Bhansali v. Moncada
| Decision Date | 25 August 2005 |
| Docket Number | No. A05A1449.,No. A05A1448.,A05A1448.,A05A1449. |
| Citation | 620 S.E.2d 404,275 Ga. App. 221 |
| Parties | BHANSALI et al. v. MONCADA. Dagi et al., v. Moncada. |
| Court | Georgia Court of Appeals |
Insley and Race, Brynda R. Insley, Hall, Booth, Smith & Slover, Timothy H. Bendin, James E. Looper, Atlanta, William Anderson, Downey & Cleveland, Marietta, for appellants.
Orr and Edwards, W. Fred Orr II, James G. Edwards II, Decatur, Lawrence A. Cooper, Cohen, Cooper, Estep & Mudder, Atlanta, for appellee.
In this medical malpractice action, defendants Dr. Bhansali and Atlanta Ear, Nose & Throat Associates, P.C. in Case No. A05A1448, and Dr. Dagi and Peachtree Neurosurgery, P.C. in Case No. A05A1449 (), appeal the grant of plaintiff's motion for new trial following a defense verdict rendered by a jury. The physicians argue in both cases that the evidence demanded a verdict in their favor and that therefore the trial court abused its discretion in granting the new trial. Dr. Bhansali and his employer also argue in their appeal that the trial court erred in failing to dismiss the plaintiff's claim which was based on a lack of informed consent. Discerning no reversible error, we affirm.
The undisputed facts show that in 1997, Drs. Bhansali and Dagi performed acoustic neuroma surgery on Paulette Moncada to remove a small tumor near her brain. During the surgery, a tear occurred in Moncada's sigmoid sinus. Following the surgery, Moncada developed complications as a result of the tear, including hydrocephalus, or swelling of the brain. She claims that such caused her permanent brain damage, including short-term memory loss.
Moncada sued Drs. Bhansali and Dagi and their employers for medical malpractice. Following a lengthy trial involving numerous medical experts, the jury quickly rendered a verdict in favor of the defendants, and judgment was entered accordingly. Moncada moved for a new trial on the ground that the verdict was contrary to the evidence. The court granted the motion "on the general grounds pursuant to OCGA § 5-5-20, as this Court finds that the verdict of the jury was contrary to the evidence and the principles of justice." Within a few days, the trial judge recused herself, and the new judge timely granted a certificate of immediate review, leading to these appeals.
1. In both cases, the physicians argue that the trial judge abused her discretion in granting the motion for new trial. The standard of review of the first grant of a new trial by a trial court greatly limits this Court's authority to reverse such holding.
OCGA § 5-5-20 provides: "In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury." OCGA § 5-5-50 further provides: "The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge."
Commenting on the breadth of the discretion allowed a trial judge by these long-established principles, Holton v. Jones1 held:
[I]n this state the trial judge is vested with the strongest of discretions to review the case and to set the verdict aside if he is not satisfied with it. Indeed the trial judge oftentimes is spoken of as being the thirteenth juror. Until his approval is given the verdict is not binding. This is nothing more than the recognition of a rule of law of this state that the first grant of a new trial to either party is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded. This judicial pronouncement has been codified by our legislature in OCGA § 5-5-50.
(Citations omitted.) See Gibson v. Carter.2
Thus, we will reverse the first grant of a new trial only if the evidence of record absolutely demanded the verdict as rendered. Holton, supra at 655-656, 331 S.E.2d 26. See, e.g., Builders Transport v. Hall.3 In making this determination, we construe the evidence, together with all reasonable deductions and inferences therefrom, most strongly in favor of the losing party. Pelham, etc., R. Co. v. Walker.4 This is distinguished from our review of the denial of a new trial, when we construe the evidence in favor of the winning party to determine if any evidence supported the verdict. See, e.g., Quay v. Heritage Financial.5
Here, the physicians contend that the testimony of Moncada's expert (Dr. Segal) did not establish either that they were negligent or that their negligence proximately caused Moncada's damages. With citation to persuasive evidence in the record, they argue:
There was significant testimony before the jury that the Appellants met the applicable standard of care in advising Appellee of the three (3) treatment options for her acoustic neuroma — surgery, gamma knife and observation; that Appellee understood her three (3) treatment options and the risks and benefits associated with each option; that Appellants Dr. Bhansali and Dr. Dagi performed surgery with the full and informed consent of the Appellee; that the overwhelming medical literature and expert testimony at trial fully supported the appropriateness of the Appellants' treatment and care of Appellee; that Appellee's purported trial expert was not qualified to provide testimony against Appellants on the standard of care, causation or damages issues in the case, and that he impeached himself into ill-repute with the jury who were entitled to completely disregard his testimony; and that the evidence overwhelmingly supported the jury's unanimous verdict in favor of the Appellants.
It is indeed true that substantial testimony supported each and every one of the arguments made by the physicians above. It is also true, as further argued by the physicians, that the trial judge's post-trial action in sua sponte recusing herself immediately following her grant of the new trial raises unanswered questions and concerns. And we sympathize with the physicians' plea not to let a lengthy and detailed jury trial, in which they presented compelling evidence that resulted in a unanimous jury verdict in their favor, go for naught.
Nevertheless, we are constrained by the scope of our review to consider only whether Moncada presented some evidence that could have supported a jury verdict in her favor. If that evidence was indeed presented, then we do not have the power — regardless of how differently we might have handled the motion for new trial — to disturb the trial judge's exercise of her strongest discretion as the "thirteenth juror" to review the case and to set the verdict aside if she was not satisfied with it. See Thomas v. Wiley.6
We focus on the fact issues that the physicians challenge as lacking evidentiary support — namely, that Moncada failed to present qualified expert testimony that demonstrated they deviated from the recognized and accepted standard of medical care prevalent in the general professional community for treating a patient with the signs and symptoms exhibited by Moncada, and that such negligence proximately caused Moncada's injuries. See Smith v. Luckett7 (). Moncada, however, presented some evidence on these issues.
(a) Qualifications. Moncada presented the testimony of Dr. Segal, a board-certified neurosurgeon who had previously performed approximately 15 acoustic neuroma surgeries. Familiar with the standard of care ordinarily exercised by the medical profession in Georgia in 1997 in this medical procedure, he gave his professional opinion about the physicians' deviations from that standard of care and about the consequences thereof within a reasonable degree of medical probability.
(b) Acts of negligence. Dr. Segal testified that the physicians committed at least four acts of negligence.
(i) Misleading brochure. Opining that a physician should never mislead a patient, Dr. Segal reviewed a brochure that Dr. Bhansali had given to Moncada about her options. This outdated brochure, obtained by Dr. Bhansali during his fellowship six years earlier, misinformed Moncada that surgical removal was the only known treatment for acoustic neuroma. It failed to reference the available options of observation and gamma knife radiation, and according to Dr. Segal, exaggerated the risks of no surgery. Dr. Segal opined that giving this brochure to Moncada was misleading and constituted a deviation from the proper standard of medical care.
(ii) Surgery should not have been recommended or performed. Dr. Segal noted that Moncada's acoustic neuroma was very small in that it was only four millimeters; thus, she was not facing a life-threatening situation. It was so small that at first Dr. Dagi was not quite sure it was a tumor. Such small neuromas usually have a slow growth rate and many do not increase in size at all. At the time the neuroma was diagnosed, Moncada was only experiencing some hearing loss in her right ear, and had only a little dizziness and imbalance. Dr. Bhansali estimated that there was only a 25 percent chance of saving Moncada's hearing through any removal by surgery.
Based on these facts, Dr. Segal opined that the surgery was unnecessary, that the surgery exposed Moncada to unnecessary risks, and that the costs and risks associated with the surgery outweighed any potential benefits. Accordingly, he concluded as follows:
Q. In your opinion, was it a deviation from the proper standard of care that applied at that time as practiced by the medical profession generally under the same or similar circumstances to have recommended that surgery?
A. Yes.
* * *
Q. If you assume that Dr. Bhansali thought there was only a 10 to 25 percent chance of saving Mrs....
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