The Court of Appeals of Georgia (“Georgia Appellate Court”), in its opinion dated February 14, 2020, affirmed a directed verdict in favor of the defendant oral surgeon at the conclusion of the plaintiff’s case in a Georgia dental malpractice case, stating, “In the absence of evidence to support a breach of the standard of care, the trial court properly directed a verdict for Dr. McCormack.”
The Underlying Facts
The plaintiff suffered from temporomandibular joint pain. At the time she first consulted the defendant, Dr. McCormack, an oral surgeon, she was in extreme pain and her jaw on her right side had become locked. After more conservative treatments failed, Dr. McCormack performed intraoral surgery on the plaintiff on September 23, 2015. The procedure required making cuts in a certain joint, and an oscillating saw was used to perform this part of the operation.
The operation lasted approximately 2.5 hours and was performed under general anesthesia. Immediately after the surgery, Dr.McCormack noticed that the plaintiff’s face and lips were bruised and swollen, but attributed it to the normal swelling typically observed after this type of surgery. Although Dr. McCormack testified that he was aware that the hand piece of the oscillating saw could overheat during the surgery and potentially burn the patient, he did not believe that the plaintiff had been burned during the surgery because he never felt the hand piece heat up, and there had been no other incidents with any of the other equipment used during the surgery that would have resulted in burns. However, after the plaintiff’s condition did not improve as expected, Dr. McCormack referred her to a plastic surgeon, who diagnosed her with second to third degree burns.
Dr. McCormack testified during trial that he did not know how the burns happened, but the only thing that made any sense to him is that it would have to have been the hand piece on the oscillating saw malfunctioning and directly transmitting heat to the retractors that were laying on the plaintiff’s face. Dr. McCormack further testified that he recognized that these devices can overheat, and the safety protocols require the doctor to cycle the device on and off to prevent overheating. Dr. McCormack testified that a conservative estimate would be to cycle the saw every ten seconds, but due to the nature of the plaintiff’s surgery and the need to see clearly the area being operated on, Dr. McCormack testified that he stopped the saw every five seconds at most.
The plaintiff’s expert testified that Dr. McCormack breached the standard based on the fact that hand pieces can heat up and do heat up from time to time, and being cognizant of that fact, there are ways to take measures to prevent it from touching the skin. The plaintiff’s expert testified that would be a way to prevent injuries and that would be the deviation. However, on the specific measures that Dr. McCormack should have taken, the plaintiff’s expert testified that he could not draw the conclusion that Dr. McCormack knew the hand piece was heating up because there are situations when it can heat up without the surgeon being aware of it and he was certain if Dr. McCormack felt it heating up he would have cycled it off. The plaintiff’s expert also was not prepared to testify that Dr. McCormack did not cycle the instrument properly, and because the hospital provided the equipment, it was in charge of maintaining it properly. The plaintiff’s expert reiterated that it was unavoidable that the hand piece would touch the face and retractors, so the touching alone was not a violation of the standard of care.
Following the presentation of the plaintiff’s case-in-chief, the defendants moved for a directed verdict, arguing that the plaintiff was basing her case on a res ipsa theory and that she had failed to present expert testimony that Dr. McCormack breached the standard of care by means of a specific act or omission as required by Georgia law. The trial court agreed, granted the motion, and entered judgment for the defendants. The plaintiff appealed.
Georgia Appellate Court Opinion
The Georgia Appellate Court stated that res ipsa loquitur is not applicable in medical malpractice cases in Georgia. In a Georgia medical malpractice case, the general rule is that medical testimony must be introduced to inform the jurors what is a proper method of treating the particular case. The jury must have a standard measure which they are to use in measuring the acts of the doctor in determining whether he exercised a reasonable degree of care and skill. Expert testimony must also set forth how or in what way the defendant deviated from the parameters of the acceptable professional conduct.
The Georgia Appellate Court stated that in the present case, “Although [the plaintiff’s expert] generally testified that Dr. McCormack breached the standard of care by failing to prevent the injury, when questioned about what measures should have been taken, he effectively eliminated from consideration any act or omission by Dr. McCormack that would have constituted a breach of the standard of care. Based on the record before us, [the plaintiff’s expert], “in effect, infers negligence upon an unintended result” … Georgia courts, however, have expressly ruled that the doctrine of res ipsa loquitur does not apply in a malpractice case. An unintended result does not raise an inference of negligence. It is presumed that medical or surgical services were performed in an ordinarily skillful manner … In the absence of evidence to support a breach of the standard of care, the trial court properly directed a verdict for Dr. McCormack.”
Source Rhoades v. McCormack, A19A1751, A19A1752.
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