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Moore v. Wellstar Health System, Inc.

Court of Appeals of Georgia, First Division

March 12, 2019


          BARNES, P. J., BROWN and GOSS, JJ.


         This 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.

         On the 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 mouth."

         Moore's 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.

         On 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[1] 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.

         An NG 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, [2] which can be extremely toxic to the lungs) to flow up the esophagus, then down into the lungs.

         An 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.[3]

         But as 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.

         In 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."[4]) The alleged negligence was the failure to place an NG tube prior to the induction of anesthesia.

         At the 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.

         Over a 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, [5] the court gave instructions that tracked Georgia's pattern modified "Allen" charge.[6] Later that day, the jury returned its verdict finding in favor of each of the Medical Defendants.

         In her 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.

         The 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.

         We 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.

         1. 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 exhibits.[7]

         2. Presentment of the contested evidence.

         The 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.

         During 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.
A: Yes.
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 any litigation.
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 ...

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