CENTRAL GEORGIA WOMEN'S HEALTH CENTER, LLC et al.
DEAN et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
B. Dean and Lester Harold Dean, IV, individually and as
administrators of the estate of their deceased child, filed
this medical malpractice action against several defendants,
including Dr. Henry J. Davis and Central Georgia Women's
Health Center, LLC (collectively, the "Davis
Defendants"), seeking damages for the wrongful death of
their child and for the pain and suffering of their child and
Mrs. Dean. Following a seven-day trial, the jury awarded the
plaintiffs over $4 million in damages and apportioned 50
percent of the fault to the Davis Defendants. The Davis
Defendants now appeal, contending that the trial court erred
in denying their motions for directed verdict and for
judgment notwithstanding the verdict ("j. n. o.
v.") because the plaintiffs failed to present evidence
to a reasonable degree of medical certainty that the
child's premature delivery and death could have been
prevented by Dr. Davis. The Davis Defendants also contend
that the trial court erred in denying their motion for new
trial because the plaintiffs should not have been permitted
to cross-examine Dr. Davis about an entry he made in Mrs.
Dean's hospital chart that the plaintiffs alleged was
probative of his untruthfulness. For the reasons discussed
below, we affirm.
in favor of the jury's verdict,  the evidence shows that in
April 2007, Mrs. Dean became a patient at the Central Georgia
Women's Health Center, LLC ("Women's Health
Center"), an obstetrics-gynecology practice in Macon.
Mrs. Dean was 33 years old and 6 weeks pregnant at her first
visit. She had two prior miscarriages and had previously
undergone a loop electrosurgical excision procedure
("LEEP") to remove abnormal tissue from her cervix.
Undergoing a LEEP procedure can place a woman at risk for a
medical condition known as an "incompetent" or
"insufficient" cervix in which the cervix is too
weak, without medical intervention, to support a pregnancy to
term. Administering progesterone and/or performing a
"cerclage, " a surgical procedure in which the
cervix is sewn closed during pregnancy, were known treatments
for cervical incompetence in 2007.
initial office visit at the Women's Health Center, Mrs.
Dean saw Dr. Kerry Holliman and informed her of her medical
history. Because of Mrs. Dean's prior LEEP procedure, Dr.
Holliman ordered that ultrasounds be performed at an
increased frequency throughout the pregnancy. The ultrasounds
would show whether Mrs. Dean's cervix abnormally
shortened in length and/or exhibited funneling,
which are prominent markers for cervical incompetence and
July 25, 2007 Ultrasound.
the course of her pregnancy, Mrs. Dean's ultrasounds
showed a progressive shortening of her cervix. At Mrs.
Dean's first ultrasound visit on April 2, 2007, her
cervical length was 4.4 centimeters. By July 11, 2007, her
cervical length was 3.6 centimeters. A subsequent ultrasound
on July 25, 2007 showed that Mrs. Dean's cervix had
shortened to 1.9 centimeters with funneling at one point
during the ultrasound.
Dean was 22 weeks, 4 days pregnant at the time of the July 25
ultrasound. A cervical length of less than 2.5 centimeters at
that early stage of a pregnancy is considered
"critical" and increases the risk of premature
delivery (i.e., before 34 weeks) to greater than 50 percent.
A baby born prematurely at 22 weeks has approximately a 10
percent chance of survival. Based on the July 25 ultrasound
results, Dr. Holliman told Mrs. Dean to "take it easy,
" not lift any heavy objects, and come back to the
office in one week for an additional ultrasound.
July 31, 2007 Hospital Visit and Call to Dr. Davis.
the July 25 ultrasound, Mrs. Dean stayed home from work and
rested. However, before the week passed, on the evening of
July 31, 2007, Mrs. Dean began to have thick, dark vaginal
discharge. Mrs. Dean and her husband drove to the hospital
emergency room. On the way to the hospital, Mrs. Dean spoke
on the telephone with Dr. Davis, who was the
obstetrician-gynecologist on-call that night for the
Women's Health Center. Mrs. Dean informed Dr. Davis of
her prior LEEP procedure, the shortening of her cervix shown
on the July 25 ultrasound, her week of bed rest, and the
thick brown discharge. Dr. Davis told Mrs. Dean that the
thick brown discharge was probably "old blood" from
the ultrasound, that the hospital would likely send her home,
and that she could just come to her scheduled office visit at
9:00 a.m. the following morning.
Dean and her husband decided to continue to the hospital for
an evaluation, where Mrs. Dean was seen by a nurse in the
labor and delivery department. The nurse took down Mrs.
Dean's medical history, questioned her about her
symptoms, and conducted a vaginal examination. Mrs. Dean
explained to the nurse that she had dark, brown vaginal
discharge, vaginal spotting, cramping, and urinary frequency
and burning. The nurse noted from her vaginal examination
that Mrs. Dean's cervix was not dilated and that she was
having no contractions.
nurse called Dr. Davis and spoke with him about the results
of the examination. Dr. Davis did not come to the hospital to
evaluate Mrs. Dean or order any diagnostic tests such as an
ultrasound or urinalysis. He recommended that Mrs. Dean
continue with bed rest and gave the nurse orders over the
phone to discharge Mrs. Dean from the hospital. Mrs. Dean was
told to follow-up the next morning with the Women's
Health Center at her previously scheduled 9:00 a.m. office
visit. The nurse told Mrs. Dean that Dr. Davis had diagnosed
her with a urinary tract infection and checked a box on her
discharge instructions for her to drink more fluids for such
August 1, 2007 Premature Delivery.
her discharge from the hospital, Mrs. Dean experienced
worsening symptoms throughout the night, including pelvic
pressure, urinary frequency and burning, and lower abdominal
pain. Early on the morning of August 1, 2007, Mrs. Dean
called Dr. Davis and reported her worsening symptoms, but Dr.
Davis reiterated that he believed she had a urinary tract
infection, that if she went to the emergency room again she
would simply be sent back home, and that she should come to
the office for her regular appointment at 9:00 a.m. that
Dean arrived at the Women's Health Center for her 9:00
a.m. appointment and was seen by another obstetrician in the
group, who examined her and ordered an ultrasound. When the
ultrasound showed increased cervical shortening from the
previous July 25 ultrasound, the obstetrician diagnosed Mrs.
Dean with "possible incompetent cervix" and
recommended that Mrs. Dean go directly to the nearby office
of Dr. Mark Boddy, a maternal fetal medicine specialist with
whom obstetricians in the area routinely consulted. Before
Mrs. Dean could see Dr. Boddy at his office, however, she was
sent to the hospital labor and delivery department because of
her increased complaints of pain.
hospital, Mrs. Dean went into premature labor, and Dr.
Holliman delivered her baby by emergency Caesarian section
that night because of the baby's transverse (or sideways)
position. Postoperative hospital records listed Mrs.
Dean's diagnosis as incompetent cervix. The baby was at a
gestational age of 23 weeks, 4 days and weighed 1 pound, 4
ounces at the time of delivery. The baby subsequently died in
the hospital neonatal intensive care unit because of extreme
prematurity. The pathology report found no signs of infection
and listed incompetent cervix under Mrs. Dean's clinical
history. A urinalysis performed on Mrs. Dean in the hospital
tested negative for infection.
August 2, 2007 Physician Note.
August 2, 2007, as Mrs. Dean was recovering in the hospital
from her Caesarian section, Dr. Davis wrote a physician
progress note at 10:00 a.m. reflecting that he had physically
examined her (the "August 2 Physician Note" or
"Note"). Mrs. Dean, however, had no memory of Dr.
Davis ever coming into her room that day, and Mr. Dean
testified that a different physician from the Women's
Health Center visited his wife's hospital room on August
2, but not until that evening. Dr. Davis, at some unknown
time after making the August 2 Physician Note, struck through
the entire entry and wrote "error pt [patient] not
seen[, ] out of room" followed by his signature. In
contrast, other medical records prepared by a nurse on August
2 reflect that Mrs. Dean and her husband had been in the
hospital room that morning, and Mrs. Dean testified that she
did not leave her hospital room that day.
August 4, 2007 Physician Note.
August 4, 2007, Dr. Davis documented in his physician
progress notes at 9:15 a.m. that he performed a physical exam
of Mrs. Dean that included listening to her lungs and bowel
sounds with a stethoscope and checking her extremities for
swelling. Mrs. Dean, however, testified that Dr. Davis had
lifted up her patient gown and looked at her surgical
incision, but had done nothing else that day to physically
assess her condition. Mr. Dean, who was in the hospital room
at the time, testified that Dr. Davis had simply looked under
his wife's gown at the surgical incision, and that if the
physician progress note documented a more thorough exam, it
from the Hospital and Subsequent Pregnancy.
August 4, 2007, after Dr. Davis visited her hospital room,
Mrs. Dean was discharged from the hospital. The discharge
summary prepared by Dr. Davis listed incompetent cervix as
the clinical reason for Mrs. Dean's hospitalization.
Dean gave birth again in 2009. Mrs. Dean was seen by an
obstetrician in a different practice, who administered
progesterone and performed a cerclage to treat her condition
of incompetent cervix. Mrs. Dean went into labor at 34 weeks
and gave birth to a healthy baby.
Wrongful Death Suit.
2009, Mr. and Mrs. Dean, individually and as administrators
of the estate of their deceased child, filed this medical
malpractice action against several defendants, including the
Davis Defendants, in which they sought damages for the
wrongful death of their child and for the pain and suffering
of their child and Mrs. Dean. Before trial, the Davis
Defendants filed two motions in limine seeking to prevent the
plaintiffs from presenting any evidence regarding the August
2 Physician Note. The plaintiffs responded that the August 2
Physician Note reflected false entries in the medical record
by Dr. Davis that were probative of his character for