Chadwick v. Brazell, s. A14A2279

• Citation: 331 Ga.App. 373,771 S.E.2d 75
• Decision Date: 19 March 2015
• Docket Number: A14A2280.,Nos. A14A2279,s. A14A2279
• Parties: CHADWICK et al. v. BRAZELL. Brazell v. Chadwick et al.
• Court: United States Court of Appeals (Georgia)

331 Ga.App. 373
771 S.E.2d 75

CHADWICK et al.
v.
BRAZELL.

Brazell
v.
Chadwick et al.

Nos. A14A2279
A14A2280.

Court of Appeals of Georgia.

March 19, 2015.

771 S.E.2d 77

Freeman, Mathis & Gary, Michael David Flint, Laura Linville Broome, Atlanta, for Appellants.

DelCampo Weber & Grayson, J. Antonio DelCampo, Dunwoody, Randall David Grayson, Atlanta, Roberts & Associates, Lisa R. Reeves, Newnan, for Appellee.

Opinion

BOGGS, Judge.

331 Ga.App. 373

A jury awarded Lisa M. Brazell $125,000 on her medical malpractice claim against Brian S. Chadwick, M.D., and Haven Gynecology, P.C., d/b/a Haven Medical Spa & Cosmetic Surgery (hereinafter “Chadwick”). In Case No. A14A2279, Chadwick appeals, asserting that the trial court erred in failing to grant his motion in limine to exclude mention of Brazell's punitive damages claim and by failing to grant his motion for attorney fees pursuant to OCGA § 9–11–68. In Case No. A14A2280, Brazell appeals, asserting that the trial court erred in allowing Chadwick to testify as an expert witness, and in refusing to award her attorney fees pursuant to OCGA § 9–15–14. She also asserts that the court erred in failing to order a new trial in light of what she alleges was Chadwick's impermissible expert testimony and because the jury's verdict was against the weight of the evidence. For the following reasons, we affirm in both cases.

In her complaint,¹ Brazell alleged that Chadwick negligently: performed her breast implant surgery and did not have the proper education, training and skills to do so; failed to obtain consultation and referral for performance of the procedure and for management of post-operative complications; failed to disclose to her the material

331 Ga.App. 374

risks of the surgery and failed to obtain her informed consent for the procedure; failed to recognize and properly treat her non-healing surgical wound when the implant began to protrude though her skin; re-sutured the non-healing skin instead of promptly removing the implant and placing a drain; prematurely reinserted the implant a month later and attempted to improperly use the implant as a tissue expander ; and failed to allow eight weeks to three months for healing before placement of a tissue expander or another implant. After suffering further complications, Brazell sought the help of another physician who removed the implant. Brazell alleged that she “suffered loss of tissue and asymmetry and would require at least two reconstructive procedures, including placement of a breast implant into the left breast at a future time.”

Brazell sued Chadwick for medical malpractice and sought compensatory and punitive damages. Following a five-day trial, a jury awarded Brazell $125,000 in “total damages.” The trial court entered a judgment on the verdict, and the parties now appeal.

Case No. A14A2279

1. Chadwick argues that the trial court erred in failing to grant his motion in limine to preclude Brazell from making any mention of her request for punitive damages. However the record contains only an excerpt of a motion hearing during the trial that reveals Brazell withdrew her claim for punitive damages following the close of all evidence. Chadwick can show neither error nor harm in the absence of a transcript of the trial showing that punitive damages were mentioned during the trial. See Gaddis v.

771 S.E.2d 78

Skelton, 226 Ga.App. 325, 326, 486 S.E.2d 630 (1997). It was Chadwick's obligation as the appellant to show error in the record, and he has failed to do so here. See id.

2. Chadwick contends that the trial court erred in denying his motion for attorney fees pursuant to OCGA § 9–11–68. OCGA § 9–11–68(b)(1) provides:

If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

331 Ga.App. 375

The offer must:

(1) Be in writing and state that it is being made pursuant to this Code section;

(2) Identify the party or parties making the proposal and the party or parties to whom the proposal is being made;

(3) Identify generally the claim or claims the proposal is attempting to resolve;

(4) State with particularity any relevant conditions;

(5) State the total amount of the proposal;

(6) State with particularity the amount proposed to settle a claim for punitive damages, if any;

(7) State whether the proposal includes attorney's fees or other expenses and whether attorney's fees or other expenses are part of the legal claim; and

(8) Include a certificate of service and be served by certified mail or statutory overnight delivery in the form required by Code Section 9–11–5.

OCGA § 9–11–68(a). (Emphasis supplied.) “We owe no deference to a trial court's ruling on questions of law and review such issues de novo under the ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) L.P. Gas Indus. Equip. Co. v. Burch, 306 Ga.App. 156, 157 n. 3, 701 S.E.2d 602 (2010), overruled on other grounds, Crane Composites, Inc. v. Wayne Farms, LLC, 296 Ga. 271, 765 S.E.2d 921 (2014).

The record reveals that Chadwick made an offer of settlement in the amount of $200,000, and that Brazell rejected the offer. The jury returned a verdict in favor of Brazell in the amount of $125,000, which was less than 75 percent of Chadwick's offer. The trial court, in denying Chadwick's motion for attorney fees and expenses pursuant to OCGA § 9–11–68, found that Chadwick failed to “satisfy each of the eight requirements in order to trigger its application.” Specifically, the trial court found that Chadwick failed to “state with particularity the amount proposed to settle a claim for punitive damages.”

Chadwick argues, on the same grounds asserted in his first enumeration, that there was no punitive damages claim pending at the time he made his offer. But the record shows that punitive damages was listed as an issue to be tried in the pretrial order and in the complaint.

Chadwick argues further that even if a punitive damages claim was technically pending, requiring him to state that he was “allocat[ing] zero dollars” to settle such a claim would be a “meaningless statement” and “nonsensical.” He asserts that the phrase “if any” in

331 Ga.App. 376

OCGA § 9–11–68(a)(6) modifies “ amount,” and he is therefore “free to choose not to allocate an amount to settle the punitive damages claim.”

It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. Although the legislative intent prevails over the literal import of words[,] where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.

771 S.E.2d 79

(Citations and punctuation omitted.) Van Dyck v. Van Dyck, 262 Ga. 720, 721, 425 S.E.2d 853 (1993). In order to dismiss a tort claim pursuant to an offer of settlement, the offer must contain certain elements. See Thompson v. Watson, 186 Ga. 396, 405–406, 197 S.E. 774 (1938) (“it has always been a rule of construction of statutes that those in derogation of the common law, that is those which give rights not had under the common law, and those penal in nature must be limited strictly to the meaning of the language employed”); cf. Great West Cas. Co. v. Bloomfield, 303 Ga.App. 26, 27–28(1), 693 S.E.2d 99 (2010) ; Driscoll v. Board of Regents & c., 326 Ga.App. 315, 316–318, 757 S.E.2d 138 (2014) (ante litem notice of claim must contain enumerated statutory elements). Because the legislature chose to include in the list of requirements for a valid written offer a specific reference to punitive damages,² the phrase “if any” could reasonably be interpreted only as modifying “a claim for punitive damages,” which is the antecedent for the modifier. If there is no claim for punitive damages, a party can ignore the requirement

331 Ga.App. 377...