Haskins v. Ga. Neurosurgical Inst., P.C.

• Decision Date: 24 June 2020
• Docket Number: A20A0113
• Citation: 845 S.E.2d 770,355 Ga.App. 781
• Parties: HASKINS et al. v. GEORGIA NEUROSURGICAL INSTITUTE, P.C. et al.
• Court: Georgia Court of Appeals

355 Ga.App. 781

845 S.E.2d 770

HASKINS et al.

v.GEORGIA NEUROSURGICAL INSTITUTE, P.C. et al.

A20A0113

Court of Appeals of Georgia.

June 24, 2020

Ronald W. Hallman, Claxton, Evans County, Berrien L. Sutton, Homerville, for Appellant.

Michael Scott Bailey, Randolph Page Powell Jr., Atlanta, for Appellee.

McFadden, Chief Judge.

This appeal from a trial court's final judgment entered upon a jury verdict challenges various evidentiary rulings by the court. Because the challenged rulings were not erroneous or amounted to harmless error, we affirm.

1. Facts and procedural posture.

"A jury verdict, after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law."

Eagle Jets, LLC v. Atlanta Jet, Inc. , 321 Ga. App. 386, 392 (2), 740 S.E.2d 439 (2013) (citation and punctuation omitted). "[T]he jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict." Turner Broadcasting System v. McDavid , 303 Ga. App. 593, 594, 693 S.E.2d 873 (2010) (citation and punctuation omitted).

So construed, the evidence shows that on April 15, 2013, Michael Haskins went to see Dr. Richard Rowe about lower back pain. Haskins reported to the doctor that he had hurt his back in 2000; that his back pain had progressively gotten worse; that he had not had surgery on his lumbar spine; but that he had undergone other surgeries, including cervical spine fusion surgery and pelvic surgery for a traumatic injury. A magnetic resonance imaging

("MRI") scan of Haskins’ back showed that he had a protruding disc in his lumbar spine, and a subsequent computed tomography ("CT") scan also showed the disc protrusion. Dr. Rowe discussed various treatment options with Haskins, who opted to undergo a discectomy, a surgery to remove the protruding disc material pressing on nerves.

Dr. Rowe performed the lumbar discectomy

on June 13, 2013. In the operating room after the surgery, Haskins awoke and was able to move his feet, so he was taken to a recovery room. Dr. Rowe went to the waiting area and told Haskins’ wife that the surgery had gone well, that Haskins was moving, and that everything looked fine. But approximately 30 minutes later, the doctor was notified by nurses that Haskins could not move his feet. Dr. Rowe went to the recovery room, examined Haskins, and diagnosed him with cauda equina syndrome ("CES") based on symptoms indicating possible spinal nerve injury. Dr. Rowe ordered another MRI scan of Haskins’ lumbar spine to see if there was a hematoma or a herniated disc pressing on nerves and causing the CES. The MRI performed shortly after the surgery did not show either a hematoma or herniated disc, but it did show that there was still some stenosis, or narrowing, of the spinal canal. Dr. Rowe then performed a laminectomy, removing bone in order to make more room for the spinal nerves. After the second surgery, Haskins still could not move his feet and had other neurological deficits. He was transferred to a spinal rehabilitation center, where he spent ten days, and has continued to suffer neurological problems since the surgeries, including difficulty walking, bowel and bladder control, and erectile dysfunction.

Haskins and his wife, Haley Haskins, filed a medical malpractice complaint against Dr. Rowe and his employer, Georgia Neurosurgical Institute, P.C., alleging that the doctor had negligently caused nerve damage during the discectomy

. At trial, the parties presented, among other evidence, opposing expert witnesses. The Haskinses’ expert testified that Dr. Rowe had breached the applicable standard of care in two ways – by over-retracting nerves during the discectomy and by performing the discectomy in the first place, rather than performing only a laminectomy. The defendants’ expert refuted the opinions of the plaintiffs’ expert, explaining that it was physically impossible for Dr. Rowe to have over-retracted the nerves during the discectomy due to the space in which the operation was performed and testifying that it was appropriate and within the standard of care for Dr. Rowe to have first performed the discectomy. The defense expert further opined that a possible cause of the CES was the occurrence of a spinal cord stroke during the discectomy.

The jury returned a verdict in favor of the defendants. The trial court entered judgment on the verdict, ordering that the defendants be discharged with no recovery by the plaintiffs. The Haskinses filed a motion for new trial, which the trial court denied. The Haskinses then brought this appeal.

2. Journal article.

While cross-examining the Haskinses’ expert, defense counsel was allowed to ask him about a passage in a journal article written by partners of Dr. Rowe that concerned CES in lumbar discectomy

patients and stated: "Although the origin of the condition has remained unknown, several theories have been proposed to explain the underlying pathogenetic mechanism. In the vast majority of these cases, no explanation based on immediate postoperative MR imaging is usually recognized." The Haskinses contend that the trial court erred in allowing this questioning because the article was hearsay and did not fall within the hearsay exception set forth in OCGA § 24-8-803 (18), which allows the use of learned treatises established as reliable authority for cross-examination of an expert.

However, pretermitting whether the trial court erred, any error was harmless. The new Evidence Code continues Georgia's existing harmless error doctrine for erroneous evidentiary rulings. See OCGA § 24-1-103 (a) ("Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected."). In determining whether the error was harmless, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done so. The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict.

Perez v. State , 303 Ga. 188, 190-191 (2), 811 S.E.2d 331 (2018) (citation and punctuation omitted). See also Hillman v. ALDI, Inc. , 349 Ga. App. 432, 441 (1), 825 S.E.2d 870 (2019) (erroneous evidentiary rulings are subject to the harmless error doctrine and where erroneously admitted evidence is cumulative of properly admitted evidence, the error is harmless).

The Haskinses argue that the use of the article was harmful because it bolstered the defense claim that a stroke may have caused the CES. But contrary to that argument, the article made no mention of stroke as a cause of CES. And to the extent the appellants are claiming that the article helped the defense by explaining why there was no stroke

shown on the post-operation MRI, the article provided the same benefit to the Haskinses by supporting their expert's explanation as to why no over-retracted nerve damage was shown on the MRI. It is undisputed that the MRI performed shortly after the discectomy

in this case did not show the cause of the CES; indeed, Dr. Rowe and the experts on both sides gave testimony to that effect. Under the circumstances, we find that it is highly probable that the brief questioning about the article did not contribute to the verdict. Compare Moore v. WellStar Health System , 349 Ga. App. 834, 845-846 (5), 824 S.E.2d 787 (2019) (erroneous admission of hearsay evidence that did not satisfy the learned treatise exception of OCGA § 24-8-803 (18) was not harmless where it was improperly used to impeach plaintiff's expert witness on core issue of the standard of care and to conflate certain expert witness guidelines with the standard of care issues reserved for the jury).

3. Informed consent.

The appellants contend that the trial court erred in allowing the defense to introduce evidence of the informed consent form Haskins signed before surgery. We disagree.

Haley Haskins testified on direct examination that before the surgery, Dr. Rowe had called the discectomy

"simple" and had "referred to it as easy." She further testified that the day prior to surgery, she and her husband had met with Dr. Rowe, that the doctor had read something, but that they had not seen or been provided with any papers. On cross-examination, defense counsel questioned her about that meeting and whether Dr. Rowe had explained the surgery and risks in detail, showing her the informed consent form signed by her husband indicating that such information had been fully explained. She conceded that it was her husband's signature on the form, but she did not concede that the surgery and risks were fully explained, and instead responded simply that the doctor had "read something very monotone."

Thereafter, during its jury instructions, the trial court expressly charged the jury that informed consent was not a defense to the medical malpractice claims. As the court explained to the jury:

The question of whether Mr. Haskins gave consent to the surgery in question is not to be considered by you. Informed consent is not a defense to allegations of medical negligence and does not relieve a physician from the duty to exercise that degree of care or skill ordinarily exercised by the profession generally under similar conditions and like surrounding circumstances.

"A trial court's decision regarding the admission or exclusion of evidence is reviewed for an abuse of discretion." Steen-Jorgensen v. Huff , 352 Ga. App. 727, 732 (3), 835 S.E.2d 707 (2019) (citation and punctuation omitted). In this case, "[w]e find no abuse of discretion. Even though the consent form was not relevant to the issue of liability in the case, it was admissible to impeach [the witness] on her testimony that [the doctor had described the...