Tucker Nursing Ctr. Inc v. Mosby

• Decision Date: 24 March 2010
• Docket Number: No. A09A1756.,A09A1756.
• Citation: 692 S.E.2d 727,303 Ga.App. 80
• Parties: TUCKER NURSING CENTER, INC.v.MOSBY.
• Court: Georgia Court of Appeals

303 Ga.App. 80

692 S.E.2d 727

TUCKER NURSING CENTER, INC.v.MOSBY.

No. A09A1756.

Court of Appeals of Georgia.

March 24, 2010.

COPYRIGHT MATERIAL OMITTED

Carlton Fields, Christopher B. Freeman, Walter H. Bush, Jr., Atlanta, for appellant

Buchanan & Land, Benjamin A. Land, Columbus, for appellee.

ADAMS, Judge.

Ricardo S. Mosby, as personal representative and administrator of the estate of Melvin Raybon, filed suit against, inter alia, appellant Tucker Nursing Center, Inc. asserting claims of negligence and violations of the Georgia Bill of Rights for Residents of Long-Term Care Facilities. In the complaint, as amended, plaintiff sought compensatory damages for pain, suffering and loss of dignity and special damages for medical expenses incurred as a result of Mr. Raybon's treatment at subsequent health care facilities for a Stage IV decubitus ulcer which developed on Mr. Raybon's left buttock while he was a resident at Tucker Nursing.¹

The underlying facts will be set forth briefly and further developed to address the issues raised in this appeal. At the time Mr. Raybon was admitted to Tucker Nursing, he was at risk for developing pressure sores or ulcers because of underlying medical conditions which included diabetes, peripheral vascular disease, a frontal lobe craniotomy performed to treat a brain tumor, amputation of his left leg, immobility and incontinence. Plaintiff contended that because of Mr. Raybon's condition, Tucker Nursing had a duty to implement appropriate preventive measures, including frequent turnings and repositioning. However, plaintiff presented evidence at trial showing that Mr. Raybon was not regularly turned and repositioned as his condition required. Plaintiff also contended that once the ulcer developed on his left buttock, Tucker Nursing did not appropriately assess and treat the ulcer, leading to numerous complications, including sepsis and malnutrition, requiring multiple hospitalizations and medical procedures, including a colostomy, the insertion of feeding tubes and surgical debridements of the wound. Additionally, plaintiff contended that because Mr. Raybon could not be positioned on his left side once he developed the pressure sore, he subsequently developed another pressure sore on his right side which required additional treatment.

A jury awarded the plaintiff $1,250,000 in special and compensatory damages, and the trial court entered judgment accordingly. Tucker Nursing appeals, challenging certain evidentiary rulings and portions of the trial court's charge to the jury. We affirm.

1. Citing Lester v. S.J. Alexander, Inc., 127 Ga.App. 470, 193 S.E.2d 860 (1972), Tucker Nursing first contends that the trial court erred by admitting Mr. Raybon's extensive hospital bills because the plaintiff failed to segregate the amount of damages directly traceable to Tucker Nursing's alleged negligence from other unrelated expenses. Tucker Nursing argues that admitting the medical bills resulted in the introduction of irrelevant evidence that misled the jury as to the amount of special damages which were sought by the plaintiff and forced the jury to speculate on the amount the plaintiff was legally entitled to recover.

In pertinent part, OCGA § 24-7-9(a) allows certain medical bills to be introduced without the necessity of expert testimony “upon a showing by [the] witness that the expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial....” In Lester, we found that the trial court properly excluded medical bills because no evidence was presented to differentiate between expenses directly related to the treatment of plaintiff's injuries from an automobile collision and those connected with the treatment of an unrelated kidney ailment. In upholding the trial court, we reasoned that the evidence was inadmissible both because no showing had been made that the “expenses were incurred in connection with the treatment of the injury, disease or disability,” caused by the tort, and under the “rule that testimony offered as a whole without separating the relevant from that which is irrelevant and inadmissible is to be repelled in its entirety.” (Citations omitted.) Lester, 127 Ga.App. at 472(1), 193 S.E.2d 860.

[1] [2] Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury or the trial judge in nonjury cases can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guess work. (Cit.) Big Builder v. Evans, 126 Ga.App. 457, 458(2), 191 S.E.2d 290 (1972). In his or her sound discretion, a trial judge can properly exclude such a medical bill from evidence for the plaintiff's failure to segregate out the unrelated expenses from the medical expenses that were the necessary result of the tort. Lester[, 127 Ga.App.] at 472, 193 S.E.2d 860; see also Jordan v. Hagewood, 133 Ga.App. 958, 959(2), 213 S.E.2d 85 (1975).

CFUS Properties v. Thornton, 246 Ga.App. 75, 79(3), 539 S.E.2d 571 (2000).

We find no abuse of discretion in the admission of the medical bills in this case. Plaintiff's expert, Dr. Deborah Robin, testified that Mr. Raybon was in the hospital for approximately 120 days to undergo treatment for the ulcer, and that the only reason he required hospitalization on those occasions was for the treatment of the ulcer and the resulting complications. Dr. Robin also testified that any other treatment Mr. Raybon required during his hospital stays was to manage his chronic or ancillary conditions and that those conditions could have continued to be managed in a nursing home setting if he had not required the repeated hospitalizations for treatment of the ulcer and complications. Thus, in order to calculate the amount of damages directly attributable to the treatment of the ulcer, Dr. Robin deducted the amount, based on his prior nursing home bills, Mr. Raybon would have incurred for nursing home care during the hospitalizations, from the total medical expenses incurred during his hospitalizations ($259,142 minus $29,467) thereby attributing $229,675 directly to the treatment of the ulcer. Dr. Robin also testified that although the amount of nursing home costs was an “estimate,” she calculated the nursing home costs on the “high” end and that it was her opinion that this was a fair and reasonable way of determining the amount of medical bills that Mr. Raybon incurred as a result of requiring the additional extensive treatment for the ulcer.

[3] [4] [5] A jury must be able to calculate the amount of damages from the data furnished and it cannot be placed in a position

where an allowance of loss is based on guesswork. [Cit.] A jury must be able to calculate loss with a reasonable certainty. [Cit.] The party claiming damages carries not only the burden of proving the damages, but also furnishing the jury with sufficient data to estimate the damages with reasonable certainty. It is not necessary, however, that the party on whom the burden thus rests should submit exact figures.

(Citation and punctuation omitted.) Moultrie Farm Center v. Sparkman, 171 Ga.App. 736, 740(6), 320 S.E.2d 863 (1984).

Contrary to Tucker Nursing's contentions on appeal, we do not believe that Lester mandates reversal here. In Lester, unlike the present case, the plaintiff offered no basis to distinguish the expenses incurred on account of treatment for the injury resulting from the tort from those incurred because of plaintiff's other medical condition. Although it is obvious in this case that separating the costs solely attributable to the treatment of the ulcer cannot be calculated precisely or with absolute certainty, that is not the standard that applies. Based on the circumstances here, we believe that the plaintiff provided the jury with a method of calculating the damages with the necessary reasonable degree of certainty. This enumeration thus provides no basis for reversal.

2. Citing OCGA § 24-2-2, Tucker Nursing next contends that former employees were improperly allowed to testify, via their videotaped depositions, about inadequate staffing, lack of supplies, complaints about care and deficient care generally at Tucker Nursing. Tucker Nursing argues that the admission of this evidence violated the general prohibition on the admission of “bad character” evidence and the general prohibition on the admission of prior conduct or negligence to prove the specific act of negligence for which recovery is sought.

The record shows that Tucker Nursing filed a motion in limine to exclude this evidence, and that the trial court denied the motion

to the extent it seeks to exclude the testimony of former Tucker Nursing Center employees regarding their experience and observations at Tucker Nursing Center during their employment there. This Court finds that, as a general rule, evidence of conduct while the decedent was a resident at Tucker Nursing Center is relevant and admissible. To the extent that Plaintiff intends to introduce evidence of other prior conduct by Defendant to prove negligence in this case, the Court withholds ruling until Plaintiff can lay a proper foundation for such evidence.

At the outset we note that the trial court's ruling, as quoted above, did not permit the “wholesale introduction of prejudicial similar acts testimony” as Tucker Nursing contends on appeal. Rather, read in its entirety, the trial court found that, generally, evidence of how the nursing home was run while Mr. Raybon was a resident at Tucker Nursing would be relevant and admissible. And the trial court specifically stated that its ruling did not extend to the admission of evidence of prior conduct to prove negligence in this case. Thus, it was incumbent upon Tucker Nursing to object to evidence of that nature if and when it was introduced at trial, since the trial court specifically withheld ruling on its admissibility. See Rogers v....