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Hand v. South Georgia Urology Ctr., P.C.

Court of Appeals of Georgia

March 16, 2015

HAND 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.


Page 815

Dillard, Judge.

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

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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,[1] 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

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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 ...

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