the claims against Duke and the other doctors involved; and (3) any amounts paid by reason of the various settlements. She urged that if the court allowed the jury to learn of the settlements, it not permit the jury to know the amounts. In the consolidated pre-trial order, which did not specify the verdict form, plaintiff objected to evidence of the amount of settlements and sought a verdict for the full amount of damages, which "the court" could reduce in the judgment by the total amount of the settlements ($320,000). The court denied the motion.

During trial, over objection, defendant introduced the release and indemnity agreements and referred to the settlements and amounts, through the testimony of plaintiff, inferring they indicated negligence of the parties who settled. In defendant's closing argument, he drew attention to the settlements and amounts and connoted liability.

Plaintiff in her motion in limine also requested the court to exclude "any reference or evidence as to reason or alleged justification of Dr. Patel for leaving Griffin and otherwise being unavailable following arteriogram ordered on Mr. Allison." This aspect of the motion was denied, too, and such evidence was presented.

At the outset of the charge to the jury, the court reminded it that this was a trial against Dr. Patel. The extensive charges regarding the two negligent acts alleged and the standard of care required of a physician such as Dr. Patel were related to him alone. The court charged that defendant denied negligence and denied proximate cause if he was negligent. The court did not charge that the doctor "defended" on the basis that plaintiff had already been fully compensated. ¹

As to proximate cause, the court charged that where separate and distinct but concurrent acts or omissions of negligence of different persons are the proximate cause, "compensation for the entire loss" may be recovered "from either or both of the parties responsible." The court further charged that if defendant's negligence joined with that of others, the jury need not determine relativity because plaintiff could recover the full amount of damages against any one of them. The court also charged on intervening acts and their breaking of the causal connection, and on other causes such as unrelated infirmities.

Thereafter, the court addressed damages, first instructing the jury that it was not to consider such unless and until it first found defendant liable, that instructions on damages are not to be taken as a suggestion of liability or damages, and that damages in a fair and reasonable and just amount are given as compensation. It then charged:

"If you find the defendant, Dr. Patel, liable in this matter, you are to determine in your enlightened consciences the total amount of damages to which the plaintiff would be entitled without consideration of any amount previously paid to the plaintiff. It is only after the total amount of damages is determined that the amount of any payment by any other tortfeasor will act as a satisfaction and then only...