Thomas v. Emory Clinic, Inc.

• Decision Date: 11 April 2013
• Docket Number: No. A12A2337.,A12A2337.
• Citation: 321 Ga.App. 457,739 S.E.2d 138
• Parties: THOMAS v. The EMORY CLINIC, INC.
• Court: Georgia Court of Appeals

321 Ga.App. 457

739 S.E.2d 138

THOMAS

v.The EMORY CLINIC, INC.

No. A12A2337.

Court of Appeals of Georgia.

March 26, 2013.

Reconsideration Denied April 11, 2013.

Vincent R. Lauria, Charles Madden Cork III, for Appellant.

Bendin, Sumrall & Ladner, Benjamin David Ladner, Melanie Shirley Taylor, Brian David Trulock, for Appellee.

McFADDEN, Judge.

Staci Thomas appeals the defense verdict in her medical malpractice action against the Emory Clinic, Inc. She argues that the trial court erred in admitting hearsay evidence and abused its discretion in refusing to replace a juror who did not disclose in voir dire his niece's relationship to several witnesses. We agree that the trial court erred in admitting hearsay. We find that the error was harmful, despite the proper admission of similar evidence. We therefore reverse. We do not reach the question whether the trial court abused its discretion in refusing to replace the juror.

Jeffrey Olson, a neurosurgeon employed by the Emory Clinic, performed surgery to remove a choroid plexus papilloma, a type of benign brain tumor, from Thomas on November 4, 2002. The gravamen of Thomas's complaint is that foreign material was left behind.

Although the average recovery time from such surgery is six to eight weeks, Thomas's condition did not improve. Among other problems, she vomited constantly, to the extent that she required a feeding tube; she suffered depression; and she experienced such severe headaches that she required morphine. Thomas was treated with prescription medications, underwent brain imaging, and underwent multiple examinations with other Emory specialists, including a gastroenterologist, an endocrinologist, an oncologist, a psychiatrist and a psychologist. She underwent a lumbar puncture and the insertion of a feeding tube and a shunt. Dr. Olson did not think it reasonable to perform exploratory surgery, given the images of Thomas's brain and the risks involved.

In October 2003, when Thomas still had not improved, she sought treatment at the Mayo Clinic in Florida. There it was determined that she had a lesion in the area of her brain where the tumor had been removed. After undergoing radiation and chemotherapy at the Mayo Clinic, the lesion shrank and Thomas's symptoms improved. But the lesion eventually started growing again, and her symptoms returned.

On March 8, 2006, Kent New, a neurosurgeon at the Mayo Clinic, removed the lesion. Pathology of the specimen showed that the lesion was not a tumor but rather an inflammation caused by a reaction to the presence of cotton fibers shed from “cottonoids” or “surgical patties,” small, square or rectangular sponges made of compressed cotton and used in surgery.

Thomas filed this action against Emory, alleging that her injuries were caused by Emory employees leaving foreign material—cotton fibers—at the surgical site when her brain tumor was removed. She also alleged that Emory violated the standard of care by failing to determine and alleviate the cause of her symptoms. A jury returned a verdict in favor of Emory, upon which the trial court entered judgment. After the trial court denied her motion for new trial, Thomas filed this appeal.

1. The admission of testimony about the pathologists' report.

Thomas argues that the trial court erred by admitting certain testimony of Kent New, the Mayo Clinic neurosurgeon who removed Thomas's lesion in March 2006. New testified at his deposition that he submitted the specimen he removed for testing, and that he “had talked to the pathologist[s] about it and they had told [him] not only in the actual report did they not make a comment on it, but they said that from what they saw that they didn't notice that any foreign body material was in the specimen.” He testified that the pathologists did not find “a clear portion of the [patty] in the pathologic examination.... [T]hey didn't, they didn't see a clear foreign body.” He reiterated several times that the pathologists had not seen any foreign material in Thomas's sample. The videotape of New's deposition was played for the jury. The court overruled Thomas's hearsay objection to the testimony because she “did not object in a timely fashion, when this came up” at New's deposition.

(a) The standard of review.

Generally, “[t]he admission of evidence lies in the sound discretion of the trial court.” Dept. of Transp. v. Mendel, 237 Ga.App. 900, 902(2), 517 S.E.2d 365 (1999). But in this case, the court did not evaluate the merits of the evidence. Instead, it simply concluded that as a matter of law, Thomas waived her hearsay objection by failing to assert it at the deposition. We therefore review the trial court's ruling de novo. See Knott v. Knott, 277 Ga. 380, 381(2), 589 S.E.2d 99 (2003) (lower court's conclusions with respect to matters of law are subject to de novo review).

(b) The testimony was hearsay.

Emory argues that New's testimony about what the pathologists told him was not hearsay. We are not persuaded. Former OCGA § 24–3–1(a) defined hearsay as evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” (The new evidence code, effective January 1, 2013, defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24–8–801(c).) Hearsay is “testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” Miness v. Miness, 254 Ga. 658, 659(1), 333 S.E.2d 574 (1985) (quoting McCormick on Evidence, 2nd ed., § 246, p. 584 (1972)).

Emory argues that given its concession that the specimen contained fibers, the testimony was not hearsay because it was not offered to prove the truth of the matter asserted, the absence of fibers in the specimen. Rather, Emory contends, the testimony was elicited to offer additional support for the course of treatment of Olson, the Emory neurosurgeon, as it further demonstrated the difficulty of seeing fibers left in surgical sites. But for the testimony to support such a contention, it had to be offered to show the truth of the matter asserted therein—that the pathologists “ didn't notice that any foreign body material was in the specimen.” The testimony thus rested “for its value upon the credibility of the out-of-court asserter[s],” Miness, 254 Ga. at 659(1), 333 S.E.2d 574, the pathologists, and the testimony was hearsay.

(c) The failure to raise the hearsay objection at the deposition did not waive the objection.

OCGA § 9–11–32(b) provides that, with some exceptions, objections to deposition testimony “may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.” “Objections as to the competency and relevancy of the evidence need not be made at the taking of the depositions.” (Citation omitted.) Hamilton v. Pulaski County, 86 Ga.App. 705, 709–710(2), 72 S.E.2d 487 (1952). The trial court erred by ruling that Thomas waived her hearsay objection because under OCGA § 9–11–32(b), she had the right to object to New's deposition testimony at trial even though she did not object at the deposition.

Emory argues that one of the exceptions to the statute applies. That exception, found at OCGA § 9–11–32(d)(3)(A), provides:

[o]bjections to the ... competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.” We conclude that the exception does not apply because the hearsay nature of the testimony could not have been “obviated or removed” had Thomas objected at the deposition: with or without an objection, New's testimony about what the pathologists told him was hearsay, and an objection would not have provided any way to cure that fact. Compare Andean Motor Co. v. Mulkey, 251 Ga. 32(1), 302 S.E.2d 550 (1983) (if party “had objected during the deposition to the absence of proof of the witness' competence to testify as an expert, defense counsel might have been able to cure this ground of objection by proof of the witness' qualifications”). Accordingly, Thomas did not waive her hearsay objection by failing to assert it at the deposition.

(d) The admission of the hearsay testimony was harmful.

Because the improperly admitted evidence related to a core issue about which the evidence was conflicting, application of the “cumulative evidence” rule to find the error harmless would be inappropriate. The admission of other evidence similar in nature does not alone determine whether the error was harmful. To determine whether an error is of reversible magnitude, we must consider the nature of the improper evidence in light of the issue it tends to prove or disprove. Here, one of the core issues was whether Jeffrey Olson, the Emory neurosurgeon, committed malpractice by leaving too many cotton fibers in the plaintiff's brain. Therefore, evidence about what was visible when the resulting lesion was later excised, such as hearsay testimony that neuropathologists saw no fibers in the lesion, is central to a critical issue. In a civil jury trial, the plaintiff need only prove her case by a preponderance of the evidence, and adding the weight of the improper evidence could easily have tipped the scales in the defendant's favor.

“When [an appellant] brings a case here he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.” Brown v. City of Atlanta...