Luke v. Suber

456 S.E.2d 598, 217 Ga. App. 84, 95 Fulton County D. Rep. 785, 1995 Ga. App. LEXIS 346
CourtCourt of Appeals of Georgia
DecidedFebruary 27, 1995
DocketA94A1949
StatusPublished
Cited by9 cases

This text of 456 S.E.2d 598 (Luke v. Suber) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Luke v. Suber, 456 S.E.2d 598, 217 Ga. App. 84, 95 Fulton County D. Rep. 785, 1995 Ga. App. LEXIS 346 (Ga. Ct. App. 1995).

Opinions

Pope, Presiding Judge.

Plaintiffs Karen and Marcus Luke appeal from a jury verdict for defendant obstetrician. Because the trial court improperly allowed defendant to elicit testimony regarding plaintiffs’ insurance coverage, we reverse the judgment entered on the jury verdict and remand the case for a new trial.

Defendant performed a caesarean section on Karen Luke on Friday, February 2, 1990. Although the baby was healthy, the mother [85]*85suffered from ileus (paralysis of the bowel) following the surgery. Her stomach became severely distended, she was in extreme pain, and her pulse and respiration rates were elevated. Post-surgery ileus is not unusual, and defendant pursued a usual course of treatment. Luke’s condition continued to worsen for several days, however, and defendant eventually called in Dr. Clark, a general surgeon, on February 6, 1990. Dr. Clark operated and discovered a perforation in Luke’s bowel, which had resulted in gross contamination of her abdominal cavity. About half of Luke’s large intestine had to be removed, as well as a portion of her small intestine.

The evidence with respect to defendant’s liability would have supported a verdict for either plaintiffs or defendant. Plaintiffs presented expert testimony that the bowel was damaged by defendant in the course of the original surgery; that this damage caused the ileus and eventually the perforation; that defendant should have realized sooner that Luke was suffering from more than normal post-surgery ileus; and that defendant’s failure to call in the surgeon earlier caused the damage to Luke’s intestines to be more severe than it otherwise would have been. Defendant’s experts, on the other hand, testified that defendant did not damage the bowel in the course of the original surgery; that Luke’s symptoms were all consistent with normal post-surgery ileus until the morning of February 6, 1990, when her condition seriously worsened; that x-rays taken February 4 indicated there was no perforation at that time; that the perforation was simply the result of the extreme distension resulting from the ileus, which cut off the blood supply to that area; and that the perforation probably did not occur until the morning of the 6th, or the contamination of Luke’s abdomen would have been worse.

1. Plaintiffs argue that defendant should not have been allowed to question Mr. Luke about plaintiffs’ medical insurance coverage, and we agree. See Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991).

Citing Moore v. Mellars, 208 Ga. App. 69 (430 SE2d 179) (1993), defendant argues the collateral source evidence was properly allowed to impeach Mr. Luke. Specifically, defendant contends Mr. Luke “opened the door” when, following testimony that the baby was healthy, Mr. Luke testified on direct as follows: “Q: Did the baby also stay in the hospital from the 6th through the 28th? A: Yes, sir. Q: And what was your understanding of that? A: Well, whenever I talked to a couple of doctors and nurses, they told me don’t worry about it, you know, it’s best that the baby stays here. That way Karen can, you know, know that the baby is all right. I told them, I said, T don’t think I can afford to keep the baby in the hospital for a month.’ And they said don’t worry about it, you know. I didn’t worry about it until they — Q: Did you also receive a bill for the baby in the hospital? A: [86]*86Yes, sir.”

In Moore, we held that otherwise inadmissible evidence of insurance could be admissible for impeachment purposes, stating that “when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented her from seeking treatment, defendant is allowed to cross-examine her on this point.” 208 Ga. App. at 72. The plaintiff in Moore actually testified that she discontinued her examinations because she no longer had insurance. In Patterson v. Lauderback, 211 Ga. App. 891 (2) (440 SE2d 673) (1994), we took this holding one step further: even though the plaintiff in Patterson did not actually testify that his decedent was deprived of medical care because she lacked insurance, evidence of the decedent’s insurance was admissible for impeachment because “[t]he clear import of the testimony presented by the deceased’s son regarding his mother’s lack of wealth was that she was not able to afford all the extensive medical treatment she would need as a result of her injuries.” 211 Ga. App. at 892-893. In this case, Mr. Luke’s testimony did not even suggest that plaintiffs lacked insurance or were unable to afford needed medical care. Rather, the clear import of the testimony was that even though the Lukes had insurance, Mr. Luke understandably doubted that it would cover hospitalization of a healthy baby simply because the mother was hospitalized.

Because evidence of insurance is so prejudicial, it should not be admitted unless it is clearly relevant. See Collins v. Davis, 186 Ga. App. 192 (1) (366 SE2d 769) (1988) (physical precedent only), cited with approval in Denton, 261 Ga. at 43. In this type of case, this means that evidence of insurance should not be admitted unless it is clearly impeaching (i.e., unless the testimony which purportedly “opens the door” is clearly inconsistent with the existence of insurance). Here, Mr. Luke’s testimony was fully consistent with the existence of insurance, so evidence of insurance was not impeaching and therefore not admissible.1

Accordingly, the trial court erred in allowing this evidence. Moreover, given our Supreme Court’s statements that evidence of insurance “ ‘involves a substantial likelihood of prejudicial impact’ ” and “is inherently prejudicial because its infectious nature tends to contaminate the entire trial” (Denton, 261 Ga. at 43), we cannot deem [87]*87this error harmless, particularly in light of the relatively balanced testimony regarding liability in this case.

2. In three enumerations of error, plaintiffs contend that a number of potential jurors should have been excused for cause.2 Some of the challenged jurors allegedly had economic ties to defendant, and others were former patients of defendant (or husbands of former patients of defendant).

“There are two types of challenges to an individual juror for cause: (1) for principal cause, and (2) for favor. Challenges for principal cause are based on facts which, if proved, automatically disqualify the juror from serving. Challenges for favor are based on admissions of the juror or facts and circumstances raising a suspicion that the juror is actually biased for or against one of the parties.” (Citations omitted.) Jordan v. State, 247 Ga. 328, 338 (6) (276 SE2d 224) (1981). Where challenges for favor are involved, “ ‘[t]he trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. (Cit.)’ [Cit.]” Stein Enterprises v. Chatham County, 200 Ga. App. 385, 386 (2) (408 SE2d 173) (1991).

With respect to alleged financial ties between jurors and defendant based on the jurors’ employment in or ownership of pharmacies, the trial court did not abuse its discretion in failing to excuse the jurors, as there was no evidence of any business arrangement between the jurors and defendant “whereby the juror [s] could be motivated by financial concerns.” See Daniel v. Bi-Lo, 178 Ga. App.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

JAIME HOFFMAN v. SOUTHEASTERN OB/GYN CENTER, LLC
Court of Appeals of Georgia, 2026
Lorrene Woods v. Shawn Heath
Court of Appeals of Georgia, 2024
Walls v. Kim
549 S.E.2d 797 (Court of Appeals of Georgia, 2001)
Brown v. MacHeers
547 S.E.2d 759 (Court of Appeals of Georgia, 2001)
Baxter v. Cohen
470 S.E.2d 450 (Court of Appeals of Georgia, 1996)
Warren v. Ballard
467 S.E.2d 891 (Supreme Court of Georgia, 1996)
Luke v. Suber
456 S.E.2d 598 (Court of Appeals of Georgia, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
456 S.E.2d 598, 217 Ga. App. 84, 95 Fulton County D. Rep. 785, 1995 Ga. App. LEXIS 346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luke-v-suber-gactapp-1995.