Goldstein, Garber & Salama, LLC v. J. B.

WHOLE COURT
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
November 20, 2015
In the Court of Appeals of Georgia
A15A1491. GOLDSTEIN, GARBER & SALAMA, LLC v. J. B.
MCFADDEN, Judge.
A jury found Goldstein, Garber & Salama, LLC (“GGS”), a dental practice,
liable to J. B. on the theory that GGS’s negligence resulted in her being sexually
assaulted by Certified Registered Nurse Anesthetist Paul Serdula while she was under
anesthesia at GGS’s office, and the trial court entered judgment on that verdict. On
appeal, GGS contends (1) that the trial court erred in denying its motion for directed
verdict because J. B. did not establish that GGS was liable under either a theory of
negligence per se or professional negligence; (2) that the trial court erred in making
numerous evidentiary rulings; and (3) that it is entitled to a new trial because the
jury’s apportionment of 100 percent of the liability to GGS is against the great weight
of the evidence. We find, however, that the trial court did not err either in allowing
the jury to decide the issue of GGS’s liability or in her evidentiary rulings, and that
GGS waived appellate review of its argument that the jury’s apportionment of
liability entitled GGS to a new trial. Accordingly, we affirm.
1. Facts.
We review the judgment entered by the trial court after approval of a jury
verdict using the “any evidence test, absent any material error of law.” Boston Men’s
Heath Center v. Howard, 331 Ga. App. 217, 218 (715 SE2d 704) (2011) (punctuation
omitted). So viewed, the record reflects that on September 16, 2009, J. B. underwent
a three-phase dental procedure at GGS. In one phase of the procedure, Dr. Maurice
Salama surgically installed a post for a tooth implant. Nurse Serdula administered
anesthesia to J. B. for this phase. In a subsequent phase, Dr. David Garber placed a
temporary dental prosthetic device in place of the future implant.
Between the conclusion of Dr. Salama’s surgical procedure and the beginning
of Dr. Garber’s cosmetic procedure, J. B. remained in a heavily sedated state for
approximately two hours. At some point during this period, J. B. was left alone with
Serdula, who made three brief video recordings of her: one in which he looked down
her shirt at her breasts, another in which he moved her underwear to reveal her
vagina, and a third in which he placed his penis between her lips. These videos of J.
2
B. were later discovered when Serdula’s hidden cell phone was found recording
employees in GGS’s office restroom. Examination of the phone also revealed
videotapes of Serdula sexually molesting other anesthetized patients. Serdula
eventually pleaded guilty to numerous charges related to the vile acts he perpetrated
against J. B. and other victims, and he was sentenced to life in prison.
J. B. sued GGS, asserting, among other things, that GGS was liable for
negligence per se and professional negligence. The case proceeded to trial, at which
expert evidence was presented that GGS had violated certain statutory requirements
for dentists supervising certified registered nurse anesthetists and had violated certain
standards of care for monitoring patients under anesthesia. The trial court denied
GGS’s motion for directed verdict, and the jury awarded $3.7 million to J. B. and
apportioned 100 percent of the liability to GGS and none to non-party Serdula. (J. B.
had initially sued Serdula, but voluntarily dismissed him from the action before
trial.)
2. Directed verdict.
GSS argues that the trial court erred in denying its motion for directed verdict
because J. B. did not prove liability by negligence per se or professional negligence.
GGS argues that there was not evidence to show the proximate cause required for
3
both causes of action. It further argues that J. B.’s negligence per se claim fails
because the statute at issue did not intend to prevent the harm she suffered, and that
her professional negligence claim fails because the conduct at issue did not involve
the exercise of professional judgment and skill. We find no merit in these arguments.
There was evidence upon which the jury could find the proximate cause required for
both of these causes of action, and GGS’s other arguments related to these causes of
action lack merit.
a. Proximate cause.
We first address proximate cause because it is an element required for both
negligence per se and professional negligence. Allen v. Family Medical Center, 287
Ga. App. 522, 524 (1) (652 SE2d 173) (2007); Norman v. Jones Lang LaSalle
Americas, 277 Ga. App. 621, 628 (2) (b) (627 SE2d 382) (2006).
No single standard exists to determine proximate causation. Atlanta Obstetrics
& Gynecology Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). Instead, as our
Supreme Court has explained, “proximate cause is always to be determined on the
facts of each case upon mixed considerations of logic, common sense, justice, policy
and precedent.” Id. (citation and punctuation omitted). This determination
4
requires both factfinding in the “what happened” sense, and an
evaluation of whether the facts measure up to the legal standard set by
precedent. Ordinarily, both determinations are appropriately made by a
jury upon appropriate instructions from the judge. The decision may be
made by the trial judge or the appellate court only if reasonable persons
could not differ as to both the relevant facts and the evaluative
application of legal standards (such as the legal concept of
“foreseeability”) to the facts.
Id. (citation omitted). Stated another way, questions regarding proximate cause “may
only be determined by the courts in plain and undisputed cases.” Ontario Sewing
Machine Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002) (citations and
punctuation omitted).
“[T]he proximate cause of an injury may be two separate and distinct acts . . .
acting concurrently and . . . the mere fact that the plaintiff’s injuries would not have
been sustained had only one of the acts . . . occurred will not of itself operate to limit
the other act as constituting proximate cause.” Granger v. MST Transp., 329 Ga. App.
268, 270 (1) (764 SE2d 827) (2014) (citation and punctuation omitted). While
Granger involved two acts of negligence, the rule it sets out applies where, as here,
there is a negligent act and an intervening criminal act. Georgia Dept. of Transp. v.
5
Owens, 330 Ga. App. 123, 131 (2) (766 SE2d 569) (2014); Granger, 329 g at 270-
272 (1).
For an intervening act to become the sole proximate cause of a
plaintiff’s injuries, the intervening act must not have been foreseeable
by the defendant, must not have been triggered by the defendant’s act,
and must have been sufficient by itself to cause the injury. If the
character of the intervening act was such that its probable or natural
consequences could reasonably have been anticipated, apprehended, or
foreseen by the original wrong-doer, the causal connection is not
broken.
Zaldivar v. Prickett, 297 Ga. 589, 601-602 (2) (774 SE2d 688) (2015) (citations and
punctuation omitted; emphasis supplied); see also Ontario Sewing Machine Co., 275
Ga. at 686 (2). Moreover, J. B., the plaintiff in this case,
need not prove that [GGS] could foresee the precise manner in which
[someone took advantage of her vulnerable state while anesthetized].
The foreseeability analysis is not that specific: the relevant inquiry is not
whether the exact . . . intervening act was foreseeable, but whether, as
a general matter, the original negligent actor should have anticipated
that this general type of harm might result.
Granger, 329 Ga. App. at 271 (1) (citation and punctuation omitted). And as with the
broader question of proximate cause, “the question of reasonable foreseeability of a
criminal act is generally for a jury’s determination rather than . . . adjudication by the
6
courts.” Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997)
(citation and punctuation omitted).
This is not a plain and undisputed case suitable for adjudication by the courts.
The evidence does not show, as a matter of law, that GGS could not have reasonably
anticipated that its patient might be victimized if left sedated to a medically-
unjustifiable degree and for medically-unjustifiable amount of time without proper
supervision. The record in this case is “replete with factual disputes [that pertain to
the foreseeability of the intervening act] and the legal inferences to be drawn from
those facts.” Atlanta Obstetrics & Gynecology Group, 260 Ga. at 570 (footnote
omitted).
The evidence must be viewed in the light most favorable to J. B. See Mathews
v. Cloud, 294 Ga. 415, 416 (1) (754 SE2d 70) (2014) (in reviewing whether trial court
erred in denying motion for directed verdict, we construe evidence in light most
favorable to prevailing party). So viewed, the evidence showed that Serdula sedated
J. B. at an unnecessarily deep level and for two hours more than necessary. This not
only rendered her a more vulnerable target, but also constituted a violation of the
standard of care and placed her at unnecessary risk of medical complications, which
fortunately did not materialize.
7
The evidence, viewed most favorably to J. B., also showed that the dentists
purporting to supervise Serdula were not qualified or competent to do so. They had
not undergone the training or earned the certifications required of dentists who would
supervise nurse anesthetists, see OCGA § 43-11-21.1 (governing qualifications
required for dentist to supervise certified registered nurse anesthetist administering
general anesthesia), which an expert witness opined rendered them unable to
recognize J. B.’s level of sedation. They did not know how to read an anesthesia
chart, and they depended upon Serdula to make decisions regarding J. B.’s anesthesia.
This evidence created jury questions as to whether it was foreseeable that the
GGS dentists’ failure to discharge their statutory duties and professional obligations
would make J. B. vulnerable to the predation she suffered. See Ontario Sewing
Machine Co., 275 Ga. at 687 (2) (finding jury questions regarding the reasonableness
of sewing machine manufacturer’s recall and the foreseeability of plaintiff’s failure
to comply with it).
It is true, of course, that most anesthetized patients are not assaulted. And there
was no evidence that GGS knew of Serdula’s previous assaults on patients. We are
not persuaded, however, that the relatively uncommon nature of Serdula’s intervening
acts compels a determination that GGS could not reasonably have foreseen them. In
8
Medical Center Hosp. Auth. v. Cavender, 331 Ga. App. 469 (771 SE2d 153) (2015),
and Brown v. All-Tech Investment Group, 265 Ga. App. 889 (595 SE2d 517) (2004),
we stressed the unusual nature of workplace shooting incidents to hold that those
incidents were not reasonably foreseeable as a matter of law. Cavender, supra at 475-
476 (1) (a); Brown, supra at 895-896 (1). But unlike those cases, which concerned
claims of ordinary negligence and premises liability, this case involves claims of
negligence per se and professional negligence based on violations of statutory
requirements and professional standards that address the specific needs and
vulnerabilities of an anesthetized patient. Expert testimony was presented that the
dental profession is aware that assaults like the one J. B. suffered do occur and
actively seeks to prevent them. There was testimony, for example, that sexual assaults
and molestation are considered “never events” in the medical community –
occurrences that are preventable and should “never” happen. And there was expert
testimony that the requirement for monitoring an anesthetized patient existed to
safeguard patient safety, among other reasons.
Given the specific statutory requirements and professional standards that exist
to protect anesthetized patients, we do not believe that the abuse of an anesthetized
patient is “so unusual, contrary to ordinary experience, and rare that no reasonable
9
jury could find [GGS] should have guarded against [such abuse].” Cavender, supra
at 475 (1) (a) (citation and punctuation omitted; emphasis supplied). We should not
substitute our judgment for that of the jury as to whether proximate cause existed in
this case.
b. Negligence per se.
In addition to arguing that proximate cause did not exist as a matter of law,
GGS also argues that the trial court should not have permitted J. B.’s negligence per
se claim to go to the jury because OCGA § 43-11-21.1, the statute GGS violated, was
not intended to prevent the type of injuries she suffered. See OCGA § 41-1-6 (when
law requires person to “perform an act for the benefit of another or to refrain from
doing an act which may injure another, although no cause of action is given in
express terms, the injured party may recover for the breach of such legal duty if he
suffers damage thereby); McClain v. Mariner Health Care, 279 Ga. App. 410, 411
(2) (631 SE2d 435) (2006) (generally, plaintiff may assert claim of negligence per se
arising from violation of statute if, among other things, “the harm complained of was
the same harm the statute was intended to guard against”). We disagree.
OCGA § 43-11-21.1 governs the qualifications required for a dentist to
supervise a certified registered nurse anesthetist administering general anesthesia.
10
While OCGA § 43-11-21.1 does not list the harms it intends to guard against, its
requirements, among other things, address a dentist’s ability to competently supervise
a certified registered nurse anesthetist. There was evidence that the GGS dentists did
not meet these statutory requirements and were unable to recognize J. B.’s
inappropriate level of sedation.
And the legislative intent behind this statute is set out expressly in another
Code section within the chapter: “[S]uch unlicensed activities as are mentioned in this
chapter [including a dentist without proper qualifications allowing a certified
registered nurse anesthetist to administer anesthesia] are a menace and a nuisance
dangerous to the public health, safety, and welfare.” OCGA § 43-11-2 (e) (emphasis
supplied). This broad language encompasses unreasonable risks. Cf. Central
Anesthesia Assoc. v. Worthy, 254 Ga. 728, 732 (2) (333 SE2d 829) (1985) (similar
anesthesia statute applying to doctors serves to protect others against unreasonable
risks); Groover v. Johnston, 277 Ga. App. 12, 16 (1) (b) (625 SE2d 406) (2005)
(statute permitting doctors to delegate to nurses with specific certifications the
authority to order certain drugs, treatments, and diagnostic studies, and which did not
explicitly state a purpose, created a “duty recognized by the law to protect patients
against unreasonable risk”). Contrary to the view expressed by Judge Dillard in his
11
dissent, this language encompasses both medical and non-medical dangers that could
arise where, as here, a dentist is incapable of adequately supervising a certified
registered nurse anesthetist, including the increased risk of a patient to abuse when
the patient is placed under a greater level of sedation than necessary for a greater
amount of time than necessary. See Brown v. Belinfante, 252 Ga. App. 856, 861 (1)
(557 SE2d 399) (2001) (provisions of Georgia Dental Act serve to “protect[ ] the
health and welfare of patients who submit themselves to the care of dentists, by
guarding against injuries caused by inadequate care or by unauthorized individuals”).
c. Professional negligence.
GGS argues in the alternative that this is not a professional negligence case.
Because this case does not concern an exercise of professional judgment and skill
required for a claim of professional negligence, GGS argues, J. B. must prove all the
elements of a claim of ordinary negligence – including that Serdula’s crimes were
foreseeable. The argument is without merit. “An action for professional negligence
. . . exists when the plaintiff’s claim addresses the propriety of a professional decision
rather than the efficacy of conduct in the carrying out of a decision previously made.”
King v. Dodge County Hosp. Auth., 274 Ga. App. 44, 45-46 (616 SE2d 835) (2005)
(citation and punctuation omitted). J. B.’s professional negligence claims address the
12
propriety of the professional decisions made by GGS regarding the treatment and care
provided to its sedated patients, and expert evidence was submitted as to the
professional standards that governed these decisions.
3. Evidentiary rulings.
a. Evidence of prior assaults committed by Serdula.
GGS argues that the trial court erred in permitting evidence of other assaults
perpetrated by Serdula on GGS patients but excluding evidence of assaults
perpetrated by him on patients of health-care providers other than GGS. J. B.
correctly points out, however, that the trial court initially excluded all evidence of
Serdula’s other assaults. See OCGA § 24-4-403. She later permitted the evidence of
other assaults on GGS patients for the purpose of impeachment after one of the GGS
dentists testified that GGS never left a anesthetized patient with fewer than two
people in attendance. See OCGA § 24-6-621. We discern no abuse of discretion. See
Rivers v. K-Mart Corp., 329 Ga. App. 495, 496 (1) (765 SE2d 671) (2014) (“As a
general rule, admission of evidence is a matter resting within the sound discretion of
the trial court, and appellate courts will not disturb the exercise of that discretion
absent evidence of its abuse.”) (citations and punctuation omitted); Bolah v. Driskell,
318 Ga. App. 405, 407 (734 SE2d 108) (2012) (“A trial court, in its discretion may
13
admit evidence relevant to the issue of impeachment even if the evidence would not
qualify for admission on other grounds.”) (citation omitted).
b. Evidence of photographs posted on social media.
GGS argues that the trial court erred in excluding, on relevance grounds, parts
of an exhibit containing photographs that J. B. had posted on social media in the
several years following the assault. Again, we discern no abuse of discretion in this
evidentiary ruling. See Rivers, 329 Ga. App. at 496 (1).
c. Rehearing of evidence.
GGS argues that the trial court erred when, during jury deliberations, she
permitted the jury to rehear a portion of evidence setting forth certain of GGS’s
responses to requests for admission but did not permit the jury to rehear a portion of
the evidence containing certain expert witness testimony. The jury had asked to
rehear both portions. Whether to accede to or decline the jury’s request to rehear parts
of the evidence was a matter with the trial court’s discretion. Byrd v. State, 327 Ga.
781, 782-783 (1) (229 SE2d 631) (1976). And, as J. B. points out, the fundamental
nature of the evidence at issue – party admissions versus expert testimony – differed.
See generally Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353
SE2d 847) (1987) (“Answers to requests for admissions are not on the same footing
14
in the eyes of the law with other evidence.”) (citation and punctuation omitted). We
discern no abuse of discretion in the trial court’s decision to permit the rehearing of
the admissions while denying the rehearing of the expert testimony. Compare
Scroggins v. State, 237 Ga. App. 122, 125 (5) (514 SE2d 252) (1999) (although
ordinarily whether trial court will require court reporter to read former testimony is
matter resting within trial court’s sound discretion, trial court nevertheless abused its
discretion in denying rehearing of testimony where parties in presence of jury a
question about substance of that very testimony and serious disagreement existed
regarding whether defense counsel had misstated testimony, which could be settled
unequivocally by rehearing disputed testimony while causing little, if any, harm).
4. Apportionment.
a. The jury apportioned no damages to Serdula. GGS now argues that, as a
matter of law, at least some of the damages must be apportioned to him and therefore
that a new trial is necessary. See generally OCGA § 51-12-33 (b) & (c) (providing for
trier of fact to consider fault of nonparties in apportioning damages award).
GGS’s argument is not properly before us. GGS does not argue that the trial
court erred in any respect as to this claim. In fact, GGS did not ask the trial court to
grant a new trial on this or any other ground. The record shows that GGS first raised
15
the issue of its entitlement to a new trial in a brief responding to J. B.’s supersedeas
motion, at a point in time when the trial court no longer had jurisdiction to grant a
new trial because GGS already had filed its notice of appeal. Accordingly, GGS has
waived appellate review of this claim. See AKA Mgmt. v. Branch Banking & Trust
Co., 275 Ga. App. 615, 619 (2) 9a) (621 SE2d 576) (2005) (“We are limited to
considering only those grounds raised and ruled on below by the trial court and may
not consider a basis for appeal not presented at the trial level.”) (citation and
punctuation omitted).
b. Nor should we reach that argument under the plain error doctrine. That
doctrine obtains only if, among other things, a ruling is not merely error but
“obviously so.” State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation
omitted). Here the issue is one of first impression. Judge Ray’s dissent cites to no
authority finding the amount of damages awarded by a jury in a civil case to be plain
error, and I am aware of none. And the general rule is that apportionment
determinations are the jury’s prerogative. See Scapa Dryer Fabrics v. Knight, 332 Ga.
App. 82, 90 (4) (770 SE2d 334) (2015).
The issue is not only novel. It is also difficult. It is difficult because intentional
and negligent torts are qualitatively distinct. See Ellen M. Bublick, The End Game of
16
Tort Reform: Comparative Apportionment and Intentional Torts, 78 Notre Dame L.
Rev. 335, 376 (2003). Our Supreme Court has implied that it reads the apportionment
statute to leave the task of reconciling that distinction to the finder of fact. Answering
in the affirmative a certified question whether a jury is “allowed to consider the ‘fault’
of [a] criminal assailant and apportion its award of damages among [a negligent
tortfeasor] and [a] criminal assailant, pursuant to OCGA § 51-12-33,” Couch v. Red
Roof Inns, 291 Ga. 359, 359 (729 SE2d 378) (2012), the Supreme Court addressed
and rejected the plaintiff’s argument “that the [negligent tortfeasor] in this case
cannot establish evidence to support any rational basis for apportionment.” Id. at 366(2). “That,” the Supreme Court held, “is a question of fact not relevant to answering
the legal questions set forth in this case.” Id. (citation omitted). Under these
circumstances, we should not decide the merits of GGS’s apportionment challenge.
Judgment affirmed. Barnes, P. J. and Phipps, P. J., concur. Ellington, P. J.,
concurs in the judgment only. Dillard, Ray, and McMillian, JJ., dissent.
17
A15A1491. GOLDSTEIN, GARBER & SALAMA, LLC v. J. B..
DILLARD, Judge, dissenting.
I respectfully dissent. The trial court erred in denying GGS’s motion for
directed verdict because, contrary to the majority’s holding, J. B. could not prove
liability by negligence per se or professional negligence for the reasons set forth
infra.
a. Negligence Per Se. I disagree that GGS could, under the facts of this case,
be liable for negligence per se by its violation of OCGA § 43-11-21.1, which
regulates the administration of deep sedation and general anesthesia. In pertinent part,
OCGA § 43-11-21.1 prohibits dentists from “administer[ing] general anesthesia on
an outpatient basis unless such dentist has been issued a permit by the board under
the conditions specified in this Code section.”1
1
OCGA § 43-11-21.1 (a).
Permits under OCGA § 43-11-21.1 are only issued to a dentist who has
“successfully completed a minimum of one year of advanced training in
anesthesiology and related academic subjects beyond the undergraduate dental school
level” at specific institutions or who is “a diplomate of the American Board of Oral
and Maxillofacial Surgery, is a member of the American Association of Oral and
Maxillofacial Surgeons, or is a fellow of the American Dental Society of
Anesthesiology.”2 Additionally, in order to receive a permit, the dentist must utilize
a “properly equipped facility for the administration of general anesthesia, including
physical plant and equipment which has been evaluated and certified by an on-site
examination[,]”3 and have “demonstrated to the satisfaction of the board or any
designee thereof proficiency in administering general anesthesia on a patient or
patients in the dentist’s office in a safe and effective manner.”4
OCGA § 43-11-21.1 does not “prohibit a person who is duly licensed to
practice medicine in this state and who is a member of the anesthesiology staff of an
institution classified as a hospital and issued a permit as an institution under Code
2
OCGA § 42-11-21.1 (b) (1) (A)-(B).
3
OCGA § 43-11-21.1 (b) (2).
4
OCGA § 43-11-21.1 (b) (3).
2
Section 31-7-1 from administering general anesthesia in a dental facility.”5 Nor does
this statutory provision prohibit licensed CRNAs, such as Serdula, “from
administering general anesthesia in a dental facility, provided that such anesthesia is
administered under the direction and responsibility of a dentist duly permitted under
this Code section . . . .”6
Here, it is undisputed, and the majority concedes, that J. B. suffered no medical
complications as a result of receiving anesthesia at GGS. Nevertheless, the majority
accepts J. B.’s argument that Drs. Salama and Garber did not “appreciate [her] level
of sedation and attendant vulnerability,” and holds that OCGA § 43-11-21.1
“encompasses both medical and non-medical dangers that could arise where, as here,
a dentist is incapable of adequately supervising a certified registered nurse
anesthetist, including the increased risk of a patient to abuse when the patient is
placed under a greater level of sedation than necessary for a greater amount of time
than necessary.” Thus, the majority holds, in essence, that Drs. Salama and Garber’s
lack of the necessary permits and the anesthesiology training required to obtain such
permits resulted in Serdula’s act of sexual assault because he administered anesthesia
5
OCGA § 43-11-21.1 (d) (1).
6
OCGA § 43-11-21.1 (d) (2) (emphasis supplied).
3
to J. B. while under the direction and responsibility of dentists who were not
permitted in accordance with OCGA § 43-11-21.1. I disagree with the majority’s
conclusions.
To begin with, when the law requires a person to “perform an act for the benefit
of another or to refrain from doing an act which may injure another, although no
cause of action is given in express terms, the injured party may recover for the breach
of such legal duty if he suffers damage thereby.”7 But even assuming that a statute or
mandatory regulation has been violated, before negligence per se can be determined,
a court must consider “(1) whether the injured person falls within the class of person
it was [designed] to protect and (2) whether the harm complained of was the harm the
statute was [designed] to guard against.”8
7
OCGA § 51-1-6.
8
Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 628 (2) (b)
(627 SE2d 382) (2006) (punctuation omitted); accord Brown v. Belinfante, 252 Ga.
App. 856, 861 (1) (557 SE2d 399) (2001); see also Atlanta & W. P. R. Co. v.
Underwood, 218 Ga. 193, 195 (1) (126 SE2d 785) (1962) (“The court in determining
whether the violation of a statutory requirement is negligence per se, as to the person
complaining thereof upon which a cause of action will rest, will look to the particular
statute in respect to its purposes; that is, the evils it was intended to guard against and
the persons it was intended to protect.” (punctuation omitted)).
4
Here, it is true that Drs. Salama and Garber admitted that they were operating
in violation of OCGA § 43-11-21.1 when they did not possess the required permits.
And it is undisputed that J. B. falls within the class of persons the statute was
designed to protect. But the harm she suffered—i.e., sexual assault by CRNA
Serdula—is not the type of harm that the statute was designed to guard against.
Looking to the plain language of OCGA § 43-11-21.1, it is clear that the harm
the statute is designed to guard against is not sexual assault while under the effects
of anesthesia, but is instead the improper administration of anesthesia itself due to
inadequate training, lack of experience, and/or the improper use of equipment, which
can result in medical complications.9 As pointed out by GGS, if this statute were
9
See Central Anesthesia Associates, P.C. v. Worthy, 254 Ga. 728, 732 (2) (333
SE2d 829) (1985) (holding that statute requiring that certified nurse anesthetists
operate under the direction and responsibility of licensed physicians trained and
experienced in anesthesia when administering anesthesia was designed to protect
against the improper administration of anesthesia causing medical complications);
Central Anesthesia Associates, P.C. v. Worthy, 173 Ga. App. 150, 152 (325 SE2d
819) (1984) (holding that statute requiring that certified nurse anesthetists operate
under the direction and responsibility of licensed physicians trained and experienced
in anesthesia when administering anesthesia was designed “to protect patients from
the dangers of improperly administered anesthesia by those unqualified by a lack of
what public policy regards as minimum education in the field, and by a lack of
specified supervision”); see also Groover v. Johnston, 277 Ga. App. 12, 16 (1) (b)
(625 SE2d 406) (2005) (“Common sense dictates that if an unqualified person selects
an improper drug or administers an improper type or amount of medication, especially
to a patient emerging from anesthesia, disastrous consequences . . . are possible.”).
5
designed to protect against sexual assault while under the effects of anesthesia, there
is no conceivable reason why an anesthesiologist would be permitted to administer
sedation without supervision while a CRNA may only do so “under the direction and
responsibility of a dentist” who is duly permitted.10 And while OCGA § 43-11-2 (e)
declares that “such unlicensed activities as are mentioned in this chapter are a menace
and a nuisance dangerous to the public health, safety, and welfare,” this text cannot
plausibly be interpreted as evincing a legislative design to protect patients against
sexual assault when the very same text appears in a statute that applies to barbers and
cosmetologists.11 Accordingly, under the particular facts of this case, contrary to the
majority’s holding, J. B. could not show, as a matter of law, that GGS was liable for
negligence per se by violating OCGA § 43-11-21.1.12
Cf. Brown, 252 Ga. App. at 861 (1) (holding that dentist’s provision of cosmetic
surgery services did not constitute the practice of dentistry and, as such, dentist
violated statute by performing services that exceeded its scope; and the harm that
plaintiff suffered—chronic infection, remedial corrective surgeries, speech
impediment, and facial asymmetry—were the type of harm that statute was designed
to prevent).
10
Compare OCGA § 43-11-21.1 (d) (1) with OCGA § 43-11-21.1 (d) (2).
11
See OCGA § 43-11-16 (providing actions to enjoin practice by unlicensed
or unregistered barbers or cosmetologists, and containing the very same declaration
that “the unlicensed activities referred to in this Code section are a menace and a
nuisance dangerous to the public health, safety, and welfare”).
12
Even if J. B. could establish negligence per se, she would still need to
“demonstrate a causal connection between the negligence per se and the injury.”
6
b. Professional Negligence. The majority also accepts J. B.’s argument that
GGS is liable for professional negligence by breaching the standard of care when its
staff did not recognize J. B.’s level of sedation and left her, a female patient, alone
under sedation with Serdula, a male CRNA, thereby providing him with the
opportunity to perpetrate his criminal acts.13 Again, I disagree.
Negligence is “not actionable unless it is the proximate cause of the injury.”14
And proximate cause is that which, “in the natural and continuous sequence,
unbroken by other causes, produces an event, and without which the event would not
have occurred.”15 Proximate cause acts as “a limit on legal liability; it is a policy
Norman, 277 Ga. App. at 627 (1) (b) (punctuation omitted); see also Worthy, 254 Ga.
at 733 (2) (“Plaintiff must still prove proximate cause and actual damage in order to
recover on a cause of action for “negligence.” . . . [E]ven when negligence per se has
been shown, proximate cause must still be proved.” (citation omitted)); Humphreys
v. Kipfmiller, 237 Ga. App. 572, 575 (2) (515 SE2d 878) (1999) (“Negligence per se
is actionable negligence only where it is the proximate cause of the plaintiff’s
injuries.”). And for the reasons discussed infra, she could not establish proximate
cause.
13
See OCGA § 51-1-27 (“A person professing to practice surgery or the
administering of medicine for compensation must bring to the exercise of his
profession a reasonable degree of care and skill. Any injury resulting from a want of
such care and skill shall be a tort for which a recovery may be had.”).
14
Johnson v. Am. Nat’l Red Cross, 276 Ga. 270, 273 (578 SE2d 106) (2003)
(punctuation omitted); accord Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 130
(2) (766 SE2d 569) (2014).
15
Owens, 330 Ga. App. at 130 (2) (punctuation omitted); see also Cowart v.
Widener, 287 Ga. 622, 627-28 (2) (b) (697 SE2d 779) (2010) (“In the tort context,
7
decision that, for a variety of reasons, . . . the defendant’s conduct and the plaintiff’s
injury are too remote for the law to countenance recovery.”16 One such reason can be
the occurrence of an intervening act that breaks the causal connection.
On the issue of intervening acts, the Supreme Court of Georgia has explained
that the general rule is that “if subsequently to an original wrongful act, a new cause
has intervened, of itself sufficient to stand as the cause of the misfortune, the former
must be considered as too remote[.]”17 But if the character of the intervening act is
such that “its probable or natural consequences could reasonably have been
anticipated, apprehended, or foreseen by the original wrong-doer, the causal
connection is not broken and the original wrong-doer is responsible for all of the
proximate causation includes all of the natural and probable consequences of the
tortfeasor’s negligence, unless there is a sufficient and independent intervening
cause.”); Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344 (1928) (“The risk
reasonably to be perceived defines the duty to be obeyed, and risk imports relation;
it is risk to another or to others within the range of apprehension.” (citation omitted)).
16
Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 515 (1) (614 SE2d 745)
(2005); accord Owens, 330 Ga. App. at 130 (2); see also OCGA § 51-12-9
(“Damages which are the legal and natural result of the act done, though contingent
to some extent, are not too remote to be recovered. However, damages traceable to
the act, but which are not its legal and natural consequence, are too remote and
contingent to be recovered.”).
17
Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533)
(2002) (punctuation omitted); accord Granger v. MST Transp., LLC, 329 Ga. App.
268, 270 (1) (764 SE2d 872) (2014).
8
consequences resulting from the intervening act.”18 This latter rule applies even to
intervening acts of a criminal nature.19 Thus, although the general rule is that “the
intervening criminal act of a third person will insulate a defendant from liability for
an original act of negligence,”20 that rule does not apply when it is alleged that “the
defendant had reason to anticipate the criminal act.”21 And here, contrary to the
majority’s holding, Serdula’s intervening criminal act of sexual assault could not have
been anticipated by GGS and, thus, was not foreseeable as a matter of law.22
18
Ontario Sewing Mach. Co., 275 Ga. at 686 (2) (punctuation omitted); accord
Granger, 329 Ga. App. at 270 (1).
19
Owens, 330 Ga. App. at 131 (2); see Williams v. Grier, 196 Ga. 327, 338 (3)
(26 SE2d 698) (1943) (“[When] there has intervened between the defendant’s
negligence and the injury an independent illegal act of a third person producing the
injury, and without which it would not have occurred, such independent criminal act
should be treated as the proximate cause, insulating and excluding the negligence of
the defendant. But even this rule would not apply if the defendant ‘had reasonable
grounds for apprehending that such criminal act would be committed.’” (punctuation
omitted)).
20
Bradley Ctr., Inc. v. Wessner, 250 Ga. 199, 202 (1) (296 SE2d 693) (1982)
(punctuation omitted); accord Atlantic Coast Line R. Co. v. Godard, 211 Ga. 373,
377 (1) (86 SE2d 311) (1955).
21
Bradley Ctr., Inc., 250 Ga. at 202 (1) (punctuation omitted); accord Atlantic
Coast Line R. Co., 211 Ga. at 377 (1).
22
See Atlanta Obstetrics & Gynecology Grp., P.A. v. Coleman, 260 Ga. 569,
570 (398 SE2d 16) (1990) (“[W]hether proximate cause exists in a given case is a
mixed question of law and fact. It requires both fact-finding in the ‘what happened’
sense, and an evaluation of whether the facts measure up to the legal standard set by
precedent. Ordinarily, both determinations are most appropriately made by a jury
9
According to the expert testimony at trial, patients under anesthesia are
vulnerable to, inter alia, obstructed airways, cardiac arrest, allergic reactions,
neurological events, and even death. Thus, according to these experts, patients who
are under the effects of anesthesia should always have at least two people trained in
basic life support in the room with them. The experts explained that this rule is in
place because, should a medical emergency arise, one person can begin resuscitation
efforts while the other calls for help; the extra personnel assist the person
administering anesthesia, but also “protect the patient” and help to maintain the
patient’s airway; and the rule prevents dentists in remote areas from attempting to
perform procedures alone. Although J. B. contends that an anesthetized female patient
should never be left alone with a male CRNA, the testimony established that gender
is not a factor in the rule. Nevertheless, J. B.’s experts opined that GGS violated the
standard of care by leaving J. B. alone with Serdula.
At trial, Drs. Salama and Garber and members of the GGS staff who assisted
the doctors in performing the various phases of J. B.’s procedure all testified with
upon appropriate instructions from the judge. The decision may be made by the trial
judge or appellate court only if reasonable persons could not differ as to both the
relevant facts and the evaluative application of legal standards (such as the legal
concept of ‘foreseeability’) to the facts. In other words, although what amounts to
proximate cause is undeniably a jury question, it will be determined by the court as
a matter of law in plain and undisputed cases.” (citation and punctuation omitted)).
10
regard to their ususal practices and as to the layout of the operating room and office
in general. This testimony established that the GGS operating room is located in a
busy portion of the office with people entering and exiting the room at all times, and
the door to the room is always open with personnel roaming about the hallway.
According to a dental assistant who participated in J. B.’s surgery, when a
patient is “handed off” between procedures, an assistant will stay with the patient in
the operating room or in the general surgical area, but the patient is never left alone
for more than one or two minutes. Dr. Salama also testified that during the transfer
period, an assistant may leave the operating room to change out the sterilized
equipment, but that personnel are always “in voice range” of the surgical room, that
assistants never leave the surgical area of the office, that personnel are always in the
surgical area in the event of dental and medical emergencies, and that a patient would
never be left alone with a CRNA for an extended period of time. However, Dr.
Salama also admitted that the videos of J. B. appeared to have been recorded during
the transition period between his surgical procedure and Dr. Garber’s cosmetic
procedure. Notwithstanding the foregoing circumstances, and despite admitting that
the nature of Serdula’s intervening acts is “relatively uncommon,” the majority is “not
persuaded . . . that . . . GGS could not reasonably have foreseen them.”
11
First, it is undoubtedly true that sexual assaults in dental offices can and do
occur, as evidenced by the vile acts perpetrated on J. B. by Serdula.23 And other
testimony established that sexual assaults and molestation are considered “never
events” in the medical community, which are occurrences that are preventable and
should “never” happen.24 Additionally, one of J. B.’s experts testified that while the
23
Indeed, GGS’s own expert testified that he attended school with a dentist
who was caught sexually molesting patients who were under conscious sedation with
nitrous oxide.
24
Although there was expert testimony that “never events” are “foreseeable,”
it is clear from the testimony as a whole that “never events” are possible occurrences,
not that these events are, according to ordinary and usual experience, probable, or
that they happen so frequently that they may be expected to happen again such that
they are foreseeable in a legal sense. See infra notes 18-22 & accompanying text. See
generally 14 GA. JURIS. PERSONAL INJURY & TORTS Proximate Cause § 21:23 (2015)
(“To establish proximate cause, . . . a mere possibility of such causation is not
enough, and when the matter remains one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes the duty of the court to grant
summary judgment for the defendant. In addition, the injuries caused must be a
foreseeable consequence of the defendant’s actions. Thus, there must be a direct
relationship between the negligence and the plaintiff’s injury.” (footnotes omitted)).
Indeed, there was testimony that “never events,” which include incidents such as
operating on the wrong body part or leaving a sponge in place, are “foreseeable
events. We don’t know who and when [sic] they’re going to happen, but there are
policies and procedures in place to prevent them from happening.” (Emphasis
supplied.) Additionally, though “foreseeable” or “known,” the testimony emphasized
that many never events are omitted from surgical consent forms because “[w]e can’t
list every possible bad thing that could happen . . . . On a surgical consent we try to
hit . . . common things that can happen with that surgical procedure . . . .” (Emphasis
supplied.) And a broad, general statement that an occurrence such as sexual assault
is always “foreseeable” runs afoul of the legal principle that “[t]he question of
proximate cause depends upon the facts of each particular case[.]” Jacobs v. Taylor,
12
requirement for monitoring an anesthetized patient is mainly intended to address
medical emergencies, it is also “somewhat of a safeguard not only for patient safety
reason[s] but for . . . practitioner reasons”; that “[n]o one would want to be left alone
with a sedated patient” so as to protect their license and “avoid any kind of
accusations of any kind of problems that might occur”; and that having two people
in the room protects against sexual assaults and claims of sexual assault. Another
expert opined that Drs. Salama and Garber’s failure to have the necessary permits25
resulted in their inability to recognize J. B.’s level of sedation and, thus, “allowed this
event to happen” due to a lack of proper procedures and protocols. But GGS could
only be liable for Serdula’s criminal acts if those acts were foreseeable as a matter
of law—i.e., if they were the natural or probable consequences of leaving J. B. alone
with Serdula, no matter how briefly, while under the effects of anesthesia.26 And
190 Ga. App. 520, 526 (1) (c) (379 SE2d 563) (1989) (punctuation omitted)
(emphasis supplied); accord Rustin Stamp & Coin Shop, Inc. v. Ray Bros. Roofing &
Sheet Metal Co, Inc., 175 Ga. App. 30, 31 (1) (332 SE2d 341) (1985); Valdosta Street
R. Co. v. Fenn, 11 Ga. App. 586 (3) (75 SE 984) (1912) (Syllabus by the Court); see
also Coleman, 260 Ga. at 569 (“[P]roximate cause is always to be determined on the
facts of each case upon mixed considerations of logic, common sense, justice, policy
and precedent.” (punctuation omitted)).
25
See discussion supra.
26
See Ontario Sewing Mach. Co., 275 Ga. at 686 (2) (holding that if the
character of the intervening act is “such that its probable or natural consequences
could reasonably have been anticipated, apprehended, or foreseen by the original
wrong-doer, the causal connection is not broken and the original wrong-doer is
13
contrary to the majority’s holding, the evidence simply does not establish that the
criminal acts perpetrated on J. B. by Serdula were foreseeable in this legal sense,
thereby breaking the causal connection and relieving GGS of liability.27
Foreseeable consequences are “those which are probable, according to ordinary
and usual experience, or those which, because they happen so frequently, may be
expected to happen again.”28 The law does not require one to “anticipate or foresee
responsible for all of the consequences resulting from the intervening act”
(punctuation omitted)); Williams, 196 Ga. at 337 (2).
27
McAuley v. Wills, 251 Ga. 3, 7 (5) (303 SE2d 258) (1983) (“To hold that an
intervening act was not reasonably foreseeable at the time of the defendant’s
negligent conduct is to say that the defendant’s negligence was not the proximate
cause of the plaintiff’s injury. Although what amounts to proximate cause is
undeniably a jury question, it will be determined by the court as a matter of law in
plain and undisputed cases.” (citation omitted)); see also Bradley Ctr., Inc., 250 Ga.
at 202 (1) (“There are cases . . . in which the intervening criminal acts may be
foreseeable. In such cases, tort liability is proper. The general rule that the intervening
criminal act of a third person will insulate a defendant from liability for an original
act of negligence does not apply when it is alleged that the defendant had reason to
anticipate the criminal act.”).
28
See Medical Ctr. v. Cavender, 331 Ga. App. 469, 473 (1) (771 SE2d 153)
(2015) (punctuation omitted); accord Brown, 265 Ga. App. at 893 (1); see Thomas
v. Food Lion, LLC, 256 Ga. App. 880, 882 (1) (570 SE2d 18) (2002) (“The natural
and probable consequences are those which human foresight can foresee, because
they happen so frequently that they may be expected to happen again.”); Morris v.
Baxter, 225 Ga. App. 186, 187 (483 SE2d 650) (1997) (same); Jacobs, 190 Ga. App.
at 526 (1) (c) (same); see also City of Macon v. Dykes, 103 Ga. 847 (31 SE 443)
(1898) (“[T]he negligence of the defendants was not the proximate cause of the
injuries of which the plaintiff complained. His injuries were not the natural and
probable consequences of such negligence. The only immediate and direct effect of
the contact of the wheels of the cart with the rails of the track was the noise. This
14
and provide against that which is unusual or which is only remotely or slightly
probable.”29 And the above-referenced expert testimony is founded upon a vague and
generalized concept of violence that only suggests the mere possibility of improper
conduct if a patient is left alone while under anesthesia, not the probability of
improper conduct.30 If anything, testimony by GGS’s expert regarding a single dental-
school classmate who molested patients demonstrated how infrequently such
instances occur.31
noise may have been a natural and probable result of such contact, but it was not
reasonable and probable that an ordinarily gentle and roadworthy horse would have
been so frightened by it as to instantly cause him to kick, become entirely
unmanageable, and run away. Such a noise and such an extreme fright, in an
ordinarily gentle horse, as to cause him to kick and run away, we think, are not known
by common experience to be naturally and usually in sequence; the one does not
follow the other, according to the usual course of events.”).
29
Medical Ctr., 331 Ga. App. at 473 (1) (punctuation omitted); accord Dowdell
v. Wilhelm, 305 Ga. App. 102, 105 (1) (699 SE2d 30) (2010); see also Allan v.
Jefferson Lakeside, L.P., 333 Ga. App. 222, 228 (2) (775 SE2d 763) (2015); Jacobs,
190 Ga. App. at 526 (1) (c); Campbell v. S. Bell Tel. & Tel. Co., 161 Ga. App. 589,
590 (2) (288 SE2d 919) (1982).
30
See Brown, 265 Ga. App. at 895 (1) (holding that assertion as to “common
knowledge” regarding propensities for workplace violence were “too vague and
generalized to support the . . . claim of liability,” and that expert testimony that event
was foreseeable was based upon “generalized concepts of violent reactions” and four
specific events of workplace violence).
31
See Cavender, 331 Ga. App. at 476 (1) (a) (finding that the opinions of
plaintiff’s expert illustrated “that even arguably similar acts of violence were so
unusual, contrary to ordinary experience, and rare that no reasonable jury could find
[the defendant] should have guarded against them” (punctuation omitted)); Brown,
15
Furthermore, it is undisputed that Serdula had been highly recommended to
GGS, had nearly perfect credentials and references, had no known prior criminal
history, and did not make coworkers or patients feel uncomfortable while in his
presence. Thus, nothing made it foreseeable that Serdula would sexually assault a
sedated patient if left alone with her for a brief period of time.32 According, the
evidence did not establish that Serdula’s intervening criminal act “could reasonably
265 Ga. App. at 895-96 (1) (holding that expert testimony as to four other incidents
of workplace violence “illustrate[d] vividly that even arguably similar acts of violence
were so unusual, contrary to ordinary experience, and rare that no reasonable jury
could find the [defendants] should have guarded against them”).
32
See Doe v. Shapiro, No. 273950, 2008 WL 583556, at *7 (Mich. Ct. App.
2008) (holding that plaintiff could not establish negligence after CRNA’s sexual
assault while she was under effects of anesthesia because she failed to demonstrate
that defendant doctor and medical center “had actual or constructive knowledge
because she presented no testimonial or documentary evidence to indicate that” the
defendants “either knew or should have known that [the CRNA] might sexually
assault a patient”); N. X. v. Cabrini Med. Ctr., 280 AD2d 34, 39 (N.Y. App. Div.
2001) (holding that “the possibility that a surgical resident with no history of sexual
misconduct would enter a surgical recovery room and assault a patient is too remote
to be considered legally foreseeable”); see also Boone v. Udoto, 323 Ga. App. 482,
484 (1) (747 SE2d 76) (2014) (holding that shooting of club patron in parking lot was
unforeseeable to club owners when they had no prior knowledge of shooter’s
propensities and no prior altercations involving guns). Cf. Bunn-Penn v. S. Reg’l Med.
Corp., 227 Ga. App. 291, 294 (2) (488 SE2d 747) (1997) (holding that plaintiff’s
claim for negligent hiring and retention of technician who sexually assaulted her
failed because there was no evidence to authorize a finding that the hospital knew or
should have known that the technician was prone to commit such acts).
16
have been anticipated, apprehended, or foreseen” by GGS, thereby breaking the
causal connection.33
Thus, I disagree that, as a matter of law, sexual assault is a reasonably
foreseeable consequence of leaving a patient alone for brief periods of time with a
CRNA who has no known history of sexual violence or deviance, in an operating
room left open to an area continuously occupied by multiple medical staff members.
And because GGS had no reason to anticipate the criminal act, the general rule
applies and Serdula’s intervening criminal act insulates GGS from J. B.’s allegations
of liability.34 Moreover, although questions of negligence, diligence, cause, proximate
cause, and whose negligence constituted the proximate cause of the harm suffered by
the plaintiff are generally for the jury,35 a trial court can “conclude as a matter of law
33
Ontario Sewing Mach. Co., 275 Ga. at 686 (2) (punctuation omitted); accord
Granger, 329 Ga. App. at 270 (1).
34
Bradley Ctr., Inc., 250 Ga. at 202 (1); accord Atlantic Coast Line R. Co., 211
Ga. at 377 (1).
35
See Owens, 330 Ga. App. at 131 (2); see also Sturbridge Partners, Ltd. v.
Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997) (“[T]he question of reasonable
foreseeability of a criminal attack is generally for a jury’s determination rather than
summary adjudication by the courts.” (punctuation omitted)); Stegall, 221 Ga. App.
at 190 (2) (“Except in plain, palpable and undisputed cases where reasonable minds
cannot differ as to the conclusions to be reached, questions of negligence, proximate
cause, including the related issues of foreseeability, assumption of risk, lack of
ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences
of another’s negligence, contributory and comparative negligence are for the jury.”).
17
that the facts do or do not show negligence on the part of the defendant or the plaintiff
. . . [when] the evidence is plain, palpable[,] and undisputable.”36 This is such a plain,
palpable, and undisputable case that I would hold that the trial court erred in failing
to grant GGS’s motion for directed verdict.37
36
Munroe v. Univ. Health Srvs., Inc., 277 Ga. 861, 864 (2) (596 SE2d 604)
(2004) (quoting Robinson v. Kroger Co., 268 Ga. 735, 739 (493 SE2d 403) (1997));
see also Coleman, 260 Ga. at 570 (“[A]lthough what amounts to proximate cause is
undeniably a jury question, it will be determined by the court as a matter of law in
plain and undisputed cases.” (punctuation omitted)); see also Ga. Power Co. v.
Kinard, 47 Ga. App. 483, 486 (3) (170 SE 688) (1933) (“[When] the evidence plainly
and manifestly shows that the injury was caused by the intervening efficient act of the
third person . . . , the defendant cannot be held responsible for having produced the
injury, and the question is then one of law for determination by the court, and not one
of fact for the jury. The liability of the defendant is limited to those consequences
which it should reasonably have anticipated as the natural and probable result of its
own act or omission.”).
37
See Stegall, 221 Ga. App. at 190 (2) (holding that summary judgment to
defendant was appropriate when intervening act was not foreseeable as a matter of
law); Tucker Fed. Savings & Loan Ass’n v. Balogh, 228 Ga. App. 482, 484 (491 SE2d
915) (1997) (holding that summary judgment should have been granted to defendant
when the harm suffered by the plaintiff was too remote to arise from any action taken
by the bank); Strickland v. Dekalb Hosp. Auth., 197 Ga. App. 63, 67-68 (2) (d) (397
SE2d 576) (1990) (holding that summary judgment to defendant was appropriate
when it was not foreseeable that appellant would leave hospital and shoot and kill his
wife after being left unattended under the effects of various medications). Cf.
Landings Ass’n v. Williams, 291 Ga. 397, 399 (728 SE2d 577) (2012) (noting that a
“trial court can conclude as a matter of law that the facts do or do not show
negligence on the part of the defendant or the plaintiff only where the evidence is
plain, palpable and undisputable,” and holding that the trial court erred in failing to
grant summary judgment to defendant in premises liability case when plaintiff who
was fatally injured in an alligator attack assumed the risk of injury and failed to
exercise ordinary care for her own safety); Coleman, 260 Ga. at 570 (reversing grant
18
In reaching these conclusions, I recognize that the acts perpetrated by Serdula
against J. B. and others were heinous, reprehensible, and inexcusable. J. B. was the
victim of outrageous, vile acts committed by a man whose imprisonment has no doubt
made the world a safer place. But even in the face of circumstances as horrific and
extraordinarily sympathetic as those presented in this case, this Court is nevertheless
duty bound to uphold well-settled principles of law. As always, our charge is to see
that “justice is fairly dispensed to all parties concerned, and this creates an equally
important judicial obligation not to render judgments born only of generosity or
compassion.”38 In so doing, I would reverse.
I am authorized to state that Judge Ray and Judge McMillian join in this
dissent.
of j.n.o.v. when case “involve[d] foreseeable complications relating to abortion
procedures that would not have been necessary if not for [doctor’s] negligent
administration of a hormone shot” and noting that “[t]he record [was] not devoid of
evidence that [doctor’s] negligence was the proximate cause of [plaintiff’s] injuries”);
McAuley, 251 Ga. at 7 (5) (holding that, “assuming that the [earlier] car crash did not
leave [plaintiff] wholly unable to give birth to a child, then the delivery of the child
in a manner incompatible with the mother’s paraplegia constituted an intervening act
not reasonably foreseeable at the time of the car crash,” and concluding that car crash
was not the proximate cause of child’s death such that complaint was properly
dismissed).
38
Stegall v. Central Ga. Elec. Mem. Corp., 221 Ga. App. 187, 190 (2) (470
SE2d 782) (1996); accord Caribbean Lumber Co. v. Phoenix Assurance Co. of NY,
227 Ga. App. 236, 238 (3) (a) (488 SE2d 718) (1997).
19
A15A1491. GOLDSTEIN, GARBER & SALAMA, LLC v. J. B.
RAY, Judge, dissenting.
While I join in Judge Dillard’s dissent, I write additionally to address
Goldstein, Garber & Salama, LLC (“GGS”)’s claim that it is entitled to a new trial
because the jury’s apportionment of 100 percent of the liability to GGS is against the
great weight of the evidence. Even if GGS could be liable on the grounds that the
event was reasonably foreseeable, as the majority contends, at a minimum a new trial
should be granted as the verdict assigning 100 percent of the fault to GGS is not
supported by the evidence.
As has been sufficiently detailed by the majority, this case involves a dental
practice, GGS, a highly anaesthetized patient, J. B., and a Certified Registered Nurse
Anesthetist, Paul Serdula. During the surgery, GGS left J. B. alone with Serdula for
some amount of time. While alone with the patient, Serdula molested J. B. and took
videos of her private body parts. J. B. brought suit against both Serdula and GGS, but
later dismissed Serdula from the case. Nonetheless, GGS requested that Serdula be
included on the verdict for apportionment purposes; however, after the jury found in
favor of J. B., it apportioned 100 percent of the fault to GGS and nothing to Serdula,
who had committed these vile acts.
The majority finds that the issue of apportionment is not properly before us as
GGS did not ask for a new trial on these grounds. “[O]ur appellate courts are courts
for the correction of errors of law committed in the trial court. Routinely, this Court
refuses to review issues not raised in the trial court.” (Citation omitted.) Heard v.
City of Villa Rica, 306 Ga. App. 291, 293 (1) (701 SE2d 915) (2010). However, in
criminal cases, our Supreme Court has stated that “except in cases of plain error,
enumerations of error not timely raised and/or argued shall be waived.” (Citation
omitted.) Lynd v. State, 262 Ga. 58, 60-61 (8) (414 SE2d 5) (1992). “Plain error is
that which is so clearly erroneous as to result in a likelihood of a grave miscarriage
of justice or which seriously affects the fairness, integrity or public reputation of a
judicial proceeding.” (Citation and punctuation omitted.) Lynd at 61, n.2. We have
also applied this doctrine in civil cases, stating that under “exceptional circumstances
appellate courts may, on their own motion, notice errors to which no exception has
2
been taken, if the errors are obvious, or if they otherwise seriously affect the fairness,
integrity or public reputation of judicial proceedings.” (Citation and punctuation
omitted.) Drug Emporium, Inc. v. Peaks, 227 Ga. App. 121, 125 (2) (a) (488 SE2d
500) (1997). Pretermitting whether the majority is correct that GGS did not raise the
apportionment issue with the lower court, there are sufficient “exceptional
circumstances” for us to review the verdict in light of the jury’s finding of no fault on
the part of Serdula.
The responsible parties in this case were the molester, who is an intentional
tortfeasor that committed a sexual assault, and the dental practice, an alleged
negligent tortfeasor which put the molester in the position to harm the victim.
Georgia law of comparative fault requires, upon proper request, that the fact finder
allocate fault to all those responsible for the injury, whether they are litigants to the
action or not. OCGA § 51-12-33 (b) & (c). This required the jury to consider
Serdula’s fault in assessing the liability against GGS, even though Serdula was not
then still named as a defendant.
Astonishingly, the jury found that Serdula was not at fault at all for J. B.’s
injuries, as it assessed 100 percent of the fault to GGS. The evidence at trial very
clearly showed that Serdula acted intentionally. On three occasions, he waited until
3
he was alone in the operating room with J. B. and used his phone to videotape himself
acting inappropriately with her, essentially, unconscious body. He videotaped down
her shirt, removed her underwear and videotaped her private area, and videotaped
himself touching her face and mouth with his penis. There is absolutely no question
that these were intentional acts, but yet, somehow, the jury found him zero percent
at fault for her injuries. This situation most certainly presents circumstances
mandating our consideration of the improper verdict due to obvious error. Drug
Emporium, Inc., supra. Any verdict allowing this intentional tortfeasor to escape
blame for his intentional tort simply cannot stand.
GGS argues that it is entitled to a new trial because the jury’s apportionment
of 100 percent of the liability to GGS is against the great weight of the evidence. We
have consistently held that “[n]o court except the trial court is vested with the
authority to grant a new trial in a matter relating to the weight of the evidence. The
appellate courts are not vested with discretion in this regard as are the trial courts.
Thus the only query. . . is whether the evidence supported the verdict.” (Citations and
punctuation omitted.) General Ins. Svcs. v. Marcola, 231 Ga. App. 144 (146) (2) (b)
(497 SE2d 679) (1998). It is clear to me that the evidence here does not support the
verdict. Although the jury could rationally have chosen to assign a lower percentage
4
than 100 percent to Serdula, the evidence does not support a finding of zero percent
fault.
A finding that Serdula was not at fault would logically be a finding that he did
nothing wrong. If he did nothing wrong by molesting J. B., how then can GGS be
liable for negligently placing him in the position to molest her? A finding of no fault
on Serdula’s part would seemingly equate to a finding of no fault on GGS’ part.
The root problem in this case comes from the fact that Georgia law allows the
allocation of fault between an intentional actor and a negligent actor. Georgia law
allows the trier of fact to assess percentages of fault to all parties responsible because
of strong public policy adopted by the legislature that a party should only be liable
for the portion of harm that it personally caused. When an injury can be said to have
been caused by multiple actors, we apportion the liability to the parties based on their
individual portion of fault in causing the injury.
However, when we are dealing with an intentional tortfeasor and one who is
merely negligent, apportionment does not work so well. Consider the inverse of this
case. What if J. B. had sued GGS and Serdula, as she did, but prior to trial, she
voluntarily dismissed GGS because the corporation was bankrupt. For the sake of
argument, assume that Serdula was wealthy and had the means to pay any judgment.
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Would we want Serdula to be able to decrease his liability for the acts he intentionally
performed by pointing to GGS and arguing that had it not put him in that position, he
could not have performed the acts? The “I did it, but it is not fully my fault because
they put me there” defense is, I believe, unconscionable; yet, our law enables and
empowers such a defense. We should not want criminal defendants escaping civil
liability because a negligent actor theoretically allowed them to be in that position.1
Individuals who commit intentional acts should be held fully responsible for their
acts, both in the criminal and the civil justice system.2
Our policy of only imposing liability on the party who caused the harm is very
important. However, there are other ways of imposing liability on a negligent
tortfeasor which operate in a cleaner fashion and avoid the situation which arose in
this case.3
1
See In re E. C., 444 SW3d 760 (Texas Court of Appeals 2014) (16 year old
who killed four people while driving drunk argued “affluenza” defense claiming that
he was the product of wealthy privileged parents who never set limits for him.)
2
For alternative approaches to avoid the dilemma that is present in this case,
see the Restatement Third of Torts, § 14, and the statutory scheme of the State of
Florida, Fla. Stat. § 768.81 (4).
3
See Ellen M. Bublick, The End Game of Tort Reform: Comparative
Apportionment and Intentional Torts, 78 NOTRE DAME L. REV. 355 (2003) (Detailed
analysis of consequences of including intentional torts in comparative fault systems,
as well as “guidance for courts and legislatures navigating the complex terrain of
intentional and negligent fault comparisons”).
6