March 16, 2015
HAND et al.
SOUTH GEORGIA UROLOGY CENTER, P.C. et al
Reconsideration denied April 14, 2015 -- Cert. applied for.
Medical malpractice. Toombs State Court. Before Judge Garner, from Treutlen County.
Judgment reversed and case remanded. Motion for reconsideration denied.
Tate Law Group, Mark A. Tate, James E. Shipley, Jr., for appellants.
Hall Booth Smith, Terrell W. Benton III, Dean T. Cleaveland, for appellees.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
In this civil action, George and Betty Hand sued Dr. Gilbert Gonzalez and his practice group, South Georgia Urology Center, P.C. (collectively " defendants" ), for damages they allegedly suffered as a result of Dr. Gonzalez's medical malpractice. Following a jury verdict and judgment in favor of defendants, the Hands appeal, arguing that the trial court erred in (1) excluding impeachment evidence, (2) failing to instruct the jury on the law pertaining to spoliation of evidence, (3) prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his
medical license, and (4) finding that sufficient evidence supported the jury's verdict. For the reasons noted infra, we agree that the trial court erred in excluding impeachment [332 Ga.App. 149] evidence, and therefore, reverse the trial court's ruling in that regard and remand the case for a new trial.
Construed in favor of the jury's verdict, the evidence shows that in late 2005, Dr. Gonzalez, a urologist, diagnosed George Hand as having an enlarged prostate. And after discussing various treatment options, Dr. Gonzalez ultimately recommended transurethral microwave thermotherapy, using a Targis System device manufactured by Urologix, Inc. In this procedure, the physician places the Targis device's catheter, housing a microwave antenna, into the patient's urethra near the prostate gland and inserts the device's rectal thermometer into the patient's rectum directly adjacent to the prostate gland. The antenna then delivers microwave energy into the patient's prostate, causing cellular breakdown that leads to a reduction in the size of the prostate. During the procedure, the rectal thermometer monitors the temperature of the prostate gland and automatically halts the procedure if the temperature exceeds acceptable levels.
Based on Dr. Gonzalez's recommendation, Hand consented to the microwave thermotherapy. Consequently, on January 19, 2006, Hand went to Dr. Gonzalez's offices, where one of the nurses prepped him and then inserted the Targis device's catheter into Hand's urethra and the rectal thermometer into his rectum. After Dr. Gonzalez checked the placement of both insertions, he activated the device.
During the procedure, Hand informed Dr. Gonzalez's assistants that he was experiencing a considerable amount of pain. But the device's rectal thermometer never indicated that the temperature exceeded safe levels, and Hand never requested that the assistants stop the treatment. Nearly 45 minutes later, the procedure concluded with no apparent complications, and Dr. Gonzalez sent Hand home to recuperate.
After resting for approximately two weeks following the procedure, Hand was still experiencing discomfort, but he nevertheless attempted to return to his job as a truck driver. However, on his first day back, Hand noticed that he discharged urine from his rectum when trying to use the bathroom. Almost immediately, Hand contacted Dr. Gonzalez, who quickly saw him on February 10, 2006, and determined that the microwave thermotherapy procedure had burned a hole between Hand's rectal and urethral tissues, causing what is known as a rectal-urethra fistula. A short time later, Hand was admitted to the hospital for surgery to repair the fistula, and over the [332 Ga.App. 150] course of the next couple of years, he underwent numerous surgeries and procedures to treat the damage and complications resulting from the injury.
In 2008, Hand and his wife filed a complaint against Dr. Gonzalez and his practice group, alleging
that Dr. Gonzalez breached the standard of medical care in treating Hand and that this breach resulted in serious injuries. Specifically, the Hands claim that Dr. Gonzalez failed to ensure that the Targis device's rectal thermometer was properly inserted near Hand's prostate gland prior to the microwave thermotherapy procedure and, thus, the thermometer did not indicate that Hand's urethral and rectal tissue were being subjected to dangerous temperature levels. Defendants then filed an answer, and a lengthy discovery period ensued.
During discovery, the Hands' counsel deposed Dr. Gonzalez, who testified that he did not breach the standard of medical care in his treatment of Hand. Dr. Gonzalez further testified that he believed the Targis device malfunctioned during Hand's treatment and that this malfunction resulted in the burns to Hand's tissue. Dr. Gonzalez added that he believed he had attempted to perform microwave thermotherapy treatment once or twice after Hand's procedure, but the device would not operate properly. Then, after learning of Hand's injury, he " lost faith" in the Targis device and stopped using it completely by late February or early March 2006.
A jury trial commenced on April 26, 2013, during which the Hands presented evidence that Dr. Gonzalez breached the standard of medical care. Defendants presented evidence that Dr. Gonzalez adhered to the standard of medical care, including expert testimony supporting his theory that the Targis device malfunctioned and caused Hand's injury. The trial concluded on May 3, 2013, with the jury rendering a verdict in favor of defendants. One week later, the trial court affirmed the verdict and issued an order entering judgment. Subsequently, the Hands filed a motion for new trial, which the trial court denied after conducting a hearing. This appeal follows.
1. The Hands contend that the trial court erred in excluding evidence that was relevant to the impeachment of Dr. Gonzalez. We agree.
It is well established that the admission of evidence is " within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion."  But it is likewise well established that evidence having a tendency to establish facts at [332 Ga.App. 151] issue is " relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence."  With these guiding principles in mind, we turn now to the Hands' specific claim of error.
Despite Dr. Gonzalez's deposition testimony (mentioned supra), during the course of discovery, the Hands never requested to inspect the Targis device used to treat Hand. However, a few weeks before trial was scheduled to begin, the Hands served Dr. Gonzalez with a subpoena duces tecum, requesting that the device be brought to trial solely for demonstrative purposes. And at the start of trial, the Targis device that the parties assumed to be the device used to treat Hand was indeed brought to the courtroom. Later, during a break in the proceedings, and after the Hands rested, the Hands' counsel activated the power on the Targis device and discovered reports in the form of data on the device, indicating that, contrary to his deposition testimony, Dr. Gonzalez used the device to treat six other patients over the course of several months after he determined that Hand suffered injuries as a result of the microwave thermotherapy procedure. The Hands' counsel immediately brought this information to the trial court's attention and requested, inter alia, that the data be printed out and admitted as impeachment evidence. But focusing on the fact that the Hands' counsel never requested to inspect the device during discovery, the trial court denied this request.
Subsequently, Dr. Gonzalez testified in his own defense. And during cross-examination, despite the Hands' counsel's questions about the additional apparent microwave thermotherapy treatments administered after he learned of Hand's injury, Dr. Gonzalez maintained that he only attempted to perform this type of treatment once or twice in the period of time between his treatment of Hand and learning of Hand's injury. In addition, Dr. Gonzalez testified that, based on documents found in his office records the previous evening, he learned that the Targis device currently in the courtroom--while the identical model--was not the same machine he used to treat Hand. Rather, that specific device had been retrieved by Urologix on March 22, 2006, and replaced with the current device.
Based on this testimony, the Hands' counsel again sought to print out and introduce the data showing that six microwave thermotherapy treatments were performed after Dr. Gonzalez learned of Hand's injury, but the trial court once again ruled that any data from the Targis device should have been the subject of a discovery request. The trial court allowed the Hands' counsel to further question Dr. [332 Ga.App. 152] Gonzalez regarding the replacement Targis device, but during that cross-examination, Dr. Gonzalez maintained that he did not think he used the device on any patients after learning of Hand's injury.
The Hands argue that the data from the Targis device discovered during trial was admissible to impeach Dr. Gonzalez, and that
the trial court's exclusion of this evidence was harmful. As noted supra, we agree.
Under OCGA § 24-1-1, " [t]he object of all legal investigation is the discovery of truth. ..."  And consistent with this statutory mandate, " the policy of Georgia law is to admit evidence, even if its admissibility is doubtful, because it is more dangerous to suppress the truth than to allow a loophole for falsehood."  Toward that end, OCGA § 24-6-607 states that " [t]he credibility of a witness may be attacked by any party, including the party calling the witness." Additionally, OCGA § 24-6-621 provides that " [a] witness may be impeached by disproving the facts testified to by the witness." Moreover, a trial court may admit evidence relevant to the issue of impeachment even if " the evidence would not qualify for admission on other grounds." 
In the case sub judice, the data from the Targis device seemingly showed that, contrary to his testimony in his deposition and at trial, Dr. Gonzalez did, in fact, use the device--or an identical one--to treat six more patients after he learned of Hand's injury and allegedly " lost faith" in the device's ability to function properly. Defendants nevertheless assert that the trial court's decision to exclude this evidence was correct because whether Dr. Gonzalez used the Targis device to treat other patients ultimately has no bearing on whether he breached the standard of medical care in treating Hand. We disagree.
While it is true that a witness may not be impeached because of a discrepancy as to a wholly immaterial matter, " a witness may be impeached on a collateral issue which is indirectly material to the issue in the case."  Here, whether the Targis device was functioning [332 Ga.App. 153] properly--and perhaps more importantly whether Dr. Gonzalez actually believed that it was functioning properly--was certainly material to an issue in the case. In fact, Dr. Gonzalez's primary defense was that the device malfunctioned, and the sole focus of the testimony of Dr. Gonzalez's mechanical engineering expert was an explanation of her examination of the device and her theory as to how the device could have malfunctioned to cause Hand's injury.
Furthermore, the trial court's exclusion of the data from the device based upon the Hands' failure to request an inspection of the device during discovery is equally unpersuasive in light of the Supreme Court of Georgia's decision in Ballard v. Meyers, where it reversed the trial court's exclusion of a document impeaching the plaintiff's testimony because the defendant failed to list it in the pretrial order. In doing so, our Supreme Court reasoned that
[w]hile an attorney in a civil action should disclose the names of those who will or may be relied upon affirmatively to prove the client's case, there is no comparable rationale for requiring the disclosure of documents which may be used to attack the credibility of the other side's witnesses.
The Ballard Court also noted that the imposition of such a restrictive rule could lead to situations in which " [a] party's witnesses could lie on the stand and then that party [could] object to the introduction of any impeaching documents which were not expressly
listed in the pretrial order."  And refusing to countenance such a result, the Court held that " [i]n a trial, the credibility of the witnesses is a matter which should be resolved by the jurors who have heard all of the relevant evidence, and not by the text of the pretrial order." 
Although decided well before the effective date of Georgia's new Evidence Code, the principles espoused in Ballard are similarly posited by the federal case law interpreting Federal Rule of Evidence 607, which is nearly identical to OCGA § 24-6-607. Specifically, [332 Ga.App. 154] Rule 607 concerns the doctrine of impeachment by contradiction and permits the admission of extrinsic evidence to impeach specific errors or falsehoods in a witness's direct testimony, " subject to Rule 403."  Indeed, the federal courts have described impeachment by contradiction as " a means of policing the defendant's obligation to speak the truth in response to proper questions[.]" 
Employing the logic and reasoning from Ballard, as well as that delineated in the federal case law pertaining to Rule 607, we find that the Hands' failure to request data or documents from the Targis device during discovery--while tactically questionable--does not justify the exclusion of such relevant and impeaching evidence once it was discovered. Moreover, this information, which was never in the possession of the Hands' counsel, ostensibly documented treatments performed by Dr. Gonzalez and, therefore, were arguably within his own ability to recall. Consequently, the attempted introduction of this evidence by the Hands can hardly be characterized as " trial by ambush."  Given these circumstances and the fact that our law favors admission of relevant evidence even of slight probative value, the trial court's ruling in this case constitutes an abuse of discretion as it " authorizes the exclusion of relevant impeaching evidence and allows the credibility of a crucial witness to go unchallenged."  Accordingly, we reverse the trial court's judgment and remand this case for a new trial. In doing so, we " deplore the significant burden a ... retrial will impose, not only on the parties, but on the community
[332 Ga.App. 155] as well[.]"  Nevertheless, we remain steadfast in " our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial,"  and we will not hesitate to remand a case back to the trial court when this has not occurred.
2. The Hands also contend that the trial court erred in failing to instruct the jury on the law pertaining to spoliation of evidence. Because this issue will likely reoccur, we address this enumeration and hold that the trial court did not err.
It is axiomatic that a jury charge must be " adjusted to the evidence, apt, and a correct statement of the applicable law."  And a refusal to give a requested jury charge is not error unless " the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge."  Furthermore, the review of allegedly erroneous jury instructions is a legal question, and we therefore " owe no deference to the trial court's ruling and apply the 'plain legal error' standard of review."  Bearing these guiding principles in mind, we will now address the Hands' specific claim.
The Supreme Court of Georgia has held that " spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation."  And if a trial court finds that a party has engaged in spoliation, it may instruct the jury regarding OCGA § 24-14-22, which provides:
If a party has evidence in such party's power and within such party's reach by which he or she may repel a claim or charge against him or her but omits to produce it or if such [332 Ga.App. 156] party has more certain and satisfactory evidence in his or her power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted.
However, notice of potential liability is " not the same as notice of potential litigation."  Rather, to meet the standard for proving spoliation, the injured party must show that " the alleged tortfeasor was put on notice that the party was contemplating litigation."  Indeed, the simple fact that someone is injured, without more, is " not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation."  Furthermore, the trial court has wide discretion in resolving spoliation issues, and " we will not disturb its ruling absent abuse." 
In this matter, the Hands requested that the trial court instruct the jury regarding OCGA § 24-14-22 after learning during trial that the Targis device in the courtroom was not the actual device that Dr. Gonzalez used to treat Hand. The trial court denied the request, and the Hands now claim that this denial constituted error. As noted previously, we disagree.
Urologix replaced the Targis device in question nearly three months after Dr. Gonzalez used it to treat Hand. And putting aside whether Dr. Gonzalez was being truthful when he testified to having no recollection of Urologix retrieving the device, there is no evidence that Dr. Gonzalez had notice that the Hands were contemplating litigation when Urologix replaced the device. Accordingly, the trial court did not err in ruling that instructing the jury pursuant to OCGA § 24-14-22 was unwarranted.
3. The Hands also contend that the trial court erred in prohibiting cross-examination of Dr. Gonzalez regarding the past suspension [332 Ga.App. 157] of his medical license. Because this issue may also reoccur, we will address this argument as well, and hold that the trial court did not err in this respect either.
Prior to trial, defendants filed a motion in limine, requesting the exclusion of any evidence regarding the temporary suspension of Dr. Gonzalez's medical license, which occurred years before he treated Hand. Following a pretrial hearing on the matter, the Hands' counsel indicated that he did not intend to delve into this issue, and the trial court granted defendants' motion. Thereafter, during direct examination, defense counsel asked Dr. Gonzalez how long he had been a urologist, and he responded, " 1989 to the present." Subsequently, the Hands' counsel sought a bench conference and argued that Dr. Gonzalez's above-referenced testimony " opened the door" to the admission of evidence regarding the suspension of his license. The trial court disagreed and denied the Hands' request.
On appeal, the Hands reassert that Dr. Gonzalez's testimony--that he had been a urologist from 1989 to the present--opened the door for evidence regarding the suspension of his license. We disagree. As previously noted, " [q]uestions of relevancy are generally matters within the trial court's discretion[.]"  Nevertheless, it is not error to exclude evidence that " is not related to an issue at trial."  And evidence that is " both irrelevant and prejudicial is inadmissible."  Here, given that the suspension and reinstatement of Dr. Gonzalez's license occurred years before his treatment of Hand, the admission of such evidence was irrelevant to whether the doctor breached the standard of medical care in this particular case and would have been unduly prejudicial. Moreover, even if we agreed with the Hands that Dr. Gonzalez's testimony regarding how long he had been a urologist could somehow be construed as implying that his practice had never been interrupted for any reason and, therefore, was untruthful, " a witness may not be impeached based upon a discrepancy relating to a wholly immaterial matter." 
And in stark contrast to the evidence discussed in Division 1, supra, evidence of Dr. Gonzalez's past license suspension is immaterial. Accordingly, the [332 Ga.App. 158] trial court did not abuse its discretion in prohibiting cross-examination of Dr. Gonzalez regarding the past suspension of his medical license.
4. Because we have determined that a new trial is necessary, we need not address the Hands' remaining enumeration of error regarding whether the evidence supported the jury's verdict.
For all of the foregoing reasons, we reverse the trial court's judgment in favor of defendants and remand the case for a new trial.
Judgment reversed and case remanded.
Doyle, P. J., and Miller, J., concur.
On Motion for Reconsideration.
On motion for reconsideration, the defendants request that we revisit our ruling that the trial court erred in excluding the data from the Targis device (discovered during trial) that was admissible to impeach Dr. Gonzalez's testimony that he did not use the device after learning of Hand's injury. Specifically, defendants argue that the trial court did not err in excluding this evidence because the data was never actually printed from the device during trial, and thus, the Hands never made a formal proffer of same. We disagree.
Defendants are correct that the record is somewhat confusing as to whether the data on the Targis device--showing that Dr. Gonzalez used it six more times after learning of Hand's injury--was ever printed during trial. Indeed, this confusion seemingly even extends to defendants' own appellate brief, in which their initial reference to the issue notes that " [a]ppellants turned the machine on and printed subsequent data from it at trial ... ." But regardless of the form of the data, the fact remains that it constitutes evidence that contradicts both Dr. Gonzalez's deposition and trial testimony. Moreover, defendants' argument that exclusion of the evidence was proper because the Hands never made a formal proffer is unpersuasive. OCGA § 24-1-103 (a) (2) provides that
[e]rror shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and ... [i]n case the ruling is one excluding evidence, [332 Ga.App. 159] the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked.
Here, the record is replete with discussions between both parties and the trial court regarding the fact that the data indicates that Dr. Gonzalez used the Targis device after learning of Hand's injury, despite his testimony to the contrary. In fact, the trial court succinctly and accurately summarized the Hands' argument for the admissibility of the data just before ultimately ruling to exclude the evidence. Thus, the trial court was fully aware of what the data generally entailed and why the Hands believed it was important to their case. Nevertheless, the court chose to exclude this relevant impeaching evidence and allow the credibility of Dr. Gonzalez to go unchallenged. In doing so, the trial court committed reversible error. Accordingly, defendants' motion for reconsideration is denied.
Motion for reconsideration denied.