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                                                                  November 20, 2015

In the Court of Appeals of Georgia
 A15A1566. ROBLES et al v. YUGUEROS et al.

      BARNES, Presiding Judge.

      Rudy Robles, individually and as surviving spouse to Iselda Moreno and as

administrator of the estate of Iselda Moreno (collectively, “Robles”), filed this suit

against Patricia Yugueros, M.D., and her practice group, Artisan Plastic Surgery, LLC

(Artisan), alleging that Dr. Yugueros committed medical malpractice during the post-

operative care of Moreno, who died from complications after surgery. Robles appeals

from the jury’s verdict and judgment in favor of the defendants. He contends that the

trial court erred in excluding Artisan’s admission against interest, among other things.

Because we agree that the trial court erred in excluding this evidence and that the

error was harmful, we reverse the judgment entered on the defense verdict and

remand for a new trial.

      The record shows that on June 24, 2009, Dr. Yugueros performed a liposuction,

buttock augmentation, and abdominoplasty surgery on Moreno at Northside Hospital.

Moreno remained in the hospital overnight and was discharged the next day, with a

post-operative visit scheduled for June 29, 2009.
      On Saturday, June 27, 2009, two days after being discharged, Moreno called

Dr. Yugueros at around 7:15 a.m. to report that she was experiencing pain in her

upper abdomen and not eating well. Dr. Yugueros believed that Moreno was having

gastritis caused by her prescribed medications, so she told Moreno to take only Tums

and Tylenol instead. Robles called Dr. Yugueros a few hours later and said his wife

was still in pain and he wanted to take her to the hospital. Dr. Yugueros

recommended that they go to Northside Hospital, where she had privileges, but they

went instead to Gwinnett Medical Center’s (GMC) emergency department, where

Moreno complained of severe abdominal pain, nausea, and vomiting.

      Moreno was treated in GMC’s emergency department by Dr. Michael Violette,

an emergency room physician. Dr. Violette ordered an abdominal x-ray and read it

as “unremarkable.” Laboratory tests of Moreno’s blood and urine were ordered, and

the results revealed nothing unusual. He also examined Moreno’s abdomen,

diagnosed her with post-operative pain, and ordered anti-nausea and pain medication.

She was then released from the ER with instructions to return if her symptoms

worsened.

      Dr. James York, a GMC radiologist, read the same x-ray Dr. Violette had

reviewed. He thought it showed possible “free intreperitoneal air” in her abdomen and


                                         2
recommended a CT scan. “Free air” could be a normal finding in a post-operative

patient, but it could also indicate a serious condition. Dr. York’s report was posted

to Moreno’s electronic medical record and faxed to GMC’s emergency department

shortly after Moreno was discharged, but neither Dr. York nor anyone else from GMC

contacted Dr. Violette, Moreno, or Dr. Yugueros about Dr. York’s findings. And no

one checked GMC’s fax machine until the following Monday.

      Roughly three hours after being discharged from the GMC emergency

department, Moreno was still suffering from extreme abdominal pain. Dr. Yugueros

instructed Moreno not to return to GMC, but instead to go to Northside where she had

privileges. Following an initial work-up in the Northside emergency room, Dr.

Yugueros admitted Moreno for pain control and further evaluation.

      Once admitted, Dr. Yugueros ordered that Moreno receive an incentive

spirometer to assist her lungs and prescribed pain medications. Moreno’s lab work

returned within the normal range. Dr. Yugueros did not order x-rays or a CT scan.

      Around 5:15 a.m., Moreno’s nurse called Dr. Yugueros to report that the

prescribed medication was not adequate to control Moreno’s pain and that Moreno

had concentrated urine and hypoactive bowel sounds. Dr. Yugueros ordered a

different pain medication, IV fluids, and medication to help move Moreno’s bowels.


                                         3
      Later that morning, Dr. Yugueros came to Northside and observed Moreno for

approximately two hours, inspecting her surgical dressings and palpating her

abdomen. Around 2:40 p.m., a nurse contacted Dr. Yugueros because Moreno’s legs

were numb and she had to be carried out of the bathroom to bed. Dr. Yugueros

instructed the nurse to contact the rapid response team, which decided in concert with

Dr. Yugueros to order an abdominal X-ray, an electrocardiogram, and blood tests. Dr.

Yugueros also ordered abdominal pressure measurements to rule out abdominal

compartment syndrome and ordered an internist consult.

      Around 4:00 p.m., a hospitalist contacted the on-call surgeon for a consultation

because Moreno’s x-ray showed evidence of abdominal free air. The surgeon had to

attend to another emergency patient first, but Moreno went into surgery around 7:10

p.m. The surgeon discovered that Moreno’s stomach had basically torn open and was

95 percent necrotic. Moreno died later that evening.

      Robles filed suit against Dr. Yugueros and Artisan, alleging professional and

ordinary negligence arising out of Dr. Yugueros’s post-operative medical care and

treatment of Moreno. He did not not name GMC or any of its doctors or employees

as defendants, but Dr. Yugueros and Artisan filed notices designating GMC, Dr.

Violette, and Dr. York as non-parties against whom the jury should consider


                                          4
apportioning damages. At the end of the trial, part one of the verdict form allowed the

jury to find for either the plaintiff or the defendants, and instructed the jury that if it

found for the defendants, it should stop there and sign and return the verdict. If it

found for Robles, the jury was instructed to continue to part two regarding the

damages award and the apportionment of fault among the defendants and non-parties

listed on the verdict form. The jury returned a verdict in favor of Dr. Yugueros and

Artisan, and Robles appeals.

       Robles argues that the trial court erred in granting Artisan’s motion in limine

to exclude a portion of the deposition given by Artisan’s corporate representative in

response to Robles’ notice of deposition under OCGA § 9-1-30 (b) (6). We agree the

trial court erred in granting the motion, and that the error was harmful.

       OCGA § 9-11-30 (b) (6) provides,

       A party may, in his or her notice, name as the deponent a public or
       private corporation or a partnership or association or a governmental
       agency and designate with reasonable particularity the matters on
       which examination is requested. The organization so named shall
       designate one or more officers, directors, or managing agents, or other
       persons who consent to testify on its behalf, and may set forth, for each
       person designated, the matters on which he or she will testify. The
       persons so designated shall testify as to matters known or reasonably
       available to the organization.

                                            5
(Emphasis supplied.) In Robles’ notice of deposition, he asked Artisan to designate

someone who has “the most complete knowledge and [is] best informed as to the

following areas on which examination is requested,” including specifically “[t]he care

and treatment rendered by Patricia Yugueros, M.D., to Iselda Moreno.”

      Artisan designated Diane Z. Alexander, M.D., as its representative to respond

to the topics identified in Robles’ notice of deposition. Dr. Alexander is the president

of Artisan’s board and owns half of the practice. At the deposition, Robles asked Dr.

Alexander to recount her recollection of what she had been told about Dr. Yugueros’

care of Moreno, and Dr. Alexander related the events as she understood them,

beginning with Moreno’s first two calls to Dr. Yugueros regarding her post-surgical

pain. Dr. Alexander recalled that Moreno had gone to the Gwinnett Medical Center

emergency room and had been discharged, called again with complaints of pain, and

then went to Northside Hospital’s emergency room, where Dr. Yugueros admitted her

for observation. After Moreno’s pain was controlled, Dr. Yugueros went home, but

Moreno was then admitted to the intensive care unit and began to decompensate. Dr.

Yugueros returned to the hospital and called general surgery, Moreno was put on the

schedule, her surgery was delayed but she was finally brought to the operating room,

and she passed away within hours.


                                           6
      Dr. Alexander concluded her recitation of Moreno’s post-op treatment and care

by saying, “I believe somewhere in there she had a CT scan as well,” and the

following exchange took place:

      Q. Do you know who ordered a CT scan?

      A. I suspect Dr. Yugueros ordered it.

      Q. Would that, given your understanding, have been part of the standard
      of care to order a CT scan?

      [Objection to form.]

      A. If you don’t understand why the patient — why they’re having pain,
      it would be standard of care to — if you don’t know what’s going on,
      that would be a — yes. The answer is, yes, a CT scan would be — it
      would provide more information. And then the other piece of
      information that I remember were that she had the x-ray at the other
      hospital which showed free air and that that had not been communicated
      to Dr. Yugueros or — and the emergency room at Northside was also
      not made aware of that as well. So that’s my recollection and that’s just
      what Dr. Ashraf told me about the case.

In response to a notice to produce, Dr. Alexander brought to the deposition and

identified Moreno’s medical records that Artisan had maintained.

      The trial court granted Artisan’s motion in limine to exclude this testimony,

finding that it was based on hearsay, that Dr. Alexander’s opinion was not based on

all the data necessary to form an opinion, that Robles did not ask whether Dr.

Alexander could say to a degree of medical certainty that Dr. Yugueros violated the

                                         7
standard of care, and that the testimony was ambiguous and could mean that “the

CAT scan is part of what might be considered as part of the standard of care to be

considered.” But the issue is not whether Dr. Alexander’s testimony was admissible

as an expert opinion under OCGA § 24-7-702 (b). Under OCGA § 9-11-32 (a) (2),

the properly-noticed deposition of a 30 (b) (6) witness is admissible against a party

who was represented at the deposition, subject to the rules of evidence.

      The defendant-appellees argue that a trial court’s decision about whether a

witness is qualified to render an expert opinion should be reviewed for abuse of

discretion only, and contend that Dr. Alexander was not qualified as an expert and

that her opinion was not buttressed by sufficient facts or data to be admissible. But

this argument misses the mark entirely. The evidence was not offered as expert

testimony under OCGA § 24-7-702 (b); it was offered as a party’s admission against

interest under OCGA § 9-11-32 (a) (2). Further, the fact that Dr. Alexander’s

admission was prefaced by the erroneous belief that Dr. Yugueros had ordered a CT

scan when no one actually ever ordered one only adds to the import of her admission.

She assumed that Dr. Yugueros had ordered a CT scan because, according to Dr.

Alexander’s subsequent explanation, the standard of care would be for the doctor to

order a scan and obtain more information if she did not understand “what’s going on”


                                         8
or why the patient was having pain. Her testimony about standard of care was not

based on whether or not Dr. Yugueros actually ordered a CT scan, but was simply an

explanation of why a doctor should have done so.

       The dissent would find harmless any error in this evidentiary ruling because the

plaintiff presented expert testimony that the standard of care was to have ordered a

CT scan, and because Robles could have called Dr. Alexander as a live witness and

asked “similar non-objectionable questions.” But the testimony of an expert witness,

or even two expert witnesses, is not comparable to a party’s admission against

interest. And the fact that Robles could have called Dr. Alexander as a live witness

is irrelevant, because he was entitled under OCGA § 9-11-32 (a) (2) to introduce the

deposition testimony into evidence.

       The trial court’s error in failing to allow Robles to introduce Artisan’s

admission against interest was not harmless and necessitates a new trial.

       Because the case must be retried, we do not reach the remaining enumerations

of error.

       Judgment reversed and case remanded with direction. Doyle, C.J., Phipps,

P.J., Boggs, J., and McMillian, J., concur. Andrews, P.J., and Ray, J., dissent.




                                           9
 A15A1566. ROBLES et al. v. YUGUEROS et al.



      RAY, Judge.

      I respectfully dissent to the majority’s opinion because I believe it was within

the trial court’s discretion to exclude that portion of Dr. Alexander’s 30(b)(6)

deposition testimony regarding whether the standard of care in the instant case

required Dr. Yugueros to order a CT scan. Further, even if the trial court erred in this

decision, I believe that such error was harmless. See Griffin v. Greene County Hosp.

Auth., 260 Ga. App. 122, 124 (2) (578 SE2d 913) (2003).

      As noted by the majority, Robles sent a deposition notice to Artisan requesting

that the company produce an OCGA § 9-11-30 (b) (6) representative to be deposed

regarding, inter alia,“[t]he care and treatment rendered by Patricia Yugueros, M. D.

to Iselda Moreno.” In response to that notice, Artisan provided its president and

founding partner, Dr. Alexander. At the deposition, Dr. Alexander erroneously

testified that a CT scan had been ordered during the course of Moreno’s treatment.

Robles’s counsel asked Dr. Alexander, “Do you know who ordered a CT scan?” She

responded that “I suspect Dr. Yugueros ordered it.” Robles’s counsel then inquired,

“[w]ould that, given your understanding, have been a part of the standard of care to

order a CT scan?” Defense counsel objected “to the form” of the question, but Dr.
Alexander testified that “[i]f you don’t understand why the patient – why they’re

having pain, it would be standard of care to – if you don’t know what’s going on, that

would be a – yes. The answer is, yes, a CT scan would be – it would provide more

information.”

      The defendants sought to exclude this portion of Dr. Alexander’s deposition

testimony at trial. In the motions hearing regarding this issue, defense counsel argued,

inter alia, that the testimony regarding the standard of care was inadmissible because

Dr. Alexander had not been qualified as an expert witness and, thus, was not eligible

to offer her testimony as to the standard of care, and because Dr. Alexander did not

base her opinion regarding the standard of care upon the facts of the case.

      As noted in the majority’s opinion, one of the trial court’s stated reasons for

granting the defendant’s motion in limine to exclude this statement was that Dr.

Alexander’s opinion was not based on all the data necessary to form a valid expert

opinion. Dr. Alexander’s statement was clearly not based upon the facts of the case,

as she erroneously believed that Dr. Yugueros had ordered a CT scan. See OCGA §

24-7-702 (b) (A witness qualified as an expert may offer opinion testimony if it is

based upon sufficient facts or data and is the product of reliable principles and

methods and if the witness has applied the principles and methods reliably to the facts


                                           2
of the case). See also Ga. Dept. of Transp. v. Owens, 330 Ga. App. 123, 127 (1) (766

SE2d 569) (2014) (“The question of whether a witness is qualified to render an

opinion as an expert is a legal determination for the trial court and will not be

disturbed absent a manifest abuse of discretion”) (citations and punctuation omitted).

Here, because Dr. Alexander’s opinion clearly was based, at least in part, on an

erroneous statement of fact, I do not believe that the trial court abused its discretion

in excluding it.1

      Further, even if the trial court’s exclusion of this testimony was in error, I

believe that such error was harmless in light of other properly admitted expert

testimony providing the same opinion and in light of Robles’s opportunity, but

failure, to call Dr. Alexander to the stand to question her on this issue. See, e. g.,

Griffin, supra 124 (2) (trial court’s error in failing to admit deposition testimony of

defendant’s designated 30 (b) (6) deponent was harmless error). See also Marathon

Oil Co. v. Hollis, 167 Ga. App. 48, 53 (5) (305 SE2d 864) (1983) (trial court’s

exclusion of plaintiff’s deposition did not require reversal where plaintiff was called

as a witness at trial and was thoroughly cross-examined by appellant’s counsel, and

      1
        Additionally, the defendants objected to the form of the question about the
standard of care. While I have no doubt that Dr. Alexander could have been qualified
as an expert to answer such question, it does not appear to me that she was asked the
necessary questions to have been so qualified.

                                           3
the deposition was used for impeachment purposes). Robles presented opinion

testimony from other properly qualified expert witnesses that Dr. Yugueros allegedly

violated the standard of care by not ordering a CT scan to investigate the source of

Moreno’s pain, and that a CT scan was necessary and would have shown the presence

of free air and the acute abdominal condition. Robles was likewise not prohibited by

the trial court from calling Dr. Alexander as a live witness to testify; this he chose not

to do.2

      For the above reasons, I respectfully dissent to the majority’s opinion.

      I am authorized to state that Presiding Judge Andrews joins in this dissent.




      2
          Notably, Robles could have called Dr. Alexander to the stand, established
that she had credentials to qualify as an expert on the subject of the requisite standard
of care, ensured that she was fully apprised of the facts of the case, and then asked her
whether the standard of care in this situation would have required that Dr. Yugueros
order a CT Scan. If Dr. Yugueros had responded that it would not, then Robles could
have sought to impeach her testimony with her statements in her deposition.

                                            4
