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LLC v. Dean

Court of Appeals of Georgia, First Division

May 10, 2017

CENTRAL GEORGIA WOMEN'S HEALTH CENTER, LLC et al.
v.
DEAN et al.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Katherine 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.[1] 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.

         Construed in favor of the jury's verdict, [2] 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.

         On her 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, [3] which are prominent markers for cervical incompetence and preterm delivery.

         The July 25, 2007 Ultrasound.

         Over 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.

         Mrs. 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.

         The July 31, 2007 Hospital Visit and Call to Dr. Davis.

         After 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.

         Mrs. 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.

         The 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 an infection.

         The August 1, 2007 Premature Delivery.

         After 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 morning.

         Mrs. 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.

         At the 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.

         The August 2, 2007 Physician Note.

         On 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.

         The August 4, 2007 Physician Note.

         On 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 was inaccurate.

         Discharge from the Hospital and Subsequent Pregnancy.

         On 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.

         Mrs. 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.

         The Wrongful Death Suit.

         In 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.[4] 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 ...


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