Cantrell v. Northeast Ga. Medical Center

Decision Date02 November 1998
Docket NumberNo. A98A0793.,A98A0793.
Citation235 Ga. App. 365,508 S.E.2d 716
PartiesCANTRELL v. NORTHEAST GEORGIA MEDICAL CENTER et al.
CourtGeorgia Court of Appeals

OPINION TEXT STARTS HERE

Clark & Clark, Fred S. Clark, Savannah, for appellant.

Forrester & Brim, Weymon H. Forrester, Whelchel & Dunlap, Thomas M. Cole, Gainesville, for appellees.

ANDREWS, Chief Judge.

Lee Cantrell, widower of Ava Melissa Cantrell, appeals from the judgment entered on the jury's verdict in favor of Dr. John Lewellen, Dr. Michael Connor, Dr. Thomas Sholes, and Gainesville OB/GYN Specialists, P.C., and the court's directed verdict in favor of Northeast Georgia Medical Center in this wrongful death and medical malpractice action premised on Mrs. Cantrell's death as a result of complications after suffering a ruptured appendix.

Viewed with all inferences in favor of the verdict, the evidence was that, on Wednesday, February 23, 1994, Mrs. Cantrell, 31-year-old mother of two, began feeling ill. On Thursday, Mrs. Cantrell called Gainesville OB/GYN Specialists, P.C., the group practice which had handled her last pregnancy and regular gynecological care. Dr. Connor spoke with her and, based on her complaints of bilateral lower abdominal pain and increased frequency of and burning on urination, prescribed Macrobid, an antibiotic commonly used to treat urinary tract infections. He did not physically examine her, but prescribed over the telephone. He told her that, if she continued to experience problems, she should go to the emergency room or call back.

Because she did not improve, on Friday morning, Mr. Cantrell took her to the emergency room at Northeast Georgia Medical Center at 7:00 a.m., where she was seen by Dr. Lewellen, a board certified emergency specialist. Dr. Lewellen was not an employee of the hospital, but worked for Synergon, a company which staffs emergency rooms. There was a sign posted over the registration desk advising patients that the doctors were independent contractors. Additionally, Mr. Cantrell signed the consent for treatment form, which stated that "I understand that the physicians who will participate in my care are not hospital employees, but are independent contractors who have been granted the privilege of using hospital facilities to care for patients."

Dr. Lewellen spoke with and examined Mrs. Cantrell, including a bimanual pelvic examination. He found bilateral abdominal pain with suprapubic tenderness and ordered an ultrasound. The ultrasound revealed the presence of a cyst on her right ovary and fluid in the cul de sac, indicative of a ruptured ovarian cyst or pelvic inflammatory disease. Dr. Lewellen also spoke with Dr. Sholes, Dr. Connor's partner, by telephone, advising him of the situation. He also phoned the pharmacy to verify that she had been taking Macrobid. Although he considered appendicitis, Dr. Lewellen's working diagnosis was a ruptured cyst or pelvic inflammatory disease. Mrs. Cantrell was prescribed another antibiotic that would address the ruptured cyst and pain medication and advised to either contact Dr. Sholes or return to the emergency room if her temperature or pain increased or if she became nauseous or faint.

On Monday, Mrs. Cantrell called Dr. Sholes' office, advised them her pain was worse, and was told to come into the office. There, she was examined by Mr. McGuire, a certified nurse midwife who had assisted in the delivery of her last child. He performed the rebound test on her abdomen, used to diagnose appendicitis, and found it was negative. He did find a mass on her left side and discussed the situation with Dr. Sholes, who ordered a vaginal probe ultrasound. The ultrasound was performed by Ms. Jans at Dr. Sholes' office. The vaginal probe is inserted and moved around the pelvis to examine the structures, including being pushed against the rectal wall, all of which Mrs. Cantrell tolerated well. As a result of the ultrasound, a second cyst was located on Mrs. Cantrell's left ovary and Dr. Sholes decided to hospitalize her for observation.

Dr. Connor was on call at the hospital Monday evening, performing surgery and delivering babies. He spoke to McGuire and Dr. Sholes and was advised of Mrs. Cantrell's condition and their suspicion of a ruptured ovarian cyst. The plan was that, if she did not improve, Dr. Sholes would perform a laproscopic exam on Tuesday. Dr. Connor went by to see her that evening and performed an abdominal exam, finding no rebound tenderness or significant guarding, both of which are cardinal signs of a "surgical abdomen," needing immediate surgery. Although the nurse's notes reflected a fever earlier, when he examined her, she was afebrile.

On Tuesday, March 1, Dr. Sholes examined Mrs. Cantrell, finding no marked guarding or rebound tenderness. He and Dr. Hill, another partner, then performed the laproscopic exam and found that her appendix had ruptured and was gangrenous. In addition to the cysts, she had adhesions covering her ovaries.

Dr. Brown, a surgeon, was called in and removed her appendix. Four hours later, Dr. Brown determined that she was "shocky," with low blood pressure and an elevated pulse. He placed her in ICU and determined that she was in septic shock. She was given antibiotics and responded over the next 24 to 48 hours and her blood pressure returned to normal. She continued, however, to run a temperature and Dr. Brown was concerned about an abscess. After additional testing, on March 9, he took her back into surgery and removed approximately a cup of fibrinous material from around her liver. Such material is a reaction to recent infection. Approximately four hours after this operation, she again became shocky and was treated as before, including the use of a respirator.

After the second surgery, her respiratory function deteriorated and Dr. Murray, a pulmonologist, was called in to treat her for Adult Respiratory Distress Syndrome (ARDS), including chemically paralyzing her for 16 days to assist her breathing. She suffered a number of pneumothoraxes during this period and on March 15, she was operated on and a breathing tube was put in place. Dr. Brown never discovered any source of infection after removing the fibrinous material and it was his opinion that the infection had cleared, her continued elevated temperatures were the result of the ARDS, and that she would recover. Before her discharge, all tubes had been removed from her chest and her lungs had re-expanded.

On March 25, Mrs. Cantrell suffered an unexplained brain insult, causing her to go into a vegetative state, from which she never recovered. She was then transferred to a nursing home where she died in October 1995 from respiratory failure, likely due to recurrent aspiration pneumonia.

The only opinion expressed at trial regarding the cause of the March 25 incident was that of Dr. Murray, the pulmonologist, who stated that, while he could not explain what happened, an air embolus was one possibility. When a ventilator is used, air sometimes gets into the blood stream and blocks flow in the vessels. Such an event is not preventable.

1. Cantrell's first enumeration is that the court erred in granting Dr. Lewellen's motion to bifurcate the liability and damages issues for trial "on the grounds of prejudice where there were no inflammatory photographs nor any evidence of prejudice and the Judge during the trial repeatedly referred to the case as being sad, tragic."

(a) This enumeration, however, also includes five subsections dealing with exclusion of various witnesses' testimony.

"This court has long recognized that OCGA § 5-6-40 requires that an enumeration of errors `shall set out separately each error relied upon.'... Therefore[,] for the purpose of protecting our judgments on appellate review (Cit.) this court, in the exercise of our sound discretion, may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned." West v. Nodvin, 196 Ga.App. 825, 830(4)(c), 397 S.E.2d 567 (1990). Therefore, we consider only the issue of the court's grant of the motion for bifurcation.

(b) OCGA § 9-11-42(b) provides that "[t]he court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, ... or of any separate issue, or of any number of ... issues."

Here, prior to entry of the pretrial order, Dr. Lewellen filed his motion to bifurcate the liability and damages issues of this case because to do so would be expeditious, economical and avoid prejudice to the doctors and hospital based on Mrs. Cantrell's lengthy suffering and eventual death and the emotional, as well as financial damages imposed upon her husband and daughters by it. The court agreed and granted the bifurcation.

Trial courts are vested with wide discretion in the management of the business before them and this Court will not interfere absent clear and manifest abuse of discretion. Whitley v. Gwinnett County, 221 Ga.App. 18, 19(2), 470 S.E.2d 724 (1996); APAC-Ga. v. Padgett, 193 Ga.App. 706, 708(1), 388 S.E.2d 900 (1989); Vitner v. Funk, 182 Ga.App. 39, 40(1), 354 S.E.2d 666 (1987).

No such abuse of discretion has been shown here and the cases relied upon by Mr. Cantrell are inapposite. The suggestion that any prejudice to the medical providers could have been alleviated by instructing the jury not to let sympathy for the family affect its deliberations does not show any abuse of discretion in bifurcating the issues instead. Additionally, despite Cantrell's argument that some evidentiary showing of prejudice is required and was not present here, the defendants relied upon Mr. Cantrell's deposition and proffer at trial concerning his caring for Mrs. Cantrell after she went into a vegetative state as well as his graphic description of her physical reactions at the time the brain insult occurred in order to show prejudice....

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