GOBEIL, COOMER and HODGES, JJ.
February 2012, Nichole Glover brought the current action in
Fulton County State Court against Adrienne M. Atkinson-Sneed,
D. P. M. and Atkinson-Sneed's employer, Providence Foot
and Ankle Centers, P. C. (collectively, "the
Defendants"), asserting claims for medical malpractice
and vicarious liability. The Defendants filed an answer,
together with a motion to dismiss the complaint for failure
to attach a valid expert affidavit as required by OCGA §
9-11-9.1. The trial court denied the motion to dismiss, and
the case proceeded to trial in January 2017. The jury found
in favor of the Defendants and the trial court entered
judgment on the jury's verdict.
No. A18A1565, Glover appeals from the trial court's order
denying her motion to set aside the jury verdict and for a
new trial. Glover contends that the trial court erred when it
granted the Defendants' motion to prevent Glover from:
(1) using her treating physician, who had been identified
only as a fact witness, to provide expert testimony on the
standard of care; and (2) presenting any evidence as to
allegations of specific acts of professional negligence that
were not raised until after the close of discovery. In Case
No. A18A1566, the Defendants cross appeal the trial
court's orders denying their motion to dismiss the
complaint and their motion to deem admitted several of their
requests for admission.
reasons explained more fully below, we find no error by the
trial court in granting the Defendants' motion to prevent
Glover's treating physician from providing standard of
care testimony and to exclude evidence of untimely
allegations of professional negligence. In Case No. A18A1565,
therefore, we affirm the denial of Glover's motion to set
aside and for a new trial. Additionally, given our
disposition of Glover's appeal, we dismiss the
cross-appeal in Case No. A18A1566 as moot.
facts relevant to this appeal are undisputed, and show that
Glover was a patient of the Defendants from approximately
November 2006 to August 2010. During that time,
Atkinson-Sneed performed two surgeries involving a total of
three separate procedures on Glover's feet. In December
2007, Atkinson-Sneed operated on Glover's right foot,
performing an osteotomy to realign the metatarsal bones and
an arthroplasty of the big toe. Following the surgery, Glover
continued to experience pain in both feet, but especially her
right foot. Atkinson-Sneed recommended additional surgery,
which Glover underwent in February 2010. During the second
surgery, Atkinson-Sneed performed an Aiken
ostectomy on Glover's right big toe and removed
a bunion and/or bone spurs from Glover's left foot. After
the second surgery, Glover continued to experience issues
with her feet, including numbness, pain, and lack of
mobility. In August 2010, at the recommendation of
Atkinson-Sneed, Glover sought a second opinion and began
treatment with another podiatrist, Dr. Mark Light.
February 2012, Glover filed suit against the Defendants,
alleging that Atkinson-Sneed had been negligent in: (1)
failing to diagnose accurately the condition in Glover's
right foot prior to the February 2010 surgery; (2) performing
surgery on Glover's left foot in February 2010 and
failing to surgically remove hardware from that foot; (3)
fusing certain of the bones in Glover's right foot in
December 2007 when she realigned Glover's toes; and (4)
recommending that Glover resume wearing athletic shoes within
three weeks after the December 2007 surgery. Attached to
Glover's complaint was the expert affidavit of Tameka Lee
Sanders, D. P. M., whose testimony supported the allegations
of negligence set forth in the complaint.
an extended discovery period, the Defendants served discovery
requests on Glover, including interrogatories. Interrogatory
Number 21 asked Glover, in relevant part, to "state
separately and in reasonable detail each and every act or
omission on the part of [the] Defendants that [you] claim
to be negligent and a deviation from the applicable standard
of  care." Glover responded by referring the
Defendants to Glover's first amended complaint "for
some of the deviations from standard of care." Glover
subsequently supplemented her response as follows: "See,
Records Produced by Dr. Tameka Lee Sanders (Deposition taken
by Counsel for Defendants March 9, 2015). See medical records
of the treating physicians or practitioners who treated Ms.
Glover for her injuries."
Defendants' Interrogatory Number 19 asked Glover to
identify "any witness whom you expect to call as an
expert witness at trial, including any of [Glover's]
treating physicians from whom you may elicit standard of care
or causation testimony at trial." (Emphasis
supplied). The interrogatory further asked that with respect
to such witnesses, Glover identify, inter alia, "the
subject matter on which the expert is expected to testify, a
summary of the grounds for each opinion, [and] a listing of
each and every act or omission by these Defendants which such
expert contends falls beneath the standard of care." In
responding to this interrogatory, Glover stated that she had
"yet to determine who will be called as an expert
witness at trial. Upon determining who will be called as an
expert witness at trial, [Glover] will provide information
required by the Georgia Civil Practice Act."
February 20, 2015, the trial court entered a joint proposed
scheduling order that was previously submitted by the
parties. Pursuant to that order, the deposition of
Glover's expert was to be completed by March 15, 2015;
the deposition of the Defendants' expert was to be
completed by April 30, 2015; the parties were to disclose any
rebuttal experts within 45 days after the deposition of any
expert whose testimony was to be rebutted (i.e., no later
than June 15, 2015); and any party identifying a rebuttal
expert was to make that rebuttal expert available for
deposition within 10 days of his or her identification.
only expert identified by Glover during the discovery period
was Dr. Sanders, whom defense counsel deposed in March 2015.
During her deposition, Dr. Sanders testified as to the
statements in her affidavit regarding the ways in which
Atkinson-Sneed breached the standard of care in her treatment
of Glover. . After reviewing the allegations of the
complaint and the expert affidavit with Dr. Sanders, defense
counsel asked her if she could identify any other ways in
which Atkinson-Sneed had breached the standard of care. Dr.
Sanders replied, "[No, ] I think that's it."
closed no later than December 3, 2015. The case was
thereafter specially set for trial for January 9, 2017.
Supplemental Responses ...