Davis v. Glaze, s. 74126
| Decision Date | 20 February 1987 |
| Docket Number | 74128 and 74129,Nos. 74126,s. 74126 |
| Citation | 354 S.E.2d 845,182 Ga.App. 18 |
| Parties | DAVIS et al. v. GLAZE. CLAYTON COUNTY HOSPITAL AUTHORITY v. GLAZE. MEDICAL PLASTICS, INC. v. GLAZE. |
| Court | Georgia Court of Appeals |
Michael G. Frick, Atlanta, for Davis.
Patrick J. Fox, Billy E. Moore, Columbus, for Glaze.
W.H. Duckworth, Jonesboro, for Hospital Authority.
Tommy T. Holland, Anthony J. McGinley, Atlanta, for Medical Plastics.
Appellee Kory A. Glaze, infant son of Kirby and Deborah Glaze, was severely burned as the result of the malfunction of an electrocautery grounding pad during the course of a tonsillectomy-adenoidectomy performed by appellant M. Edwin Davis, M.D., P.C. (known hereinafter as "Davis" or "Dr. Davis"), in facilities owned and operated by appellant Clayton County Hospital Authority (hereinafter referred to as "the hospital" or "the hospital authority"). The evidence showed that the pad, manufactured by appellant Medical Plastics, Inc. ("M.P.I."), was placed on the child's thigh for the purpose of grounding the electrical current used in the operation; that it underwent a chemical reaction which caused it to fail to perform its designated function properly; that the malfunction was due to a defect in the product; and that the malfunction of the grounding pad, allegedly in combination with negligent acts or omissions on the part of Davis or the hospital or its agents, was the proximate cause of the injury. The child's burns extended to subcutaneous tissue as well as to the skin immediately adjacent to the pad, necessitating surgery. He has a large, disfiguring scar which remains painfully dry and tender, and further surgery will be required as he grows and the tissue is stretched.
Kory, by his parents as next friends, brought a malpractice action against Davis and the hospital authority, and an action for negligence and products liability against M.P.I. Davis and the hospital authority cross-claimed against M.P.I. for indemnity on the theory of active-passive negligence. 1 Expert testimony was introduced regarding the cause and manner of the malfunction of the pad and regarding possibly negligent acts or omissions by Davis in allegedly failing to examine the pad or to order it replaced, and by hospital staff in allegedly failing to adequately examine or properly position the pad or to replace it when there were indications of malfunction. A Clayton County jury found for plaintiff/appellees against all three defendants, the court having overruled the defendants' motions for mistrial, directed verdict, and judgment notwithstanding the verdict. Kory A. Glaze was awarded $225,000; Kirby Glaze was awarded $35,000, which the court ordered reduced to $5,205.15, the amount of special damages which he had sought. On the cross-claim a verdict was entered in favor of Davis and Clayton County Hospital Authority, M.P.I. being ordered to indemnify the co-defendants.
All three defendants appealed from the judgments in favor of the Glazes, and M.P.I. also appealed from the judgments in favor of Davis and the hospital on the cross-claim. 2 Davis enumerates as error (1) the trial court's denial of his motion for judgment notwithstanding the verdict; (2) the denial of his motion for mistrial on the basis of plaintiff's counsel's allegedly prejudicial remarks during closing argument; (3) the giving of a certain jury charge requested by the hospital authority; and (4) the court's response to the jury's question regarding apportionment of the verdict. The hospital assigns error to the trial court's denial of its motions for mistrial (4, 5), directed verdict (1), judgment notwithstanding the verdict (1), and new trial (2); the court's permitting a nurse in the hospital's employ at the time of the Glaze surgery to give deposition testimony without having hypothetical questions propounded to her (3) and, after allegedly commenting on this evidence, refusing to order a mistrial or give curative instructions (4); and (6) the court's giving the jury an allegedly erroneous instruction regarding apportionment of damages. M.P.I. enumerates as error the trial court's denial of its motions for mistrial on the basis of the same closing remarks assigned as error by appellant Davis, supra (2); the denial of its motions for partial directed verdict on the negligence and strict liability issues (3), for directed verdict on the cross-claim (9), and for new trial on the ground of an allegedly excessive verdict (8); the court's improperly admitting into evidence allegedly extraneous material for impeachment purposes (1) and an allegedly inflammatory photograph (4); and the failure to give three requested jury instructions (5, 6, 7). Held:
1. First addressing Dr. Davis' enumerations of error, we find that the trial court correctly denied Davis' motion for judgment notwithstanding the verdict. Under OCGA § 9-11-50(b), such a motion can properly be granted only when the evidence demands a verdict contrary to that returned by the jury. Pendley v. Pendley, 251 Ga. 30, 302 S.E.2d 544 (1983); Mercer v. Woodard, 166 Ga.App. 119, 303 S.E.2d 475 (1983). If there is no evidence to support the jury's verdict, a grant of judgment n.o.v. is proper. Ford Motor Credit Co. v. Parsons, 155 Ga.App. 46, 270 S.E.2d 230 (1980). In the instant case, however, there was competent evidence in the form of deposition testimony of an expert witness, an experienced surgeon and medical school faculty member, on the issue of whether Davis exercised that degree of care and skill required of a physician. OCGA § 51-1-27. The testimony included specific statements as to the education, training, and relevant experience of the deponent; details of the surgery under review; and an account of the documentary evidence on which the deponent's expert opinion was based. See OCGA §§ 9-11-31; 9-11-32. On motion for judgment n.o.v., the evidence is to be construed most favorably to the non-movant: here, the Glazes. Church's Fried Chicken v. Lewis, 150 Ga.App. 154, 256 S.E.2d 916 (1979).
As to Dr. Davis' contention that the expert testimony was inadmissible because the deponent's opinion was not elicited through the use of hypothetical questions, this court has held otherwise. See, e.g., Jones v. Ray, 159 Ga.App. 734, 285 S.E.2d 42 (1981); Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 207 S.E.2d 543 (1974). See also Vaughn v. State, 249 Ga. 803, 294 S.E.2d 504 (1982). Moreover, OCGA § 9-11-32(d) requires that objection to the form of questions asked on deposition be made at the time of the deposition. This enumeration is without merit.
2. The allegedly objectionable remarks made by plaintiffs' counsel during closing argument alluded to the fact that the pediatrician who cared for Kory's burns had been born in Korea and had received his training in that country rather than in the United States, and that as a consequence he suffered some disadvantage in communicating with native speakers of English. Appellant Davis contends that such remarks were racially biased and therefore improper in that they were calculated to enlist the sympathy of a fellow Asiatic, a woman of Japanese origin who was serving as a juror.
Examination of the record reveals no evidence that there was any connection between the alleged appeal to a purported pan-Asian sentiment and the jury's verdict and that even if, arguendo, there had existed such a connection, it would have been so tenuous as to make it " 'highly probable that the [alleged] error did not contribute to the judgment.' " Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869 (1976). Moreover, appellant overlooks the historical fact that relations between Japan and Korea have for the most part been so hostile that any appeal to a national of one country for sympathetic treatment of a national of the other country would likely have just the opposite effect from that alleged by appellant. While gratuitous, the challenged remarks could hardly have been harmful to appellant. This enumeration is also without merit.
3. The jury instruction requested by appellant hospital and challenged in Dr. Davis' third enumeration of error is a correct statement of relevant law as adjusted to the facts of the instant case. The "borrowed servant" doctrine provides that, once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon. Reed v. Adventist Health Systems/Sunbelt, 181 Ga.App. 750, 353 S.E.2d 523 (1987); McClure v. Clayton County Hosp. Auth., 176 Ga.App. 414, 336 S.E.2d 268 (1985); Swindell v. St. Joseph's Hosp., 161 Ga.App. 290, 291 S.E.2d 1 (1982). This enumeration has no merit.
4. The trial transcript reveals that the jury, in the course of its deliberations, submitted the following written question: "May the award be apportioned in this suit, in an unequal manner[,] or must this be decided in the cross suit?" In reply, the court gave the following instruction: The foreperson replied, "Yes, sir," and the jurors returned to the jury room.
We find nothing improper or prejudicial in the trial court's reply to the jurors' question. This enumeration...
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