Hawkins v. Ob-Gyn Associates, P.A.

• Court: Georgia Court of Appeals
• Writing for the Court: Miller
• Citation: Hawkins v. Ob-Gyn Associates, P.A., 660 S.E.2d 835, 290 Ga.App. 892 (Ga. App. 2008)
• Decision Date: 28 March 2008
• Docket Number: No. A07A1614.,A07A1614.
• Parties: HAWKINS v. OB-GYN ASSOCIATES, P.A. et al.

290 Ga. App. 892

660 S.E.2d 835

290 Ga.App. 892

HAWKINS v. OB-GYN ASSOCIATES, P.A. et al.

No. A07A1614.

Court of Appeals of Georgia.

March 28, 2008.

Reconsideration denied April 10, 2008.

Joseph H. King Jr., Atlanta, for Appellant.

Alston & Gird, Judson Graves, Victoria Davis Lockard, Atlanta, for Appellee.

Peters & Monyak, Robert P. Monyak, Jeffrey S. Bazinet, amici curiae.

MILLER, Judge.

This is an appeal from a directed verdict granted in favor of Goodman B. Espy III, M.D. and his professional association, OBGYN Associates, P.A. (collectively, the "Association"), in a case alleging mismanagement of an obstetrical complication known as shoulder dystocia. Trenton Hawkins, a minor child, by and through his mother and natural guardian, Devi Hawkins, as next friend, appeals, contending that the trial court (i) erred in granting a directed verdict for the Association, (ii) erred in sustaining the Association's objections to portions of the evidentiary deposition of treating neurosurgeon Dr. Rahul Nath, and (iii) erred in denying his motion in limine as to expert witness Dr. James O'Leary. Finding that the directed verdict for the Association was proper, we affirm.

"[W]hether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion." (Citation, punctuation and footnote omitted.) Moran v. Kia Motors America, 276 Ga.App. 96, 97(1), 622 S.E.2d 439 (2005). Further,

a directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. OCGA § 9-11-50(a); Norfolk Southern Corp. v. Smith, 262 Ga. 80, 83(2), 414 S.E.2d 485 (1992).

St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137(1), 508 S.E.2d 646 (1998).

So viewed, the evidence shows that Dr. Espy initially used a vacuum extractor and forceps to aid in Trenton's delivery in 1998. Dr. Espy testified that after delivering Trenton's head, he cradled it in his hands, applied gentle traction, and upon feeling resistance, stopped any further pulling and diagnosed shoulder dystocia.¹ Because such condition represented a potential threat to the flow of oxygen to Trenton's brain due to possible compression of his umbilical cord, Dr. Espy relieved the condition within 30 to 40 seconds by employing the McRoberts maneuver (pulling Hawkins' legs up and back toward her abdomen to open up and rotate her pelvic bone) and suprapubic pressure (external pressure above her pelvic bone).

Following his birth, Trenton was diagnosed as having suffered damage to the network of nerves in his right shoulder, collectively known as the brachial plexus. Drs. Saleh H. Chinook and Rahul Nath, neurosurgeons specializing in the treatment of nerve and brachial plexus injuries, operated on the injury to Trenton's shoulder in 2002 and 2003, respectively. These operations improved Trenton's condition; however, Dr. Nath opined that a 2006 videotape taken of Trenton indicated that further corrective surgery was required to relieve continued tightening in his right elbow and to improve the function of his right hand. At trial, Hawkins' expert witness, Dr. Stuart Edelberg, opined that Trenton's brachial plexus injury was caused by the negligent application of excessive downward lateral traction to Trenton's head at the time Dr. Espy diagnosed shoulder dystocia or as he managed it thereafter.

1. Hawkins contends that the trial court erred in granting a directed verdict to the Association for lack of causation evidence, citing the testimony of his expert witness, Dr. Edelberg. We disagree.

The trial court, over objection, allowed Dr. Edelberg's opinion as to causation. That opinion, was based upon a "differential diagnosis," which is "a patient-specific process of elimination that medical practitioners use to identify the most likely cause of [an injury] from a list of possible causes." (Citations and punctuation omitted.) Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254(II) (2d Cir.2005).

OCGA § 24-9-67.1(f) authorizes Georgia courts, in all civil cases, to consider federal authority when determining the admissibility of expert evidence thereunder. Mason v. Home Depot U.S.A., 283 Ga. 271, 658 S.E.2d 603 (2008).

A differential diagnosis satisfies a Daubert [v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),] analysis if the expert uses reliable methods ... based on scientifically valid decisions as to which potential causes should be "ruled in" or "ruled out." Determining the reliability of an expert's differential diagnosis is a case-by-case determination.

(Citation omitted.) Ervin v. Johnson & Johnson, 492 F.3d 901, 904(II) (7th Cir.2007). "Where an expert employs differential diagnosis to "rule out other potential causes" for the injury at issue, he must also rule in the suspected cause, and do so using "scientifically valid methodology." (Citation and punctuation omitted.) Ruggiero, supra, 424 F.3d at 254(II).

In rendering his opinion as to the cause of Trenton's injury, Dr. Edelberg ruled out a congenital absence of the brachial plexus nerve an infection of such nerve, a prolapsed arm during delivery, malpositioning during delivery, and failed maneuvers used to relieve shoulder dystocia as causing Trenton's injury. He did not, however, "rule in" excessive traction to Trenton's head at the time of diagnosis by a "scientifically valid methodology" Ruggiero, supra, 424 F.3d at 254, instead offering only his bare assumption to such effect as "more probably than not" the cause of the injury to the child.

The said assumed cause of injury was not only unsupported by any evidence, but was contrary to all the evidence of record. That evidence included the testimony of both Dr. Espy and the other witnesses in the delivery room that Dr. Espy had used only gentle traction to diagnose the shoulder dystocia and then delivered the baby without using any traction at all. Moreover, while Dr. Edelberg testified as to his summary conclusion that the shoulder dystocia at issue resulted from excessive traction, he acknowledged that his theories of causation as to shoulder dystocia have never been submitted to peer review and are contrary to those taught by the textbooks, residency programs, and the American College of Obstetricians and Gynecologists.

On the record before this Court, Dr. Edelberg, in effect, infers negligence upon an unintended result. "Georgia courts[, however,] have expressly ruled that the doctrine of res ipsa loquitur does not apply in a malpractice case. An unintended result does not raise an inference of negligence. It is presumed that medical or surgical services were performed in an ordinarily skillful manner." (Citations and punctuation omitted.) Oakes v. Magat, 263 Ga.App. 165, 168(2), 587 S.E.2d 150 (2003); Austin v. Kaufman, 203 Ga.App. 704, 705(1), 417 S.E.2d 660 (1992).

Moreover, even if the doctrine were here applicable, it does not apply when all possible causes other than the defendant's negligence cannot be excluded. "Where there is any intervention of an intermediary cause which produces or could produce the injury complained of, the doctrine of res ipsa loquitur is ... [in]applicable." (Citations and punctuation omitted.) Parker v. Dailey, 226 Ga. 643, 645(1), 177 S.E.2d 44 (1970). As we have noted earlier, Dr. Edelberg acknowledged that excessive traction was only "more probably than not" the cause of the injury and that it could have been the result of other causes, among them, an accident or an act of God.

Beyond his failure to reliably "rule in" excessive traction as the cause of the injury at issue Parker, supra, 226 Ga. at 645, 177 S.E.2d 44, as above, Dr. Edelberg's testimony also failed to establish that Dr. Espy acted negligently in delivering Trenton. He could point to no evidence of record showing that the standard of care was violated. Dr. Edelberg testified that he inferred negligence in this case merely because an injury to the brachial plexus occurred and shoulder dystocia was encountered during the delivery. This opinion, inferred upon circumstantial evidence, is contrary to all the direct evidence of record to the effect that no excessive traction was applied, i.e., that Dr. Espy did not breach the applicable standard of care. "[S]uch circumstantial evidence would not defeat positive, direct testimony to the contrary.... Drawing an inference premised on a nonexistent fact, [that excessive traction was used], cannot surmount positive direct testimony" that the same was not used. Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga.App. 726, 729(1), 535 S.E.2d 792 (2000); see also Kines v. City of Rome, 220 Ga.App. 732, 733, 470 S.E.2d 311 (1996) ("[The testimony of an expert witness should not be admitted in evidence where his opinion is based on facts stated in a hypothetical question which are not proven by other witnesses or other competent evidence.")(citation and punctuation omitted).

Given the foregoing, we conclude that the trial court did not err in granting the Association a directed verdict for no evidence of causation on this account. Moran, supra, 276 Ga.App. at 97(1), 622 S.E.2d 439.

2. Hawkins contends that the trial court erred in excluding Dr. Nath's causation testimony by videotaped deposition at trial, arguing (i) that the Association's objections thereto could have been resolved prior to trial pursuant to a Daubert motion, and (ii) that his opinion indicating that Trenton's injuries were the result of excessive traction employed at the time of Trenton's birth was competent evidence. Again we disagree.

(a) The Association's objections to Dr. Nath's testimony at the time of his videotaped deposition were properly reserved until trial and timely ruled upon at trial outside the presence of the jury. Consequently, there was no error on this...