Glover v. Atkinson-Sneed

348 Ga.App. 679

824 S.E.2d 588

GLOVER

v.ATKINSON-SNEED, et al.

Atkinson-Sneed, et al.

v.Glover.

A18A1565

A18A1566

Court of Appeals of Georgia.

February 20, 2019

Keishan Jamal Davis, Kwame Lateef Townes, Tucker, for Appellant in A18A1565.

Patrick Nish Arndt, Robert L. Goldstucker, Atlanta, for Appellee in A18A1565.

Patrick Nish Arndt, Robert L. Goldstucker, Atlanta, for Appellant in A18A1566.

Keishan Jamal Davis, Kwame Lateef Townes, Tucker, for Appellee in A18A1566.

Gobeil, Judge.

In February 2012, Nichole Glover brought the current action in Fulton County State Court against Adrienne M. Atkinson-Sneed, D. P. M. and Atkinson-Sneed’s employer, Providence Foot and Ankle Centers, P. C. (collectively, "the Defendants"), asserting claims for medical malpractice and vicarious liability. The Defendants filed an answer, together with a motion to dismiss the complaint for failure to attach a valid expert affidavit as required by OCGA § 9-11-9.1. The trial court denied the motion to dismiss, and the case proceeded to trial in January 2017. The jury found in favor of the Defendants and the trial court entered judgment on the jury’s verdict.

In Case No. A18A1565, Glover appeals from the trial court’s order denying her motion to set aside the jury verdict and for a new trial. Glover contends that the trial court erred when it granted the Defendants’ motion to prevent Glover from: (1) using her treating physician, who had been identified only as a fact witness, to provide expert testimony on the standard of care; and (2) presenting any evidence as to allegations of specific acts of professional negligence that were not raised until after the close of discovery. In Case No. A18A1566, the Defendants cross appeal the trial court’s orders denying their motion to dismiss the complaint and their motion to deem admitted several of their requests for admission.

For reasons explained more fully below, we find no error by the trial court in granting the Defendants’ motion to prevent Glover’s treating physician from providing standard of care testimony and to exclude evidence of untimely allegations of professional negligence. In Case No. A18A1565, therefore, we affirm the denial of Glover’s motion to set aside and for a new trial. Additionally, given our disposition of Glover’s appeal, we dismiss the cross-appeal in Case No. A18A1566 as moot.

The facts relevant to this appeal are undisputed, and show that Glover was a patient of the Defendants from approximately November 2006 to August 2010. During that time, Atkinson-Sneed performed two surgeries involving a total of three separate procedures on Glover’s feet. In December 2007, Atkinson-Sneed operated on Glover’s right foot, performing an osteotomy to realign the metatarsal bones and an arthroplasty of the big toe.¹ Following the surgery, Glover continued to experience pain in both feet, but especially her right foot. Atkinson-Sneed recommended additional surgery, which Glover underwent in February 2010. During the second surgery, Atkinson-Sneed performed an Aiken ostectomy² on Glover’s right big toe and removed a bunion and/or bone spurs from Glover’s left foot. After the second surgery, Glover continued to experience issues with her feet, including numbness, pain, and lack of mobility. In August 2010, at the recommendation of Atkinson-Sneed, Glover sought a second opinion and began treatment with another podiatrist, Dr. Mark Light.

In February 2012, Glover filed suit against the Defendants, alleging that Atkinson-Sneed had been negligent in: (1) failing to diagnose accurately the condition in Glover’s right foot prior to the February 2010 surgery; (2) performing surgery on Glover’s left foot in February 2010 and failing to surgically remove hardware from that foot; (3) fusing certain of the bones in Glover’s right foot in December 2007 when she realigned Glover’s toes; and (4) recommending that Glover resume wearing athletic shoes within three weeks after the December 2007 surgery. Attached to Glover’s complaint was the expert affidavit of Tameka Lee Sanders, D. P. M., whose testimony supported the allegations of negligence set forth in the complaint.

The Discovery Period

During an extended discovery period, the Defendants served discovery requests on Glover, including interrogatories. Interrogatory Number 21 asked Glover, in relevant part, to "state separately and in reasonable detail each and every act or omission on the part of [the] Defendants that [you] claim[ ] to be negligent and a deviation from the applicable standard of [ ] care." Glover responded by referring the Defendants to Glover’s first amended complaint "for some of the deviations from standard of care." Glover subsequently supplemented her response as follows: "See, Records Produced by Dr. Tameka Lee Sanders (Deposition taken by Counsel for Defendants March 9, 2015). See medical records of the treating physicians or practitioners who treated Ms. Glover for her injuries."

The Defendants’ Interrogatory Number 19 asked Glover to identify "any witness whom you expect to call as an expert witness at trial, including any of [Glover’s] treating physicians from whom you may elicit standard of care or causation testimony at trial ." (Emphasis supplied). The interrogatory further asked that with respect to such witnesses, Glover identify, inter alia, "the subject matter on which the expert is expected to testify, a summary of the grounds for each opinion, [and] a listing of each and every act or omission by these Defendants which such expert contends falls beneath the standard of care."

In responding to this interrogatory, Glover stated that she had "yet to determine who will be called as an expert witness at trial. Upon determining who will be called as an expert witness at trial, [Glover] will provide information required by the Georgia Civil Practice Act."

On February 20, 2015, the trial court entered a joint proposed scheduling order that was previously submitted by the parties. Pursuant to that order, the deposition of Glover’s expert was to be completed by March 15, 2015; the deposition of the Defendants’ expert was to be completed by April 30, 2015; the parties were to disclose any rebuttal experts within 45 days after the deposition of any expert whose testimony was to be rebutted (i.e., no later than June 15, 2015); and any party identifying a rebuttal expert was to make that rebuttal expert available for deposition within 10 days of his or her identification.

The only expert identified by Glover during the discovery period was Dr. Sanders, whom defense counsel deposed in March 2015. During her deposition, Dr. Sanders testified as to the statements in her affidavit regarding the ways in which Atkinson-Sneed breached the standard of care in her treatment of Glover.³ After reviewing the allegations of the complaint and the expert affidavit with Dr. Sanders, defense counsel asked her if she could identify any other ways in which Atkinson-Sneed had breached the standard of care. Dr. Sanders replied, "[No,] I think that’s it."

Discovery closed no later than December 3, 2015. The case was thereafter specially set for trial for January 9, 2017.

Post-Discovery Supplemental Responses and Deposition Testimony

More than a year after the close of discovery and less than a month before the scheduled start of trial, Glover began serving supplemental discovery responses. On December 9, 2016, Glover supplemented her response to Interrogatory Number 19 (which asked her to identify her expert witnesses) as follows: "[Glover] may also call any treating physician or medical practitioner who treated her regarding the injuries complained of in the complaint." Approximately three weeks later, on December 29, Glover served her second supplemental response to Interrogatory Number 21 (which had asked her to identify Atkinson-Sneed’s alleged acts of negligence). In this response, Glover asserted that in addition to the allegations of negligence set forth in her complaint and reflected in the affidavit of Dr. Sanders, "Dr. Atkinson-Sneed was negligent and failed to follow the requisite standard of care when she": (1) "performed an Aiken Bunionectomy (osteotomy ) of Ms. Glover’s right great toe on February 19, 2010, instead of either a fusion or an arthroplasty for a diagnosed hammertoe"; (2) "failed to diagnose the nonunion of the surgical site, post-surgery"; and (3) "failed to treat the nonunion of the surgical site, post-surgery, allowing for more degradation of the bone at the surgical site of the right proximal phalanx head."

On January 3, 2017, Glover filed a notice of deposition for her current podiatrist, Mark Light, indicating that the deposition would be used at trial in lieu of Dr. Light’s live testimony. At his deposition, Dr. Light testified that he x-rayed Glover’s feet in August 2010 and noted an irregular area or deformity where Atkinson-Sneed had performed the Aiken osteotomy in February 2010. Dr. Light noted in the file that there was "a good probability that the absorbable screw" used in the procedure contributed to this deformity. He also noted that two pieces of bone at the site that should have fused together during the healing process had not done so.

Glover’s attorneys also questioned Dr. Light about x-rays of Glover’s feet taken by Atkinson-Sneed in March, April, and June 2010. Defense counsel objected on the grounds that Dr. Light had not reviewed these x-rays as part of his treatment of Glover, but instead had reviewed them more recently, after being provided with copies by Glover’s attorneys. Over this objection, Dr. Light testified that he could see the potential for the non-union in the April 2010 x-rays, and that the non-union was definitely present in the June 2010 x-rays. Dr. Light opined, therefore, that by June 2010, he would have expected a podiatrist to recognize the non-union of bone at the surgical site, note it in the medical records, and address that condition. The x-rays showed that when left untreated, the non-union...