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Mark v. Agerter

Court of Appeals of Georgia

July 8, 2015

MARK et al.
v.
AGERTER

Medical malpractice. Lowndes Superior Court. Before Judge Altman.

Martin Snow, John C. Edwards, Joel A. Howe, for appellants.

Howell Law Firm, Robert D. Howell; Moore & Voyles, Gregory A. Voyles, for appellee.

BRANCH, Judge. Andrews, P. J., concurs. Miller, J., concurs in judgment only.

OPINION

Page 236

Branch, Judge.

This medical malpractice case arises out of Dr. Edward Mark's alleged negligent placement of a halo device on Austin Agerter. Dr. Mark and his medical practice, Neurology, Neurosurgery & Spine Clinic of South Georgia, LLC (collectively, " Mark" ), appeal from an order of the Superior Court of Lowndes County, which denied in part Mark's motion in limine to exclude evidence of Mark's alleged remedial measure. Specifically, the trial court found that evidence of the alleged remedial measure could be introduced to impeach the testimony of one of Mark's witnesses. Mark contends that this ruling is in error, because no conflict exists between the testimony of his witness and Mark's decision to change his practice as to the placement of halo devices on his patients. For reasons explained more fully below, we agree with Mark and reverse that part of the trial court's order which holds that evidence of Mark's alleged remedial measure is admissible for impeachment purposes.[1]

A denial of a motion in limine is reviewed for an abuse of discretion, and an abuse of discretion occurs when the trial court " misapplies the law." Thomas v. State, 330 Ga.App. 67, 70 (766 S.E.2d 527) (2014); One Bluff Drive v. K. A. P., Inc., 330 Ga.App. 45, 51-52 (766 S.E.2d 508) (2014). Because a motion in limine is a pretrial determination of the admissibility of evidence, " the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care." Forsyth County v. Martin, 279 Ga. 215, 221 (3) (610 S.E.2d 512) (2005). Irrelevant evidence that " does not bear directly or indirectly on the question being tried" should be excluded. CNL APF Partners v. Dept. of Transp., 307 Ga.App. 511, 515 (705 S.E.2d 862) (2010); Housing Auth. of Macon v. Younis, 279 Ga.App. 599 (631 S.E.2d 802) (2006). A trial court errs in denying a motion in limine when there is " no circumstance under which the evidence at issue [is] likely to be admissible" at trial. Younis, 279 Ga.App. at 601. Here, the trial court abused its discretion when it misapplied the relevant law.

The record shows that on or about June 12, 2007, Agerter was injured in a motor vehicle accident and was transported to South Georgia Medical Center where Mark, a neurosurgeon, diagnosed Agerter's injury as a fractured C2 vertebra. Mark treated Agerter by placing him in a halo device designed to stabilize his spine. The horseshoe-shaped device was placed with the opening in the front, [332 Ga.App. 880] rather than the back, and was anchored either in the frontal bone of Agerter's skull or in his temples.[2] Agerter was later treated by Dr. Daniel H. Silcox III, an orthopedic surgeon and a cousin of Agerter's mother, who advised Agerter that the halo device was on backward. Silcox reversed the halo device so that the opening was in the back. Agerter subsequently sued Mark for malpractice, claiming that Mark's negligent placement of the halo opening in the front, with screws in Agerter's temples, caused muscle and other tissue damage.

Mark contends that Agerter's halo ring was properly installed with the opening in the front. At trial, Mark plans to introduce the testimony of Alfred Iverson, president of the company that manufactures the halo device. During his deposition, Iverson testified that from a structural engineering standpoint, nothing restricts the placement of the halo with the opening in the front, and the decision of where to position the halo is within the discretion of the treating surgeon.

Prior to Agerter's lawsuit against him, Mark's " routine custom and practice" was to place the halos on his patients with the opening in the front, as Mark did with Agerter.

Page 237

However, Mark testified as to his belief that Agerter sued because the manufacturer's pamphlet depicted the halo device installed with the opening in the back.[3] Thus, Mark further testified that after Agerter filed his suit, he positions all halo devices on his patients with the opening in the back. Mark explained his decision to change his usual practice, stating that the lawsuit meant that " my [previous] practices and what I had been doing had obviously come into question ... and if there's a chance that the standard would be changed, I didn't want to be [sued] again."

To support his negligence claims, Agerter wishes to introduce evidence of Mark's change in procedure at trial. Mark filed a motion in limine to exclude this change as ...


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