Piedmont Newnan Hosp., Inc. v. Barbour
| Decision Date | 16 July 2015 |
| Docket Number | No. A15A0568.,A15A0568. |
| Parties | PIEDMONT NEWNAN HOSPITAL, INC. v. BARBOUR et al. |
| Court | Georgia Court of Appeals |
333 Ga.App. 620
774 S.E.2d 822
PIEDMONT NEWNAN HOSPITAL, INC.
v.
BARBOUR et al.
No. A15A0568.
Court of Appeals of Georgia.
July 16, 2015.
Reconsideration Denied July 30, 2015.
Certiorari Denied Oct. 19, 2015.
King & Spalding, Chilton D. Varner, Merritt E. McAlister ; Weathington Smith, Paul E. Weathington, Charles M. Smith, Paul I. Hotchkiss, for Appellant.
The Summerville Firm, Darren Summerville, Angela R. Fox, Bell Law Firm, Lloyd N. Bell, The Schlachter Law Firm, Lawrence B. Schlachter, for Appellee.
Opinion
RAY, Judge.
This case presents the interesting issue of whether it is permissible for a trial court to allow members of a jury to use their sense of touch during a trial to determine a critical issue of fact, just as they might use their senses of sight and hearing. The issue arose when plaintiff's counsel requested and received permission for members of the jury to briefly touch both of the plaintiff's hands to determine if there was a detectable difference in the temperature of each hand, which would be an important factor in determining whether the plaintiff had Complex Regional Pain Syndrome (“CRPS”). The plaintiff claimed that his arm was damaged while undergoing a medical procedure performed at the defendant hospital, causing him to suffer from CRPS, with one consequence being that his damaged arm was
much colder than normal. The experts who testified on behalf of the parties disagreed as to whether there was a meaningful difference in temperature of the plaintiff's hands, even though they agreed that a temperature asymmetry would be an important factor in determining whether the plaintiff suffered from CRPS.1
Under the circumstances of this case, we do not believe that the trial court abused its discretion in allowing the jurors to touch the plaintiff's hand to determine for themselves which of the two experts was correct as to this critical fact, and possibly, which expert had greater credibility as to his medical diagnosis of whether the plaintiff did or did not suffer from CRPS. Additionally, we find that the trial court properly acted within its discretion by issuing its spoliation order regarding evidence which the defendants admittedly failed to preserve for trial. However, we also find that evidence as to future lost wages which the plaintiff might suffer was at best speculative and unsupported. Accordingly, we affirm the judgment in principal part, but reverse the judgment as it pertains to the $1,195,957 awarded for future lost wages.
On June 1, 2011, Plaintiff–Appellee Michael Barbour arrived at Appellant Piedmont Newnan Hospital (“Piedmont Newnan”) complaining of chest pains and difficulty with breathing. He underwent a series of diagnostic tests to assess his heart, principally a nuclear stress test to compare the blood flow into his heart while he was both at rest and under stress. This procedure involves injecting a small amount of nuclear material into the bloodstream to act as a tracer to the heart to facilitate the taking of a “resting” image of the patient's heart. Thereafter, the patient then exercises to increase his heart rate, then receives another injection of the same nuclear tracer, and then a second image of the “stressed” heart is taken. As to Mr. Barbour, in each instance the nuclear tracer was introduced through an IV catheter which was originally placed in his left
arm when he first received treatment upon arriving at the emergency room.
The “resting” phase of the test went off without any outward indication of a problem. The nuclear material was introduced into Mr. Barbour's vein, and Piedmont Newnan proceeded to take an image of his heart. Thereafter, Mr. Barbour proceeded to the “stress” portion of the test. First, he began walking on a treadmill to induce his heart to reach the target rate; this took approximately ten minutes. Then, the radioactive tracer was injected into the catheter in Mr. Barbour's arm
while he remained on the treadmill. Eventually, however, Mr. Barbour felt a sharp pain and cried out, leading the nurse to immediately terminate the test as she believed that the tracer material had infiltrated Mr. Barbour's arm, meaning that the material was not contained within his vein and bloodstream, but had leaked into the soft tissue of his arm. Mr. Barbour's arm swelled and became discolored, and a bulge appeared near where the IV port was located. No image of Mr. Barbour's heart was taken as the attention of hospital staff shifted to treating his arm. Eventually, Mr. Barbour was discharged with specific instructions related to his arm.
The pain in Mr. Barbour's arm did not subside. He called a nursing hotline four days after the infiltration complaining that it was worsening, including that his arm was burning, tingling and swollen. He visited his primary care physician three weeks later, having much the same complaints, including that the arm was “icy hot.” After the pain spiked further while playing softball, he sought care from two nearby emergency rooms, including at Piedmont Newnan. Eventually, neurologist Dr. Knobler diagnosed Mr. Barbour with CRPS, a diagnosis that was later confirmed by Dr. Andrew Koman, an orthopedic surgeon and expert on CRPS. It was Dr. Koman's opinion that the infiltration of the nuclear tracer outside the vein, combined with blood then escaping the vein, had a damaging impact on the nerve.
Mr. Barbour underwent a series of medical procedures to address the problems in his arm. Dr. Koman performed two surgeries on a nerve in Mr. Barbour's left arm. Dr. Erik Shaw of the Shepherd's Clinic, who specializes in CRPS, also provided treatment to Mr. Barbour. These surgeries and medical treatment were an issue at the trial, with Piedmont Newnan claiming that they were the source of Mr. Barbour's CRPS, if indeed he really had this condition, which Piedmont Newnan did not concede.
In May 2012, Mr. Barbour and his wife filed a medical malpractice case against Piedmont Newnan and one of the nurses involved with his care during the subject stress test, alleging that they failed to ensure that the IV was correctly installed and properly functioning prior to the test, thus causing the infiltration of the nuclear tracer in his arm and the development of CRPS.2 The case proceeded to trial on May 5, 2014 and lasted for nine days. Piedmont Newnan denied
negligence in its treatment of Mr. Barbour, denied that he had CRPS, and, to the extent that he did, denied that anything it did caused the condition, instead placing the blame on the physicians who had later treated Mr. Barbour.
The trial developed into the classic “battle of the experts,” with Mr. Barbour's expert testifying that he did have CRPS and Piedmont Newnan's expert claiming otherwise. First, Piedmont Newnan called Dr. Arnold Weiss to testify that Mr. Barbour did not have CRPS.3 Dr. Weiss stated as much, even though he admitted that Mr. Barbour was in chronic pain and that he saw nothing in the medical records to suggest that he was faking. He also acknowledged that Dr. Koman, one of Mr. Barbour's treating physicians, was very qualified and knowledgeable about CRPS. Importantly, he admitted that, in his practice, he would not confirm or rule out a CRPS diagnosis without examining a
patient, even though he was offering testimony that Mr. Barbour did not have CRPS without having ever examined him.
Plaintiff's counsel gave Dr. Weiss that opportunity, asking Dr. Weiss to examine Mr. Barbour's arms in the courtroom, doing so in front of the jury for all to see. As Mr. Barbour outstretched both arms and hands, Dr. Weiss stated that he did not see evidence of skin changes, that the coloring appeared pink on both arms, and that the pattern of hair growth was the same. When asked whether he felt a temperature difference from one hand to the other, Dr. Weiss seemingly hedged his opinion, first stating that they were “roughly the same,” but then acknowledging that the left “is a little cooler.”
Mr. Barbour later called Dr. Shaw to testify. Given the same opportunity to examine Mr. Barbour before the jury, Dr. Shaw pointed out both the discoloration and waxy appearance of Mr. Barbour's injured arm, as well the differing levels of hair growth in the arms. Then, touching each of Mr. Barbour's hands, Dr. Shaw testified that his left hand is “very cool compared to the right arm.” In response to a question as to whether the temperature difference was noticeable, he stated “generally, you'll be able to feel it.... You'll generally be able to detect it with human touch. It has to be greater than one or two degrees difference.... It's pretty easy to detect, so it's got to be greater than one to two degrees.”
Based upon Dr. Shaw's testimony that there was a clear temperature asymmetry between the left and right arms and that it was relatively easy to detect, Mr. Barbour's counsel requested permission from the court to allow the jurors to feel...
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