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Chadwick v. Brazell

Court of Appeals of Georgia

March 19, 2015

CHADWICK et al.
v.
BRAZELL; and vice versa

Page 76

Attorney fees. Fulton State Court. Before Judge Eady.

Freeman, Mathis & Gary, Michael D. Flint, Laura L. Broome, for appellants.

DelCampo Weber & Grayson, J. Antonio DelCampo, Randall D. Grayson, Roberts & Associates, Lisa R. Reeves, for appellee.

BOGGS, Judge. Barnes, P. J., and Branch, J., concur.

OPINION

Page 77

Boggs, Judge.

A jury awarded Lisa M. Brazell $125,000 on her medical malpractice claim against Brian S. Chadwick, M.D., and Haven Gynecology, P.C., d/b/a Haven Medical Spa & Cosmetic Surgery (hereinafter " Chadwick" ). In Case No. A14A2279, Chadwick appeals, asserting that the trial court erred in failing to grant his motion in limine to exclude mention of Brazell's punitive damages claim and by failing to grant his motion for attorney fees pursuant to OCGA § 9-11-68. In Case No. A14A2280, Brazell appeals, asserting that the trial court erred in allowing Chadwick to testify as an expert witness, and in refusing to award her attorney fees pursuant to OCGA § 9-15-14. She also asserts that the court erred in failing to order a new trial in light of what she alleges was Chadwick's impermissible expert testimony and because the jury's verdict was against the weight of the evidence. For the following reasons, we affirm in both cases.

In her complaint,[1] Brazell alleged that Chadwick negligently: performed her breast implant surgery and did not have the proper education, training and skills to do so; failed to obtain consultation and referral for performance of the procedure and for management of post-operative complications; failed to disclose to her the material [331 Ga.App. 374] risks of the surgery and failed to obtain her informed consent for the procedure; failed to recognize and properly treat her non-healing surgical wound when the implant began to protrude through her skin; re-sutured the non-healing skin instead of promptly removing the implant and placing a drain; prematurely reinserted the implant a month later and attempted to improperly use the implant as a tissue expander; and failed to allow eight weeks to three months for healing before placement of a tissue expander or another implant. After suffering further complications, Brazell sought the help of another physician who removed the implant. Brazell alleged that she " suffered loss of tissue and asymmetry and would require at least two reconstructive procedures, including placement of a breast implant into the left breast at a future time."

Brazell sued Chadwick for medical malpractice and sought compensatory and punitive damages. Following a five-day trial, a jury awarded Brazell $125,000 in " total damages." The trial court entered a judgment on the verdict, and the parties now appeal.

Case No. A14A2279

1. Chadwick argues that the trial court erred in failing to grant his motion in limine to preclude Brazell from making any mention of her request for punitive damages. However the record contains only an excerpt of a motion hearing during the trial that reveals Brazell withdrew her claim for punitive damages following the close of all evidence. Chadwick can show neither error nor harm in the absence of a transcript of the trial showing that punitive damages were mentioned during the trial. See Gaddis v.

Page 78

Skelton, 226 Ga.App. 325, 326 (486 S.E.2d 630) (1997). It was Chadwick's obligation as the appellant to show error in the record, and he has failed to do so here. See id.

2. Chadwick contends that the trial court erred in denying his motion for attorney fees pursuant to OCGA § 9-11-68. OCGA § 9-11-68 (b) (1) provides:

If a defendant makes an offer of settlement which is rejected by the plaintiff, the defendant shall be entitled to recover reasonable attorney's fees and expenses of litigation incurred by the defendant or on the defendant's behalf from the date of the rejection of the offer of settlement through the entry of judgment if the final judgment is one of no liability or the final judgment obtained by the plaintiff is less than 75 percent of such offer of settlement.

[331 Ga.App. 375] The offer must :

(1) Be in writing and state that it is being made pursuant to ...

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