Williams v. Memorial Medical Center, Inc.

460 S.E.2d 558, 218 Ga. App. 107
CourtCourt of Appeals of Georgia
DecidedJuly 12, 1995
DocketA95A0266, A95A0267
StatusPublished
Cited by22 cases

This text of 460 S.E.2d 558 (Williams v. Memorial Medical Center, Inc.) 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
Williams v. Memorial Medical Center, Inc., 460 S.E.2d 558, 218 Ga. App. 107 (Ga. Ct. App. 1995).

Opinions

Beasley, Chief Judge.

Annlyn and James Williams instituted this action claiming the wrongful death of their son Trent. The primary issue was whether medical malpractice by hospital personnel occurred and caused the death. OCGA § 51-1-27.

The child was born about eight weeks prematurely at Memorial Medical Center and was not discharged until he was four months old. Seven weeks later, he contracted pneumonia and was admitted to Memorial and treated for about one week. After one week at home, he was readmitted to the pediatric intensive care unit and treated for residual pneumonia. It is during this latter visit that the alleged malpractice occurred.

Plaintiffs maintain that after the infant was readmitted, a ventilator was inserted in his throat to aid respiration but became dislodged; that personnel of Memorial failed to adhere to the standard of care required in the medical profession generally, under the circumstances, by not employing appropriate and timely resuscitative efforts to reintubate him; and that as a result, he suffered severe brain damage and died 11 months later.

Plaintiffs originally named Memorial and Dr. Ferrer as defendants. Upon learning that Ferrer had been an employee of Memorial but had left the United States and had died, they filed an amended complaint naming Memorial as the sole defendant. The trial proceeded on a renewed action after plaintiffs voluntarily dismissed the first action without prejudice pursuant to OCGA § 9-11-41 (a).

In Case No. A95A0266, plaintiffs appeal the final judgment entered on a jury verdict in favor of Memorial. In Case No. A95A0267, Memorial cross-appeals the denial of its motion for summary judgment.

1. Plaintiffs contend that the court erred in granting Memorial’s motion in limine, refusing to allow them to introduce evidence that Ferrer failed his pediatric board examination. They also contend that the court erred in preventing them from showing that Ferrer had dropped out of his pediatric residency program. Both matters related to Ferrer’s professional qualifications.

In granting the motion, the court ruled that plaintiffs could show that Ferrer was not board certified but could not show that he failed the board examination. The court repeated the ruling at trial, when plaintiffs argued that they should be allowed to show the failure because Memorial’s attorney had falsely stated during her opening remarks that Ferrer had successfully completed his residency program. These are two different subjects.

[108]*108Although the court did prevent plaintiffs from showing that Ferrer failed to pass his board examination, this was not error. “A physician’s inability to pass certification and licensure examinations does not make probable his negligent performance of a specific procedure. [Cits.]” Beis v. Dias, 859 SW2d 835, 839 (6) (Mo. Ct. App. 1993). Such evidence has little if any relevance to the issue of whether the physician complied with the standard of care required in his treatment in a given case. Douglas v. University Hosp., 150 F.R.D. 165, 171 (10) (E. D. Mo. 1993), aff’d, 34 F3d 1070 (8th Cir. 1994). That is the issue in a medical malpractice case, OCGA § 51-1-27, as explained in Hayes v. Brown, 108 Ga. App. 360, 363 (1) (133 SE2d 102) (1963).

The trial court allowed plaintiffs to show that Ferrer was not board certified, notwithstanding the fact that plaintiffs’ own expert testified that the applicable standard of care did not require that he be board certified to staff the pediatric intensive care unit and serve as the unit’s first on-call physician. We find no abuse of discretion in the court’s refusal to allow evidence that Dr. Ferrer took but did not pass the board examination. OCGA § 24-2-2; Sommers v. Friedman, 493 NW2d 393, 398 (2) (Wis. Ct. App. 1992).

As to the residency program, the record does not support plaintiffs’ assertion that the court prevented them from showing that Ferrer did not finish it. The court ruled they could show it, to impeach the testimony of his supervising physician that Ferrer did complete his pediatric residency in Texas. Plaintiffs simply offered no evidence to the contrary, so OCGA § 24-9-82 was not violated.

Defendant later showed that Ferrer was not board certified nor did he claim to be, but that he was a skilled pediatric physician and competent intubator.

2. Plaintiffs contend that the court improperly allowed Memorial to introduce in evidence the discharge summary of the child’s initial four-month hospitalization at Memorial following his birth, because it contained diagnostic opinions. They argue that such evidence exceeds the bounds of OCGA § 24-3-4. Dunn v. McIntyre, 146 Ga. App. 362, 363 (2) (246 SE2d 398) (1978), sets out the rationale for not encompassing such statements. The court allowed Memorial to admit the entire document in evidence, for the reason that these diagnoses had been discussed in detail by plaintiffs’ own witnesses during cross-examination and by other witnesses without objection by plaintiffs. By introducing the subject, plaintiffs waived the objection. David Shapiro & Co. v. Timber Specialties, 141 Ga. App. 354, 355 (1) (233 SE2d 439) (1977). In so ruling, we do not reach the question of the summary’s admissibility in this instance or the question of harm.

3. Plaintiffs contend that testimony by one of Memorial’s administrators, stating the names of local physicians who had completed residency training programs at Memorial, was irrelevant and inadmis[109]*109sible hearsay.

The trial involved the issue of whether Memorial was qualified to treat the child. In that regard, we cannot say that this evidence did not have at least slight probative value, in that it “rendered] the desired inference more probable than it would be without the evidence.” Southern R. Co. v. Lawson, 256 Ga. 798, 802 (4) (353 SE2d 491) (1987). Consequently, the court did not abuse its discretion in admitting it as relevant. OCGA § 24-2-1. Adams v. Wright, 162 Ga. App. 550, 553 (6) (293 SE2d 446) (1982); see Kolb v. Holmes, 207 Ga. App. 184, 185 (2) (427 SE2d 562) (1993).

As to the second objection, that the evidence was hearsay, it was not made at trial. To be preserved for appellate review, the ground of the objection must be raised and ruled on at trial. Dietz v. Becker, 209 Ga. App. 678, 679 (3) (434 SE2d 103) (1993). Moreover, testimony is considered hearsay only if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of the matter asserted in that statement. OCGA § 24-3-1. Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990).

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Williams v. Memorial Medical Center, Inc.
460 S.E.2d 558 (Court of Appeals of Georgia, 1995)

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Bluebook (online)
460 S.E.2d 558, 218 Ga. App. 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-memorial-medical-center-inc-gactapp-1995.