KATHY BOONE v. VASCULAR SURGICAL ASSOCIATES, P.C. ( 2024 )

FOURTH DIVISION
DILLARD, P. J.,
BROWN and PADGETT, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
August 2, 2024
In the Court of Appeals of Georgia
A24A0749. KATHY BOONE et al v. VASCULAR SURGICAL
ASSOCIATES, P.C., et al.
DILLARD, Presiding Judge.
Paula Thacker suffered debilitating injuries and ultimately died following
medical treatment for a series of small strokes. Thereafter, Kathy Boone—Paula’s
daughter—filed a medical-malpractice suit against numerous individuals and
companies, including Vascular Surgical Associates, Northwest Neurology, P.C., Dr.
Sandy McGaffigan, Dr. Arun Chervu, and Dr. Gary Jacobson.1 The case proceeded
to a jury trial, after which a verdict was entered in favor of the appellees. Boone
appeals, arguing the trial court erred by (1) permitting an unqualified defense expert
1
Vascular Surgical Associates will referred to as “VSA” throughout this
opinion, and VSA, Northwest Neurology, P.C., Dr. Sandy McGaffigan, Dr. Arun
Chervu, and Dr. Gary Jacobson will be collectively referred to as “the appellees.”
to testify, and (2) giving “no-guarantee” and “differing-views” jury instructions. For
the following reasons, we affirm.2
Viewing the evidence in the light most favorable to the jury’s verdict,3 the
record shows that, in 2016, Thacker was diagnosed with carotid artery disease in her
left and right carotid arteries. Generally, the symptoms of the disease are “some sort
of stroke-like event that could be related to those carotids[,]” but at the time she was
diagnosed, Thacker was asymptomatic. Nevertheless, as a preventative measure,
Thacker was prescribed aspirin and a high-dose statin medication.
On March 25, 2018, Thacker began feeling numbness on the right side of her
face, and Boone took her to Wellstar Paulding Hospital. Once they arrived, Thacker
was evaluated by a doctor who determined she had suffered a series of “small
2
Oral argument was held on May 1, 2024, and is archived on this Court’s
website. See Court of Appeals of the State of Georgia, Oral Argument, Case No.
A24A0749 (May 1, 2024), available at https://vimeo.com/942076478. Of note, two
appellee briefs were submitted in this case, one by VSA, Dr. Chervu, and Dr.
Jacobson, and another by Northwest Neurology and Sandy McGaffigan.
3
See Amu v. Barnes, 286 Ga. App. 725, 725 (650 SE2d 288) (2007) (“[When]
a jury returns a verdict, the same must be affirmed on appeal if there is any evidence
to support it, and the evidence is to be construed in a light most favorable to the
prevailing party with every presumption and inference in favor of sustaining the
verdict.” (punctuation omitted)).
2
strokes[,]”which can cause damage to parts of the brain. As a result, on March 26,
2018, she was transferred to Cobb Hospital for a vascular consult. Later that day,
Thacker was seen by Dr. McGaffigan, a neurologist, as well as other
physicians—including a cardiologist and a vascular surgeon. Following these
evaluations, Thacker was diagnosed with “crescendo TIAs,” which is a “situation
where a patient is having multiple events more and more often.” Thacker was then
placed on an “IV or intravenous heparin infusion drip.” And that night, even though
Thacker was taking heparin, aspirin, and was receiving IV fluids, she suffered an
episode of right facial drooping, numbness in her right hand, and had difficulty
speaking.
Initially, Dr. Jeffrey Winter—a vascular surgeon—scheduled Thacker to
undergo a carotid endarterectomy.4 But the next day, on March 27, 2018, Dr.
Chervu—another vascular surgeon—evaluated Thacker and determined that, instead,
she needed to have a transcarotid artery revascularization (“TCAR”) procedure,
which is a technique by which a metal stent is placed in the patient’s carotid artery.
4
Carotid endarterectomy is “a procedure to treat carotid artery disease.” Mayo
Clinic, https://www.mayoclinic.org/tests-procedures/carotid-endarterectomy/
about/pac-20393379 (Last visited July 30, 2024).
3
And the next morning, on March 28, 2018, Chervu performed the TCAR procedure.
Relevant here, Chervu admitted that he deviated from his medical training by waiting
to administer Plavix5 to Thacker until approximately three hours after the procedure,
rather than beforehand. And in the context of this case, this practice involved
combining aspirin and Plavix, and is referred to as dual-antiplatelet therapy
(“DAPT”).6 Chervu did not administer this therapy to Thacker prior to surgery
because he was concerned about combining these medications due to the heightened
risk of bleeding.
Shortly after the procedure, Dr. Chervu told Boone he was concerned Thacker
might have experienced a new stroke because her blood pressure repeatedly spiked
during surgery. But the doctors who assessed Thacker that afternoon concluded she
had not suffered a new stroke. Additionally, Chervu asked Dr. McGaffigan for help
5
Plavix is “used alone or together with aspirin to lessen the chance of a heart
attack or stroke. ” M a y o C l i n i c , h t t p s : / / w w w . m a y oclinic.org /
drugs-supplements/clopidogrel-oral-route/description/drg-20063146 (Last visited
July 30, 2024).
6
Dual antiplatelet therapy “with aspirin and oral P2Y inhibitors remains the
cornerstone of therapy for patients with acute coronary syndrome (ACS).” Mayo
Clinic, https://www.mayoclinicproceedings.org
/article/S0025-6196(22)00127-6/fulltext (Last visited July 30, 2024) (footnote
omitted).
4
evaluating Thacker because she was a neurologist; and after doing so, she likewise did
not believe Thacker had suffered another stroke. Thacker’s condition improved
throughout the day, and when Chervu evaluated her at 6:30 p.m., she was more alert,
her speech had improved, and she had increased range of motion in her right arm.
Nevertheless, Thacker’s condition worsened over the next several hours, and
by 8:00 p.m., the nurse on duty found her unresponsive. The nurse immediately
performed an “NIH Stroke Scale assessment,” which required him to assign a score
to various categories of symptoms. Thacker’s total score indicated that she had
suffered a “severe stroke.” The nurse also calculated a “Glasgow Coma Score,” and
found that Thacker’s score had fallen from 15 to 10, which suggested she was
experiencing neurological problems. Then, around 8:55 p.m., the nurse called Dr.
Jacobson—who was the vascular surgeon on call—to tell him about the situation. But
according to Jacobson, during the call, he was not informed of the scores Thacker
received on the foregoing scales or anything else suggesting the stent implanted in her
artery was blocked. After Thacker was released from the hospital, her symptoms got
“worse and worse over time”; and tragically, she passed away.
5
Thereafter, on December 19, 2018, Thacker—by and through her next friend,
Boone—filed a malpractice suit against VSA, Dr. Chervu, and Dr. Jacobson.7 Boone
later amended her complaint to include medical-malpractice claims against Northwest
Neurology and Dr. McGaffigan.8 On February 11, 2022, Boone filed a second
amended complaint “in anticipation of the upcoming trial . . . .” Relevant here, Boone
alleged that Chervu was negligent in failing to administer DAPT to Thacker prior to
the TCAR procedure. Following protracted discovery, the case proceeded to trial, and
the jury rendered a verdict in favor of the appellees. Boone filed a motion for a new
trial, raising, inter alia, the same arguments she does now on appeal; but following a
hearing on the matter, the trial court denied it. This appeal by Boone follows.
7
Despite the voluminous 4,465 page record, none of the parties provide a
description, along with record citations, of the procedural history underlying this
appeal. And Boone’s failure to do so is in violation of our rules. See CT. APP. R. 25 (a)
(5) (requiring an appellant, in her brief, “to describe[ ] the relevant proceedings below
. . . with appropriate citations to the record). Needless to say, this Court will not “cull
the record on behalf of a party, particularly in a case such as this where the record is
voluminous.” Callaway v. Willard, 351 Ga. App. 1, 5 (1) (830 SE2d 464) (2019)
(punctuation omitted). So, while it appears our independent review of the record has
likely identified the relevant procedural history, “if we have missed something in the
record . . . the responsibility rests with appellant[’s] counsel.” Pneumo Abex, LLC v.
Long, 357 Ga. App. 17, 18 n.3 (849 SE2d 746) (2020) (punctuation omitted).
8
Boone also named defendants who are not parties to this appeal. All of the
appellees filed responses to each of Boone’s pleadings.
6
When a jury returns a verdict, it must be affirmed on appeal “if there is any
evidence to support it, and the evidence is to be construed in a light most favorable to
the prevailing party with every presumption and inference in favor of sustaining the
verdict.”9 Put another way, a jury verdict, “after approval by the trial court, and the
judgment thereon will not be disturbed on appeal if supported by any evidence, in the
absence of any material error of law.”10 And we review a denial of a motion for a new
trial “according to this same standard.”11 With this deferential standard of review in
mind, we turn now to Boone’s specific arguments.
1. Boone first argues the trial court erred in allowing Dr. Karen Quirk—a
vascular surgeon and defense expert—to testify as to the standard of care for
9
Yash Sols., LLC v. New York Glob. Consultants Corp., 352 Ga. App. 127, 132 (1)
(834 SE2d 126) (2019) (punctuation omitted); accord Green v. Key Custom Homes, Inc.,
302 Ga. App. 800, 802 (1) (692 SE2d 56) (2010).
10
Yash Sols., LLC, 352 Ga. App. at 132 (1) (punctuation omitted); accord Green,
302 Ga. App. at 802-03 (1).
11
Yash Sols., LLC, 352 Ga. App. at 132 (1) (punctuation omitted); accord Green,
302 Ga. App. at 802 (1).
7
administering medicine for patients prior to a TCAR procedure because she was
unqualified to do so.12 We disagree.
OCGA § 24-7-702 (“Rule 702”) concerns the “admissibility of opinion
testimony by expert witnesses in civil cases.”13 And the usual standard for the
admissibility of such testimony is “found in Rule 702 (b) . . . .”14 The version of Rule
702 (b) applicable in this case provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise,
if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
12
Dr. Quirk’s testimony had no bearing on Boone’s negligence claims against
Dr. McGaffigan. As explained infra, Quirk testified about the standard of care for
medicating a patient prior to a TCAR procedure, and McGaffigan was not involved
in any decisions regarding Thacker’s medication.
13
Dubois v. Brantley, 297 Ga. 575, 580 (2) (775 SE2d 512) (2015).
14
Id.
8
(3) The witness has applied the principles and methods reliably to the
facts of the case which have been or will be admitted into evidence before
the trier of fact.15
Importantly, the issue of the admissibility or exclusion of expert testimony “rests in
the broad discretion of the court, and consequently, the trial court’s ruling thereon
cannot be reversed absent an abuse of discretion.”16 Indeed, the Supreme Court of
Georgia has explained that “[t]he whole premise of Rule 702 is that a trial court must
act as a ‘gatekeeper’ to ensure the relevance and reliability of expert testimony.”17
Nevertheless, our Supreme Court has held that “disputes as to an expert’s credentials
are properly explored through cross-examination at trial and go to the weight and
credibility of the testimony, not its admissibility.”18
15
Former OCGA § 24-7-702 (2022) (effective from January 1, 2013 to June 30,
2022). The trial underlying this case occurred in early May 2022.
16
Cleveland v. Sentinel Ins. Co., Ltd., 354 Ga. App. 795, 796-97 (1) (a) (840 SE2d
738) (2020) (punctuation omitted); accord Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5)
(663 SE2d 175) (2008).
17
Dubois, 297 Ga. at 585 (2); see Howell v. Cochran, 365 Ga. App. 80, 84 (a) (877
SE2d 625) (2022) (“Under Rule 702, it is the role of the trial court to act as a
gatekeeper of expert testimony.” (punctuation omitted)).
18
Agri-Cycle LLC, 284 Ga. at 93 (5) (punctuation omitted); accord Savannah
Cemetery Grp., Inc. v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 211 (3) (704 SE2d
9Turning to the instant case, Boone argues that Dr. Quirk was not qualified to
testify as to the standard of care applicable to medicating a patient prior to a TCAR
procedure. And Boone correctly notes that, at the time of trial, Quirk had only
performed eight or nine TCAR procedures, all of which took place after Boone’s 2018
TCAR. Undoubtedly, the easiest way to demonstrate that an expert “has an
appropriate level of knowledge in performing a procedure or teaching others how to
perform a procedure is by proof that the expert actually has done these things . . . .”19
But our Supreme Court has explained that Rule 702 “do[es] not require that an expert
actually have performed or taught the very procedure at issue” to be qualified to
testify.20
And here, prior to trial, Boone filed a motion to exclude “certain opinions of
Karen Quirk, M. D.[,]” contending that she was not qualified to testify regarding the
858) (2010).
19
Dubois, 297 Ga. at 585 (2) (punctuation omitted); accord Mekoya v. Clancy, 360
Ga. App. 452, 459 (1) (861 SE2d 409) (2021).
20
Dubois, 297 Ga. at 584 (2) (punctuation omitted) (emphasis supplied); see
Mekoya, 360 Ga. App. at 459 (1). “[B]y the plain terms of [Rule 702], the pertinent
question is whether an expert has an appropriate level of knowledge in performing the
procedure or teaching others how to perform the procedure, not whether the expert
himself has actually performed or taught it.” Id. (punctuation omitted)).
10
standard of care for medicating patients prior to a TCAR procedure. But the trial
court denied the motion shortly thereafter. In doing so, the trial court expressed
concern that Quirk might not be as knowledgeable or experienced as plaintiff’s
experts, but it nevertheless found she was qualified to testify as to the administration
of medicine prior to a vascular or arterial procedure. The court further noted that the
jury would decide which of the experts they found more experienced and
knowledgeable.
At trial, Boone reasserted her objection to Dr. Quirk testifying to the standard
of care for the administration of medicine prior to the procedure at issue. And during
the discussion of the issue, the trial court stated the following:
I think it really goes— I don’t remember what was asked of her, but—I
mean it goes to a fact question for the jury of whether or not she is qualified.
It appeared that she is and to what extent there [may be] testimony from
other people who performed more of these [TCAR procedures], [the
jurors] can certainly consider that. So that’s just part of the jury’s job.21
Suffice it to say, the trial court misstated the law in asserting that it is the province of
the jury to determine whether an expert is qualified to testify. Indeed, whether an
21
(Emphasis supplied).
11
expert is qualified to testify on a particular subject is within the trial court’s discretion,
and the court serves as the gatekeeper in making such a decision.22 But on appeal, an
appellant must show harm as well as error;23 and in this case, the trial court made it
clear both before and after trial, that it had independently made the determination that
Dr. Quirk was qualified and it was for the jury to determine which experts were more
knowledgeable and experienced.24
22
See supra notes 16-17 & accompanying text.
23
See Madison v. State, 281 Ga. 640, 642 (2) (b) (641 SE2d 789) (2007)
(“[H]arm as well as error must be shown to authorize a reversal by this [C]ourt. When
a plaintiff in error 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.”
(punctuation omitted)); accord Isbell v. Credit Nation Lending Serv., LLC, 319 Ga. App.
19, 22 (735 SE2d 46) (2012). Significantly, Dr. Chervu admitted that he deviated from
the applicable standard of care by failing to give Thacker dual-platelet therapy.
24
In denying Boone’s pre-trial motion to exclude Dr. Quirk’s testimony, the
trial court found Quirk was qualified to testify regarding the standard of care for
administering medicine to patients prior to TCAR surgery and that the jury would
decide which of the experts they found more experienced and knowledgeable. And
again, in denying Boone’s motion for a new trial, the court noted that Boone’s
argument that it shifted the duty to determine whether Quirk was qualified was
“incorrect and taken out of context.” So, despite the trial court’s statements
regarding the jury at trial, the court made clear that it made the qualification decision.
12
Turning to Dr. Quirk’s qualifications,25 she—like Dr. Chervu— is a vascular
surgeon,26 and is board certified in general and vascular surgery. Furthermore, while
Quirk had not performed any TCAR procedures at the time of Thacker’s surgery, her
practice is one hundred percent vascular surgery. She is also experienced in treating
carotid artery disease, seeing approximately 15 patients a month during her eight-year
residency and around 10 patients per month since the conclusion of her training. And
throughout her career, Quirk regularly treated patients who take anti-platelet
medication—the type of medication at issue in this case—for purposes of stroke risk
reduction. So, Quirk is familiar with the risks of this medicine, including
hemorrhaging or bleeding.
25
Boone complains that Dr. Quirk’s trial testimony regarding her qualifications
was inconsistent with her deposition testimony during discovery. But to the extent
Quirk’s testimony was inconsistent in this regard, it was within the trial court’s broad
discretion to determine which testimony was credible. See Dabdoub v. Glob. Home
Image, LLC, 291 Ga. App. 298, 299 (661 SE2d 669) (2008) (noting that, when the trial
court is the fact finder, “[t]he trial court—not this Court—resolves issues of witness
credibility, and conflicting evidence in the record . . . .”).
26
In its order denying Boone’s motion for a new trial, the trial court stated that
Dr. Quirk was not a vascular surgeon, but it is undisputed throughout the record and
the parties’ briefs that she was indeed a vascular surgeon.
13
Dr. Quirk testified that she performed over 200 surgeries involving carotid
artery disease during her training under supervision and between 160 and 180
surgeries following that training. Significantly, a TCAR procedure involves
endovascular stenting, and Quirk regularly performs endovascular stenting
procedures. And according to Quirk, she is experienced in making decisions about
medications for patients who are about to have surgery for carotid artery disease to
minimize the risk of a stroke or blood clot.
Relevant here, Dr. Quirk testified she was familiar with Dr. Chervu’s concerns
about administering DAPT to Thacker prior to surgery. And in this case, DAPT
would only have entailed adding Plavix to the medications Thacker was already taking.
Quirk believed it was reasonable under the applicable standard of care for a surgeon
to be concerned about adding Plavix to those medications. But Quirk testified that
another, safer way to administer DAPT would have been to substitute Plavix for
heparin. Nevertheless, Quirk believed Chervu’s “plan was in compliance with the
medical standard of care.” And Quirk acknowledged that DAPT was the usual
treatment for TCAR patients, but she testified there are always exceptions to “the
rule in medicine.”
14
Given the foregoing, although Dr. Quirk had not performed a TCAR procedure
before 2018, she was a long-time vascular surgeon experienced in performing the same
type of procedure—i.e., procedures involving endovascular stenting—on patients who,
like Thacker, were diagnosed with carotid artery disease. She also regularly managed
the medication administered to those patients. Again, under Georgia law, to be
qualified as a medical expert, the expert is not required to have performed or taught
the exact surgery as the one at issue.27 And significantly, as to the impact of Quirk’s
testimony, although Dr. Chervu explained his reasons for doing so, he admitted to
deviating from the applicable standard of care in his treatment of Thacker. Simply put,
given the foregoing, we cannot say the trial court abused its discretion in qualifying
Quirk as an expert to testify as to the applicable standard of care when medicating
patients prior to TCAR procedures.28
27
See supra note 20 & accompanying text.
28
See Robles v. Yugueros, 343 Ga. App. 377, 384-85 (2) (a) (807 SE2d 110) (2017)
(“Given [the expert’s] medical background and experience, which included reading
the exact type of x-ray at issue here—and doing so in collaboration with emergency
medicine physicians, the trial court did not abuse its discretion in rejecting [the
appellant’s] contention that, because [the expert] was a radiologist who had never
practiced emergency medicine, he was not qualified under OCGA § 24-7-702 . . . to
render opinions regarding [a doctor’s] interpretation of [the appellant’s wife’s
abdominal x-ray].”); Graham v. Reynolds, 343 Ga. App. 274, 278-79 (2) (a)-(b) (807
15
2. Next, Boone contends the trial court gave two non-pattern jury instructions
that improperly placed “a thumb on the scale” in favor of the appellees.29 Again, we
disagree.
We review de novo an allegedly erroneous jury instruction, which is “a legal
question.”30 And in assessing the assertion that a jury instruction was erroneous, it
SE2d 39) (2017) (holding that a doctor was competent to testify as an expert regarding
the standard of care applicable to a doctor in another specialty when the expert had the
requisite knowledge and experience under Rule 702 to give expert testimony regarding
the acts or omissions of a doctor in another specialty); Cotten v. Phillips, 280 Ga. App.
280, 282-83 (633 SE2d 655) (2006) (holding that trial court did not abuse discretion
in finding that vascular surgeon was qualified to testify as to orthopedic surgeon’s
failure to properly assess, monitor, and respond to patient’s vascular condition during
orthopedic treatment and surgery).
29
Trial courts are not legally bound to use the exact language in Georgia’s
suggested pattern jury instructions when charging a jury. See Bailey v. Edmundson, 280
Ga. 528, 534 (7) (630 SE2d 396) (2006), superseded by statute on other grounds as
acknowledged by Chrysler Grp., LLC v. Walden, 303 Ga. 358 (812 SE2d 244) (2018)
(“There is no requirement that only verbatim pattern charges are permissible.”);
Showers v. State, 353 Ga. App. 754, 760 (2) (b) (ii) (839 SE2d 245) (2020) (“It is
well-established that jury instructions do not need to track, exactly, the language of
pattern jury instructions.” (punctuation omitted)). In fact, in some cases, this Court
has disapproved of language in a pattern instruction. See, e.g., White v. Stanley, 369 Ga.
App. 330, 337-38 (1) (893 SE2d 466) (2023) (holding that the trial court erred in giving
Georgia’s then-current pattern jury instruction on “preponderance of the evidence”).
30
Wright v. State, 365 Ga. App. 288, 289 (1) (878 SE2d 137) (2022)
(punctuation omitted); see Walker v. State, 311 Ga. 719, 722 (2) (859 SE2d 25) (2021)
(“Whether the evidence was sufficient to warrant the requested [jury] instruction is
16
must be evaluated in “the context of the trial court’s jury instructions as a whole.”31
Indeed, the only requirement regarding jury charges is that they were, as given,
“correct statements of the law and, as a whole, would not mislead a jury of ordinary
intelligence.”32 An erroneous charge, then, “does not warrant a reversal unless it was
harmful and, in determining harm, the entirety of the jury instructions must be
considered.”33 Even so, erroneous charges are “presumed to be prejudicial and
harmful, but this is not conclusive because the presumption of harm which arises from
a legal question, which we review de novo.” (punctuation omitted)).
31
Wright, 365 Ga. App. at 289 (1) (punctuation omitted); see Walker, 311 Ga. at
724 (3) (“When we are presented with a claim that a particular instruction is
misleading, we do not evaluate jury charges in isolation, but rather consider them as
a whole to determine whether there is a reasonable likelihood the jury improperly
applied a challenged instruction.” (punctuation omitted)); Fassnacht v. Moler, 358 Ga.
App. 463, 475 (1) (b) (855 SE2d 692) (2021) (explaining that jury charges and
recharges must be read as a whole).
32
Wright, 365 Ga. App. at 289 (1) (punctuation omitted); accord Pye v. State, 322
Ga. App. 125, 129 (2) (742 SE2d 770) (2013).
33
Wright, 365 Ga. App. at 289 (1) (punctuation omitted); accord Williams v.
State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997); Mubarak v. State, 305 Ga. App.
419, 421 (2) (699 SE2d 788) (2010).
17
a charging error may be overcome by a review of the record as a whole.”34 With these
guiding principles in mind, we turn to the specific charges being challenged.
(a) Boone claims the trial court erred in giving the jury a “no-guarantee”
instruction.
As an initial matter, it is undisputed that the version of the no-guarantee
instruction shown to the jury on a PowerPoint presentation differs slightly from the
version contained in the trial transcript. Specifically, the instruction shown to the jury
in writing was as follows:
Physicians do not guarantee the results of treatment, and in the absence
of a breach of the standard of care, proof that the outcome of treatment
was different than that expected neither establishes [n]or supports an
inference that the standard of care was violated.35
.
34
Payne v. Thompson, 234 Ga. App. 533, 533 (507 SE2d 257) (1998) (punctuation
omitted); see McCorkle v. Dep’t of Transp., 257 Ga. App. 397, 404 (4) (571 SE2d 160)
(2002) (“When an error in the charge of the court is shown to exist, it is presumed to
be prejudicial and harmful, and this court will so hold unless it appears from the entire
record that the error is harmless.” (punctuation omitted)).
35
(Emphasis supplied).
18
And the trial transcript reflects that the instruction was as follows:
Physicians do not guarantee the results of treatment and an absence of
a breach of the standard of care proves that the outcome of the treatment
was different that expected, neither establishes or supports an inference
that the standard of care was violated.36
On appeal, Boone acknowledges the instruction noted in the transcript “simply
does not make any sense”and is “almost certainly incorrect[.]” So, Boone focuses her
argument instead on the instruction as “requested or intended[,]”37 rather than “the
clearly erroneous instruction in the record.” And because it is unclear whether the
transcript contains a typographical error (although Boone certainly seems to presume
it does), we address the written jury instruction that was indisputably shown to the
jury.
36
(Emphasis supplied).
37
The instruction as requested by the defendants, which is nearly identical to
the instruction on the PowerPoint reads, “I charge you that a medical provider does
not guarantee the results of treatment and that in an absence of a breach of the
standard of care, proof that the outcome of treatment from that expected or was
followed by disastrous instead of beneficial results neither establishes nor supports an
inference that the standard of care was violated.”
19
Specifically, Boone maintains that the no-guarantee instruction is “functionally
an argument that bad outcomes are not to be considered in determining whether or
not the standard of care was violated.”38 This is simply not the case. Instead, the
instruction plainly states that even if a medical decision has a negative outcome, a
plaintiff must also establish that the applicable standard of care was breached. And
needless to say, such a breach is an essential element of a medical-malpractice claim.39
Put another way, the jury charge instructs that a bad outcome cannot be the sole basis
for a malpractice claim if it is not shown the medical professional breached the
relevant standard of care. This comports with our “well-settled principle of
38
Boone contends that in cases (like this one) involving the lack of medical
treatment, the no-guarantee instruction is inappropriate. But she provides no legal
authority suggesting that medical-malpractice claims involving an affirmative decision
to administer or not to administer certain medical treatment are different in any
material way, much less as to a doctor’s ability to guarantee positive outcomes. In fact,
Boone’s entire claim is that Dr. Chervu’s decision not to administer DAPT prior to
Thacker’s surgery violated the standard of care and produced negative results.
39
See Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (“Three
essential elements to establish liability in a medical[-]malpractice action have emerged
from the statute: (1) the duty inherent in the doctor-patient relationship; (2) the
breach of that duty by failing to exercise the requisite degree of skill and care; and (3)
that this failure be the proximate cause of the injury sustained.” (punctuation
omitted)).
20
negligence law that the occurrence of an unfortunate event is not sufficient to
authorize an inference of negligence.”40
Regardless, this Court approved a nearly identical jury instruction in Hodges v.
Effingham County Hospital Authority:41
[A] hospital does not guarantee the results of its care and proof alone that
the outcome of the care is different from that expected or is followed by
disastrous instead of beneficial results neither establishes nor supports
an inference of want of proper care, skill or diligence on the part of the
hospital nurses.42
And in Hill v. Hospital Authority of Clarke County,43 this Court approved the following
jury instruction:
40
Wilson v. Guy, 356 Ga. App. 509, 511 (1) (848 SE2d 138) (2020) (punctuation
omitted); see Wolfe v. Carter, 314 Ga. App. 854, 859 (2) (b) (726 SE2d 122) (2012)
(“[I]t is a well settled principle of negligence law that the occurrence of an
unfortunate event is not sufficient to authorize an inference of negligence.”
(punctuation omitted)); Hill v. Hosp. Auth. of Clarke Cnty., 137 Ga. App. 633, 639-40
(II) (4) (224 SE2d 739) (1976) (noting that, in regards to a no-guarantee instruction
similar to the one at issue here, “[t]he language of the charge is in accord with the
general principles of negligence law that the occurrence of an unfortunate event is not
sufficient to authorize an inference of negligence”).
41
182 Ga. App. 173 (355 SE2d 104) (1987).
42
Id. at 177 (5) (punctuation omitted).
43
137 Ga. App. 633.
21
I charge you that a hospital does not guarantee the results of a treatment
or operation, and that in the absence of negligence as a matter of fact or
as a matter of law on the part of the hospital or its employees or agents,
proof simply that an operation or treatment is different in its outcome
from that expected, or is followed by disastrous instead of beneficial
results neither establishes nor supports an inference of lack of proper
care, skill or diligence on the part of the employees of the hospital.44
Finally, in Brannen v. Prince,45 we approved the following jury instruction:
[P]ysicians do not guarantee the results of treatment or operation, and
that in the absence of negligence on the part of the physicians, proof
simply that an operation or treatment is different in its outcome from
that expected or is followed by disastrous results instead of beneficial
results neither establishes nor supports an inference of lack of proper
care, skill or diligence on the part of the physicians.46
Simply put, because we have repeatedly approved of jury instructions that are
substantively the same as the one at issue here, Boone has not established that the no-
44
Id. at 639 (4).
45
204 Ga. App. 866 (421 SE2d 76) (1992), overruled on other grounds by Gillis v.
City of Waycross, 247 Ga. App. 119 (543 SE2d 423) (2000), and Smith v. Finch, 285 Ga.
709 (681 SE2d 147) (2009).
46
Id. at 871 (8).
22
guarantee jury instruction was an incorrect statement of law or had the potential to
confuse the jury. As a result, the trial court did not err in giving this jury charge.47
(b) Boone also argues the trial court erred in giving this “differing-views” jury
instruction:48
Testimony showing a difference of views between physicians regarding
the medical judgment exercise is insufficient to support an action for
malpractice where it is shown that the procedure preferred by each or the
judgment exercised is an acceptable and customary method under the
standard of care I have given you.
47
See Sagon v. Peachtree Cardiovascular & Thoracic Surgeons, P.A., 297 Ga. App.
379, 382-83 (677 SE2d 351) (2009) (holding the trial court did not err in giving a
certain jury instruction when, “viewed in their entirety, the trial court’s jury
instructions gave a full and correct statement of the law regarding the standard of care
that applied to all of the professional health care providers and were not confusing in
defining the professional negligence issue”); West v. Breast Care Specialists, LLC, 290
Ga. App. 521, 522 (1) (659 SE2d 895) (2008) (holding a jury charge was proper when
it “gave a full and correct statement of the law regarding the care and skill required
of a physician and the proof required at trial to support a claim of medical
malpractice”); see also White, 369 Ga. App. at 332 (“[T]he only requirement regarding
jury charges is that they were, as given, correct statements of the law and, as a whole,
would not mislead a jury of ordinary intelligence.” (punctuation omitted)).
48
The appellees and portions of the record also refer to this instruction as a
“personal-practices” charge.
23
Specifically, Boone contends the foregoing charge instructed the jury to
presume the absence of negligence and that the plaintiff’s “experts’ testimony of
standard of care violations is insufficient to support a malpractice claim if there is any
evidence on the other side.” But this instruction did not direct the jury to presume
anything or in any way suggest it should disregard a plaintiff’s expert if a defense
expert testifies. Instead, it simply acknowledged that there can be more than one way
to satisfy the applicable standard of care, and the mere fact that medical experts
disagree on how to do so does not, in and of itself, prove medical malpractice.
Moreover, the Supreme Court of Georgia has advised that a differing-views
instruction should be given when medical experts testify. Specifically, in Condra v.
Atlanta Orthopaedic Grp., P.C.,49 our Supreme Court addressed an argument that
allowing experts in medical-malpractice cases to testify as to their personal practices
is “likely to confuse the jury by conflating the standard of care with an expert’s
personal protocols.”50
49
285 Ga. 667 (681 SE2d 152) (2009)
50
Id. at 672 (1).
24
In doing so, the Condra Court explained,
any potential confusion created by the admission of such evidence may
be remedied through the use of careful jury instructions. Such
instructions should, for example, clearly define the legal meaning of
standard of care; enunciate the principle that a mere difference in views
between physicians does not by itself prove malpractice.51
And here, Boone has not identified any material distinction between the trial court’s
differing-views instruction and the language our Supreme Court suggested that trial
courts should use in Condra.
Boone further claims the trial court improperly suggested it provided the jury
with the applicable standard of care when it is for the jury to make that determination.
Specifically, Boone challenges the portion of the instruction noting that, “. . . where
it is shown that the procedure preferred by each or the judgment exercised is an
51
Id. Boone claims the trial court’s differing-views jury instruction is similar to
one this Court disproved of in Byrd v. Medical Center of Central Georgia, Inc., 258 Ga.
App. 286 (574 SE2d 326) (2002). But even if that were arguably true, we are
nevertheless bound by our Supreme Court’s decision in Condra. See Thompson v.
State, 358 Ga. App. 553, 557 (1) (855 SE2d 756) (2021) (“Although [the appellant]
argues that this well settled authority should no longer be followed in Georgia, we are
bound by the opinions of the Supreme Court.”); Whorton v. State, 321 Ga. App. 335,
339 (1) (741 SE2d 653) (2013) (noting that “vertical stare decisis dictates that we
faithfully adhere to the precedents established by the Supreme Court of Georgia”).
25
acceptable and customary method under the standard of care I have given you.”52 But
this statement cannot be read in a vacuum. Boone has not identified anywhere in the
record, transcript, or jury instructions where the trial court provided the jury with the
specific medical standard of care for medicating TCAR patients. And just prior to the
jury charge at issue, the trial court instructed the jury on the general legal definition of
“standard of care.” So, considering the jury instructions as a whole (as we must), it
is clear the trial court was referencing the legal definition of the phrase, not the
specific medical standard of care applicable in this case. The trial court did not err,
then, in giving a differing-views instruction nearly identical to the one approved of in
Condra.53
For all these reasons, we affirm the jury’s verdict in favor of the appellees.
Judgment affirmed. Brown and Padgett, JJ., concur.
52
(Emphasis supplied).
53
See supra note 47.
26