Grabowski v. Radiology Associates, P.A. , 181 Ga. App. 298 ( 1986 )

Beasley, Judge.

Appellants’ decedent died from the effects of a head injury he suffered while stationed at Fort Benning, Georgia. Claiming that medical personnel at the Medical Center Hospital in Columbus failed to adequately diagnose and treat their decedent, thereby causing his death, appellants filed a medical malpractice action against the decedent’s treating physician, his radiologist, the hospital authority, and appellee Radiology Associates. Upon the close of appellants’ case, the hospital authority and appellee Radiology moved for and were granted directed verdicts. From the grant of Radiology’s motion the plaintiffs-appellants bring this appeal.

1. During the trial, Radiology moved for a directed verdict on the ground that there was no evidence of a causal connection between radiologist Dr. Taylor’s alleged negligent reading of the arteriogram and the death of decedent. After much argument from both sides, the court ruled: “I don’t see that I can do anything but give a directed verdict for Radiology.”

Although the motion was made and orally granted on May 22, the order was not filed until May 23. In the meantime, the trial continued with the other defendants to May 24, until what appeared to be the close of the plaintiffs’ case-in-chief when plaintiffs elected to voluntarily dismiss their suit pursuant to OCGA § 9-11-41 (a). Had the dismissal been prior to the filing of the order, the latter would have been a nullity because it would have been entered after the case had been withdrawn altogether. It having been entered in the course of the trial, it was final as to Radiology and thus, unless reversed, will serve as res judicata in a new suit. The order would have to be deemed a judgment as to Radiology because it “adjudged . . . that Plaintiffs said action is hereby dismissed on its merits as to Defendant Radiology.” See in this connection Steele v. Cincinnati Ins. Co., 252 Ga. 58 (311 SE2d 470) (1984). It was not just an interlocutory order which would have had no effect when the suit was thereafter voluntarily dismissed. It was an appeal from the “judgment (which) granted an Order on Motion For Directed Verdict . . .” Thus, although the suit was dismissed, the appeal is not moot.

2. The sole ground for directed verdict asserted below and ruled on below was that there was no evidence of a causal connection between Dr. Taylor’s alleged negligence as the radiologist who misread the arteriogram, and the death. The trial court agreed with Radiology, and that is the only question we are called upon to examine.

Appellee now briefly alludes to the absence of evidence of employer/employee relationship, which would hold Radiology liable under the theory of respondeat superior, but that is raised for the first time here, and is not even the focus of the appellate enumeration. The fact that Taylor was an employee of Radiology was not contested at trial, else why would Radiology have gone through the trial in the first place? Taylor was not a defendant. Although he was named, he filed no answer and was not represented at trail other than by Radiology, which vigorously defended his actions and moved for directed verdict on the lack of causal connection theme. Radiology did not object to the hypothetical which placed Taylor as an employee of Radiology because that was not an issue in the case.

It is too late to raise this evidentiary ground. “A motion for a directed verdict shall state the specific grounds therefor.” OCGA § 9-11-50 (a). “A ground not mentioned in a motion for directed verdict cannot thereafter be raised on appeal. Adams v. Smith, 129 Ga. App. 850 (1) (201 SE2d 639); J. C. Penney Co. v. Davis & Davis, Inc., 158 Ga. App. 169 (1) (279 SE2d 461).” Fidelity, &c. Ins. Co. v. Massey, 162 Ga. App. 249 (1) (291 SE2d 97) (1982); Omni Express v. Cleveland Express, 178 Ga. App. 42, 43 (3) (341 SE2d 911) (1986).

While these four cases deal with denials of directed verdict, and the Supreme Court has held that the rule applies to such appeals, Johnson v. Hensel Phelps Constr. Co., 250 Ga. 83 (295 SE2d 841) (1982), the rule should apply also when directed verdict is granted. Wright & Miller, Federal Practice & Procedure: Civil § 2536, do not apply a different rule of appellate review when it is from a grant, rather than a denial, of a motion for directed verdict. The function of the requirement that the specific grounds be stated “is to assure that the trial court has an adequate basis for its decision.” 5A Moore’s Fed. Practice Par. 50.04.

The statute does not limit its scope. The judge is ruling on that ground, and under principles of appellate review, our role is to determine whether the trial court erred in ruling as it did, considering what it was asked to decide.¹ Redwing Carriers v. Knight, 143 Ga. App. 668, 674 (239 SE2d 686) (1977).

There is good reason for the same rule to apply when the appeal is from a grant of directed verdict. It ends the case, taking it from the jury and conclusively deciding it, whereas a denial merely sends the case to the jury and still leaves open the remedy of a motion for judgment notwithstanding the verdict. The requirement should be enforced where directed verdict is granted, because the absence of proof of an element which the motion is based on may have been a mere oversight of evidentiary offer which can be cured in the discretion of the court to avoid injustice and promote a decision on the merits. After all, the Civil Practice Act “shall be construed to secure the just . . . determination of every action,” as well as the speedy and inexpensive resolution. OCGA § 9-11-1. The court may permit the party at fault to reopen its case for the submission of the possibly available, yet thus far absent, evidence. Wallace v. Yarbrough, 155 Ga. App. 184, 185 (270 SE2d 357) (1980); Worth v. Ga. Farm &c. Ins. Co., 174 Ga. App. 194, 196 (2) (330 SE2d 1) (1985).

The reasoning in Johnson reaches down to the same concern existing here, that the matter surfacing for the first time on appeal never had an airing on the trial level. The statute plainly states the requirement, giving the movant for directed verdict the clearest notice. That he must state all of his grounds should come as no surprise.

The same rule as to raising grounds should apply regardless of the outcome of the motion. There is no discernable justification for holding that one need only state all grounds, in order to preserve them in instances where the motion is thereafter denied but not when it is granted.

3. As to the ground raised, there is some evidence that radiologist Taylor’s misreading contributed to causation because expert witness radiologist Newton said that if Taylor had interpreted the arteriogram correctly, he would have known its negative showing and would have been under a duty to report this to the neurosurgeon Adams. Although Adams had also incorrectly read the arteriogram several hours earlier (around 2:30 a.m.-3:00 a.m.) and embarked on a course which did not include a CT scan, Taylor’s misreading was only about four hours later. His failure to report a negative reading of the arteriogram precluded Adams’ ordering a CT scan at that time, which CT scan would have shown the surgical lesion and the necessity to operate on the same morning the decedent came into the hospital rather than when his condition had evolved to near death the next day.

If radiologist Taylor had no duty to report a negative reading (which he missed but was evident) to the neurosurgeon, why did he read the arteriogram in the first place? What was the purpose of his reading it, if not to report to the neurosurgeon if he found a negative reading, so that the neurosurgeon could take that into account in prescribing the further course of treatment?

“A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.” Carver v. Jones, 166 Ga. App. 197, 199 (3) (303 SE2d 529) (1983). Even “slight” evidence was regarded as sufficient to prevent the devastations of a directed verdict, in Worth v. Ga. Farm &c. Ins. Co., supra. Where there is “some evidence,” or “any evidence” supporting the respondent’s assertions, disputed issues are created which are for jury resolution. United Fed. Savings &c. Assn. v. Connell, 166 Ga. App. 329, 330 (1) (304 SE2d 131) (1983).

We reverse, as there was some evidence of a causal connection.

Judgment reversed.

Banke, C. J., Deen, P. J., McMurray, P. J., Birdsong, P. J., and Pope, J., concur. Carley, J., concurs in the judgment only. Sognier and Benham, JJ., dissent.

1 Cf. Green v. Knight, 153 Ga. App. 183 (1) (264 SE2d 657) (1980), where movant stated grounds but not specific grounds. However, the lack of evidence of cause-in-fact was covered in the ground of “no negligence.” Further, it involved a lack which could not be cured upon reopening the plaintiff’s case.