SECOND DIVISION ANDREWS, P. J., MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 13, 2014
In the Court of Appeals of Georgia A14A0967. SMITH v. RODILLO.
RAY, Judge.
Glenn Smith sued Eugene S. Rodillo, M. D., a urologist, claiming that Rodillo
was professionally negligent in failing to examine Smith after he presented at Elbert
Memorial Hospital with symptoms which warranted examination by a urologist, and
that he suffered damages as a result. Before trial, the trial court granted Rodillo’s
motion to exclude certain testimony by Smith’s urology expert regarding the
causation and permanence of Smith’s alleged erectile dysfunction. The trial court then
bifurcated the proceedings into an initial trial on the issue of whether a physician-
patient relationship existed between Smith and Rodillo, to be followed by a trial on
the issue of damages. At the close of Smith’s case, Rodillo moved for directed verdict on the issue of the physician-patient relationship. The trial court granted the motion
and then entered judgment for Rodillo.
On appeal, Smith contends that because there was some evidence supporting
the existence of a physician-patient relationship between Smith and Rodillo, the trial
court erred in directing a verdict in Rodillo’s favor. Smith also claims that the trial
court erred in excluding portions of his expert’s testimony. For the reasons that
follow, we conclude that the trial court erred in directing a verdict for Rodillo, and
that the trial court’s order excluding portions of Smith’s expert’s testimony must be
vacated and the case remanded with direction. Accordingly, we reverse in part and
vacate in part.
1. Smith claims that the trial court erred in granting Rodillo’s motion for
directed verdict because there was some evidence of a physician-patient relationship
between Rodillo and Smith. We agree.
A directed verdict is authorized only where the evidence, with all
reasonable deductions and construed in favor of the nonmovant,
demands a particular verdict. OCGA § 9-11-50 (a). But where any
evidence or some evidence exists to support a jury issue on the non-
movant’s claims, a directed verdict is improper. This Court conducts a
2 de novo review on appeal from the grant of a directed verdict, and we
will uphold a directed verdict only if all of the evidence demands it.
(Citations and punctuation omitted.) Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga.
App. 832, 835 (730 SE2d 556) (2012).
The evidence adduced at trial shows that on January 10, 2006, Smith came to
the Elbert Memorial Hospital (the “Hospital”) emergency room complaining of
swelling to his penis and scrotum, difficulty urinating, and chest congestion. ER
physician James Barton, M. D., attempted without success to insert a catheter so as
to drain Smith’s bladder. Barton contacted urologist Rodillo, described Smith’s
condition, including that Smith had difficulty voiding and was experiencing a fever
and chills, and asked if Rodillo would be available to help with the insertion of the
catheter. Rodillo recommended that Barton use a Coude catheter, but that if Barton
was unable to “get that [in],” he would be available. Rodillo also suggested that
Barton order a PSA test. Barton was able to successfully insert the Coude catheter
shortly thereafter.
Later that evening, Barton called Smith’s family practice physician, Steven
Durocher, M. D., and advised Durocher that, in light of Smith’s condition, Smith
3 should be admitted to the hospital. Durocher then authorized Smith’s admission over
the phone. Durocher went to the Hospital the next morning for rounds, and he
examined Smith at that time. After concluding that Smith needed to be evaluated by
a urologist, Durocher called Rodillo on either January 11 or January 12, 2006. After
Durocher presented Rodillo with his findings concerning Smith’s physical exam, vital
signs, and lab work, Rodillo advised Durocher to order a twenty-four-hour creatinine
clearance, renal CT, and nuclear renal flow scan, and Durocher ordered the tests.
Durocher testified that he expected Rodillo to come in to examine the patient, and no
one informed him that Rodillo was going to be out of the country.
Smith was subsequently diagnosed with Fournier’s gangrene, a rapidly
developing, tissue-killing disease, and he was treated with, among other things, two
debridements to cut away dead tissue, as well as skin grafts to cover the areas where
the skin had been destroyed. The Fournier’s gangrene diagnosis was made on January
15, 2006, and Dr. Arnold Melman, a urologist who the parties agreed was an expert
in the field of urology, opined that if Smith had been seen by a urologist the diagnosis
could have been made on January 10, 2006, when Smith came in to the emergency
room, or at the latest the next day, and, if so, Smith would probably not have needed
the extensive surgery he was later required to undergo. Melman opined that the
4 information provided to Rodillo by Barton, particularly that Smith was also
experiencing a fever, constituted a “red flag,” which should have prompted Rodillo
to come to the Hospital and see Smith.
Rodillo testified that when he spoke with Barton on January 10, 2006, he was
scheduled to fly to the Philippines the next day to visit his sick brother. Rodillo was
normally on call “24-7” for urological services. According to Rodillo, on the day he
spoke with Barton, “all the way through several weeks, the Athens Urology Group
is covering for all my urology cases.” Rodillo testified that he had also contacted the
Hospital and informed the secretary of administration that he would be out of town,
and he understood that the Hospital would create a memorandum to that effect and
distribute it to the departments of the Hospital and to the physicians practicing in the
county. Rodillo could not confirm, however, that such a memorandum was actually
distributed by the Hospital.
Although Rodillo had arranged for Athens Urology to take care of any
urological problems regarding his patients, Rodillo saw the emergency call from the
Hospital and, he explained, “since I’m still in town . . . I answered it to help . . . in
case they cannot get hold immediately of . . . Athens Urology.” According to Rodillo,
Barton asked for advice in inserting the catheter, and he told Barton to use Xylocaine
5 jelly and a Coude catheter. Rodillo acknowledged that he may not have told Barton
that he was going out of town. Rodillo did not recall having any conversations with
Durocher.
Rodillo further testified that he had never seen Smith and that Smith was not his
patient. Rodillo acknowledged, however, that he “had something to do with [Smith’s]
treatment,” that he “had something to do with [Smith’s] diagnosis,” and that his
“ordering those tests or suggesting that those tests be ordered had an impact on Mr.
Smith’s care.”
It is a well-settled principle of Georgia law that there can be no liability
for malpractice in the absence of a physician-patient relationship. In
such cases, called classic medical malpractice actions, doctor-patient
privity is essential because it is this relation which is a result of a
consensual transaction that establishes the legal duty to conform to a
standard of conduct. The relationship is considered consensual where
the patient knowingly seeks the assistance of the physician and the
physician knowingly accepts him as a patient.
6 (Citation and punctuation omitted.) Crisp Regional Hosp., Inc. v. Oliver, 275 Ga.
App. 578, 584 (5) (621 SE2d 554) (2005). See, e.g., Ussery v. Children’s Healthcare
of Atlanta, Inc., 289 Ga. App. 255, 271 (6) (656 SE2d 882) (2008) (“Georgia law is
clear that physician-patient privity is an absolute requirement for the maintenance of
a professional malpractice action”) (citation, punctuation, and footnote omitted). A
physician-patient relationship may be implied, Rindsberg v. Neacsu, 317 Ga. App.
269, 273 (730 SE2d 525) (2012), and it can also be established by circumstantial
evidence. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 524 (3) (434 SE2d 63)
(1993).
In this case, Smith, having presented himself “to the emergency room may
generally be assumed to have consented to treatment by any physician associated with
the hospital who offers such treatment.” Anderson v. Houser, 240 Ga. App. 613, 619
(1) (523 SE2d 342) (1999). Accordingly, the key issue “in determining the existence
of a doctor-patient relationship is whether the physician has knowingly accepted such
individual as his patient.” Id. In this respect,
[m]erely listening to another physician’s description of a patient’s
problem and offering a professional opinion regarding the proper course
of treatment is not enough. Under those circumstances, a doctor is not
7 agreeing to enter into a contract with the patient. Instead, [h]e is simply
offering informal assistance to a colleague. At the other end of the
spectrum, a doctor who is on call and who, on the phone or in person,
receives a description of a patient’s condition and then essentially
directs the course of that patient’s treatment, has consented to a
physician-patient relationship. The difficulty arises in determining
where, between these two extremes, a physician-patient relationship
(and thus a duty) arises.
(Punctuation omitted.) Id. at 618 (1). A doctor does not have to physically examine
a patient in order for the doctor-patient relationship to arise. See Rindsberg, supra at
273 (where defendant was the on-call doctor for her practice who was responsible for
treating the patient in the absence of the attending physician, and had called to check
on the patient, but failed to take any action in response to receiving new information
that the attending doctor would have wanted to know for purposes of treating the
patient, an issue of fact remained as to the existence of an implied physician-patient
relationship); Crisp Regional Hosp., supra at 585-86 (5) (finding that where the
doctor reviewed the patient’s chart, agreed that an MRI was necessary, and ordered
8 the test as an authorized panel physician, the facts were sufficient to support a
reasonable inference that, although the doctor had not physically seen or examined
patient, the doctor had knowingly accepted him as his patient). Rather, a physician
may impliedly consent to a physician-patient relationship “where a physician has
done something, such as participate in the patient’s diagnosis and treatment, that
supports the implication that [h]e consented to a physician-patient relationship.”
(Citation and punctuation omitted.) Rindsberg, supra at 273.
Rodillo contends there is an absence of evidence that he consented to be
Smith’s doctor because he did not play a major role in Smith’s treatment, did not
enter orders on Smith’s chart, and did not see or promise to see to Smith, but only
offered advice to other physicians. Rodillo also maintains that he was not on call on
when he spoke with Barton and Durocher, and that although Barton and Durocher
were unaware of his travel plans, no one could refute his testimony that he properly
notified the Hospital that he would be out of town.1 We find, however, that a trier of
1 Rodillo also contends that it cannot be refuted that the Hospital issued a memorandum notifying the doctors in the county where he practiced that he was going to be out of town, but he failed to show that he had personal knowledge that such a memorandum was ever issued, or that he, Barton, or Durocher ever saw the memorandum, and no copy of the memorandum was introduced into evidence. But even if we were to assume that such a memorandum existed, it would not change our analysis.
9 fact could conclude that Rodillo’s involvement with Smith went beyond offering
advice to other physicians, but that he also participated in Smith’s diagnosis and
treatment.
The evidence showed that Rodillo was the only urologist offering services at
the Hospital and that he “get[s] all the urology patients” who elect to stay in the
Hospital. Thus, it would have been entirely consistent with Rodillo’s medical practice
for him to have acted as Smith’s urologist given that Smith was a patient at the
Hospital and required the assistance of a urologist. Although Rodillo disputes
whether he was “on call” when he spoke with Barton, he acknowledged that on
January 10, 2006, he was “still in town” and “still the urologist in Elberton.” Rodillo
further testified that when he saw the emergency call from the Hospital that he
answered it, consistent with, a jury might conclude, Rodillo’s practice of providing
urological services to patients at the Hospital. Although Rodillo knew he was going
out of town shortly after he spoke with Barton, he had also arranged for another
practice to cover his patients. Thus, Rodillo’s travel plans would have not necessarily
precluded him from acting as Smith’s urologist before he left town.
Notwithstanding that Rodillo answered the emergency call from the Hospital,
Rodillo’s advice to Barton as to how to successfully insert a catheter into Smith may
10 have been insufficient, standing alone, to constitute evidence that Rodillo had
consented to be Smith’s doctor. See Minster v. Pohl, 206 Ga. App. 617, 618-620 (1)
(426 SE2d 204) (1992) (finding that although an emergency room doctor, upon
request of a nurse, viewed an x-ray in order to verify whether the nurse had properly
replaced the patient’s feeding tube, there was no evidence that he did so as the
patient’s doctor). However, Rodillo’s consulations with Barton went further than the
insertion of the catheter; he also received a description of the patient’s condition and
history, and then asked Barton to order a PSA test. A PSA test, according to Barton,
is not performed at the hospital and “has to be sent off.” Barton testified that he did
not ask Rodillo why he asked for the test because Rodillo “[is] the expert.” Rodillo
acknowledged that in the course of his practice when he is consulted about a patient
who he decides to see that he may order tests over the phone through another
physician, just like, Rodillo acknowledged, when he talked to Barton.
Melman also testified that someone other than Barton would have had to
interpret and act upon the result of the PSA test, which was relevant to diagnose
whether Smith had prostate cancer, an infarct, or an infection. As Melman explained:
The ER doctors, they see the patients in the emergency room. They
either send them home, or they send them into the hospital. They don’t
11 follow them. So there’s no point in telling the ER doctor to get a test
which is going to take twenty-four or forty-eight hours to get back if
he’s not going to do anything with it. Someone, presumably the ordering
doctor, has to act upon the results of that test.
Similarly, Durocher went over Smith’s condition with Rodillo in detail,
including “the physical exam, vital signs, [and] lab work,” and Rodillo informed
Durocher of “some tests that [he] should order.” Durocher testified that, in particular,
the twenty-four hour creatinine clearance test that Rodillo suggested was not a test
he would generally order as a family practice physician.
Viewing the evidence and all reasonable deductions therefrom in favor of
Smith, a trier of fact could conclude that Rodillo did not simply offer informal
assistance to his colleagues, but that, consistent with his medical practice, by
answering the emergency call from the Hospital, conferring with Barton and
Durocher as to the patient’s condition and history, and then ordering or suggesting
specialized tests, he was acting as Smith’s urologist. In other words, the evidence is
sufficient to show that Rodillo “participate[d] in [Smith’s] diagnosis and treatment,
[thereby] support[ing] the implication that [he] consented to a physician-patient
12 relationship.” (Citation and punctuation omitted) Rindsberg, supra at 273. See, e.g.,
Crisp Regional Hosp., supra at 585 (5) (“Whether a consensual physician-patient
relationship existed is generally a factual question for the trier of fact.”). It follows
that the trial court erred in directing a verdict for Rodillo on the issue.
2. Smith also maintains that the trial court erred in granting Rodillo’s motion
to exclude Melman’s testimony regarding the results of a “Semmes-Weinstein
Monofilament Test” (the “Monofilament Test”) as they related to the causation and
permanence of Smith’s erectile dysfunction. We disagree with Smith to the extent he
contends that the trial court erred in finding the Monofilament Test unreliable, but we
agree with Smith that Melman’s opinion as to the cause and permanence of Smith’s
erectile dysfunction should not be excluded. Accordingly, we vacate the trial court’s
order granting Rodillo’s motion to exclude and remand with direction.
Rodillo moved to exclude Melman’s testimony as it related to the causation
and permanence of Smith’s erectile dysfunction because, he maintained, Melman’s
conclusions were based on the results of the Monofilament Test, which was an
unreliable methodology.2 Following a hearing, the trial court found that there was no
2 Rodillo’s motion to exclude Melman’s testimony was filed on July 18, 2013, and our new Evidence Code applies to “any motion made or hearing or trial commenced on or after” January 1, 2013. See Ga. Laws 2011, p. 99, § 101.
13 evidence from Melman that the Monofilament Test was reliable, discounted the
literature presented by Smith as failing to support Melman’s causation opinion, and
concluded that Melman’s methodology failed to answer any of the reliability concerns
voiced by the United States Supreme Court in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (113 SCt, 125 LE2d 469) (1993).3 The trial court
then ruled that Melman “will be prohibited from expressing an opinion regarding the
Accordingly, OCGA §§ 24-7-702 and 24-7-703 governed the motion, notwithstanding that the parties and the trial court relied on former OCGA § 24-9- 67.1. We cannot conclude, however, that the differences between the prior law and the current law were material for purposes of the trial court’s consideration of the motion. 3 OCGA § 24-7-702 (f) provides: It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.
14 results of the ‘monofilament’ test as they relate to the permanence4 of [Smith’s]
erectile dysfunction.”
The evidence showed that Melman is a urologist with 40 years of experience
who specializes in erectile dysfunction, and that he has treated many patients with
numbness or decreased sensation in the penis. When Melman examined Smith he
found that about half of the skin on Smith’s penis had been excised and replaced with
a partial thickness skin graft. Melman then performed “quantitative neurosensory
testing” and concluded “that [Smith] had absolutely no sensation, zero to touch using
[the Monofiliment Test] in the region of his partial thickness skin grafts . . . .”
According to Melman, Smith’s ability to have intercourse would be impaired because
of the absence of sensation on his penis and that the steps that might be taken so that
Smith could have a sustained erection would not correct that problem. Melman also
opined that Smith’s skin debridement and grafting led to scarring, loss of genital
sensation, and his loss of sustained erection.
4 Given the trial court’s analysis, the underlying motion, and the arguments presented at the Daubert hearing, it appears that the trial court intended to exclude Melman’s opinion regarding the results of the Monofilament Test as they related to causation as well as to permanence.
15 Melman explained that “testing for sensation . . . is a subjective test” but that
“some investigators have set up methods of using . . . devices to make a subjective
test as objective as possible.” The Monofilament Test, according to Melman, employs
“thin fiber[s] made out of plastic of varying diameters” which are placed on an area
to be tested for “perceived sensation,” and that “you have a number . . . that’s related
to a specific pressure that the monofilament gives and there are . . . standards of what
is normal and what is abnormal.” When asked whether the Monofilament Test was
generally accepted by urologists, Melman responded, “I don’t know the answer to
that.” Melman acknowledged, however, that “not many urologists do this,” that the
monofilaments are usually used by a neurologist, and that he was a “trailblazer.” He
also indicated that he performed the test on Smith because “we published some papers
of quantitative neurosensory testing” and, somewhat ambiguously, “I don’t know of
anyone else who does that.”
OCGA § 24-7-702 (b) provides that if scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence, an expert may
testify thereto if “[t]he testimony is based upon sufficient facts or data,” “[t]he
testimony is the product of reliable principles and methods,” and “[t]he witness has
16 applied the principles and methods reliably to the facts of the case which have been
or will be admitted into evidence before the trier of fact.” In this respect,
reliability is examined through consideration of many factors, including
whether a theory or technique can be tested, whether it has been
subjected to peer review and publication, the known or potential rate of
error for the theory or technique, the general degree of acceptance in the
relevant scientific or professional community, and the expert’s range of
experience and training.
HNTB Ga., Inc. v. Hamilton-King, 287 Ga. 641, 642 (1) (697 SE2d 770) (2011). The
trial court must assess “whether the reasoning or methodology underlying the
testimony is scientifically valid and . . . whether that reasoning or methodology
properly can be applied to the facts in issue.” See Daubert, supra at 592-593 (II) (B).
The burden of showing the reliability of the expert’s opinion rests with the proponent
of that evidence. See Butler v. Union Carbide Corp., 310 Ga. App. 21, 26 (1) (712
SE2d 537) (2011). And the admission or exclusion of expert testimony is within the
broad discretion of the trial court. See Meacham v. Franklin-Heard County Water
Auth., 302 Ga. App. 69, 76 (3) (690 SE2d 186) (2009).
17 Turning to the non-exclusive factors relevant to reliability, Smith proffered an
article from the Journal of Hand Surgery which shows that the Monofilament Test
technique has been tested, and its reliability assessed, in the context of determining
touch thresholds in the hand.5 Thus, it appears that the Monofiliment Test is capable
of being tested as a scientific technique. But Smith fails to show that it has been
adequately tested in the context of diagnosing erectile dysfunction. In the article that
Melman co-authored, the authors acknowledge that they are “the first group to utilize
[the Monofilament Test] . . . for assessing neuropathy of the penis” and that their
study was limited by the sample.6 The other publications proffered by Smith do not
show that the Monofilament Test has been more than minimally assessed in the
context of erectile dysfunction. Nor does there appear to be any known or potential
rate of error for the use of the test as employed by Melman.
5 See Jerosch-Herold, Assessment of Sensibility after Nerve Injury and Repair: A Systematic Review of Evidence for Validity, Reliability, and Responsiveness of Tests, Journal of Hand Surgery (British and European Volume 2005). The author also observes, however, that, as to the reviewed studies, “none provides unequivocal evidence that touch threshold is predictive of function.” 6 See Bleustein, Arezzo, Eckhold, and Melman, The neuropathy of erectile dysfunction, International Journal of Impotence Research (2002).
18 Although the Monofilament Test is a known technique, it is not generally
utilized by urologists. An assessment of reliability permits an “explicit identification
of a relevant scientific community and an express determination of a particular degree
of acceptance within that community” and “a known technique which has been able
to attract only minimal support within the community may properly be viewed with
skepticism.” (Citation and punctuation omitted.) Daubert, 509 U.S. at 594 (II) (B).
The trial court found, and the evidence showed, that the use of the Monofiliment Test
is not generally accepted by the urological community and that the use of the test to
diagnose erectile dysfunction was Melman’s own project. Further, although Smith
shows Melman to be an eminently qualified urologist, Melman acknowledged that the
Monofilament Test is a technique employed by neurologists. Given our review of the
evidence, we find that the trial court did not abuse its discretion in ruling that Melman
could not “express an opinion regarding the results of the [M]onfilament[] [T]est” as
they related to the cause and permanence of Smith’s erectile dysfunction.
We agree with Smith, however, that even if the Monofilament Test was not
shown to be reliable, Rodillo did not establish that Melman’s opinion as to the cause
and permanence of Smith’s erectile dysfunction should be excluded to the extent that
it was not based on the Monofilament Test. Much of the underlying data on which
19 Melman relied was derived from his review of Smith’s medical records and his
examination of Smith, during which he found not only that approximately half of the
skin of Smith’s penis had been replaced with a skin graft but that the left side of
Smith’s penis “had a thick fibrotic scarred cord . . . which prevented his penis from
elevating in a cephalad position.” Although Melman determined through the use of
the Monofilament Test that Smith felt nothing where the skin on his penis had been
grafted, we cannot conclude that the use of the test rendered Melman’s conclusions
based on Smith’s reported lack of sensation to be without any foundation,
notwithstanding that they may lack the imprimatur of objectiveness that the
Monofilament Test, if shown to be reliable, might have provided. Melman personally
determined through Smith’s responses to touches to various parts of Smith’s anatomy
(asking “do you feel it now?) that Smith reported no sensation. The subjectiveness of
the underlying data in that respect, particularly whether Smith provided accurate
responses, is not markedly different from aspects of a traditional examination of a
patient by a physician and is capable of being challenged through cross-examination
of Melman and Smith. See, e.g., Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857,
861 (2) (a) (686 SE2d 455) (2009) (“If it be developed that the opinion is based on
inadequate knowledge, this goes to the credibility of the witness rather than to the
20 admissibility of the evidence”). Thus, we cannot conclude that Melman, an
experienced urologist, may be precluded from opining to the cause and permanence
of Smith’s erectile dysfunction based on his personal examination of Smith and his
review of Smith’s medical records. As we have said, “Daubert’s role of ensuring that
the courtroom door remains closed to junk science is not served by excluding
testimony such as [Melman’s] that is supported by extensive relevant experience, and
such exclusion is rarely justified in cases involving medical experts.” (Punctuation
and footnote omitted.) Cartledge v. Montano, 325 Ga. App. 322, 328 (1) (750 SE2d
772) (2013). See Kumho Tire Co., Ltd., supra at 156 (“[n]o one denies that an expert
might draw a conclusion from a set of observations based on extensive and
specialized experience”); compare HNTB Ga., Inc., supra at 645 (2) (“experience,
standing alone, does not render reliable all opinions an expert may express”).
The trial court’s order bars Melman from “express[ing] an opinion regarding
the results of the [M]onofilament[] [T]est” as they relate to Smith’s erectile
dysfunction, and in that respect the order is not inconsistent with our analysis as it
does not otherwise preclude Melman from expressing an opinion as to the cause and
permanence of Smith’s erectile dysfunction. On the other hand, Smith’s underlying
motion, which the trial court granted, suggests that Melman’s opinion as to the cause
21 and permanence of Smith’s erectile dysfunction be entirely excluded, and the trial
court’s order might be interpreted as requiring such exclusion.7 Accordingly, the trial
court’s order granting Rodillo’s motion to exclude is vacated, and on remand the trial
court is directed to enter an order on the motion not inconsistent with this opinion.
Judgment reversed in part and vacated in part and case remanded with
direction. Andrews, P. J. concurs in judgment only and McFadden, J. concurs fully
with Division 1 and specially with Division 2.
7 In his appellate brief, Smith interprets the trial court’s order as excluding Melman’s entire opinion on the cause of Smith’s erectile dysfunction, and Rodillo does not expressly disagree with that assessment.
22 In the Court of Appeals of Georgia A14A0967. SMITH v. RODILLO.
MCFADDEN, Judge, concurring specially.
I concur fully in Division 1 of the majority opinion. I do not agree with all that
is written in Division 2, but I concur in that division because I understand it to admit
the testimony of appellant’s expert, a preeminent urologist, “that in effect more than
half of [appellant’s] penis was totally numb” and to admit his conclusions founded
upon that observation.
Asked about his examination, appellant’s expert first described appellant’s
injury then continued,
I did something that we call quantitative neurosensory testing. It’s kind of a sophisticated way of measuring sensation and a few other things, but sensation and vibratory sensation.
What I found was that he had absolutely no sensation, zero to touch using [the Monofilament Test] in the region of his partial thickness skin grafts of the penis. So that in effect more than half of his penis was totally numb.
23 Later, as detailed in the majority opinion, the expert explained that “testing for
sensation . . . is a subjective test. . . . [I]t’s what the patient tells you he does feel or
doesn’t feel . . . so some investigators have set up methods of using several types of
devices to make a subjective test as objective as possible.” The test at issue, as he
went on to explain, is one such test. It simply applies pressure in precise amounts at
precise locations. The patient then reports the resulting sensation or lack of sensation,
and his report is recorded. The test, therefore, is merely a refinement of some of the
most fundamental methods of medical diagnosis. Because testimony founded on it
“rests upon good grounds, [that testimony] should be tested by the adversary process
– competing expert testimony and active cross-examination – rather than excluded
from jurors’ scrutiny for fear that they will not grasp its complexities or
satisfacto[rily] weigh its inadequacies.” Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK
Ltd., 326 F3d 1333, 1345 (II) (C) (11th Cir. 2003) (citations and punctuation
omitted).
Although the Monofilament Test is apparently capable of drawing fine
distinctions, the expert’s opinions rest on his observation that appellant “had
absolutely no sensation” in the regions of the skin grafts. But even if the expert’s
opinions did rest on such fine distinctions, arguments that his measurements were
“methodologically flawed” would “go to the weight, not the admissibility, of the
evidence he offered.” Id.