Dunwoody Obstetrics and Gynecology, P. C. v. Franklin

363 Ga.App. 90

870 S.E.2d 592

DUNWOODY OBSTETRICS AND GYNECOLOGY, P. C., et al.

v.FRANKLIN et al.

A21A1691

Court of Appeals of Georgia.

March 8, 2022

David Christopher Hanson, Atlanta, for Appellant.

Anna Green Cross, J. Marcus Edward Howard, Geoffrey Edward Pope, Darren Summerville, Atlanta, for Appellee.

Mercier, Judge.

Terri Franklin and Komarta Gorman, as the parents and next friends of Kendyl Gorman, (collectively the "plaintiffs") filed a medical malpractice action against Franklin's obstetrician, Alvin Sermons, M. D., and his medical practice, Dunwoody Obstetrics and Gynecology, P. C., (collectively the "defendants") claiming that Sermons acted negligently by failing to write an alternate prescription for Franklin's blood pressure medicine Benicar while she was pregnant with Kendyl or by failing to refer Franklin to another physician in order to find an alternative blood pressure medicine. The plaintiffs claimed that as a result of Sermons's negligence and Dunwoody Obstetrics's vicarious liability for that negligence, Kendyl suffered birth defects due to fetal Benicar exposure. The jury found in favor of the plaintiffs, awarding them twelve million dollars. However, the jury also found Franklin 46% responsible, and the trial court subsequently reduced the award by 46% and entered a judgment for the plaintiffs of over six million dollars. The defendants appeal the judgment, alleging that the trial court erred by excluding evidence of Franklin's prior abortions and that the jury verdict was void because it was "fatally inconsistent."

We affirm. On the evidentiary issue, we conclude that excluding evidence of the plaintiff's abortions as a discovery sanction was not an abuse of the trial court's broad discretion to control discovery. The defendants did not disclose expert opinions relying on that evidence until one business day before the start of a complex medical malpractice jury trial, even though they had known about the factual predicate for those opinions for several years. The trial court viewed that last-minute disclosure as evidence that the defendants’ interrogatory responses in the years of litigation leading up to the disclosure—none of which mentioned these now "critical" opinions—were "intentionally false and misleading." A finding like this—that a party has willfully failed to comply with discovery obligations—is committed to the trial court's broad discretion as long as "any evidence" supports it, and under clear Supreme Court precedent, a trial court may sanction such conduct by excluding the evidence at issue. Resurgens, P. C. v. Elliott , 301 Ga. 589, 800 S.E.2d 580 (2017). As for the defendants’ request to overturn the jury's verdict as "fatally inconsistent," we decline. The defendants contend that the jury's decision to assign 46% fault to Franklin "necessarily" means that the jury found that Franklin knew the risks of taking Benicar, which would have relieved them of liability. But, as we will explain below, there is at least one other permissible basis for that allocation of fault, and the law requires us to presume that the jury relied on the valid basis.

Following a jury's verdict and a trial court's subsequent entry of a judgment, this Court must affirm the judgment "if there is any evidence to support the verdict, because the jurors are the exclusive judges of the weight and credibility of the evidence. We must construe the evidence with every inference and presumption in favor of upholding the verdict." Sagon v. Peachtree Cardiovascular and Thoracic Surgeons , 297 Ga. App. 379, 379, 677 S.E.2d 351 (2009) (citation and punctuation omitted).

So viewed, the relevant evidence shows that Franklin began taking Benicar to treat her high blood pressure in February 2009. She learned that she was pregnant with Kendyl in August of 2010, and a friend of hers recommended Sermons as an obstetrician. Franklin testified that at her first appointment with Sermons, on September 13, 2010, she told Sermons that she was taking Benicar and Sermons said, "well, that's not normally a medicine that you could take while being pregnant, but [I will] switch you later." Sermons did not tell Franklin that Benicar could harm her baby, nor did he instruct her to stop taking Benicar. Franklin subsequently refilled her Benicar prescription the same day.

At Franklin's following appointment with Sermons, they did not discuss Franklin's Benicar prescription. However, at her October 28, 2010 appointment, Gorman asked Sermons when Sermons was going to change Franklin's blood pressure medicine, and Sermons responded, "I'll switch it later."

Franklin and Sermons did not discuss Benicar at any of Franklin's ensuing doctor's appointments, until her March 3, 2011 appointment, when Franklin again mentioned that she was taking Benicar. Sermons did not tell Franklin to stop taking Benicar, and she was scheduled for another appointment with Sermons for March 17, 2011. However, after Franklin left Sermons's office on March 3, Sermons called her and told her to go to a maternal fetal specialist the next morning. The following morning at approximately 7:00 a.m., Sermons called Franklin again and told her to go straight to the hospital and that he would meet her there. When Franklin arrived at the hospital, she was admitted, and the treating physicians immediately took her off of Benicar and prescribed her a different blood pressure medicine. Five days later, Kendyl was born premature, at 32 weeks, with brain damage, chronic kidney disease, and under-developed intestines. Franklin was diagnosed with oligohydramnios, where there is not enough amniotic fluid around the baby, which is associated with pre-term labor.

The plaintiffs filed this action in October 2012. At trial, the plaintiffs’ expert testified that Sermons breached his duty of care by failing to tell Franklin to stop taking Benicar immediately. The defendants admitted that if Sermons had failed to tell Franklin to stop taking Benicar, it would have been a violation of the standard of care. Sermons testified, however, that he told Franklin at her first visit to stop taking Benicar, but she continued to do so. The jury resolved the dispute in the plaintiffs’ favor. Following the trial court's entry of judgment, the defendants filed a motion for new trial, which the trial court denied.

1. The defendants claim that the trial court erred by excluding evidence of Franklin's prior abortions as a discovery sanction. "A trial court has broad discretion to control discovery, including the imposition of sanctions, and [this Court] will not reverse a trial court's decision on discovery matters absent a clear abuse of discretion." Resurgens , supra at 597 (2) (b), 800 S.E.2d 580 (citation and punctuation omitted). We employ a clear abuse of discretion standard, "because, unlike the appellate courts, the trial court directly supervise[s] the ebb and flow of the discovery and trial process in the case and ha[s] the opportunity to observe and assess the conduct, demeanor, and credibility of the parties and their counsel throughout the proceedings." Id. at 598 (2) (b), 800 S.E.2d 580 (citation and punctuation omitted).

When Franklin first began seeing Sermons, she completed an intake form stating that she had three pregnancies, including one live birth and one miscarriage/abortion. However, in June 2013, the defendants took Franklin's deposition, which Sermons attended, during which Franklin testified that she previously had four abortions.

Almost five years after Franklin's deposition, the plaintiffs took the deposition of defendant's expert witness, Dr. Daniel Eller. Eller testified that he had reviewed Franklin's deposition and that the cause of Kendyl's brain injury was an infection and/or her prematurity, and that her other injuries (renal insufficiency and calvarial hypoplasia ) and Franklin's oligohydramnios were due to Benicar exposure. Eller did not attribute any of Kendyl's injuries to Franklin's prior abortions, or her failure to inform Sermons of the abortions. Further, in the defendants’ discovery responses, Sermons's deposition and the consolidated pretrial order, the defendants contended that Sermons had warned Franklin of the dangers of taking Benicar and yet she continued to take the medicine despite Sermons's warnings. The defendants made no arguments, and gave no discovery responses or deposition testimony to suggest that Franklin's prior abortions, or her failure to disclose the abortions to Sermons, played a role in Kendyl's injuries. Moreover, in the consolidated pretrial order the defendants failed to even mention Franklin's prior abortions.

Two weeks prior to the start of trial, on October 7, 2019, the plaintiffs filed a motion in limine seeking to exclude all evidence of Franklin's abortions. On October 17, 2019, four days before the start of trial (and over six years after Franklin's deposition), the defendants served a one paragraph supplemental discovery response¹ to an interrogatory requesting the identification of any expert witnesses the defendants expect to call at trial and a summary of their opinion, stating that

in additional[sic] to the opinions previously offered by Dr. Eller, he is also expected to testify that the number of voluntary terminations [Franklin] endured prior to the pregnancy at issue caused [Franklin] to be at an increased risk for preterm labor /delivery. Defendants further state that Dr. Eller bases his opinions on his training and experience, as well as his review of the complaint and accompanying affidavit, the pleadings, the medical records, and the depositions taken in this case. Defendants further state that Dr. Sermons is also expected to testify that [Franklin's] prior medical history, including voluntary terminations, increased her likelihood of going into preterm labor /delivery. Dr. Sermons is also expected to testify that had he known about [Franklin's] prior medical history concerning voluntary terminations, it is likely

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