Rhoades v. McCormack
| Decision Date | 14 February 2020 |
| Docket Number | A19A1751, A19A1752 |
| Parties | RHOADES v. MCCORMACK et al.; and vice versa. |
| Court | Georgia Court of Appeals |
George Lee Phillips Jr., Michael Benjamin Hill, for Appellant
John Robert Autry, Matthew Scott Coles, Lawrenceville, for Appellee.
After Lauren Rhoades suffered facial burns while undergoing a oral surgical procedure for temporomandibular joint syndrome
("TMJ"), she brought a medical/dental malpractice action against William Robinson McCormack, DMD, the oral surgeon who performed the procedure, and Macon Oral and Maxillofacial Surgery, P.C. (collectively "Defendants").1 The trial court directed a verdict in favor of Defendants at the conclusion of Rhoades’ case-in-chief and entered final judgment for Defendants accordingly. Rhoades appeals from that ruling in Case No. A19A1751. In Case No. A19A1752, Defendants appeal from the trial court’s denial of their motion to dismiss Rhoades’ notice of appeal on the grounds that Rhoades failed to timely file the trial transcript. As more fully set forth below, we find a verdict was properly directed in this case, and thus affirm the trial court’s order entering judgment in favor of Defendants. Because that affirmance renders the denial of Defendants’ motion to dismiss moot, we dismiss the appeal in Case No. A19A1752.
1. We turn first to Rhoades’ appeal from the grant of a directed verdict in favor of Defendants on her professional negligence claims.
(1) A directed verdict is authorized only where the evidence, with all reasonable deductions and construed in favor of the nonmovant, demands a particular verdict. OCGA § 9-11-50 (a). But where any evidence or some evidence exists to support a jury issue on the nonmovant’s claims, a directed verdict is improper. (2) This Court conducts a de novo review on appeal from the grant of a directed verdict, and we will uphold a directed verdict only if all of the evidence demands it.
(Citation and punctuation omitted.) Sun Nurseries v. Lake Erma, LLC , 316 Ga. App. 832, 835, 730 S.E.2d 556 (2012). See also Smith v. Rodillo , 330 Ga. App. 365, 365 (1), 765 S.E.2d 432 (2014) (physical precedent only).
The record shows that Rhoades suffered from temporomandibular joint pain. At the time Rhoades first consulted Dr. McCormack, she was in extreme pain and her jaw on her right side had become locked. After more conservative treatments failed, Dr. McCormack performed intraoral surgery on Rhoades on September 23, 2015. The procedure required making cuts in a certain joint, and an oscillating saw was used to perform this part of the operation.
The operation lasted approximately 2.5 hours and was performed under general anesthesia
. Immediately after the surgery, Dr. McCormack noticed that Rhoades’ face and lips were bruised and swollen, but attributed it to the normal swelling typically observed after this type of surgery. Although Dr. McCormack testified that he was aware that the hand piece of the oscillating saw could overheat during the surgery and potentially burn the patient, he did not believe that Rhodes had been burned during the surgery because he never felt the hand piece heat up, and there had been no other incidents with any of the other equipment used during the surgery that would have resulted in burns. However, after Rhoades’ condition did not improve as expected, Dr. McCormack referred her to a plastic surgeon, who diagnosed her with second to third degree burns.
As for the cause of the burns, Dr. McCormack testified that he did not know how they happened, but "the only thing that makes any sense, that it would have to have been the hand piece [on the oscillating saw] malfunctioning and ... directly transmitting heat from it to these retractors that are laying on the face." Dr. McCormack also testified that he recognized that these devices can overheat, and the safety protocols require the doctor to cycle the device on and off to prevent overheating. A conservative estimate would be to cycle the saw every ten seconds, but due to the nature of the surgery here and the need to see clearly the area being operated on, Dr. McCormack stopped the saw every five seconds at most. He said another safety measure would be for the doctor to be aware of where the retractors and hand piece were placed in relation to the patient’s face. Dr. McCormack agreed that he was the captain of the ship during Rhoades’ surgery, and that being captain of the ship includes ensuring the safe operation of any surgical tools or instruments utilized during a surgical procedure.
Rhoades’ expert, Dr. Hamlet Garabedian, testified that in his opinion Rhoades was burned because the hand piece of the oscillating saw overheated, which he also identified as a known risk while using the saw. He testified that because the hand piece it is known to overheat, the standard of care requires the surgeon to take certain steps to prevent the patient from being burned. One of those measures is to take periodic breaks, or cycling, to allow the saw to cool down. He said the surgeon can also tell if the device is overheating by touch, at which point the surgeon should stop the procedure to allow it to cool down. Also, the surgeon could try to keep the hand piece from touching the skin, but he opined it was very difficult to do in this type of procedure because of the very narrow space in which the surgeon is working. Personally, Dr. Garabedian would put a moist towel on the patient’s cheek extending over the skin, which creates a layer of insulation, and he opined that a surgeon using moist towels combined with cycling should be able to avoid burns. As to monitoring the device, he said that the surgeon should cycle and pay attention, and that the surgical gloves, particularly if you double glove, may give the surgeon a delayed sensation.
As to the deviation from the standard of care, Dr. Garabedian opined that Dr. McCormack breached the standard He said the formation of his opinion "is based on the fact that there’s a burn and there are only two ways this could have happened, either the cautery
device could have ignited or caused the burn or the hand piece could have heated up and caused the burn." He said that he assumed the only device used was the saw since the other device was not mentioned in the operative notes, and he thus assumed that is how Rhoades was burned.
However, on the specific measures that Dr. McCormack should have taken, Dr. Garabedian testified that he could not draw the conclusion that Dr. McCormack knew the hand piece was heating up because there are situations when it can heat up...
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