Owensby v. Williams

• Decision Date: 28 May 2020
• Docket Number: A20A0652
• Parties: OWENSBY v. WILLIAMS.
• Court: Georgia Court of Appeals

355 Ga.App. 695

843 S.E.2d 899

OWENSBY

v.WILLIAMS.

A20A0652

Court of Appeals of Georgia.

May 28, 2020

Norman Marshall Sawyer Jr., Douglas Blake Chanco, Atlanta, for Appellant.

Joshua Stephen Ruplin, Marietta, Russell Dunn Waldon, Atlanta, for Appellee

Rickman, Judge.

Following the grant of her application for interlocutory appeal, Constance Owensby appeals the trial court's order sustaining Jason Williams's pre-trial objections to her treating physician's second medical narrative.¹ She contends that the trial court abused its discretion in sustaining Williams's objections to the narrative because the physician's discussion of future treatment was not "too speculative, inconclusive, or vague," the physician's opinion that Owensby was not a malingerer was part of his diagnosis, and the physician properly expressed an opinion on causation. For reasons that follow, we reverse and remand the case with direction.

On October 12, 2016, Owensby and Williams were involved in a multi-vehicle collision. Owensby subsequently brought a personal injury suit against Williams and sought several types of damages, including past and future medical expenses. Williams admitted to his negligence in causing the collision but denied responsibility for any injuries claimed by Owensby.

During the litigation, Owensby filed a notice of intent to introduce at trial medical records in narrative form pursuant to OCGA § 24-8-826. She attached a medical narrative from a treating physician, which included an estimate of the approximate cost of future medical treatment, and medical records from the physician's office. Williams objected to the narrative on numerous grounds – the physician's statement of need for future treatment was too inconclusive, speculative, and vague; the statement regarding the cost of future medical treatment was too vague and speculative; there was no foundation for the physician's statements relating his treatment to the collision; the narrative contained unexplained medical terms; the attached medical records were not submitted in narrative form; and the narrative was not presented under oath. Williams also challenged the constitutionality of the statute authorizing the use of medical reports in narrative form in lieu of live testimony, OCGA § 24-8-826. The trial court ruled that certain portions of the narrative, including the cost of future treatment, were too vague, speculative, and conjectural in nature. The court also ruled that the attached medical records did not fall within the definition of a narrative report and stated that it was concerned with the foundation for the physician's opinion on proximate cause. The court's order did not mention the other issues raised by Williams.

Following the trial court's ruling, Owensby filed a second notice of intent to introduce medical records in narrative form and attached a revised medical narrative, which omitted any estimate of the approximate cost of future medical treatment. The second narrative was submitted without medical records attached. Williams objected and asserted that the second narrative's discussion of the need for future treatment was too inconclusive, speculative, and vague; the new statement that, in the physician's opinion, Owensby is not a malingerer was not appropriate for a medical narrative; and the physician's opinion on causation was not based on first-hand knowledge and was not admissible. The trial court ruled that the second narrative was substantially similar to the first narrative and that certain portions of the narrative were inadmissible as too vague, speculative, and conjectural in nature and could not form the basis of a claim for future medical expenses. The trial court also agreed that the physician's opinion that Owensby is not a malingerer was not appropriate for a medical narrative. Finally, the trial court stated that it was "concerned" about the foundation for the physician's opinion on the issue of proximate cause.

"We review a trial court's decision on the admissibility of evidence under an abuse of discretion standard." Lott v. Ridley , 285 Ga. App. 513, 514 (1), 647 S.E.2d 292 (2007). "An abuse of discretion occurs where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law." (Citation and punctuation omitted.) Eagle Jets, LLC v. Atlanta Jet, Inc. , 347 Ga. App. 567, 576 (2), 820 S.E.2d 197 (2018).

Georgia law allows medical narratives to be used as evidence under certain conditions. Pursuant to OCGA § 24-8-826 (a),

Upon the trial of any civil proceeding involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed physician ... shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness; provided, however, that such report and notice of intention to introduce such report shall first be provided to the adverse party at least 60 days prior to trial.... [T]he opinion of the person signing the report with regard to the etiology of the injury or disease may be included as part of the diagnosis. Any adverse party may object to the admissibility of any portion of the report, other than on the ground that it is hearsay, within 15 days of being provided with the report. Further, any adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony. The party tendering the report may also introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise.

"The medical narrative shall be presented to the jury as depositions are presented to the jury and shall not go out with the jury as documentary evidence." OCGA § 24-8-826 (b).

Here, in his second medical narrative, Owensby's physician initially set out his qualifications as a licensed medical doctor. He stated that Owensby was first seen approximately six months after the collision and noted that she complained of low back, neck, and shoulder pain. After physically examining Owensby and reviewing...