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Piedmont Newnan Hosp., Inc. v. Barbour

Court of Appeals of Georgia

July 16, 2015


Reconsideration denied July 30, 2015 -- Cert. applied for.

Page 823

Medical malpractice. Fulton State Court. Before Judge Dixon.

Judgment affirmed in part and reversed in part.

King & Spalding, Chilton D. Varner, Merritt E. McAlister; Weathington Smith, Paul E. Weathington, Charles M. Smith, Paul I. Hotchkiss, for appellant.

The Summerville Firm, Darren Summerville, Angela R. Fox; Bell Law Firm, Lloyd N. Bell; The Schlachter Law Firm, Lawrence B. Schlachter, for appellees.

RAY, Judge. Phipps, P. J., concurs, Andrews, P. J., concurs fully in Division 3 and in judgment only in Divisions 1 and 2.


Page 824

Ray, Judge.

This case presents the interesting issue of whether it is permissible for a trial court to allow members of a jury to use their sense of touch during a trial to determine a critical issue of fact, just as they might use their senses of sight and hearing. The issue arose when plaintiff's counsel requested and received permission for members of the jury to briefly touch both of the plaintiff's hands to determine if there was a detectable difference in the temperature of each hand, which would be an important factor in determining whether the plaintiff had Complex Regional Pain Syndrome (" CRPS" ). The plaintiff claimed that his arm was damaged while undergoing a medical procedure performed at the defendant hospital, causing him to suffer from CRPS, with one consequence being that his damaged arm was [333 Ga.App. 621] much colder than normal. The experts who testified on behalf of the parties disagreed as to whether there was a meaningful difference in temperature of the plaintiff's hands, even though they agreed that a temperature asymmetry would be an important factor in determining whether the plaintiff suffered from CRPS.[1]

Under the circumstances of this case, we do not believe that the trial court abused its discretion in allowing the jurors to touch the plaintiff's hand to determine for themselves which of the two experts was correct as to this critical fact, and possibly, which expert had greater credibility as to his medical diagnosis of whether the plaintiff did or did not suffer from CRPS. Additionally, we find that the trial court properly acted within its discretion by issuing its spoliation order regarding evidence which the defendants admittedly failed to preserve for trial. However, we also find that evidence as to future lost wages which the plaintiff might suffer was at best speculative and unsupported. Accordingly, we affirm the judgment in principal part, but reverse the judgment as it pertains to the $1,195,957 awarded for future lost wages.

On June 1, 2011, Plaintiff-Appellee Michael Barbour arrived at Appellant Piedmont Newnan Hospital (" Piedmont Newnan" ) complaining of chest pains and difficulty with breathing. He underwent a series of diagnostic tests to assess his heart, principally a nuclear stress test to compare the blood flow into his heart while he was both at rest and under stress. This procedure involves injecting a small amount of nuclear material into the bloodstream to act as a tracer to the heart to facilitate the taking of a " resting" image of the patient's heart. Thereafter, the patient exercises to increase his heart rate, then receives another injection of the same nuclear tracer, and then a second image of the " stressed" heart is taken. As to Mr. Barbour, in each instance the nuclear tracer was introduced through an IV catheter which was originally placed in his left

Page 825

arm when he first received treatment upon arriving at the emergency room.

The " resting" phase of the test went off without any outward indication of a problem. The nuclear material was introduced into Mr. Barbour's vein, and Piedmont Newnan proceeded to take an image of his heart. Thereafter, Mr. Barbour proceeded to the " stress" portion of the test. First, he began walking on a treadmill to induce his heart to reach the target rate; this took approximately ten minutes. Then, the radioactive tracer was injected into the catheter in Mr. Barbour's arm [333 Ga.App. 622] while he remained on the treadmill. Eventually, however, Mr. Barbour felt a sharp pain and cried out, leading the nurse to immediately terminate the test as she believed that the tracer material had infiltrated Mr. Barbour's arm, meaning that the material was not contained within his vein and bloodstream, but had leaked into the soft tissue of his arm. Mr. Barbour's arm swelled and became discolored, and a bulge appeared near where the IV port was located. No image of Mr. Barbour's heart was taken as the attention of hospital staff shifted to treating his arm. Eventually, Mr. Barbour was discharged with specific instructions related to his arm.

The pain in Mr. Barbour's arm did not subside. He called a nursing hotline four days after the infiltration complaining that it was worsening, including that his arm was burning, tingling and swollen. He visited his primary care physician three weeks later, having much the same complaints, including that the arm was " icy hot." After the pain spiked further while playing softball, he sought care from two nearby emergency rooms, including at Piedmont Newnan. Eventually, neurologist Dr. Knobler diagnosed Mr. Barbour with CRPS, a diagnosis that was later confirmed by Dr. Andrew Koman, an orthopedic surgeon and expert on CRPS. It was Dr. Koman's opinion that the infiltration of the nuclear tracer outside the vein, combined with blood then escaping the vein, had a damaging impact on the nerve.

Mr. Barbour underwent a series of medical procedures to address the problems in his arm. Dr. Koman performed two surgeries on a nerve in Mr. Barbour's left arm. Dr. Erik Shaw of the Shepherd's Clinic, who specializes in CRPS, also provided treatment to Mr. Barbour. These surgeries and medical treatment were an issue at the trial, with Piedmont Newnan claiming that they were the source ...

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