MacOn-bibb County Hospital Authority v. Whipple , 182 Ga. App. 195 ( 1987 )

Beasley, Judge,

concurring specially.

I concur insofar as Division 2 is concerned, but I must concur in the judgment only, with respect to Divisions 1 and 3.

One of the arguments made on appeal, with respect to Dr. Brown’s opinion that the psychological effect of the injury was to shorten Mrs. Whipple’s life, is that this element of damages turned the medical malpractice case into a wrongful death case. What the hospital is saying, as I understand it, is that a shortened life span occasioned by the depressed mental state brought on by the injury is not a recoverable measure of damages in this case. The only elements of damage are expenses and pain and suffering. The quality of life, not the length of it, is relevant, seems to be a position advanced by the hospital.

If the evidence that her life was shortened by her mental attitude contributed to the jury’s verdict, then the hospital may be correct that it was legally excessive. That is because there is then evidence that the jury deliberated under a mistake of law and considered an erroneous element of damages. See Brown v. Svc. Coach Lines, 71 Ga. App. 437, 447 (31 SE2d 236) (1944). A shorter life would not affect the amount of pain and suffering actually experienced by Mrs. Whipple during her life, unless it were argued that the quantum was diminished by having to endure it for a lesser time, which would benefit the defendant. On the other hand, if the jury considered a shorter life to be a loss to Mrs. Whipple, the evidence here would have allowed the jury to embrace it within the “pain and suffering” category.

Decided March 5, 1987 Rehearing denied March 18, 1987 Joseph W. Popper, Jr., Susan S. Cole, for appellant. Jane M. Jordan, Neal D. McKenney, for appellee.

We cannot address this question because it was not raised below. Insofar as Dr. Brown’s testimony is concerned, the objection was not that the relative length of Mrs. Whipple’s life was not relevant. Rather, the grounds stated were that the testimony regarding “survivability” was outside the witness’ area of expertise, lacked a proper foundation, and was “inappropriate.” In later moving to strike that part of Dr. Brown’s testimony relating to lifespan, defendant added the ground that it was too speculative. There was never an objection based on its being irrelevant to the issue of damages in this case.

Nor was it a ground with respect to the complaint of excessiveness of verdict. The motion for judgment notwithstanding the verdict or in the alternative for a new trial did not mention it. It contains only the general grounds, the denial of directed verdict, and claim of error in the jury charge. Nothing in the record shows that this ground was raised before the trial court. It is therefore not before us. Cox v. City of Lawrenceville, 168 Ga. App. 119, 120 (1) (308 SE2d 224) (1983).

Because I agree that the grounds raised, with respect to Dr. Brown’s testimony and with respect to the excessiveness of the verdict, are not reversible in this case, I concur in the judgment only.