Sw. Emergency Physicians, P.C. v. Quinney, A18A0871.

Decision Date28 September 2018
Docket NumberA18A0871.
Citation347 Ga.App. 410,819 S.E.2d 696
CourtGeorgia Court of Appeals

Jeffrey Daniel Braintwain, Michael Geoffrey Frankson, Randolph Page Powell Jr., Atlanta, for Appellant.

Virgil Louis Adams, Caroline Whitehead Herrington, Macon, for Appellee.

Dillard, Chief Judge.

Douglas L. Quinney and his wife filed a medical malpractice action against Southwestern Emergency Physicians, P.C., its employee, Raymond E. Gutierrez, M.D. ("Gutierrez"), Phoebe Putney Memorial Hospital (the "hospital"), and several of its employees, alleging that Dr. Gutierrez, inter alia , failed to provide Quinney with proper medical treatment while he was in the emergency department of the hospital and that this failure resulted in Quinney suffering irreversible paraplegia

. Following trial, a jury rendered a verdict in favor of Quinney, and the trial court affirmed the verdict in its judgment. On appeal, Gutierrez contends that the trial court erred in (1) denying his request for a mistrial when Quinney questioned a witness about a prior lawsuit against his practice group; (2) allowing Quinney to argue that an ordinary-negligence standard possibly applied to some aspects of the case despite an appellate ruling from this Court holding that a gross-negligence standard was applicable; (3) instructing the jury that a gross-negligence standard applied with regard to apportioning fault to non-parties; and (4) denying his request to include the hospital, as a separate entity from its employees, on the verdict form for apportionment of fault. For the reasons set forth infra , we affirm.

Construed in favor of the jury’s verdict,1 the record shows that on March 11, 2009, Quinney underwent surgery to have a spinal-cord stimulator

placed in his back to relieve pain related to diabetic neuropathy. A neurosurgeon at Columbus Medical Center performed the surgery, and, immediately thereafter, Quinney was discharged and returned to his home in Albany, Georgia. Initially, Quinney seemed to be recovering well, but five days later, in the early morning hours of March 16, 2009, he awoke with severe pain in his back. Within minutes, Quinney’s pain became even more intense, and he began noticing that his right leg was weakening to the extent that he was having difficulty standing. At that point, Quinney’s wife called 911. And by the time the ambulance arrived, Quinney could no longer move his right leg and had to be lifted on to the ambulance’s stretcher. The ambulance then transported Quinney to the hospital in Albany.

Quinney arrived at the hospital’s emergency department just before 6:00 a.m. and was triaged by nurse David Stalvey. And although Quinney was screaming in pain, he informed Stalvey regarding his history of neuropathy

and that he had recently undergone spinal-cord-stimulator-implant surgery. At 7:00 a.m., a shift change at the hospital resulted in nurse Elizabeth Kenja replacing Stalvey as Quinney’s nurse. A few minutes later, Gutierrez examined Quinney, part of which included a neurologic examination to evaluate his alertness and motor deficits. Gutierrez was also informed regarding Quinney’s recent surgery, and while Gutierrez’s differential diagnosis included the possibilities of a spinal cord abscess or a spinal canal hematoma, he never performed a complete neurologic examination of Quinney. Instead, Gutierrez ordered a CT scan of Quinney’s spine And after that scan was performed, the results were interpreted by Dr. Michael Baldwin, a radiologist at the hospital. But Baldwin found no evidence of an abscess or a spinal cord hematoma, and those findings were conveyed to Gutierrez. Over the course of the next couple of hours, Gutierrez looked in on Quinney a few more times, noted that he remained symptomatic, but conducted no additional physical or neurological examinations and did not consult with the neurosurgeon on call at the hospital.

Thereafter, despite the fact that he never determined the cause of Quinney’s severe back pain and was unable to alleviate it with narcotic pain medications, Gutierrez believed Quinney was stable enough to be transferred. And as a result, at 9:22 a.m., he signed off on an order for Quinney to be transferred to Columbus Medical Center for examination by the neurosurgeon who performed the implant surgery. Nevertheless, Quinney remained at the hospital until approximately 12:40 p.m. before actually being transferred by ambulance to Columbus Medical Center. Upon Quinney’s arrival, his neurosurgeon ordered a CT myelogram

scan, and that test revealed a spinal canal hematoma compressing Quinney’s spine, which had not been diagnosed by Gutierrez, Baldwin, or anyone else at Phoebe Putney Hospital. The neurosurgeon immediately performed surgery to remove the hematoma, but by that point the damage to Quinney’s spine could not be repaired, rendering him irreversibly paralyzed from the waist down and wheelchair bound for the remainder of his life.

Subsequently, Quinney and his wife filed a medical-malpractice action against Gutierrez, his practice group, Southwestern Emergency Physicians, P.C., and Phoebe Putney Memorial Hospital, alleging that Gutierrez failed to provide Quinney with proper medical treatment while he was in the emergency department of the hospital and that this failure resulted in the spinal canal hematoma

going untreated long enough for it to damage his spine and render him irreversibly paraplegic. Those initial defendants filed answers, and not long thereafter, Quinney moved successfully to also add Nurses Stalvey and Kenja as defendants. Stalvey and Kenja then also filed answers and discovery ensued.

Following a few depositions, the defendants moved for summary judgment, arguing that the Quinney’s negligence claims arose solely out of the provision of emergency medical care and, thus, were subject to the gross-negligence standard mandated by the so-called "ER statute," OCGA § 51-1-29.5. The trial court granted the defendants’ motion, and Quinney appealed, arguing that OCGA § 51-1-29.5 was not applicable to his claims and, alternatively, if the statute did apply, that there was sufficient evidence of gross negligence to create a jury issue. And in Quinney v. Phoebe Putney Memorial Hospital, Inc. (" Quinney I "),2 we affirmed the trial court in part and reversed it in part, holding that the services rendered by the defendants constituted emergency medical care and, thus, OCGA § 51-1-29.5 applied,3 but that fact issues remained as to whether the defendants had been grossly negligent in treating Quinney and, therefore, summary judgment was not warranted.4

The case was remitted to the trial court, and discovery continued. Then, after numerous additional depositions, the defendants filed a notice that they would attempt to apportion fault to Baldwin, the hospital’s radiologist, based on their allegations that Quinney’s injuries were also a result of Baldwin’s misreading of the CT scan

and failing to recognize the existence of the spinal canal hematoma. And a few weeks prior to the start of trial, Quinney filed a motion to dismiss with prejudice Nurse Stalvey, Nurse Kenja, and Phoebe Putney Hospital, which the trial court granted.

Subsequently, the case proceeded to a nearly week-long jury trial, during which Quinney and his wife testified, and both the plaintiffs and Gutierrez presented expert testimony from several physicians regarding the treatment provided to Quinney and whether it constituted gross negligence. In addition, Gutierrez and Nurse Stalvey testified as to the specific treatment they provided to Quinney. At the conclusion of the trial, the jury rendered a verdict in favor of Quinney and awarded him $4,500,000 in damages. And specifically, on the verdict form, the jury apportioned 34 percent of the fault to Gutierrez, 33 percent to non-party Nurse Kenja, 33 percent to non-party Baldwin, and zero percent to non-party Nurse Stalvey.

Shortly thereafter, the trial court issued a judgment, affirming the jury’s verdict in favor of Quinney and its apportionment of damages. Gutierrez then filed a motion for new trial, to which Quinney filed a response. But ultimately, the trial court denied Gutierrez’s motion. This appeal follows.

1. Gutierrez first contends that the trial court erred in denying his request for a mistrial when Quinney’s counsel questioned an expert witness about a prior lawsuit against his practice group. We disagree.

When ruling on a motion for mistrial, a trial court is "vested with broad discretion, and this Court will not disturb the ruling absent a manifest abuse of discretion."5 And in reviewing the trial court’s refusal to grant a mistrial, we consider whether "the remarks affected or infected the verdict, and whether it is apparent that a mistrial is essential to the preservation of the right to a fair trial."6

In this matter, shortly before trial, Gutierrez filed a motion in limine, in which he sought to preclude the admission of any evidence of other lawsuits or malpractice claims against him or his practice group. Quinney consented to the motion, and no further action was taken at that time. But in his counsel’s cross-examination of Gutierrez’s first expert witness, the following colloquy occurred:

Q. And you’re not a stranger to [defense counsel], are you?
A. No, sir.
Q. In fact, you’ve worked for [defense counsel] or you’ve reviewed a case that involved Dr. Gutierrez’s old emergency practice group here in town before?
A. Yes.

Subsequently, after asking a couple of questions about being a medical expert and whether he had testified at a trial before, Quinney’s counsel asked Gutierrez’s expert the following:

Q. When you were first asked to review this case, you already knew that the defendant doctor was from the same group that you had worked with [defense counsel] on the other case; right? Southwest Emergency Physicians.
A. I believe I did.
Q. You also knew that [defense counsel] is a doctor defense lawyer?
A. Yes.

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    • Mercer University School of Law Mercer Law Reviews No. 71-1, January 2020
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