Hand v. S. Ga. Urology Ctr., P.C.

• Decision Date: 16 March 2015
• Docket Number: No. A14A1854.,A14A1854.
• Citation: Hand v. S. Ga. Urology Ctr., P.C., 332 Ga.App. 148, 769 S.E.2d 814 (Ga. App. 2015)
• Parties: HAND et al. v. SOUTH GEORGIA UROLOGY CENTER, P.C. et al.
• Court: Georgia Court of Appeals

332 Ga.App. 148

769 S.E.2d 814

HAND et al.

v.SOUTH GEORGIA UROLOGY CENTER, P.C. et al.

No. A14A1854.

Court of Appeals of Georgia.

March 16, 2015.

Reconsideration Denied April 14, 2015.

Certiorari Denied Sept. 8, 2015.

Tate Law Group, Mark A. Tate, Savannah, James E. Shipley, Jr., for appellants.

Hall Booth Smith, Terrell W. Benton III, Dean T. Cleaveland, for appellees.

DILLARD, Judge.

In this civil action, George and Betty Hand sued Dr. Gilbert Gonzalez and his practice group, South Georgia Urology Center, P.C.(collectively “defendants”), for damages they allegedly suffered as a result of Dr. Gonzalez's medical malpractice.Following a jury verdict and judgment in favor of defendants, the Hands appeal, arguing that the trial court erred in (1) excluding impeachment evidence, (2) failing to instruct the jury on the law pertaining to spoliation of evidence, (3) prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his medical license, and (4) finding that sufficient evidence supported the jury's verdict.For the reasons noted infra,we agree that the trial court erred in excluding impeachment evidence, and therefore, reverse the trial court's ruling in that regard and remand the case for a new trial.

Construed in favor of the jury's verdict,¹ the evidence shows that in late 2005, Dr. Gonzalez, a urologist, diagnosed George Hand as having an enlarged prostate.And after discussing various treatment options, Dr. Gonzalez ultimately recommended transurethral microwave thermotherapy, using a Targis System device manufactured by Urologix, Inc.In this procedure, the physician places the Targis device's catheter, housing a microwave antenna, into the patient's urethra near the prostate gland and inserts the device's rectal thermometer into the patient's rectum directly adjacent to the prostate gland.The antenna then delivers microwave energy into the patient's prostate, causing cellular breakdown that leads to a reduction in the size of the prostate.During the procedure, the rectal thermometer monitors the temperature of the prostate gland and automatically halts the procedure if the temperature exceeds acceptable levels.

Based on Dr. Gonzalez's recommendation, Hand consented to the microwave thermotherapy.Consequently, on January 19, 2006, Hand went to Dr. Gonzalez's offices, where one of the nurses prepped him and then inserted the Targis device's catheter into Hand's urethra and the rectal thermometer into his rectum.After Dr. Gonzalez checked the placement of both insertions, he activated the device.

During the procedure, Hand informed Dr. Gonzalez's assistants that he was experiencing a considerable amount of pain.But the device's rectal thermometer never indicated that the temperature exceeded safe levels, and Hand never requested that the assistants stop the treatment.Nearly 45 minutes later, the procedure concluded with no apparent complications, and Dr. Gonzalez sent Hand home to recuperate.

After resting for approximately two weeks following the procedure, Hand was still experiencing discomfort, but he nevertheless attempted to return to his job as a truck driver.However, on his first day back, Hand noticed that he discharged urine from his rectum when trying to use the bathroom.Almost immediately, Hand contacted Dr. Gonzalez, who quickly saw him on February 10, 2006, and determined that the microwave thermotherapy procedure had burned a hole between Hand's rectal and urethral tissues, causing what is known as a rectal-urethra fistula.A short time later, Hand was admitted to the hospital for surgery to repair the fistula, and over the course of the next couple of years, he underwent numerous surgeries and procedures to treat the damage and complications resulting from the injury.

In 2008, Hand and his wife filed a complaint against Dr. Gonzalez and his practice group, alleging that Dr. Gonzalez breached the standard of medical care in treating Hand and that this breach resulted in serious injuries.Specifically, the Hands claim that Dr. Gonzalez failed to ensure that the Targis device's rectal thermometer was properly inserted near Hand's prostate gland prior to the microwave thermotherapy procedure and, thus, the thermometer did not indicate that Hand's urethral and rectal tissue were being subjected to dangerous temperature levels.Defendants then filed an answer, and a lengthy discovery period ensued.

During discovery, the Hands' counsel deposed Dr. Gonzalez, who testified that he did not breach the standard of medical care in his treatment of Hand.Dr. Gonzalez further testified that he believed the Targis device malfunctioned during Hand's treatment and that this malfunction resulted in the burns to Hand's tissue.Dr. Gonzalez added that he believed he had attempted to perform microwave thermotherapy treatment once or twice after Hand's procedure, but the device would not operate properly.Then, after learning of Hand's injury, he“lost faith” in the Targis device and stopped using it completely by late February or early March 2006.

A jury trial commenced on April 26, 2013, during which the Hands presented evidence that Dr. Gonzalez breached the standard of medical care.Defendants presented evidence that Dr. Gonzalez adhered to the standard of medical care, including expert testimony supporting his theory that the Targis device malfunctioned and caused Hand's injury.The trial concluded on May 3, 2013, with the jury rendering a verdict in favor of the defendants.One week later, the trial court affirmed the verdict and issued an order entering judgment.Subsequently, the Hands filed a motion for new trial, which the trial court denied after conducting a hearing.This appeal follows.

1.The Hands contend that the trial court erred in excluding evidence that was relevant to the impeachment of Dr. Gonzalez.We agree.

It is well established that the admission of evidence is “within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion.”²But it is likewise well established that evidence having a tendency to establish facts at issue is “relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.”³With these guiding principles in mind, we turn now to the Hands' specific claim of error.

Despite Dr. Gonzalez's deposition testimony (mentioned supra ), during the course of discovery, the Hands never requested to inspect the Targis device used to treat Hand.However, a few weeks before trial was scheduled to begin, the Hands served Dr. Gonzalez with a subpoena duces tecum, requesting that the device be brought to trial solely for demonstrative purposes.And at the start of trial, the Targis device that the parties assumed to be the device used to treat Hand was indeed brought to the courtroom.Later, during a break in the proceedings, and after the Hands rested, the Hands' counsel activated the power on the Targis device and discovered reports in the form of data on the device, indicating that, contrary to his deposition testimony, Dr. Gonzalez used the device to treat six other patients over the course of several months afterhe determined that Hand suffered injuries as a result of the microwave thermotherapy procedure.The Hands' counsel immediately brought this information to the trial court's attention and requested, inter alia, that the data be printed out and admitted as impeachment evidence.But focusing on the fact that the Hands' counsel never requested to inspect the device during discovery, the trial court denied this request.

Subsequently, Dr. Gonzalez testified in his own defense.And during cross-examination, despite the Hands' counsel's questions about the additional apparent microwave thermotherapy treatments administered after he learned of Hand's injury, Dr. Gonzalez maintained that he only attempted to perform this type of treatment once or twice in the period of time between his treatment of Hand and learning of Hand's injury.In addition, Dr. Gonzalez testified that, based on documents found in his office records the previous evening, he learned that the Targis device currently in the courtroom—while the identical model—was not the same machine he used to treat Hand.Rather, that specific device had been retrieved by Urologix on March 22, 2006, and replaced with the current device.

Based on this testimony, the Hands' counsel again sought to print out and introduce the data showing that six microwave thermotherapy treatments were performed after Dr. Gonzalez learned of Hand's injury, but the trial court once again ruled that any data from the Targis device should have been the subject of a discovery request.The trial court allowed the Hands' counsel to further question Dr. Gonzalez regarding the replacement Targis device, but during that cross-examination, Dr. Gonzalez maintained that he did not think he used the device on any patients after learning of Hand's injury.

The Hands argue that the data from the Targis device discovered during trial was admissible to impeach Dr. Gonzalez, and that the trial court's exclusion of this evidence was harmful.As noted supra,we agree.

Under OCGA § 24–1–1, “[t]he object of all legal investigation is the discovery of truth.....”⁴And consistent with this statutory mandate, “the policy of Georgia law is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood.”⁵Toward that end, OCGA § 24–6–607 states that “[t]he credibility of a witness may be attacked by any party, including the party calling the witness.”Additionally, OCGA § 24–6–621 provides that “[a] witness may be impeached by disproving the facts testified to by the witness.”Moreover, a trial court may admit evidence relevant to the issue of impeachment even if “the evidence would not qualify for admission on other grounds.”⁶

In the casesub judice, the...