Kitchens v. Brusman

• Decision Date: 20 September 2010
• Docket Number: No. A09A1931.,A09A1931.
• Citation: 694 S.E.2d 667,303 Ga.App. 703
• Parties: KITCHENS et al.v.BRUSMAN et al.
• Court: Georgia Court of Appeals

303 Ga.App. 703

694 S.E.2d 667

KITCHENS et al.v.BRUSMAN et al.

No. A09A1931.

Court of Appeals of Georgia.

March 29, 2010.

Certiorari Denied Sept. 20, 2010.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Terrance C. Sullivan, David E. Betts, Atlanta, for appellants.

Carlock, Copeland & Stair, Wayne D. McGrew III, Kim M. Ruder, Atlanta, for appellee.

ADAMS, Judge.

In this medical malpractice suit, the plaintiff contends the defendants spoliated evidence. The trial court disagreed, and it denied the plaintiff's motion for sanctions as a result of spoliation and granted the defendants' motion to exclude evidence of spoliation. The trial court also granted the defendants' motion to exclude two of the plaintiff's expert witnesses on the ground that their testimony regarding causation was too uncertain and speculative to be submitted to the jury. The issues are interrelated because the plaintiff seeks the benefit of an inference from spoliation in order to support the experts' opinions. We granted the plaintiff's interlocutory appeal to consider these issues.

The relevant facts are that on October 31, 1997, Jillian Kitchens went to Southern Regional Medical Center (“SRMC”) with complaints of pain and swelling in her left breast. The following day, a surgeon performed an incision and drainage procedure of an abscess located at the periareolar border at the “9 o'clock” position on her left breast (where “3 o'clock” is toward the arm) and obtained a tissue sample from the abscess. On or about November 2, 1997, Dr. Harold Brusman, a pathologist, reviewed and analyzed one slide taken from the specimen. Dr. Brusman submitted a one-page written report of his findings interpreting the specimen as “fibroadipose tissue with acute and chronic inflammation and granulation tissue reaction.” He has testified that his findings were consistent for that of an abscess and that there were no indications of breast cancer or malignancy. That is still his professional opinion. Mrs. Kitchens was released from the hospital and had no further problems until 1999.

In October 1999, after experiencing symptoms for some months, Mrs. Kitchens went to Dr. Davis Scott Timbert, a breast surgeon, complaining of tenderness in the lateral aspect of her left breast from approximately the “1 o'clock” to the “4 o'clock” position (on the arm side of her areola). The area of the 1997 abscess was not of clinical concern to Dr. Timbert and he never found breast cancer there; but he did not perform a biopsy of that area because he found aggressive cancer in the lateral location. After further tests, Mrs. Kitchens was diagnosed with advanced breast cancer and later with lung cancer. Although she received treatment, she died on October 4, 2000.

On October 3, 2002, Trammell Kitchens, Jillian's husband and the administrator of her estate, brought suit against Dr. Brusman, his practice, and SRMC, on his own behalf for wrongful death and on behalf of the estate for pain and suffering. He claims that Dr. Brusman and his practice were negligent because Dr. Brusman should have detected the cancer or taken other steps to investigate suspicious cells in 1997. This Court has already affirmed summary judgment for SRMC. See Kitchens v. Brusman, 280 Ga.App. 163, 167, 633 S.E.2d 585 (2006).

1. The issue of spoliation concerns the retention of a “tissue block” or “paraffin block” made from the surgical specimen taken from Mrs. Kitchens in October 1997 and, allegedly, two extra slides, as well as retention of the laboratory policies and procedures that were in effect at that time, which, it is alleged, would show how many slides should have been made and how long the slides and tissue block should have been retained. The slide Dr. Brusman examined is still available and has been examined by Kitchens's experts. According to Kitchens, “The paraffin block labeled S97-7885 and the two missing slides are the most important evidence in this medical malpractice case” because they are the only items that can show whether cancer was present in the tissue removed from Mrs. Kitchens in November 1997. Although the trial court did not explain its order, given its rulings, we must conclude that it determined there was no spoliation of evidence attributable to Dr. Brusman or his practice.

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” (Citations and punctuation omitted.) Bouve & Mohr, LLC v. Banks, 274 Ga.App. 758, 762(1), 618 S.E.2d 650 (2005). Accord Silman v. Assocs. Bellemeade, 286 Ga. 27, 28, 685 S.E.2d 277 (2009). “Proof of spoliation raises a rebuttable presumption against the spoliator that the evidence favored the spoliator's opponent, a fact rendering summary judgment inappropriate.” (Citations and punctuation omitted.) Baxley v. Hakiel Indus., 282 Ga. 312, 313, 647 S.E.2d 29 (2007). See also OCGA § 24-4-22. “A trial court has wide discretion in resolving spoliation issues, and we will not disturb the court's ruling absent abuse.” Bagnell v. Ford Motor Co., 297 Ga.App. 835, 840 (4), 678 S.E.2d 489 (2009). See also R.A. Siegel Co. v. Bowen, 246 Ga.App. 177, 179(2), 539 S.E.2d 873 (2000).

The relevant facts are that Dr. Brusman, a pathologist, examines tissue slides and dictates reports on those slides every day and has done so for years at SRMC. As of 1997, Dr. Brusman and two or three other pathologists were members of a professional practice named South Suburban Pathologists, P.C. The practice had an exclusive contract with SRMC under which South Suburban provided pathologists and oversight of the operations of the laboratory, which was located in the hospital. The hospital provided the space, computers, equipment, and supplies, and it hired the technologists and other laboratory personnel. And it was the hospital's responsibility to find a place for storage and to handle the storage and disposal of tissue blocks and slides; hospital employees were the custodians of those items. But Dr. Ann Early, the partner in South Suburban designated as the director of the SRMC laboratory, testified that, as director, she was charged with making sure the laboratory complied with the policies and procedures of the State of Georgia as well as those of the laboratory itself, which include retention times.

On November 3, 1997, Dr. Brusman examined one slide of material taken from Mrs. Kitchens's breast tissue. The slide was made from a tissue block that was made from the gross specimen taken during the incision and drainage procedure. Additional slides could be made from the block if it were available today. The evidence in the record shows that only one slide was made at that time, although there is some conflict in the testimony as to whether the applicable procedure or practice called for three slides to be made. In addition to the one slide that Dr. Brusman saw, more than twenty other slides were created at SRMC from other tissue samples taken from Mrs. Kitchens during the course of her treatment at SRMC. For instance, on January 4, 2000, in connection with a lung biopsy slide, Dr. Brusman diagnosed Mrs. Kitchens with adenocarcinoma. At that time, he also developed the opinion that his findings of adenocarcinoma, which could have originated elsewhere in the body, would be consistent with a conclusion that the cancer originated in the breast.

In 1997, and at least through late 2002, the applicable SRMC retention policy was at least five years for blocks and ten years for slides, although those times were doubled as of November 2002. Thus, the block should have been retained at least through November 2002, and any possible extra slides for much longer. The blocks were kept in the storeroom in numerical order, which amounted to the same thing as date order. After the appropriate number of years, blocks were discarded in batches when the storage area became full; all items older than a certain date would be discarded, but no record was kept of which items were actually discarded.

From time to time, the pathology laboratory received requests to view patient slides from patients, doctors, attorneys, and other institutions, and there was a procedure for checking out the slides that involved the pathologist that handled the case. On August 14, 2002, Mr. Kitchens's attorney appeared at the hospital and presented the secretary of the pathology department with a request for Mrs. Kitchens's slides but not for any blocks. In accordance with the checkout procedure, the secretary gathered all of Mrs. Kitchens's slides from her history at SRMC and took them to Dr. Brusman for review so that he could choose the material to be forwarded; the attorney waited at the secretary's desk. Dr. Brusman selected a total of twenty-two slides-including the one slide that he had reviewed on November 3, 1997, and twenty-one others from later dates. He then brought them back to the secretary's desk, and they were given to the attorney. No evidence has been cited concerning any discussion that may have occurred during that exchange.

On October 7 and 8, 2002, SRMC and Dr. Brusman, respectively, were served with the plaintiff's lawsuit. Dr. Brusman testified that service of the lawsuit was the first time that he became aware of a concern about Mrs. Kitchens's pathology slides. He also testified that sometime later on the day he was served, he went to the pathology lab to locate Mrs. Kitchens's slides. After he could not find them, the pathology secretary told him that Mr. Kitchens's attorney still had them. The secretary then went to look for the block and could not find it; she reported it to Maria Winn, the SRMC histology lab supervisor, who also searched for but could not find the block, even though her department was responsible for retention and disposal of tissue blocks.

In fact, all of the blocks older than the one requested were gone; it is not known how many, if any, blocks newer than that block were missing. Despite extensive discovery,...