Goggin v. Goldman

• Decision Date: 10 June 1993
• Docket Number: No. A93A1418,A93A1418
• Citation: 433 S.E.2d 85,209 Ga.App. 251
• Parties: GOGGIN v. GOLDMAN.
• Court: Georgia Court of Appeals

Page 85

433 S.E.2d 85

209 Ga.App. 251

GOGGIN v. GOLDMAN.

No. A93A1418.

Court of Appeals of Georgia.

June 10, 1993.

Reconsideration Denied June 28, 1993.

Certiorari Denied Nov. 19, 1993.

Sanford A. Rice, Marietta, for appellant.

Whitehurst & Frick, Elaine W. Whitehurst, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Plaintiff Goggin was injured when his automobile hydroplaned and slid into a telephone pole. He was transported to the emergency room at North Fulton Regional Hospital where defendant Goldman, a general surgeon, became involved in the management of his treatment. While other injuries were immediately diagnosed and treated, it was not until approximately 60 hours after plaintiff's crash that a blood clot was discovered in the left renal artery. This blood clot terminated the supply of blood to, and resulted in the permanent loss of function of, plaintiff's left kidney.

Plaintiff's action is predicated on the theory that the loss of his kidney was caused by the negligence of defendant in failing to order x-rays and other tests for evaluation of possible injury to plaintiff's urinary tract. According to the testimony of plaintiff's expert, such tests would have discovered the blood clot and presented some opportunity to salvage the kidney. Upon the trial of the case, a mistrial resulted when the jury was unable to agree on a verdict. Defendant moved for a judgment notwithstanding the mistrial and the trial court granted this motion based on its conclusion that plaintiff had failed to present any proof that his injury was proximately caused by defendant's negligence. The sole enumeration of error raised by plaintiff's appeal is the trial court's grant of defendant's motion for judgment notwithstanding the mistrial. Held:

"A motion for a judgment notwithstanding a mistrial is analogous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where '(t)here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom shall demand a particular verdict.' [OCGA § 9-11-50(a) ]." Gordon v. Carter, 126 Ga.App. 343, 344(1), 190 S.E.2d 570. See also Findley v. McDaniel, 158 Ga.App. 445, 446(1), 280 S.E.2d 858. " ' "(T)he primary question for determination is whether the evidence introduced, with all reasonable deductions ... demanded a verdict for the defendant, as the standards for granting a motion for judgment n.o.v. are the same as those governing direction of a verdict. (Cits.) (T)he motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a 'one-way' verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts." Bryant v. Colvin, 160 Ga.App. 442, 444, 287 S.E.2d 238 (1981).' Miller & Meier & Assoc. v. Diedrich, 174 Ga.App. 249, 250, 329 S.E.2d 918 (1985). The question is whether the evidence demands a verdict for the movant; if there is no evidence to support the verdict, the motion must be granted. City of Atlanta v. West, 160 Ga.App. 609, 611(2), 287 S.E.2d 558 (1981)." Famiglietti v. Brevard Medical Investors, Ltd., 197 Ga.App. 164(1), 397 S.E.2d 720.

"A motion for directed verdict can be granted only '(i)f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict....' OCGA § 9-11-50 (...