BARNES, P. J., BROWN and GOSS, JJ.
BARNES, PRESIDING JUDGE.
case arises from the medical treatment and death of
41-year-old James Moore, who aspirated while being placed
under anesthesia for surgery, and died a few days later. His
surviving spouse and the administrator of his estate, Tanya
Moore (hereinafter "Moore"), sued multiple
physicians and entities, advancing claims of medical
malpractice. After a jury trial, judgment was entered on a
defense verdict. Moore's subsequent motion for new trial
was denied. In this appeal, Moore maintains that she is
entitled to a new trial because the trial court erred by
allowing in evidence certain inadmissible and prejudicial
hearsay. For reasons explained below, we agree and reverse.
morning of December 23, 2011, Moore's husband drove
himself to Wellstar Paulding Hospital's emergency room
seeking treatment for severe abdominal pain and nausea. At
about 8:30 a.m., a computerized tomography ("CT")
scan of his abdomen was taken, and a radiologist discerned a
bowel pattern consistent with small bowel obstruction, early
or partial. An emergency- medicine doctor reported the case
to the on-call general surgeon, who admitted Moore's
husband as a hospital patient with the diagnosis of small
bowel obstruction, and ordered that he have "nothing by
husband was seen at about 5:30 p.m. by the surgeon, who
diagnosed him with gastroenteritis (as opposed to a small
bowel obstruction); thereafter, he was upgraded from
"nothing by mouth" to "clear liquid." But
Moore's husband continued to suffer from severe abdominal
pain, as well as nausea and intermittent vomiting.
December 25, 2011, at about 9:00 a. m., another CT scan of
Moore's husband's abdomen was taken. A different
radiologist discerned findings compatible with
high-grade small bowel obstruction and found that his
abdomen was "massively distended." The radiologist
uploaded his findings - including his opinion that
Moore's husband would benefit from a nasogastric
("NG") tube - to the hospital's computer, so as
to make his findings available to the surgeon. The surgeon
was notified that the CT results were available; he
"look[ed] at the CT scan [him]self" and discerned
"objective evidence" of bowel obstruction. Close to
noon on that same day, the surgeon discussed the case with
the radiologist; and the surgeon concluded that Moore's
husband required immediate surgery.
tube removes contents from the stomach, helping to prevent
aspiration of stomach contents into the lungs. Generally,
once a patient is administered anesthesia medication, his
protective gag reflex is impaired, which can allow stomach
contents (including gastric fluid,  which can be extremely toxic
to the lungs) to flow up the esophagus, then down into the
anesthesiologist was called in for Moore's husband's
anticipated surgery; the anesthesiologist and the surgeon
discussed the case, and agreed not to place an NG tube prior
to administering the anesthesia medication. They determined
that the proper course of action would be to place an NG tube
after the induction of anesthesia using a process called
rapid sequence induction.
the anesthesiologist was performing the rapid sequence
induction, Moore's husband vomited, aspirating gastric
fluid into his lungs. The anesthesiologist suctioned
Moore's husband's lungs, then placed an NG tube, and
surgery proceeded to correct the bowel obstruction. After the
surgery, the anesthesiologist had trouble keeping up
Moore's husband's oxygen levels. Having suffered lung
failure, from which he never recovered, Moore's husband
died on January 5, 2012.
2013, Moore filed this action against: (i) the surgeon, Dr.
Vanchad Memark; (ii) Wellstar Health System, Inc., Dr.
Memark's employer; (iii) the anesthesiologist, Dr.
Christopher Stowell; and (iv) the latter's employer,
Georgia Anesthesiologists, P.C. (Collectively, the defendants
will be referenced as the "Medical
Defendants.") The alleged negligence was the failure to
place an NG tube prior to the induction of anesthesia.
2016 trial, all parties presented expert evidence regarding
the standard of care as to when an NG tube should be placed.
According to Moore's evidence, the CT scan conducted on
December 25 left no doubt that Moore's husband had a
high-grade small bowel obstruction; the standard of care thus
required placement of an NG tube before the
induction of anesthesia; and failure to do so was the cause
of death. In contrast, according to the Medical
Defendants' evidence, there was no requirement to place
an NG tube prior to the induction of anesthesia; and the
course of action employed here - placement of an NG tube
after the induction of anesthesia using a process
called rapid sequence induction - did not breach the
applicable standard of care.
two-day period, the jury deliberated in the aggregate for
nearly 12 hours. The trial court summoned the jury back into
the courtroom; in response to two questions submitted by the
jury,  the court gave instructions that tracked
Georgia's pattern modified "Allen"
charge. Later that day, the jury returned its
verdict finding in favor of each of the Medical Defendants.
single claim of error on appeal, Moore contends that the
trial court erred by admitting hearsay evidence. In
particular, Moore complains that the defense presented
evidence taken from a document by the American Society of
Anesthesiologists (ASA) - "Committee on Expert Witness
Testimony Review and Findings Regarding Expert Witness
Testimony of Ronald L. Katz" (hereinafter, the
"Katz Committee Findings"). Such evidence showed
that in 2011, the ASA sanctioned an anesthesiologist - Dr.
Ronald Katz (who had no involvement in the instant case) -
for giving certain standard-of-care testimony (in a different
case), and that the sanctioned testimony was similar to
standard-of-care testimony given by Moore's
expert-anesthesiologist in the instant case. On appeal, Moore
contends that the ASA's findings in a wholly different
case against an expert witness who had nothing to do with
this case amounted to inadmissible, prejudicial hearsay.
Medical Defendants counter that the evidence was admissible
under the "learned treatise" hearsay exception
found at OCGA § 24-8-803 (18). Further, they argue that
even if allowing the evidence was error, Moore waived the
issue by failing to object properly. Additionally, they
assert that, to the extent there was a valid objection to
inadmissible hearsay, admission of the evidence was harmless.
address the foregoing arguments by first setting out the
cited Code provision, next detailing portions of the trial
transcript most relevant to the admission of the contested
evidence, then ascertaining the extent to which the
parties' arguments have merit.
Georgia's "learned treatise" exception to
the hearsay bar. Pursuant to OCGA § 24-8-803 (18),
The following shall not be excluded by the hearsay rule, even
though the declarant is available as a witness: . . . To the
extent called to the attention of an expert witness upon
cross-examination, statements contained in published
treatises, periodicals, or pamphlets, whether published
electronically or in print, on a subject of history,
medicine, or other science or art, established as a reliable
authority by the testimony or admission of the witness, by
other expert testimony, or by judicial notice. If admitted,
the statements may be used for cross-examination of an expert
witness and read into evidence but shall not be received as
Presentment of the contested evidence.
Katz Committee Findings was first mentioned during the
cross-examination of one of Moore's expert witnesses, Dr.
Bryan McAlary, a board certified anesthesiologist. He had
opined on direct examination that Dr. Stowell (the
defendant-anesthesiologist) had breached the standard of care
by failing to place an NG tube before he "put the
patient to sleep." Dr. McAlary had further explained on
direct that placing an NG tube and removing gastric fluid
prior to administering the anesthesia medication would have
decreased the chances of aspiration.
cross-examination, counsel for Dr. Stowell (the
defendant-anesthesiologist) re-visited Dr. McAlary's
position regarding the standard of care. In response to a
question on that issue, Dr. McAlary testified that where it
has been unequivocally determined that the patient has a
bowel obstruction, the standard of care requires the
placement of an NG tube before a surgery (unless the patient
has refused such placement). Cross-examination continued:
Q: Okay. And as far as you're concerned this is not a
matter of judgment by the anesthesiologist, it's
basically a rule that must be followed unless the patient
actually refuses to have the NG tube placed.
Q: It's not a matter of judgment in your opinion.
A: No. Once it's been unequivocally determined and it
represents an obvious risk, then it needs to be - that risk
needs to be addressed.
Q: Are you familiar with the ASA case against the
anesthesiologist Dr. Ronald Katz?
A: No. I have met Ron Katz. He's, from my perspective, a
well-respected teacher, but I didn't know that there was
Q: Do you agree or disagree with this statement: Placing a
nasogastric tube in a patient with a full stomach is a
judgment call. Anesthesiologists could reasonably differ on
whether to place a nasogastric tube under the circumstances
in this case.
A: I would have to know more about the case, but I think your
phrasing was "a full stomach." Okay. No. That's
what would make this case different from the case in front of
this jury today - namely, we don't just have a ...