King v. Zakaria

• Decision Date: 05 July 2006
• Docket Number: No. A06A0735.,A06A0735.
• Citation: 634 S.E.2d 444,280 Ga. App. 570
• Parties: KING v. ZAKARIA.
• Court: Georgia Court of Appeals

280 Ga. App. 570

634 S.E.2d 444

KING v. ZAKARIA.

No. A06A0735.

Court of Appeals of Georgia.

July 5, 2006.

Reconsideration Denied July 21, 2006.

Paul S. Weiner, Jonesboro, for appellant.

Alston & Bird, Judson Graves, Brian R. Stimson, Atlanta, for appellee.

ELLINGTON, Judge.

In this medical malpractice case, Elrena King, individually and as executrix of the estate of decedent Douglas Carter King, appeals from the denial of her motion for new trial following a judgment in favor of Dr. M.S. Zakaria and his professional corporation (collectively, "Dr. Zakaria"). The decedent died as a result of massive bleeding from his pulmonary artery the morning after Dr. Zakaria performed surgery to remove the decedent's right lung. In her complaint, King alleged that Dr. Zakaria violated the standard of care by failing to properly close the decedent's pulmonary artery during surgery. She also alleged that Dr. Zakaria's post-operative monitoring and treatment of the decedent, including his failure to timely read the decedent's x-rays, violated the standard of care. In addition, King claimed that Dr. Zakaria abandoned the decedent after surgery and requested punitive damages based upon her contention that Dr. Zakaria's abandonment evidenced a conscious indifference to the consequences.

At trial, the court directed a verdict in favor of Dr. Zakaria on King's abandonment claim, her punitive damages claim, and her claim that the decedent's death could have been avoided if Dr. Zakaria had read the decedent's x-rays in a timely manner. The jury returned a verdict in favor of Dr. Zakaria on King's remaining claims. On appeal, King contends the trial court erred when it granted the directed verdicts. She also challenges the court's exclusion of impeachment evidence and the court's instructions to the jury. Because King has failed to demonstrate reversible error, we affirm.

The evidence at trial showed the following facts. Dr. Zakaria is a board-certified surgeon specializing in thoracic and vascular surgery. On December 17, 1998, the decedent was a lung cancer patient who underwent surgery to remove a cancerous tumor from his right lung at Henry Medical Center. Before the surgery, the decedent signed an informed consent form which listed the material risks of the surgery, which include the possibility of severe loss of blood, cardiac arrest, and death.¹ It is undisputed that these complications can arise even when there has been no negligence by the surgeon.

During the surgery, Dr. Zakaria determined that the size and placement of the cancerous tumor required the removal of the decedent's entire right lung. Dr. Zakaria testified that he used three surgical ties² to close off each of the blood vessels leading to and from the lung before he removed the decedent's lung. He explained that he cut each vessel between the ties so that two ties remained in the decedent's body and one was removed with the decedent's lung. He also testified that this method was the only one he had ever used when performing surgery and that he had never had a post-operative tie failure. According to Dr. Zakaria, after he removed the decedent's lung, he checked to ensure that there was no bleeding from any of the blood vessels that he had severed. He also testified that he dictated his operative report later the same day, and the record shows that the operative report was consistent with his trial testimony.

The surgeon who assisted Dr. Zakaria during the surgery testified that he personally observed Dr. Zakaria use three surgical ties to close the decedent's blood vessels in a manner that was "completely consistent" with the operative report. The surgeon also testified that there was no bleeding from the decedent's blood vessels after Dr. Zakaria tied them off. No other eyewitness to the surgery testified to the contrary. Further, there was no dispute at trial that tying off blood vessels in the manner described by Dr. Zakaria and his operative report was consistent with the standard of care.

Following surgery, the decedent was moved to the hospital's critical care unit. Dr. Zakaria wrote post-operative care instructions for the hospital staff, which included a request for daily lab tests and x-rays and instructions for the staff to call him if the decedent's condition changed. The hospital's staff included a physician who specialized in emergency medicine and who was available during the night to immediately evaluate the decedent in the event of a life-threatening condition and provide emergency care until Dr. Zakaria could get to the hospital. When Dr. Zakaria left the hospital on the evening of the decedent's surgery, the decedent was resting comfortably and his condition was stable. The decedent's condition did not change significantly during the night. Dr. Zakaria remained "on call" at home throughout the night and even wore his pager to bed, but the hospital did not page him.

The next day, at 6:10 a.m. and again between 6:30 and 6:50 a.m.,³ the hospital staff took x-rays of the decedent's chest, to be read by Dr. Zakaria and the hospital's radiologist later that day. Shortly after sitting up to have the second x-ray taken, the decedent began to have trouble breathing. The staff suctioned the decedent's throat and intubated him to assist his breathing. The decedent's condition quickly deteriorated and, at approximately 7:00 a.m., the head nurse activated the hospital's emergency "code" system. A specially-trained team of staff members, including the emergency room physician, rushed to the decedent's room and began evaluating and treating the decedent. Shortly thereafter, the decedent went into cardiac arrest and the staff attempted to resuscitate him.

In the meantime, the head nurse paged Dr. Zakaria, who was driving to Atlanta for a medical meeting at Grady Hospital. After learning that the decedent was experiencing complications, Dr. Zakaria exited the highway, turned around, and drove to the hospital, arriving in the patient's room by 7:37 a.m. Dr. Zakaria examined the decedent and ordered blood tests. The staff continued to perform CPR on the decedent until Dr. Zakaria determined that the decedent could not be resuscitated. Dr. Zakaria pronounced him dead at 8:25 a.m.

During an autopsy at the hospital the next day, two pathologists examined the decedent's pulmonary artery, which had an open "stump" where it should have been tied off. The edge of the stump was "irregular," and there was a loose tie on the artery that was attached to the artery's wall. The pathologists also observed that the decedent had "severe coronary arteriosclerosis," thickening of the heart muscles, and evidence of other chronic diseases of the arteries, heart, and left lung. The pathologists concluded that the decedent's death resulted from massive bleeding from the pulmonary artery into the chest cavity as a result of a post-operative tie failure or a tear in the artery.

According to expert testimony, post-operative tie failure is a recognized risk and potential complication of this type of surgery, and such failures can and do occur in the absence of negligence. None of the expert witnesses could state with any certainty when or why the ties failed and the decedent started bleeding in this case. It was undisputed, however, that if Dr. Zakaria had left the artery untied or loosely tied when he severed the artery during surgery, the decedent would have bled to death within minutes. More importantly, there was no dispute that, by the time the decedent began to exhibit signs of complications, his condition was virtually irreversible and there was only a slight possibility that anyone could have performed emergency surgery in time to save him.

In granting a partial directed verdict to Dr. Zakaria, the trial court found there was no evidence that Dr. Zakaria violated the standard of care by leaving the hospital under the circumstances presented. The court also found that King had presented no evidence that Dr. Zakaria's failure to review the decedent's x-rays caused the decedent's death. The court noted that the undisputed evidence showed the decedent could not have survived once he started bleeding internally absent emergency surgery which, under the circumstances, could not be performed in time to save his life. The jury returned a verdict in favor of Dr. Zakaria on King's remaining malpractice claims. Following the denial of her motion for new trial, King appeals.

1. King contends the court erred in excluding the endorsement of Dr. Zakaria's 2000-2001 professional liability insurance policy as impeachment evidence. The endorsement, which covered a period over a year after the alleged malpractice in this case, showed that Dr. Zakaria's insurance rates were reduced for that period because he was working fewer hours and was classified as "semi-retired." King argues that this evidence would have impeached Dr. Zakaria's admission during cross-examination that he was not semi-retired. She claims that this evidence was relevant to the question of Dr. Zakaria's credibility.

The admission of evidence is "committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion." (Citation and punctuation omitted.) Chambers v. Gwinnett Community Hosp., 253 Ga.App. 25, 26(1), 557 S.E.2d 412 (2001). Further, it is well-settled law that evidence of a physician's professional liability insurance is generally inadmissible in a medical malpractice case. Id.

As our Supreme Court has recognized, the concern is that introducing evidence of a defendant's insurer could motivate a jury to award increased damages. And although jurors could well surmise that a doctor has malpractice insurance the introduction of the evidence tends to emphasize something that is usually irrelevant and that may have an adverse effect on the quality of the jury's deliberations and conclusions.

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