ARA Health Services v. Stitt, A01A0352.

• Decision Date: 05 July 2001
• Docket Number: No. A01A0352.,A01A0352.
• Citation: 551 S.E.2d 793,250 Ga. App. 420
• Parties: ARA HEALTH SERVICES et al., v. STITT.
• Court: Georgia Court of Appeals

551 S.E.2d 793

250 Ga. App. 420

ARA HEALTH SERVICES et al., v. STITT.

No. A01A0352.

Court of Appeals of Georgia.

July 5, 2001.

William P. Tinkler, Jr., Decatur, Wayne E. Brooks, Jr., Sheri L. Smith, for appellants.

Parks, Chesin, Walbert & Miller, David F. Walbert, William J. Atkins, Douglasville, Charles A. Mathis, Jr., for appellees.

POPE, Presiding Judge.

Former inmate Stephanie Stitt brought this medical malpractice action against 13 defendants, including the Department of Corrections of the State of Georgia; ARA Health Services, Inc. d/b/a Correctional Medical Services and Correctional Medical Services, Inc. ("CMS"),¹ and Dr. A.G. Enaw. She alleged that CMS had a contract with the Department of Corrections to provide certain medical treatment and care for inmates while incarcerated at various institutions, including Baldwin and Washington Correctional Institutions. Stitt claimed that as a result of the wrongful medical treatment she received while she was incarcerated at Baldwin Correctional Institute and at Washington Correctional Institute, she suffered permanent and severe injuries. Specifically, she claimed that she fell while she was a prisoner, and that because of defendants' negligent treatment of her, she suffered nerve damage which has caused her permanent bladder and bowel damage. In addition to claims of professional negligence, Stitt claimed that the defendants had acted recklessly and that she was entitled to punitive damages.

At trial Stitt introduced the following evidence: she had a fall while incarcerated on April 5, 1994, after which her legs burned and she requested medical attention. Stitt continued to report pain and continued to seek medical attention for the pain and was admitted to the infirmary on June 6, 1994, when she reported that her hip and her private parts were numb.

On June 14, 1994, Stitt was experiencing loss of control over her bladder. She reported numbness, loss of bladder control, and the start of loss of bowel control to the medical personnel at the institution. There was expert medical testimony that Stitt's symptoms should have indicated that immediate corrective action was necessary. This medical testimony showed that Stitt suffered from cauda equina syndrome, which if not treated, can lead to irreversible nerve damage in the bladder and bowel regions.

There was evidence that Dr. Enaw examined Stitt, that she urinated on his examining table, and that he did not require an immediate diagnostic test, nor did he promptly treat her. There was evidence that Dr. Enaw examined Stitt repeatedly during June 1994, but did not perform the necessary neurological exams to detect her condition. Stitt also continued having problems with bowel incontinence, but this problem was not treated properly. There was testimony that Stitt wrote frequent letters to the prison officials begging for medical help. There was medical evidence that the necessary tests were not administered to Stitt until August 10, 1994, by which time her condition had deteriorated and she had suffered permanent damage.

There was medical testimony that defendants violated the standard of care in repeatedly failing to perform the necessary exams to diagnose or treat Stitt. This testimony showed that Stitt suffered permanent nerve damage because of defendants' failure to promptly and properly treat her. At trial Stitt testified that presently she must catheterize her bladder at least four times per day and wear adult diapers due to the loss of bowel control.

Before trial Stitt settled with the Department of Corrections for $280,000. In January 1999, the case went to trial. The defendants at trial were CMS, Linda Blizzard, who was the medical administrator at Baldwin Correctional Institute, and Dr. Enaw. The testimony regarding Stitt's injuries was extensive and conflicting, including testimony from several medical experts. The trial lasted for more than two weeks, during which time the jury heard testimony from more than twenty-five witnesses. The jury did not hear the evidence regarding the settlement. At the conclusion of the trial, the jury was instructed that if it found the defendants liable, it should allow Stitt to recover the total amount that would compensate her for her injuries.

After trial, the jury returned a verdict of $600,000 against CMS, but in favor of the other two defendants. The jury did not award any punitive damages. In entering judgment, the trial court reduced the $600,000 award by the amount of the previous $280,000 settlement. Citing Allison v. Patel, 211 Ga.App. 376, 438 S.E.2d 920 (1993), the court changed the verdict amount to $320,000, and entered judgment for that amount along with interest from the date of judgment. The court then entered judgment in favor of defendants Blizzard and Enaw.

Stitt filed a motion for new trial, or in the alternative for additur, under OCGA § 51-12-12(b), arguing that the judgment was inadequate. In an order entered on June 5, 2000,², the court conditionally granted Stitt's motion on both Stitt's compensatory and punitive damages claims. In its order, the court stated that it was increasing the judgment to $600,000, but that if the corporate defendants (CMS) "filed a statement with the Court within 30 days of the order stating that they rejected the court's additur, the Plaintiff's motion for new trial would be granted against these defendants." If CMS did not file an objection, the court's order stated, the additur, increasing the amount of the judgment to $600,000, would stand. In explaining its decision to increase the amount of the verdict, the court stated: "the treatment Stitt received from [CMS] was egregious and that treatment directly and proximately caused serious permanent injuries to the plaintiff." Furthermore, the court stated that based on the evidence at trial, "any amount less than $600,000.00 would be clearly inadequate in light of the overwhelming evidence of the serious, permanent and debilitating injuries defendants caused the plaintiff to suffer."

With respect to defendant Enaw, the court stated that it had carefully reviewed the evidence and was "unable to discern a rational basis on which the jury could have returned a verdict" in his favor. Accordingly, the court granted a new trial as to the doctor because it found that the verdict was contrary to "the great weight of the evidence of his liability." The court also stated that interest on the original judgment would run until the date of the order, and that thereafter the interest would run on the modified judgment.

From that order CMS and Enaw appealed to this court on June 23, 2000. The appeal was dismissed on July 25, 2000. On August 28, 2000, for the first time, CMS filed an objection to the additur award. On August 30, 2000, the trial court entered an order concluding that because CMS had not filed a timely objection rejecting the additur, the increased judgment prescribed earlier would stand. CMS and Enaw again appeal. 1. CMS first argues that the trial court erred in awarding additur because it filed a timely objection rejecting the increased award. To reiterate the facts regarding the timing of CMS' objection: the trial court's order increasing the amount of the judgment was entered on June 5, 2000. The order stated that either party should file its objection to the additur within 30 days. Instead of filing an objection, CMS filed its notice of appeal to this court on June 23, 2000. CMS did not file an objection to the award until August 28, 2000.

CMS argues that the notice of appeal had a supersedeas effect and that the trial court could take no action on the case before the remittitur was returned. Under this argument, CMS contends that once the remittitur was returned to the trial court on August 14, 2000, it had 12 days remaining within which to file its objection. Under this construction, the objection CMS filed on Monday, August 28, 2000, was timely.

In response, Stitt argues that CMS waived the right to complain about the additur when it failed to reject the award in a timely fashion. Stitt contends that despite the filing of the notice of appeal, CMS should have filed its rejection of the additur within 30 days of June 5, 2000. Stitt contends that CMS should not be allowed to unilaterally expand the time in which it is allowed to reject an additur.

We agree with Stitt that CMS did not file a timely objection to the additur. OCGA § 5-6-46(a) provides: "In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond be filed...." See also Court of Appeals Rule 40(a). Nevertheless, the filing of a notice of appeal in a civil action does not serve as a supersedeas until all costs in the trial court have been paid. When all costs are paid, the trial court loses jurisdiction over the case while the appeal is pending. Rockdale Awning &c. v. Kerbow, 210 Ga.App. 119, 120(1), 435 S.E.2d 619 (1993); Duncan v. Ball, 172 Ga.App. 750, 751-752(1), 324 S.E.2d 477 (1984).

In this case, the record shows that the costs were paid in the trial court on Friday, July 7, 2000, and that was the date on which this court acquired jurisdiction over the case. This date was more than 30 days after the trial court's June 5 order. Accordingly, the period within which CMS should have filed its objection to the additur expired before this court acquired jurisdiction; thus, CMS failed to file a timely objection. Leventhal v. Seiter, 208 Ga.App. 158, 165-166(11), 430 S.E.2d 378 (1993); see also Nest Investments v. Tzavaras, 221 Ga.App. 282, 471 S.E.2d 223 (1996). Without an objection, the trial court's order of June 5, 2000, increasing the amount of the judgment to $600,000 became the judgment as to CMS. In this respect, the court's order of August 30, 2000, entering final...