Boston Men's Health Ctr. Inc. v. Howard

• Decision Date: 12 July 2011
• Docket Number: A11A0485
• Parties: BOSTON MEN'S HEALTH CENTER, INC. v. HOWARD.
• Court: Georgia Court of Appeals

BOSTON MEN'S HEALTH CENTER, INC. v. HOWARD.

A11A0485

Court of Appeals of Georgia

July 12, 2011

FIRST DIVISION

SMITH, P. J., MIKELL and DILLARD, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)

Dillard, Judge.

In this civil action, John Henry Howard sued Dr. William Powell, Boston Medical Group ("BMG"), Aaron Hardge, and Boston Men's Health Center, Inc. ("BMHC"), among others, for damages he allegedly suffered as a result of the defendants' medical malpractice and fraud. The case was tried before a jury, but prior to the conclusion of that trial, Howard dismissed or settled with all defendants except BMHC. Thereafter, the jury rendered a verdict in favor of Howard, awarding him compensatory and punitive damages, and the trial court entered judgment against BMHC. BMHC now appeals, arguing that the trial court erred in (1) instructing the jury on the physician-patient confidential relationship and a physician's duty to disclose despite the fact that no physician remained as a party and BMHC never employed any physician; (2) failing to grant judgment in BMHC's favor because Howard did not provide sufficient evidence that BMHC proximately caused his injury; (3) failing to instruct the jury on apportionment of damages; and (4) denying BMHC's motion for j.n.o.v. as to punitive damages. For the reasons noted infra, we conclude the trial court's error in instructing the jury on the physician-patient relationship and a physician's duty to disclose requires reversal, and we therefore remand this case for a retrial consistent with this opinion.

At the outset, we note that "[t]his Court reviews the judgment entered by the trial court after approval of a jury verdict upon the any evidence test, absent any material error of law."¹ Additionally, "[w]e review questions of law de novo, applying the plain legal error standard of review."²

So viewed, the evidence shows that in approximately 1999, Dr. Quoc Ha founded a group of medical clinics to treat erectile dysfunction ("ED"), doing business generally as "Boston Medical Group" ("BMG"). At that time, there were 22 BMG clinics operating in 13 different states, including one in Atlanta, which did business under the name BMG-Georgia. Boston Men's Health Center, Inc. ("BMHC")—a related but separate entity—was a management company that supplied all non-physician personnel to BMG clinics throughout the country pursuant to a Management Services Agreement. Under that same agreement, BMG was responsible for employing its own physicians.

On September 30, 2006, then 50-year-old John Howard went to the BMG clinic in Atlanta after repeatedly hearing its advertisements on the radio. And upon arriving at the clinic that morning, Howard met with Dr. William Powell, who examined Howard and advised him that he wanted to administer a test dose of ED medication via an injection into Howard's penis. While ED is usually initially treated with oral medications, the primary treatment option offered at BMG clinics is a procedure known as intracavernous pharmacotherapy ("ICP"), which entails the patient self-administering an injection of medication directly into his penis in order to induce an erection. After discussing the ICP treatment option with Dr. Powell, Howard consented to Powell's request, and Powell then gave him the injection, which induced an erection within ten minutes. After examining Howard again a few minutes later, Dr. Powell informed Howard that the medication was working and that his associate, Aaron Hardge (a medical advisor employed by BMHC but supervised by Powell), would explain how to self-administer the ICP injections and discuss with him the various purchase options offered by BMG. During their subsequent discussion, Hardge advised Howard that ICP was safe to use and that his ED would be "cured" if he followed BMG's six-month treatment plan.

After speaking with Hardge, Howard remained at the clinic so that Hardge could monitor him for signs of priapism, which is a prolonged erection lasting more than four hours that can cause permanent damage to the penis.³ And when Howard's erection had not dissipated a half hour after the initial test-dose injection, Hardge gave Howard an oral medication to reverse the effect of the ICP. But over an hour later, Howard's erection had still not significantly dissipated. Consequently, Dr. Powell administered an epinephrine injection directly into Howard's penis in an effort to dissipate his erection. This injection eventually reduced Howard's erection to the point where he was he was told that he could leave the clinic; however, Howard still maintained a significant erection for the remainder of the day. According to Howard, neither Dr. Powell nor Hardge ever informed him that he was being kept at the clinic because his erection had not dissipated within the normal amount of time. To the contrary, Hardge told Howard that this was part of the normal "building process," and then discussed various treatment purchase options with him. Furthermore, although Howard was provided with written materials that discussed the risk of priapism, neither Dr. Powell nor Hardge verbally warned Howard of that risk. Understandably impressed by the immediate results he experienced from the initial test dose, Howard purchased the six-month treatment plan.

Approximately one week later, Howard received his ICP prescription in the mail. The following Saturday night around 7:00 p.m., Howard gave himself an ICP injection, and he and his wife engaged in sexual intercourse. Howard went to sleep that night with a partial erection, and the next morning, Howard awoke with a full erection, which did not significantly dissipate over the course of the day. Believing that this was part of the "building process" Hardge had mentioned to him, Howard did not seek immediate medical attention. But the following morning (nearly 36 hours after he had administered the ICP injection), Howard still had a full erection and was experiencing extreme pain. At that point, Howard returned to the BMG clinic, where Dr. Powell gave him an epinephrine injection and began draining blood from Howard's penis in order to treat his priapism. But when that effort proved unsuccessful, Dr. Powell advised Howard to seek immediate treatment at a hospital, which Howard did. The physicians at the hospital then treated Howard's priapism, but by that time he had already suffered permanent injuries, and he has been unable to attain a full erection since self-administering the ICP injection.

Thereafter, Howard filed a lawsuit against Boston Medical Group-California, LLC; Boston Medical Group-Georgia, Inc.; BMHC; Meditech Laboratories, Inc., Dr. William Powell, and Aaron Hardge, alleging that he suffered permanent injuries as a result of defendants' medical malpractice and fraud, and seeking both compensatory and punitive damages for same. During the course of discovery, Howard dismissed BMG-California and Meditech Laboratories from the lawsuit.

The case was eventually set for trial in September 2009. But less than a week before the start of trial, Howard settled with Dr. Powell and dismissed him from the lawsuit. Despite this settlement, Dr. Powell testified during trial, and a significant amount of evidence focused on the issue of whether Powell's treatment of Howard deviated from the proper standard of medical care. Additionally, Howard introduced into evidence the operations manual that BMHC provided to all BMG clinics, which instructed employees to advise patients that ICP treatments can cure ED despite the overwhelming medical consensus that ED cannot be permanently cured. Howard also introduced evidence that Dr. Powell and Hardge received significant bonuses for sales of ICP treatments, but did not receive such bonuses for prescribing oral ED medications. At the close of Howard's case, BMG and BMHC argued motions for directed verdict, which the trial court denied. And shortly thereafter, Howard's counsel informed the trial court that he had settled with BMG and was dismissing both BMG and Hardge from the case. The trial court then instructed the jury that BMG and Hardge were no longer parties and that the jury would not be required "to decide any of the claims of Mr. Howard against those two defendants."

After BMHC—the sole remaining defendant—closed its case, the trial court instructed the...