Brannen v. Prince

• Decision Date: 08 April 1992
• Docket Number: No. A92A0494,A92A0494
• Citation: 421 S.E.2d 76,204 Ga.App. 866
• Parties: BRANNEN v. PRINCE et al.
• Court: Georgia Court of Appeals

Page 76

421 S.E.2d 76

204 Ga.App. 866

BRANNEN v. PRINCE et al.

No. A92A0494.

Court of Appeals of Georgia.

April 8, 1992.

Reconsideration Denied July 10, 1992.

Thomas L. Murphy, Atlanta, for appellant.

Alston & Bird, Judson Graves, Kenneth B. Pollock, Atlanta, for appellees.

BEASLEY, Judge.

Caroline Louise Brannen, represented by her husband as next friend and legal guardian, filed suit against Alan D. Prince, M.D. and Marietta Neurological Associates, P.C. for negligence and medical malpractice. She appeals after denial of her motion for new trial which followed a verdict and judgment for defendants.

Evidence presented to the jury showed that on January 3, 1983, a hysterectomy was performed on Mrs. Brannen, she was discharged from the hospital on January 12, and while at home on January 16 she suffered from severe headaches and lost vision in her left eye. Mrs. Brannen was taken to the emergency room at Paulding Memorial Hospital and transferred to Kennestone Hospital, where she was examined by Dr. Prince. He diagnosed Mrs. Brannen as having a vascular insufficiency in the form of an arterial occlusion and prescribed the drug Heparin, a blood thinning agent. On January 19, Mrs. Brannen sustained permanent massive brain damage from an intracerebral hemorrhage caused by the rupturing and bleeding of an aneurism in her brain, which had not been diagnosed by Dr. Prince. She has since lost control of all bodily functions and is confined to a medically supervised nursing home. Mrs. Brannen's expert witness in the field of neurology testified that Dr. Prince failed to exercise the applicable standard of care and skill in treating her after she was hospitalized, specifically in not having a CT scan and an angiogram done before administering the Heparin, thereby causing her injuries and damages.

1. Mrs. Brannen protests the refusal of the trial court to allow her to introduce in evidence, after redirect, a two-page letter from her expert witness to her attorney. Her list of documentary evidence in the pre-trial order, to which the trial court adhered throughout the trial, did not include the report. The letter had been obtained by defendants after the court granted a motion to compel production of documents. Defendants used a blown-up copy of it, which was displayed to the whole court and which contained the witness' medical opinion, to impeach his testimony during cross-examination.

In Seaboard Coast Line R. Co. v. Duncan, 123 Ga.App. 479, 480 (1), 181 S.E.2d 535 (1971), defense counsel cross-examined the plaintiff on the content of portions of a pretrial statement made to the defendant's agent. On redirect the plaintiff was allowed over objection to relate the content of other parts of her statement to the agent, which this court found to be erroneous, stating: "The content of the statement brought out on cross examination was a matter that was admitted only for the purpose of affecting the credibility of the testimony of the witness. It cannot be said that it was admitted in evidence as substantive proof of the facts contained in the statement. Thus it was error for the court to allow plaintiff on redirect examination to relate other portions of her pre-trial statement to the claim agent, as [present OCGA § 24-3-38] is not applicable." See also Legare v. State, 243 Ga. 744(20), 257 S.E.2d 247, cert. den., 444 U.S. 984, 100 S.Ct. 491, 62 L.Ed.2d 413 (1979). Consequently, we cannot say that the trial court's refusal to admit the entire report constituted reversible error. Nor, since plaintiff's counsel was expressly invited to question the witness about it on redirect, can it be said that she was harmed.

2. Plaintiff contends that the court erred in failing to require defendants' expert witness to respond to a question indicating that he would not have treated Mrs. Brannen as Dr. Prince did. Eliciting what course this doctor personally would have followed was not a proper means to impeach his testimony as to the general standard of care required of Dr. Prince.

"The law of this state requires the courts of this state to presume that a physician exercises his skills in the medical and surgical field in a skillful manner. [Cit.] The burden is on the one who denies it to show a lack of due care, skill, and diligence. [Cits.] In such a case the proof ordinarily required to overcome such presumption of care, skill, and diligence is that given by physicians or surgeons as expert witnesses ( [cit.] ), and this standard should be that exercised by the medical community generally, not what a particular doctor would do in the circumstances. [Cit.]" Slack v. Moorhead, 152 Ga.App. 68, 71, 262 S.E.2d 186 (1979). "Testimony showing a mere difference in views between surgeons as to operating techniques, or as to medical judgment exercised, is insufficient to support an action for malpractice where it is shown that the procedure preferred by each, or the judgment exercised, is an acceptable and customary method...." Hayes v. Brown, 108 Ga.App. 360, 361(2), 133 S.E.2d 102 (1963). See also Laughridge v. Moss, 163 Ga.App. 427(3), 294 S.E.2d 672 (1982).

Defendants' witness testified that in his opinion Dr. Prince acted within that degree of medical care and skill ordinarily exercised by physicians generally with respect to his care and treatment of Mrs. Brannen. Any testimony elicited on cross-examination that the witness would not have administered Heparin to her would have been immaterial and irrelevant because not impeaching.

3. Plaintiff asserts that the trial judge to whom the case was assigned should have been disqualified because his former law partner had represented the defendant Marietta Neurological Associates when it was incorporated and because one of its founding doctors was a fraternity brother and long-time friend of the judge. The motion to recuse was considered by another judge who concluded that no reasonable basis existed for finding that an appearance of impropriety had been created or that the trial court's impartiality might reasonably be questioned pursuant to Canon 3(C)(1).

Appellant concedes that she does not contend the judge was "disqualified pursuant to the strict legal requirements of OCGA § 15-1-8," but founds her arguments on Canons 2 and 3(C)(1) of the Code of Judicial Conduct. The circumstances in which a judge may be disqualified are set out in the statute. "These grounds are exhaustive, and bias or prejudice on the part of the judge is not legal ground for disqualification. [Cits.]" Stevenson v. Stevenson, 222 Ga. 47, 50(3), 148 S.E.2d 388 (1966). " 'Prejudice, bias or prejudgment or even an exhibition of partisan feeling, when not arising from (the statutory) grounds, is ordinarily not assignable as a ground of disqualification.' [Cits.]" Moon v. State, 154 Ga.App. 312, 314(4), 268 S.E.2d 366 (1980). Denial of the motion did not constitute legal error. This is not to say that Canon 2 or Canon 3(C)(1) was violated, but rather that we do not address their application because they are not the legal test.

4. The next question is whether the court erroneously allowed appellant's expert witness to be cross-examined regarding an article in a medical periodical which he had not read, because the questions and defense counsel's reading from the article amounted to prejudicial hearsay testimony. She contends that this article was not a standard treatise on the area of the witness' expertise.

The witness was a neurologist and distinguished his practice from that of a neurosurgeon, saying that a neurosurgeon operates but a neurologist does not. (Vol. 1, T. 6) "[A]n expert witness may be cross-examined by reference to a standard treatise in the field of the expert's special knowledge to test his credibility ...," but not until it has been shown to be "a reputable, standard treatise on the subject...." State Hwy. Dept. v. Willis, 106 Ga.App. 821, 824(3), 128 S.E.2d 351 (1962). See Carreker v. Harper, 196 Ga.App. 658, 659(2), 396 S.E.2d 587 (1990). The Willis case references CJS and Green, Ga. Law of Evidence rather than any case authority, although the much earlier Supreme Court case of Boswell v. State, 114 Ga. 40, 43(3), 39 S.E. 897 (1901), dealt with the related subject of "medical books" as the basis for the expert witness' opinion. Boswell cited earlier cases for the evidentiary rules that "books of science and art" are inadmissible to prove the opinions of the experts as expressed in the books but that these opinions were in effect admissible when adopted as his own by the testifying expert. CJS speaks of cross-examination on the expert's knowledge of "authoritative opinions" and "the authorities" and "standard treatises." Green speaks of cross-examination on "standard treatises."

Such cross-examination, which aims at impeachment of the expert's opinion, as here, or, as CJS puts it, "to test the knowledge and reading and accuracy of the witness", pits what is in the treatise against the expert's analysis of the particular case. Of course, "[b]ooks of science and art are not admissible in evidence to prove the opinions of experts therein expressed." Boswell v. State, supra at 43(3), 39 S.E. 897; Dean v. State, 250 Ga. 77, 82(4), 295 S.E.2d 306 (1982). See also Flemister v. Central Ga. Power Co., 140 Ga. 511, 515(5), 79 S.E. 148 (1913); Austin v. Kaufman, 203 Ga.App. 704, 417 S.E.2d 660 (1992). CJS speaks of this improper purpose as being "in order to get [the books'] contents and the opinions of their authors before the jury." That would be inadmissible because hearsay.

"A party can prove by cross-examination of an opposing party's expert that a treatise is standard on the subject. [Cits.]" Pound v. Medney, 176 Ga.App. 756, 762(4), 337 S.E.2d 772 (1985). The appellant's expert, a neurologist, was asked if he was familiar with a journal called Neurosurgery, to which he replied affirmatively. He agreed with the cross-examiner that the periodical was "commonly read and referred to by...