Naik v. Booker

Barnes, Judge.

We granted Dr. Madhav Naik’s application for interlocutory appeal to determine whether the trial court erred when it denied summary judgment to Dr. Naik in this medical malpractice action arising from the death of Mrs. Helen C. Robinson.¹ Because we find that the deposition testimony and affidavit of Booker’s expert was sufficient to establish a genuine issue of material fact over whether Dr. Naik’s professional negligence was a cause of Mrs. Robinson’s death, we affirm the trial court.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. . . . [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewed, the record shows that on April 16, 1997, 55-year-old Helen C. Robinson was involved in a head-on automobile collision in LaGrange and taken to West Georgia Medical Center. The treating emergency room physician determined that Robinson had suffered a stroke. A neurologist confirmed this and noted that Robinson’s left carotid artery was blocked and that she suffered from cerebrovascu-lar disease.

On April 21, Robinson’s primary care physician consulted Dr. Naik concerning abdominal surgery. Dr. Naik observed that Robinson was unconscious and unresponsive and that her left carotid artery was blocked; noted evidence of additional strokes; and ordered a scan of Robinson’s abdomen, which did not show evidence of any ongoing abdominal bleeding. Based on these observations, Dr. Naik concluded that surgery was not appropriate. Unfortunately, experts later concluded, Robinson was suffering from an internal bleed in her liver or spleen, which could have been repaired. After continuing to receive care from several physicians, Robinson died on May 1, 1997 after suffering a heart attack, and the pathologist concluded that a hematoma in Robinson’s spleen had ruptured, causing her death.

At summary judgment, plaintiffs presented both an affidavit and deposition testimony by Dr. James Reilly. Dr. Reilly’s affidavit averred that if Dr. Naik had intervened surgically, Robinson “would have had less cerebral anoxia and within a reasonable degree of medical probability would have survived,” and concluded that Dr. Naik’s deviations from the standard of care “caused or contributed to the cerebral anoxia, and the ultimate death of Helen Robinson.” At deposition, Dr. Reilly repeated that Dr. Naik should have operated on Robinson. However, Dr. Reilly could not say that she would have survived the hospitalization immediately afterward:

A. I would have probably given her only about a 50-50 chance of leaving the hospital in good condition. ... [A] lot of patients [think that] when you finish the surgery, . . . She’s safe. She’s done. And I think that she would have survived. She would have been more likely to survive surgery.

Q. But not the hospitalization?

A. . . . Yeah. But to leave[,] to get out of the hospital, she didn’t have such [a] great chance.

Q. Putting it this way: If Dr. Naik had taken this lady and done . . . abdominal surgery on this patient and he did this on 100 patients, 50 of those patients are going to ultimately die during that hospitalization; would you say? Would that be correct?

A. Probably so.

Q. Because that’s how sick this patient was, isn’t it?

A. Yes. Yes.

Shortly afterward, Dr. Reilly returned to this subject:

Q. You can’t say with any degree of medical certainty that had Dr. Naik operated on this patient she more likely would [not have] suffered the kind of cerebral injury that she ultimately suffered and died from, can you? . . . You cannot tell us that had Dr. Naik operated on this lady that more likely than not she would have survived this hospitalization? You can’t say that, can you?

A. No, I cannot.

In Zwiren v. Thompson, 276 Ga. 498 (578 SE2d 862) (2003), the Supreme Court of Georgia set out the law governing the use of expert testimony in medical malpractice cases as follows:

Medical malpractice being a civil cause of action, a plaintiff must prove liability (i.e., duty, negligence, proximate cause) by a preponderance of the evidence. “Preponderance of the evidence” is statutorily defined as “that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” OCGA § 24-1-1 (5). The standard requires only that the finder of fact be inclined by the evidence toward one side or the other.

(Citation omitted.) Id. at 499. Our Supreme Court then proceeded to apply this well-established law as follows:

[T]o establish proximate cause by a preponderance of the evidence in a medical malpractice action, the plaintiff must use expert testimony because the question of whether the alleged professional negligence caused the plaintiffs injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Using the specialized knowledge and training of his field, the expert’s role is to present to the jury a realistic assessment of the likelihood that the defendant’s alleged negligence caused the plaintiffs injury. In presenting an opinion on causation, the expert is required to express some basis for both the confidence with which his conclusion is formed, and the probability that his conclusion is accurate. Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, it is the intent of our law that if the plaintiffs medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.

(Citations and punctuation omitted.) Id. at 500-501. The court went on to say, however, that

“reasonable degree of medical certainty,” while an acceptable means by which an expert may express the confidence the expert has in the conclusion formed and the probability that it is accurate, is not the required standard. Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.

Id. at 503.

The thrust of Dr. Naik’s argument is that even if he had operated on Mrs. Robinson and repaired her bleeding spleen, no competent evidence exists to prove that she would have survived her hospitalization. For this conclusion Dr. Naik and the dissent rely upon the testimony of Booker’s expert that he could not say with any degree of medical certainty that Mrs. Robinson would not have suffered the kind of cerebral injury that ultimately caused her death or that she would have survived this hospitalization.

Focusing only on this testimony, however, ignores the expert’s affidavit that surgical intervention should have been ordered and that if Dr. Naik had performed the surgery, Mrs. Robinson would have probably survived. In his affidavit, the expert stated: “If Mrs. Robinson’s hemorrhage had been identified and stopped sooner by Dr. Naik with surgical intervention, she would have had less cerebral anoxia and within a reasonable degree of medicad probability would have survived.” The expert further stated that Dr. Naik caused or contributed to the cerebral anoxia and Mrs. Robinson’s ultimate death.

The dissent also disregards the expert’s deposition testimony that, although she did not have a “great chance” of leaving the hospital, Mrs. Robinson did have a 50/50 chance of leaving and would likely have survived the surgery. According to the expert, Dr. Naik failed to diagnose that Mrs. Robinson was in hypovolent shock, and she was in shock because of an internal bleed in her liver or spleen. While the expert recognized in his deposition that the “vast majority” of Mrs. Robinson’s injury from the hypovolemia occurred before her condition was recognized, and Dr. Naik was not responsible for that portion of the injury, he also stated in his affidavit that Mrs. Robinson should have been operated upon and her spleen removed to stop the bleeding.

Additionally, the pathologist who performed the autopsy on Mrs. Robinson testified that her cerebellar vascular accident or insult was not the cause of her death. In his opinion, she had a hematoma in her spleen that ruptured and the injury to her spleen caused her death. According to the pathologist, Mrs. Robinson was admitted to the hospital on April 16 and on April 22 she suffered a sudden, rapid deteriation of her physical well-being. In his opinion, this deterioration was caused by the spleen rupturing.

Although the deposition testimony of Booker’s expert regarding whether Mrs. Robinson would have survived the surgery may conflict with his affidavit, this conflict is not an issue this court can resolve. Whitley v. Piedmont Hosp., 284 Ga. App. 649, 653 (1) (644 SE2d 514) (2007) (determination of witness credibility is the jury’s province). In Ezor v. Thompson, 241 Ga. App. 275 (526 SE2d 609) (1999), we held the self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), did not apply to the testimony of a nonparty expert witness, and this holding was affirmed in Thompson v. Ezor, 272 Ga. 849 (536 SE2d 749) (2000). “[C]ontradictions go solely to the expert’s credibility, and are to be assessed by the jury when weighing the expert’s testimony.” Id. at 853.

Accordingly, we are satisfied that the deposition testimony and affidavit of Booker’s expert were sufficient to state that Dr. Naik’s professional negligence was the cause of Mrs. Robinson’s injury and death within a “reasonable medical probability or reasonable medical certainty.” Therefore, the trial court did not err by denying Dr. Naik’s motion for summary judgment.

Judgment affirmed.

Miller, C. J., Johnson, P. J., and Ellington, J., concur. Blackburn, P. J., and Mikell, J., concur specially. Andrews, P. J., dissents.

1 The action was brought initially by James W Robinson, as surviving spouse of Mrs. Robinson and as executor of her estate, but upon his death Linda Gail Booker and Jamie M. Folds were substituted as party-plaintiffs.