SHAWN G. EVANS v. ROCKDALE HOSPITAL, LLC D/B/A ROCKDALE MEDICAL CENTER

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, 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.
http://www.gaappeals.us/rules
April 12, 2018
In the Court of Appeals of Georgia
A18A0233. EVANS et al. v. ROCKDALE HOSPITAL, LLC.
BARNES, Presiding Judge.
Shawn G. Evans, individually and as the guardian of his wife, Janice K. Evans,
brought this medical malpractice action against Rockdale Hospital, LLC d/b/a
Rockdale Medical Center (“Rockdale”) and other defendants after Mrs. Evans suffered
catastrophic injuries from an undiagnosed ruptured aneurysm. Following a trial, the
jury returned a special verdict finding Rockdale 51 percent at fault and Mrs. Evans 49
percent at fault. The jury awarded Mrs. Evans damages for her past medical expenses,
but zero damages for future medical expenses, past and future lost wages, and past and
future pain and suffering. The plaintiffs filed a motion for additur or, alternatively, for
a new trial on damages, which the trial court denied, resulting in this appeal.
For the reasons discussed below, we conclude that the jury’s award of zero
damages for Mrs. Evans’s past pain and suffering rendered the award of damages so
clearly inadequate under a preponderance of the evidence as to shock the conscience
and necessitate a new trial under OCGA § 51-12-12 (b). Accordingly, we reverse the
trial court’s denial of the plaintiffs’ motion. However, because this case involves issues
of comparative negligence, the retrial on remand cannot be limited to the issue of
damages and instead must encompass all issues.
Following a jury trial, we view the evidence in the light most favorable to the
verdict. Intl. Images v. Smith, 171 Ga. App. 172, 172 (318 SE2d 711) (1984). So
viewed, the evidence showed that on the night of Saturday, January 14, 2012, Mrs.
Evans, who was 60 years old, woke up with the worst headache that she had ever
experienced, jumped out of bed, and vomited on herself. She then had episodes of
vomiting and diarrhea throughout the night. Mrs. Evans believed that she was suffering
from food poisoning and had become dehydrated. However, a severe “thunderclap”
headache, commonly described by patients as the worst headache in their life, followed
by vomiting and nausea, are common symptoms associated with bleeding in the brain.
Mrs. Evans’s symptoms did not subside over the next two days, and around 8:00
p.m. on Monday, January 16, 2012, Mr. Evans, her husband, drove her to the Rockdale
emergency room. After arriving there, Mrs. Evans complained of dehydration,
headache, diarrhea, and nausea, and she told the nursing staff that she might have food
2
poisoning from a local restaurant. The triage nurse failed to document Mrs. Evans’s
initial complaint of headache in the medical chart and chose the charting template on
the computer for digestive system illnesses, which remained the template used by the
nursing staff throughout Mrs. Evans’s stay in the emergency room.
The triage nurse documented Mrs. Evans’s initial blood pressure as 213/105, a
blood pressure within the American Heart Association’s guidelines for hypertensive
crisis. All of the blood pressure readings subsequently taken by the emergency room
nursing staff reflected that Mrs. Evans had a continued systolic blood pressure of over
200, which is “extremely high” and also can be a sign of bleeding in the brain.
Additionally, Mrs. Evans requested medication for a severe throbbing headache, which
she described as an 8 out of 10 on the hospital pain scale. Despite her complaint of a
severe headache and high blood pressure, the nursing staff did not ask Mrs. Evans
focused questions about her headache and thus did not learn from her and document
in the medical chart that her initial onset of symptoms had involved her waking up with
the most severe headache of her life.
Mrs. Evans was diagnosed with high blood pressure, nausea, and vomiting, with
no specific cause identified. The emergency room physician told Mrs. Evans that he
3
was concerned about her high blood pressure and that she needed to see her primary
care physician that week. Mrs. Evans was discharged from the emergency room in the
early morning hours of January 17, 2012, and was instructed to return if her condition
worsened.
After Mrs. Evans was discharged, Mr. Evans called a local primary care practice
and made Mrs. Evans an appointment for the following Monday, the first available
appointment. Mrs. Evans’s severe headache and vomiting returned after she was
discharged, and she continued to have those symptoms throughout the week. She fell
several times during the week and had to crawl back to bed on at least one occasion.
On January 22, 2012, Mr. Evans called 911 after Mrs. Evans began moving her mouth
unnaturally while eating and was unable to get up from the couch.
Mrs. Evans was transported by ambulance to the Rockdale emergency room,
where a CT scan showed a blood clot in her brain. She was transferred to Emory
Hospital, and further testing revealed that she had suffered several strokes as a result
of a ruptured brain aneurysm. Mrs. Evans underwent multiple surgeries and spent
months in the hospital and a rehabilitation facility. She is permanently and totally
4
disabled, is incontinent, requires a feeding tube, cannot speak, has severe cognitive and
other impairments, has a seizure disorder, and requires 24-hour care.
In August 2013, Mr. Evans, individually and as guardian of Mrs. Evans, sued
Rockdale for medical malpractice and loss of consortium.1 During the trial, the parties
disputed whether Mrs. Evans suffered from a ruptured brain aneurysm when she
presented at the emergency room on January 16, 2012, whether a diagnosis of a
ruptured aneurysm on that date would have led to a better outcome, and whether the
Rockdale emergency room nurses violated the standard of care. Rockdale also argued
that Mrs. Evans’s fault exceeded that of Rockdale because, among other things, she
had not obtained treatment for her longstanding, uncontrolled hypertension despite
being aware of that condition.
As to damages, the plaintiffs presented medical billing records reflecting that
Mrs. Evans’s total past medical expenses were $1,196,288.97, as well as testimony
regarding the procedures and rehabilitation that she had to undergo after the ruptured
aneurysm up to the point of trial. The plaintiffs also presented evidence of future
1
The plaintiffs also sued the physician who saw Mrs. Evans during her initial
visit to the Rockdale emergency room and the physician’s employer, but the
emergency room physician and his employer obtained defense verdicts and are not
involved in this appeal.
5
medical expenses, past and future lost wages, and of Mrs. Evans’s current impaired
condition requiring 24-hour care. Mr. Evans and a certified nurse’s aide testified to the
care that had to be provided to Mrs. Evans, and the jury was shown a day-in-the-life
video reflecting the care provided by Mr. Evans and the nurse’s aide.
Rockdale did not contest that Mrs. Evans was catastrophically injured and did
not address the issue of damages during closing argument. During the cross-
examination of the plaintiffs’ damages experts who opined on Mrs. Evans’s lost wages
and future medical expenses, Rockdale did challenge the experts’ credibility and the
extent of the damages sought for future medical expenses.
Following its deliberations, the jury returned its verdict on a special verdict
form. In Section 1 of the verdict form, the jury awarded Mrs. Evans the amount she
had requested in damages for past medical expenses ($1,196,288.97), but awarded her
zero damages for future medical expenses, zero damages for past and future lost
wages, and zero damages for past and future pain and suffering. The jury awarded Mr.
Evans $67,555 in damages for loss of consortium. In Section 2 of the verdict form, the
jury apportioned fault among the parties, finding that Rockdale was 51 percent at fault
and that Mrs. Evans was 49 percent at fault. The trial court reduced the amount of
6
damages awarded by the jury in proportion to the percentages of fault and entered
judgment in favor of the plaintiffs and against Rockdale in the amount of $586,191.60
for past medical expenses and $33,101.95 for loss of consortium.
The plaintiffs filed a motion for additur or for a new trial on the ground that the
jury’s award of damages against Rockdale was so clearly inadequate as to be
inconsistent with the preponderance of the evidence. The plaintiffs contended that any
new trial ordered by the trial court should be limited to the issue of damages. Rockdale
opposed the motion, contending that the jury’s damages award should not be disturbed
and that any retrial could not be limited to the issue of damages because the case
involved comparative negligence. Following a hearing, the trial court denied the
plaintiffs’ motion for additur or a new trial on damages, resulting in this appeal.
At the outset, we note that the plaintiffs’ motion seeking a new trial as a result
of inadequate damages is governed by OCGA § 51-12-12, which provides in part:
(a) The question of damages is ordinarily one for the jury; and the court
should not interfere with the jury’s verdict unless the damages awarded
by the jury are clearly so inadequate or so excessive as to be inconsistent
with the preponderance of the evidence in the case.
(b) If the jury’s award of damages is clearly so inadequate or so excessive
as to any party as to be inconsistent with the preponderance of the
7
evidence, the trial court may order a new trial as to damages only, as to
any or all parties, or may condition the grant of such a new trial upon any
party’s refusal to accept an amount determined by the trial court.
As the Supreme Court of Georgia has explained,
the focus of OCGA § 51-12-12, under which the award is being
reviewed, is to allow the trial court to interfere with a jury verdict in two
opposite situations – where the award is so inadequate or so excessive as
to be contrary to the preponderance of the evidence. . . . Moreover, an
excessive or inadequate verdict is a mistake of fact rather than of law and
addresses itself to the discretion of the trial judge who, like the jury, saw
the witnesses and heard the testimony. In fact, the trial court’s approval
of the verdict creates a presumption of correctness which is not to be
disturbed absent compelling evidence.
(Citations, punctuation, and emphasis omitted.) Moody v. Dykes, 269 Ga. 217, 221 (6)
(496 SE2d 907) (1998). Nevertheless, our Supreme Court has held that appellate courts
are empowered to set aside a jury’s damages award under OCGA § 51-12-12, see id.,
and an award that is so inadequate or excessive “as to shock the conscience” is subject
to reversal on appeal. (Citation and punctuation omitted.) Lindsey v. Turner, 279 Ga.
App. 595, 596 (1) (631 SE2d 789) (2006).
The burden on an appellant seeking reversal of the trial court is not an
impossible one. See Moore v. TCI Cablevision of Ga., 235 Ga. App. 796, 799 (2) (510
8
SE2d 96) (1998) (trial court abused its discretion in denying motion for new trial,
where jury found defendant liable but awarded zero damages to the plaintiff, and the
undisputed evidence showed that the plaintiff was seriously injured in a car collision).
Indeed, even under the prior statute addressing inadequate damages, which required
that the award be so small “as to justify the inference of gross mistake or undue bias,”
see Ga. Code 1933 § 105-2015,2 Georgia appellate courts reversed trial courts and
remanded for new trials where the uncontroverted evidence reflected that the jury’s
award of damages was grossly inadequate. See, e.g., Anglin v. City of Columbus, 128
Ga. 469, 472-473 (57 S.E. 780) (1907); Carter v. Reese, 150 Ga. App. 494, 495-496 (2)
(258 SE2d 165) (1979); Brewer v. Gittings, 102 Ga. App. 367, 370-371 (1) (116 SE2d
500) (1960); Koon v. Atlantic Coast Line R. Co., 90 Ga. App. 877, 878-879 (1) (84
SE2d 703) (1954); Travers v. Macon R. & Light Co., 19 Ga. App. 15, 15-16 (90 SE2d
732) (1916). Mindful of the statutory framework and precedent, we turn to the
plaintiffs specific arguments on appeal.
2
Like the present version of the statute, the prior version afforded trial court’s
discretion in determining whether a jury’s damages award was inadequate. See
Savannah, Florida & Weatern Ry. v. Harper, 70 Ga. 119, 123 (1883) (noting that
decision whether to grant a new trial because of excessive or inadequate damages “was
a matter in the sound discretion of the [trial] court”).
9
1. Mrs. Evans, through her husband as guardian, argues that the jury’s award of
zero damages for past pain and suffering rendered the damages on her medical
malpractice claim so clearly inadequate under a preponderance of the evidence as to
shock the conscience and require a new trial. We agree.
“The assessment of a monetary value for pain and suffering is a matter for the
enlightened conscience of the jury,” Turpin v. Worley, 206 Ga. App. 341, 343 (1) (425
SE2d 895) (1992), and the jury may consider
[i]nterference with normal living, interference with enjoyment of life, loss
of capacity to labor and earn money, impairment of bodily health and
vigor, the fear of extent of injury, shock of impact, actual pain and
suffering, past and future, mental anguish, past and future, [and the extent
to which the plaintiff] must limit activities.
Food Lion v. Williams, 219 Ga. App. 352, 355 (3) (464 SE2d 913) (1995). Notably,
however, “[t]he law infers bodily pain and suffering from personal injury.” (Citations
and punctuation omitted.) Cochran v. Lynch, 126 Ga. App. 866, 868 (2) (192 SE2d
165) (1972). See Reiss v. Howard Johnson’s, Inc., 121 Ga. App. 119, 119 (1) (173
SE2d 95) (1970). Moreover, once the jury determines that the plaintiff is entitled to
recover from a defendant for a negligent act, the plaintiff is “entitled to recover
damages commensurate with the injury sustained by her.” Slaughter v. Atlanta
10
Coca-Cola Bottling Co., 48 Ga. App. 327, 327 (172 S.E. 723) (1934). Thus, Georgia
courts have reversed damages awards where the jury’s award of damages for pain and
suffering was small and grossly disproportionate to the undisputedly severe injury
sustained by the plaintiff. See, e.g., Anglin, 128 Ga. at 472 (denial of new trial was
error because “the amount fixed by the jury was so small and disproportionate to the
pain and suffering endured from the injury as to justify the inference of gross mistake
or undue bias”); Slaughter, 48 Ga. App. at 327-328 (“The amount of $1 fixed by the
jury could not be considered as sufficient compensation for whatever pain and
suffering the plaintiff may have endured.”); McLendon v. Floyd, 59 Ga. App. 506, 506-
507 (1939) (award of $300 in past medical costs was inadequate, requiring a new trial,
where it was undisputed that the plaintiff also suffered pain and suffering and other
damages). Compare Turpin, 206 Ga. App. at 341, 342-343 (1) (upholding jury award
of $100 for pain and suffering, where plaintiff’s primary complaint was headaches, and
plaintiff’s experts conceded that “there is no test that can be performed to detect these
headaches,” that the pain from headaches is “totally subjective,” and that “it is
extremely difficult to evaluate and prove a ‘malingerer situation with headaches’”).
11
Furthermore, we have held that the jury’s award of damages was small and
grossly inadequate so as to necessitate a new trial, where the jury awarded special
damages for the severely injured party’s medical expenses, but virtually no damages
for the pain and suffering undisputedly sustained by the plaintiff as a result of the
injury. See Cothern v. Haygood, 147 Ga. App. 200, 200 (248 SE2d 231) (1978)
(reversing trial court and remanding for new trial in case where child was injured in
motorcycle accident and suffered “permanent impairment,” and the jury awarded
medical expenses but only $1 for the child’s pain and suffering); Brewer v. Gittings,
102 Ga. App. 367, 369-371 (1) (116 SE2d 500) (1960) (trial court should have granted
new trial, where jury found defendant liable for serious skull and other injuries to child
and awarded medical costs, but awarded only $10 for the child’s pain and suffering).
Similarly, in other jurisdictions,
[v]erdicts awarding medical damages without a simultaneous award for
damages for pain and suffering have been overturned, where a proper
claim had been made, and at least a substantial physical injury, the
existence of objective symptoms, or indisputable evidence that the
plaintiff suffered at least some pain was shown.
12
22 AmJur2d Damages § 215 (November 2017 update) (citing cases).3 As one court has
explained, where “the evidence is undisputed or substantially undisputed that a plaintiff
has experienced and will experience pain and suffering as a result of an accident, a zero
award for pain and suffering is inadequate as a matter of law.” (Citation and
punctuation omitted). Ellender v. Bricker, 967 So2d 1088, 1093 (IV) (Fla. Dist. Ct.
App. 2007). That is the situation here.
The jury awarded Mrs. Evans 100 percent of her past medical expenses, and the
undisputed evidence from Mr. Evans, other witnesses, and Mrs. Evans’s medical
records introduced without objection reflected that she underwent multiple surgical
3
See, e.g., Ledbetter v. Todd, 418 So2d 1116, 1117 (Fla. Dist. Ct. App. 1982)
(once jury concluded that physician’s malpractice causally contributed to plaintiff’s
arm injury, the jury’s award of compensatory damages but no damages for pain and
suffering could not be sustained because the surgeries underwent by plaintiff “must
have caused some amount of pain and suffering [that the plaintiff] would not otherwise
have experienced”); Griffin v. Bethard, 398 So2d 639, 643 (La. Ct. App. 1981) (“A
jury cannot award special damages for personal injuries incurred in an accident and
refuse to award any amount for general damages for injuries that present objective
symptoms.”); Witt v. Martin, 672 P2d 312, 317 (V) (Okla. Ct. App. 1983) (reversed
and remanded for new trial, where “[t]he effect of the verdict was to award significant
medical expenses and award nothing for any pain or other injury related detriment”);
Hammond v. Rimmer’s Estate, 643 S.W.2d 222, 224 (Tex. App. 1982) (jury’s answer
of “none” as to the amount of damages due for future pain and mental anguish was
unsupported by evidence, where jury awarded medical expenses and other special
damages, and evidence undisputedly showed that plaintiff was hospitalized for 29 days
and had suffered neurological damage).
13
procedures and spent months in the hospital and a rehabilitation facility. The
undisputed testimony from Mr. Evans, Mrs. Evans’s certified nurse’s aide, other
witnesses, and the day-in-the-life video shown to the jury further demonstrated that
Mrs. Evans is permanently and completely disabled, cannot speak, is incontinent,
requires a feeding tube, has a seizure disorder, has severe cognitive and other
impairments, and requires 24-hour care. Rockdale did not contest at trial Mrs. Evans’s
past medical expenses, the fact that she had undergone multiple surgical procedures
and a long period of hospitalization, or that she now was so severely impaired that she
requires 24-hour care; instead, Rockdale focused its closing argument solely on issues
of negligence and causation. Moreover, Rockdale’s own expert neurologist testified
that Mrs. Evans had suffered multiple strokes and had been severely brain damaged,
and Rockdale conceded at trial that Mrs. Evans had experienced a “catastrophic” injury
and suffered a “devastating” loss and that patients with ruptured aneurysms “either die
or they don’t do well.” Given this record, the jury’s award of zero damages for Mrs.
Evans’s past pain and suffering, the same time period for which it awarded Mrs. Evans
her past medical expenses, was so clearly inadequate under a preponderance of the
14
evidence as to shock the conscience and necessitate a new trial. See Cothern, 147 Ga.
App. at 200; Brewer, 102 Ga. App. at 368-369 (1).4
In arguing that the jury’s damages award was not so clearly inadequate under
a preponderance of the evidence as to shock the conscience, Rockdale cites two cases
for the contention that a jury may award special damages for personal injuries, but no
damages for pain and suffering: Salvador v. Coppinger, 198 Ga. App. 386, 387-388
(1) (a) (401 SE2d 590) (1991), and Ray v. Stinson, 172 Ga. App. 718, 719-720 (1) (B)
(324 SE2d 506) (1984), aff’d on other grounds, 254 Ga. 375 (329 SE2d 502) (1985).
Both cases, however, are distinguishable from the present case.
4
Rockdale notes that a jury may disregard expert opinion testimony, even if
uncontradicted. See Steward v. Med. Center of Central Ga., 239 Ga. App. 90, 91 (520
SE2d 747) (1999). However, the basic descriptions provided by multiple witnesses of
Mrs. Evans’s observable limitations and impairments, the 24-hour care she receives,
and the history of her procedures and hospitalizations following her ruptured aneurysm
constituted factual rather than opinion testimony. See Cochran v. Lynch, 126 Ga. App.
866, 867 (2) (192 SE2d 165) (1972). And, “[t]he direct and positive testimony of an
unimpeached [fact] witness which is not inherently improbable, incredible or
unreasonable and which is not contradicted, cannot be arbitrarily disregarded by the
trier of fact.” Nesbit v. Nesbit, 241 Ga. 351, 352 (2) (245 SE2d 303) (1978). See
Lankford v. Holton, 187 Ga. 94, 102 (9) (200 S.E. 243) (1938); Studebaker’s of
Savannah v. Tibbs, 195 Ga. App. 142, 146 (3) (392 SE2d 908) (1990); Cochran, 126
Ga. App. at 867 (2).
15
In Salvador, the jury “awarded plaintiffs a total amount equal to the exact
amount of the medical expenses requested and proved, but left blank the spaces
provided for pain and suffering, lost wages, other expenses, and property damage.”
(Emphasis supplied.) Salvador, 198 Ga. App. at 386. Given that the jury had simply
left the space blank for damages for pain and suffering, we declined to rule out the
possibility that the jury had in fact intended some of the damages awarded to be for
pain and suffering. Id. at 387 (1) (a). That possibility does not exist in the present case,
however, given that the jury wrote in zero in the space on the verdict form for damages
for pain and suffering.5
Similarly, in Ray, we noted that
even though the jury’s verdict specifically showed that no amount for
pain and suffering had been awarded to plaintiff, in light of the fact that
the jury awarded to plaintiff an amount for special damages beyond that
proven in the case, we are of the opinion that the jury verdict could have
included in the minds of the jury some amount for pain and suffering.
5
We also noted in Salvador that we did not have a “full transcript” available to
consider on appeal, and thus we had to “assume that the trial court’s conclusions in
denying the motion for new trial on the inadequacy of the verdict were proper.”
Salvador, 198 Ga. App. at 388 (1) (a). But the full transcript is available for our review
in this case.
16
(Punctuation omitted.) Ray, 172 Ga. App. at 719 (1) (B). Here, in contrast, the jury did
not award Mrs. Evans “special damages beyond that proven in the case,” and thus a
portion of the special damages cannot be said to have included some amount for pain
and suffering.
Additionally, both Salvador and Ray concluded that the jury may have decided
to award special damages, but not to award damages for pain and suffering, in light of
the plaintiff’s comparative negligence. See Salvador, 198 Ga. App. at 388 (1) (a); Ray,
172 Ga. App. at 719 (1) (B). But Salvador and Ray predate Georgia’s present
apportionment statute, OCGA § 51-12-33, which was enacted in 2005 and supplanted
Georgia’s common law comparative negligence regime with a statutory system of
“assigning responsibility for an injury to a plaintiff according to his ‘fault’ under
subsections (a) and (g) of the apportionment statute.” Zaldivar v. Prickett, 297 Ga. 589,
594 (1) (774 SE2d 688) (2015). OCGA § 51-12-33 provides in relevant part:
(a) Where an action is brought against one or more persons for injury to
person or property and the plaintiff is to some degree responsible for the
injury or damages claimed, the trier of fact, in its determination of the
total amount of damages to be awarded, if any, shall determine the
percentage of fault of the plaintiff and the judge shall reduce the amount
of damages otherwise awarded to the plaintiff in proportion to his or her
percentage of fault. . . .
17
(g) Notwithstanding the provisions of this Code section or any other
provisions of law which might be construed to the contrary, the plaintiff
shall not be entitled to receive any damages if the plaintiff is 50 percent
or more responsible for the injury or damages claimed.
As our Supreme Court has explained, under the apportionment statute, “once liability
has been established, the calculation of total damages sustained by the plaintiff is the
first step, and the allocation of relative fault and award of damages according to that
allocation is a distinct second step.” Martin v. Six Flags Over Georgia II, 301 Ga. 323,
338-339 (III) (801 SE2d 24) (2017). Accordingly, unlike in Salvador and Ray, the jury
in the present case was tasked with calculating the total damages owed to Mrs. Evans,
including damages for past pain and suffering, as a distinct first step, separate and apart
from any subsequent reduction in the total damages based on the percentage of Mrs.
Evans’s comparative fault, such as for her failure to seek treatment for her chronic
hypertension.6 See id. Rockdale’s reliance on Salvador and Ray thus is misplaced.
6
The instant case also is distinguishable from Columbus Regional Healthcare
System v. Henderson, 282 Ga. 598 (652 SE2d 522) (2007), where the parents of a child
who died of a cerebral hemorrhage sued the hospital to recover for medical malpractice
and wrongful death. The jury awarded the plaintiffs damages for medical expenses and
pain and suffering on their pre-death medical malpractice claim, but no damages on
their wrongful death claim. Id. at 598-599. The trial court subsequently granted the
plaintiffs’ motion for additur under OCGA § 51-12-12 (b) based on the jury’s award
18
Because the jury’s award of zero damages for Mrs. Evans’s past pain and
suffering was so clearly inadequate under a preponderance of the evidence as to shock
the conscience, a new trial is necessary, and the trial court abused its discretion in
concluding otherwise. However, contrary to Mrs. Evans’s argument, we conclude that
the retrial cannot be limited solely to the issue of damages.
In cases like the present one involving issues of comparative negligence, the
Georgia Supreme Court has held that review of the verdict is available under OCGA
§ 51-12-12, but if a new trial is ordered, it must encompass all issues and cannot be
limited to damages. See Head v. CSX Transp., 271 Ga. 670, 673 (4) (524 SE2d 215)
(1999); Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 104-105 (2) (498 SE2d
524) (1998); Bridges Farms v. Blue, 267 Ga. 505, 505-506 (480 SE2d 598) (1997).
While Mrs. Evans argues that a new trial limited to damages in comparative negligence
of no damages on the wrongful death claim. Id. at 599. The Georgia Supreme Court
reversed, concluding that a jury’s award of no damages on a claim “is not one
reflecting ‘inadequate’ damages for which the trial court may use its power to add to
the verdict under OCGA § 51-12-12 (b).” Id. at 600. See Multimedia Technologies v.
Wilding, 262 Ga. App. 576, 578 (1) (586 SE2d 74) (2003) (award of zero damages on
a claim is, in legal effect, a verdict in favor of the defendant on that claim). Here, the
plaintiffs asserted two separate claims (medical malpractice and loss of consortium),
but, in notable contrast to Henderson, the jury awarded some damages on both claims.
Henderson therefore is inapposite.
19
cases is authorized by the plain language of OCGA § 51-12-12 (b) and by Georgia’s
apportionment statute, OCGA § 51-12-33, it is well-established that “this Court has no
authority to overrule or modify a decision made by the Supreme Court of Georgia.”
(Citations and punctuation omitted.) Ga. Ports Auth. v. Lawyer, 342 Ga. App. 161, 163
(1) (803 SE2d 94) (2017).7 Consequently, this Court is not at liberty to disregard the
rule enunciated in Head, Robinson, and Bridges Farms. See id. See also Hayward v.
Retention Alternatives, 291 Ga. App. 232, 234 (1) (661 SE2d 862) (2008). It follows
that the retrial of Mrs. Evans’s medical malpractice claim against Rockdale must
encompass both liability and damages.8
2. Because Mrs. Evans’s medical malpractice claim against Rockdale must be
retried on all issues of liability and damages, Mr. Evans’s derivative claim for loss of
consortium also must be retried. See Thomas v. Clark, 188 Ga. App. 606, 608 (1), (3)
7
In a recent case, the Supreme Court expressly declined to address whether the
specific rule enunciated in Head, Robinson, and Bridges Farms for comparative
negligence cases should be overruled or modified in light of Georgia’s apportionment
statute. See Martin, 301 Ga. at 340 (III), n. 10.
8
Because we conclude that a retrial is necessary on Mrs. Evans’s medical
malpractice claim in light of the clearly inadequate damages award for past pain and
suffering, we need not determine whether the jury’s award of zero damages for future
medical expenses, past and future lost wages, and future pain and suffering was so
clearly inadequate under a preponderance of the evidence as to shock the conscience.
20
(373 SE2d 668) (1988) (concluding that because “the issue of comparative negligence
is inextricably joined with the issue of damages,” new trial was required on claims of
both the injured wife and her husband, who asserted claims for payment of some of the
wife’s medical bills and for loss of consortium); Hightower v. Landrum, 109 Ga. App.
510, 514, (4) (136 SE2d 425) (1964) (“One spouse’s right of action for the loss of the
other’s society or consortium is a derivative one, stemming from the right of the
other.”). We therefore need not address Mr. Evans’s contention that the jury’s award
of $67,555 in damages to him for loss of consortium rendered the verdict on that claim
so clearly inadequate under a preponderance of the evidence so as to shock the
conscience.
Judgment reversed and case remanded with direction. Reese, J., concurs.
McMillian, J., concurs in judgment only.*
*THIS OPINION IS PHYSICAL PRECEDENT ONLY. SEE COURT OF
APPEALS RULE 33.2.
21