Griffin v. Bankston, A08A2332 (Ga. App. 12/31/2009)
| Decision Date | 31 December 2009 |
| Docket Number | A08A2332. |
| Parties | GRIFFIN v. BANKSTON et al. |
| Court | Georgia Court of Appeals |
Monyouette Griffin brought this dental malpractice action to recover damages stemming from Dr. Stephen Bankston's alleged negligence in failing to administer an antibiotic before, during, or after the surgical extraction of her wisdom teeth.1
The case went to trial and the jury returned a verdict in favor of Dr. Bankston. In Griffin v. Bankston, 295 Ga. App. 387, 390-391 (2) (671 SE2d 873) (2008), we relied upon precedent of the Supreme Court of Georgia and of this Court to conclude that the trial court correctly excluded deposition testimony from one of Ms. Griffin's treating physicians concerning the physician's personal practice of administering an antibiotic as a preventative measure. The Supreme Court, however, remanded the case to this Court for reconsideration in light of Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 669-672 (1) (681 SE2d 152) (2009), where the Supreme Court overruled that prior line of precedent. Upon reconsideration, we conclude that the trial court committed reversible error by excluding the physician's testimony. Accordingly, we vacate our prior judgment, and we reverse and remand for a new trial.
The record reflects that on November 19, 2001, Ms. Griffin sought dental care from Dr. Bankston, an oral and maxillofacial surgeon, for intermittent tooth pain. Dr. Bankston reviewed Ms. Griffin's dental x-rays, performed an oral examination, and determined that she needed two of her wisdom teeth surgically extracted. At trial, Ms. Griffin presented documentary evidence allegedly showing that Dr. Bankston also diagnosed her with acute pericoronitis, an active inflammation around a tooth. In contrast, Dr. Bankston testified that he had only determined that Ms. Griffin had a past history of pericoronitis based on her complaints, and that there were no signs of active inflammation or infection at the time of the exam.
Following the initial exam, surgery was set for November 30, 2001. Dr. Bankston surgically extracted Ms. Griffin's two wisdom teeth on that date as scheduled. On the day of the surgery, Ms. Griffin's symptoms had not changed from the time of her initial exam on November 19. Dr. Bankston did not administer or prescribe penicillin or any other antibiotic to Ms. Griffin before, during, or after her surgery.
On December 1, 2001, Ms. Griffin's face and neck swelled to such an extent that she began having difficulty breathing and was rushed to the hospital by her parents. Upon arrival at the hospital, Ms. Griffin underwent an emergency tracheotomy to open and preserve her airway. The treating physicians determined that Ms. Griffin was suffering from a virulent bacterial infection that was "odontogenic," or "from the tooth," in origin. To combat the infection, Ms. Griffin was placed on a powerful combination of antibiotics and underwent two surgeries for the placement of drainage tubes in her face, mouth, and neck. The specific antibiotics given to Ms. Griffin are commonly used for treating penicillin-resistant bacteria. The treatment regime ultimately proved successful and, after an extended hospital stay, Ms. Griffin was able to return home and to work.
Before her hospitalization, Ms. Griffin had a history of vitiligo, a skin disorder that causes loss of pigment. Following her hospitalization, Ms. Griffin lost all pigmentation on substantial portions of her face, neck, chest, arms, and hands. Ms. Griffin now must wear thick opaque makeup to cover areas of her skin affected by the vitiligo.
Ms. Griffin attributed the virulent bacterial infection that she suffered, and the subsequent exacerbation of her vitiligo, to Dr. Bankston's failure to provide her with penicillin before, during, or after her oral surgery. She presented expert testimony from a board certified oral surgeon that Dr. Bankston's failure to provide penicillin fell below the applicable standard of care, in light of Ms. Griffin's alleged acute pericoronitis combined with other risk factors. The same expert testified that if penicillin had been given, Ms. Griffin would not have developed a massive infection requiring hospitalization. Finally, Ms. Griffin presented expert testimony from a board certified dermatologist who attributed the spread of her vitiligo to her bacterial infection and the resulting swelling and surgical trauma.
In contrast, Dr. Bankston maintained that even if Ms. Griffin suffered from acute pericoronitis at the time of her initial exam and subsequent surgery (a diagnosis which he disputed), he was not required to give penicillin under the applicable standard of care. Specifically, he presented expert testimony from a board certified oral surgeon that the standard of care did not require the giving of an antibiotic to a patient who presented with acute pericoronitis, unless there were also clinical signs of a bacterial infection. And, according to the expert, the intermittent pain complained of by Ms. Griffin, standing alone, was an insufficient sign of such an infection, given the lack of other clinical signs such as pus, redness, swelling, bad odor, difficulty opening the mouth, or flesh hot to the touch.
Dr. Bankston also maintained that even if the standard of care had required him to give penicillin, Ms. Griffin still would have experienced a massive bacterial infection requiring hospitalization. According to his oral surgeon expert, penicillin would not have prevented Ms. Griffin's severe infection because her lab cultures taken during her hospitalization confirmed that her infection included a penicillin-resistant form of bacteria. Likewise, Dr. Robert Hunt, the oral surgeon who treated Ms. Griffin during her hospitalization, testified that he did not believe that administering penicillin would have been effective in light of Ms. Griffin's "mixed flora" infection that included bacteria resistant to that antibiotic.
After hearing all of the evidence, the jury returned a verdict in favor of the defendants, and judgment was entered accordingly. This appeal followed.
1. Ms. Griffin argues that the trial court erred by excluding deposition testimony from Dr. Hunt concerning his personal oral surgery practices. Specifically, Dr. Hunt testified that his personal practice is to administer penicillin as a preventive measure when the wisdom teeth are impacted and when a steroid is also given. According to Ms. Griffin, she should have been permitted to introduce this deposition testimony in order to impeach Dr. Hunt's testimony at trial that the administration of penicillin would not have made a difference in Ms. Griffin's case.
In our initial decision, we relied upon established precedent holding that testimony concerning what course of treatment an expert physician personally would have followed is irrelevant and inadmissible in a medical malpractice action. See Griffin, 295 Ga. App. at 390-391 (2), citing Johnson v. Riverdale Anesthesia Assoc., 275 Ga. 240, 241-242 (1), 242-243 (2), 243 (3) (563 SE2d 431) (2002). But in the recent case of Condra v. Atlanta Orthopaedic Group, 285 Ga. 667, 669-672 (1) (681 SE2d 152) (2009), the Supreme Court of Georgia overruled this line of precedent and held that evidence of a physician's personal practices was admissible on cross-examination as substantive evidence and to impeach the expert's opinion as to the applicable standard of care.
As a threshold matter, Dr. Bankston argues that Condra has no bearing on the present case because it should only be applied prospectively to cases tried after that decision. Alternatively, he argues that even if Condra applies retroactively, it is distinguishable from the present case because Dr. Hunt did not provide expert testimony regarding the applicable standard of care. Neither argument is persuasive.
(a) In Findley v. Findley, 280 Ga. 454, 460 (1) (629 SE2d 222) (2006), the Supreme Court of Georgia held that a judicial decision should be applied retroactively unless the decision itself expresses that it should be given prospective effect, or the equities favor prospective application under the three-pronged test set forth in Chevron Oil Co. v. Huson, 404 U. S. 97, 106-107 (II) (92 SC 349, 30 LE2d 296) (1971). See also Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (3) (300 SE2d 673) (1983). Under the three prongs of Chevron Oil Co., 404 U. S. at 106-107 (II), a court must:
(1) Consider whether the decision . . . established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.
(Citation and punctuation omitted.) Findley, 280 Ga. at 456, n. 1.
Applying these principles to the case at hand, we conclude that Condra should be given retroactive application. The Supreme Court did not state that its decision in Condra should only be applied prospectively, and the equities favor retroactive application under the three prongs of Chevron Oil Co., 404 U. S. at 106-107 (II).
As to the first prong, while Condra did overrule clear past precedent, that does not end the inquiry. See Ellis v. State, 272 Ga. 763, 764-765 (1) (534 SE2d 414) (2000); Hosp. Auth. of Fulton County v. Litterilla, 199 Ga. App. 345, 348 (1) (404 SE2d 796) (1991), rev'd on other grounds by Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992). Indeed, the general rule is that a decision overruling prior precedent is applied retrospectively....
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