                                  WHOLE COURT

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                               http://www.gaappeals.us/rules


                                                                   October 26, 2017

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

      BARNES, Presiding Judge.

      In Yugueros v. Robles, 300 Ga. 58 (793 SE2d 42) (2016), the Supreme Court of

Georgia reversed our decision in Robles v. Yugueros, 335 Ga. App. 324 (779 SE2d

139) (2015), then remanded the case to this Court for proceedings consistent with its

opinion. Yugueros, 300 Ga. at 67. We thus vacate our earlier decision, and for reasons

discussed below, we affirm.

      As set forth by the Supreme Court, this case arose from the following facts.

      Iselda Moreno, wife of Rudy Robles, received liposuction, buttock
      augmentation, and abdominoplasty surgery performed by Dr. Patricia
      Yugueros of Artisan Plastic Surgery, LLC (“[medical practice group]”)
      on June 24, 2009. Suffering abdominal pain, Moreno went to the
      emergency room at Gwinnett Medical Center (“GMC”), where Dr.
      Michael Violette ultimately discharged her after determining her
      abdominal x-ray was unremarkable. A GMC radiologist, Dr. James York,
      who later saw Moreno’s abdominal x-ray, could not rule out the
      possibility of “free air” in her abdomen, which could be a normal post-
      operative condition or could indicate a more serious issue. He
      recommended a CT scan and posted this opinion in Moreno’s electronic
      medical record.


      Moreno’s pain worsened and Robles contacted Dr. Yugueros on
      Moreno’s behalf, who directed him to take Moreno to Northside Hospital,
      where Dr. Yugueros had privileges; there, Dr. Yugueros provided certain
      treatment, but did not order a CT scan or procure the radiology report
      from GMC. Dr. Yugueros, in concert with various other medical
      professionals, ordered other tests, including an abdominal x-ray, which
      showed evidence of abdominal free air. Several hours later, on June 28,
      2009, Moreno died.


Yugueros, 300 Ga. at 58.

      Robles, individually, as Moreno’s surviving spouse, and as administrator of

Moreno’s estate, sued Dr. Yugueros and the medical practice group. He alleged that

his wife had died of abdominal compartment syndrome, caused by abdominal free air

that had resulted from a perforated stomach. Robles claimed that Dr. Yugueros had

committed medical malpractice – not during the surgery, but thereafter – by failing to

recognize clinical evidence of his wife’s post-operative complications that arose and

caused her death.1 Robles sought to hold the medical practice group vicariously liable.


      1
         As Robles’s counsel would later demarcate at a pretrial hearing, “The
allegations of negligence as against Dr. Yugueros relate[ ] solely to how she handled

                                          2
      Dr. Yugueros and the medical practice group denied liability; further, they

designated Drs. Violette and York, as well as GMC, as nonparties at fault.

      The case proceeded to trial in November 2014. The jury returned a defense

verdict, and judgment was entered thereon. Robles appealed to this Court, contesting

various evidentiary rulings, curtailment of his closing argument, and the placement of

nonparties on the verdict form for purposes of apportionment.

      When this case was initially before us, Robles, 335 Ga. App. at 324, this Court

found as reversible error the trial court’s exclusion of certain deposition testimony

given by the medical practice group’s designated OCGA § 9-11-30 (b) (6) witness. In

light of the Supreme Court’s reversal based on that issue, see Yugueros, 300 Ga. at 67,

we resume our review of this case.

      1. First, we revisit Robles’s contention that the trial court erred by excluding

certain testimony given by the OCGA § 9-11-30 (b) (6) witness, Dr. Diane Z.

Alexander, a physician, founder, and co-owner of the medical practice group. Pertinent

here, she deposed that when Dr. Yugueros was told about Robles’s wife’s ongoing,




the post-operative complications that developed on the 27th and 28th.”

                                          3
post-surgical abdominal pain, the standard of care required the physician to employ a

CT scan to ascertain the underlying cause.2 As noted above, however, Dr. Yugueros

neither ordered a CT scan, nor procured the radiology report from GMC.

      Dr. Yugueros and the medical practice group moved to exclude the cited

deposition testimony. At a pretrial hearing conducted in January 2014, their counsel

argued that Robles had failed to establish that the deponent’s standard-of-care opinion

was “based upon sufficient facts or data” as required by OCGA § 24-7-702 (b),3 which

is applicable when determining the admissibility of expert testimony.4

      2
          Dr. Alexander’s exact testimony is provided at Yugueros, 300 Ga. at 62.
      3
         OCGA § 24-7-702 (b) (1) (“If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise, if . . . [t]he
testimony is based upon sufficient facts or data.”) (emphasis supplied).
      4
         Specifically, they cited that Dr. Alexander had never been identified as an
expert; they asserted that she had never reviewed the medical records, had never been
privy to any of the information that Dr. Yugueros had at the time, and had not
conducted any meaningful analysis of the standard of care or of “the causation
question.” As they posited, Dr. Alexander had been proffered “as a fact witness only.
It was only given for that purpose and . . . we don’t intend to identify her or use her or
attempt to use her as an expert in the case.” Counsel for the medical practice group
added, “[Dr. Alexander is] going to be available for trial only to the extent of possibly
these agency issues and business-related issues with the – someone has got to be here
for the practice and that’s going to be her. . . .”

                                            4
      In response, Robles’s counsel made no assertion that the statutory provision was

met. Counsel instead took the position,

      [We] raised in our 30 (b) (6) notice [that] [the medical practice group]
      provide someone that can give testimony about the care and treatment
      rendered by Patricia Yugueros M.D. to [Robles’s wife]. So, whether Dr.
      Alexander took to that seriously, whether she did enough preparation,
      that’s her risk. [The medical practice group] is bound by the designee that
      they put to testify on their behalf. That’s black letter law. . . . I can
      understand why they don’t want that to come in but she is bound by the
      fact she’s designated as a 30 (B) (6) witness. . . . That’s not my problem
      in terms of admissibility.


      After additional argument on behalf of the parties – including a proposal by

counsel for Dr. Yugueros that Dr. Alexander be allowed to “review the medical records

and be able to respond to . . . questions,” the trial court ruled that the cited deposition

testimony would be excluded, but that such ruling was “without prejudice to raising

[the issue]” at trial. As the court explained, Robles could seek to introduce Dr.

Alexander’s medical opinion at trial, based upon “what the actual evidence is” at that

time. But at trial, Robles’s counsel merely reasserted his previous argument, and the

deposition testimony was not presented to the jury.



                                            5
      When this case was initially before us, this Court determined that the exclusion

of the deponent’s medical opinion was reversible error. Robles, 335 Ga. App. at 325.

We pointed out that the evidence was not offered as expert testimony under OCGA §

24-7-702 (b); noted that Robles sought to introduce the testimony as a party’s

admission against interest under OCGA § 9-11-32 (a) (2); and recited that such

statutory paragraph provided for a properly-noticed deposition of an OCGA § 9-11-30

(b) (6) witness to be admitted against a party who was represented at the deposition,

subject to the rules of evidence. Robles, 335 Ga. App. at 328. Thereupon, this Court

concluded, “[Robles] was entitled under OCGA § 9-11-32 (a) (2) to introduce the

deposition testimony into evidence.” Robles, 335 Ga. App. at 329.

      The Supreme Court granted certiorari to determine,

      whether [the Court of Appeals] was correct in holding that deposition
      testimony of an organizational representative taken under OCGA § 9-11-
      30 (b) (6) may be admitted into evidence at trial under OCGA § 9-11-32
      (a) (2), without regard to the rules of evidence governing admissibility of
      expert testimony, see OCGA § 24-7-702.


Yugueros, 300 Ga. at 58. After examining the interplay among several Code sections,

the Supreme Court held,


                                          6
      OCGA § 9-11-32 (a) (2) . . . does not create a rule of evidence that allows
      any deposition taken under OCGA § 9-11-30 (b) (6) to be admitted at trial
      in its entirety as “an admission against interest,” but provides for the
      admission of the deposition when that admission is permitted under
      relevant rules of evidence. And, when testifying as to the medical
      standard of care, OCGA § 24-7-702 is a relevant rule of evidence[.]


(Footnote omitted.) Yugueros, 300 Ga. at 67.

      In light of that holding, we conclude that Robles has failed to demonstrate

reversible error. As the proponent of the expert testimony, Robles had the duty to show

its admissibility. HNTB Ga. v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770)

(2010) (“[R]egardless of an expert’s experience or qualifications, the proffering party

bears the burden of presenting evidence of reliability in order to met the standards of

[OCGA § 24-7-702].”); accord United States v. Frazier, 387 F3d 1244, 1260 (III) (A)

(11th Cir. 2004) (reiterating that the proponent of the expert opinion has the burden of

showing its admissibility).5 Yet, Robles made no claim to the trial court that Dr.

Alexander’s medical opinion met the cited requirement of OCGA § 24-7-702 (b),

choosing instead to seek admission of the evidence solely on the ground that it was



      5
          See generally OCGA § 24-7-702 (f).

                                           7
obtained during the deposition of the medical practice group’s OCGA § 9-11-30 (b)

(6) witness. But as the Supreme Court has since clarified, the trial court’s role of

gatekeeper under OCGA § 24-7-702 “is not extinguished simply because deposition

testimony, including expert testimony, is secured under OCGA § 9-11-30 (b) (6).”

Yugueros, 300 Ga. at 67.

      In his opening brief to this Court, Robles asserts that “Dr. Alexander is an

experienced plastic surgeon,” that “[she] satisfied both prongs of OCGA § 24-7-702

(c),” that any lack of personal knowledge about the underlying events and Robles’s

wife’s medical record “does not impact Dr. Alexander’s qualifications,” and that “[he

(Robles)] should not be penalized because Dr. Alexander was insufficiently prepared.”6

These conclusory assertions, however, do not respond to the specific challenge raised

under OCGA § 24-7-702 (b). See generally HNTB Ga., 287 Ga. at 646 (2) (concerning

proffering party’s burden in the trial court); Dixon v. MARTA, 242 Ga. App. 262, 266



      6
        (Emphasis supplied.) In his reply brief, Robles reaffirms his position, “This
testimony was provided not in Dr. Alexander’s individual capacity but in her capacity
as a Rule 30 (b) (6) designee. As a result, the question of the admissibility of her
testimony does not arise in the context of testimony obtained from an individual or
from a hired expert.”

                                          8
(4) (529 SE2d 398) (2000) (reiterating that legal analysis requires “at a minimum, a

discussion of the appropriate law as applied to the relevant facts”). Moreover, Robles

has made no effort to cite this Court to any evidence that the trial court failed to

consider in deciding the issue of admissibility. And this Court has no duty to “cull the

record – in this case [35] volumes – on an appellant’s behalf” to support a position not

advanced below. Carlisle v. Abend, 288 Ga. App. 150, 151 (1) (653 SE2d 388) (2007);

see Burrell v. State, 301 Ga. 21, 26 (3) (799 SE2d 181) (2017) (refusing to reach merits

of evidentiary issue because “[i]t is not this Court’s job to cull the record on behalf of

Appellant to find alleged errors”); Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402,

405 (2) (597 SE2d 494) (2004) (deciding that the appellant, “[h]aving taken [one]

position throughout the entire course of this litigation [concerning expert testimony],

cannot raise the contrary argument for the first time on appeal”); see generally Pfeiffer

v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002) (reiterating

principles that “[a litigant] must stand or fall upon the position taken in the trial court”

and that “[f]airness to the trial court and to the parties demands that legal issues be

asserted in the trial court”) (citation and punctuation omitted); Mays v. Ellis, 283 Ga.

App. 195, 199 (2) (641 SE2d 201) (2007) (finding waiver of whether expert testimony

                                             9
was admissible under expert witness statute, where party failed to properly preserve

issue); Cherokee Nat. Life Ins. Co. v. Eason, 276 Ga. App. 183, 187 (2) (622 SE2d

883) (2005) (reciting principle that a party cannot “complain of an error which its own

conduct procured or aided in causing”).

      For all these reasons, Robles has failed to carry his burden as appellant to show

an abuse of discretion by the trial court.7 Consequently, this contention provides no

basis to disturb the judgment.

      2. Robles’s remaining challenges to the judgment – which we did not reach

when this case was initially before us8 – relate to the alleged fault of nonparties and

other matters of apportionment.




      7
         See HNTB Ga., 287 Ga. at 642 (1) (trial court’s determination whether witness
is qualified to render opinion as expert will not be disturbed “absent a manifest abuse
of discretion”) (citation and punctuation omitted); Meacham v. Franklin-Heard County
Water Auth., 302 Ga. App. 69, 76 (3) (690 SE2d 186) (2009) (“The issue of the
admissibility or exclusion of expert testimony rests in the broad discretion of the trial
court, and, consequently, the trial court’s ruling thereon cannot be reversed absent an
abuse of discretion.”) (citation and punctuation omitted).
      8
        See Robles, 335 Ga. App. at 329 (“Because the case must be retried, we do not
reach the remaining enumerations of error.”).

                                           10
      As noted above, the defendants designated three nonparties as having fault in

this case: (i) GMC, which operated the emergency room facility where Robles’s wife

sought relief from her pain on June 27, three days after her surgery; (ii) Dr. Violette,

the emergency medicine physician at GMC’s emergency room who ordered an

abdominal x-ray of Robles’s wife’s kidney, ureter and bladder (“KUB”), which he

interpreted as unremarkable, then prescribed her pain medications and discharged her;

and (iii) Dr. York, the radiologist who later reviewed the same KUB at GMC,

identified a suspicion of abdominal free air, posted in Robles’s wife’s electronic

medical record his recommendation for a CT scan, but did not otherwise communicate

his findings and recommendation to Dr. Violette (or to Dr. Yugueros). According to

Dr. York, GMC’s policies and procedures had not required him to do so.

      At trial, to evince their position that these three nonparties bore fault, the

defendants presented the expert testimony of Dr. Henry J. Krebs, a radiologist, who

stated that Robles’s wife’s KUB was not unremarkable. Focusing on “a number of

findings that kind of jump out at you,” Dr. Krebs pointed out that Robles’s wife’s

stomach was “massively distended, probably four or five time what a normal stomach

should look like,” that her transverse colon was severely displaced, and that her bowel

                                          11
gas pattern was “very abnormal.” These collective circumstances, Dr. Krebs testified,

revealed an 85 to 90 percent probability that free air existed in Robles’s wife’s

abdomen – a condition that Dr. Krebs described as a “critical result,” an “absolutely.

. . emergency type of thing” that required immediate evaluation by a CT scan. As Dr.

Krebs explained, a CT scan would have confirmed whether the suspicious area was

“free air or not.”

       Dr. Krebs opined that, given what Robles’s wife’s KUB revealed, Dr. Violette

had breached the standard of care by, inter alia, misinterpreting Robles’s wife’s KUB

as unremarkable. Additionally, Dr. Krebs opined that GMC had breached the standard

of care, citing deficiencies in the reporting and communication processes, and further

asserting that GMC’s policies and procedures should have required that abnormal

findings be communicated immediately and directly to treating physicians. (While Dr.

Krebs went on to render medical opinions as to Dr. York, those opinions are not at

issue in this appeal.)

       In several overlapping claims of error, Robles complains about the admission

of Dr. Krebs’s testimony as follows.



                                         12
      (a) Robles contends that the trial court erred by denying his pre-trial motions to

exclude Dr. Krebs’s medical opinions about the emergency medicine physician at

GMC, Dr. Violette. Robles argues that because Dr. Krebs was a radiologist who had

never practiced emergency medicine, he was not qualified under OCGA § 24-7-702 (c)

to give expert testimony about the care and treatment rendered by Dr. Violette.

      OCGA § 24-7-702 (c) pertinently provides,

      [T]he opinions of an expert, who is otherwise qualified as to the
      acceptable standard of conduct of the professional whose conduct is at
      issue, shall be admissible only if, at the time the act or omission is alleged
      to have occurred, such expert . . . had actual professional knowledge and
      experience in the area of practice or specialty in which the opinion is to
      be given as the result of having been regularly engaged in. . . [t]he active
      practice of such area of specialty of his or her profession for at least three
      of the last five years, with sufficient frequency to establish an appropriate
      level of knowledge, as determined by the judge, in performing the
      procedure, diagnosing the condition, or rendering the treatment which is
      alleged to have been performed or rendered negligently by the defendant
      whose conduct is at issue. . . .


(Emphasis supplied.) OCGA § 24-7-702 (c) (2) (A). Interpreting that language, the

Georgia Supreme Court has explained,




                                           13
      [T]he requirement that the expert have “actual professional knowledge
      and experience in the area of practice or specialty in which the opinion is
      to be given” means that the . . . expert does not have to have knowledge
      and experience in the same area of practice/specialty as the defendant
      doctor. Instead, under the foregoing language, the issue is whether the
      expert has knowledge and experience in the practice or specialty that is
      relevant to the acts or omissions that . . . allege[dly] constitute[d]
      malpractice and caused the plaintiff’s injuries. However, it is not
      sufficient that the expert have just a minimum level of knowledge in the
      area in which the opinion is to be given. Instead, the expert must have
      “regularly engaged in the active practice” of the area of specialty “in
      which the opinion is to be given” and must have done so “with sufficient
      frequency to establish an appropriate level of knowledge . . . in
      performing the procedure, diagnosing the condition, or rendering the
      treatment which is alleged to have been performed or rendered
      negligently by the defendant whose conduct is at issue.”


(Citation and punctuation omitted; emphasis omitted and supplied.) Nathans v.

Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007);9 see Bonds v. Nesbitt, 322 Ga.

App. 852, 857 (3) (757 SE2d 40) (2013) (same).10 Broadly speaking, “Rule 702 is



      9
        In Nathans, the Court was reviewing OCGA § 24-6-67.1 (c) (2) (A), but the
statutory language does not differ from that set forth in OCGA § 24-7-702 (c) (2) (A).
      10
         In Bonds, 322 Ga. App. at 857 (3), this Court noted that OCGA § 24-7-67.1
(c) was replaced with OCGA §24-7-702 (c).

                                          14
designed to ensure that an expert genuinely knows of that of which he speaks.” Dubois

v. Brantley, 297 Ga. 575, 586 (2) (775 SE2d 512) (2015). “No doubt, the simplest way

to demonstrate that an expert has an appropriate level of knowledge in performing a

procedure[, diagnosing the condition, or rendering the treatment] . . . is by proof that

the expert actually has done these things himself.” (Punctuation omitted.) Id. at 585 (2).

      During his deposition, Dr. Krebs stated that he had been practicing radiology for

nearly three decades. During those years, he had read many images ordered by

emergency medicine physicians. Routinely, the emergency medicine physicians would

first interpret images such as a KUB and other abdominal x-rays; and thereafter, those

same images/studies were read and reduced to a written report by him as the

radiologist. Dr. Krebs recounted, “I have worked in many emergency rooms alongside

emergency room physicians for many, many years. So I have many, many emergency

room physicians that I know very well and how they practice.” In some of his previous

working environments, Dr. Krebs recalled, he was “physically located” in the

emergency medicine department.

      Given Dr. Krebs’s medical background and experience, which included reading

the exact type of x-ray at issue here – and doing so in collaboration with emergency

                                           15
medicine physicians, the trial court did not abuse its discretion in rejecting Robles’s

contention that, because Dr. Krebs was a radiologist who had never practiced

emergency medicine, he was not qualified under OCGA § 24-7-702 (c) to render

opinions regarding Dr. Violette’s interpretation of Robles’s wife’s KUB.11 See Dubois,

297 Ga. at 587 (2) (“[A]n expert has an “appropriate level of knowledge . . . in

performing the procedure” to the extent that the expert has sufficient knowledge about

the performance of the procedure — however generally or specifically it is

characterized, so long as it is the procedure that the defendant is alleged to have

performed negligently — to reliably give the opinions about the performance of the

procedure that the expert proposes to give.”); Mays, 283 Ga. App. at 196-199 (1)

(concluding that gastroenterologist was qualified to render opinion that OB/GYN –

who performed surgery on patient based on OB/GYN’s diagnosis that patient was

suffering from pancreatitis – had committed negligence by misdiagnosing patient’s



      11
          See Dubois, 297 Ga. at 587 (2) (“Whether the experience of a particular expert
witness is enough to establish that the expert has an ‘appropriate level of knowledge’
is a question committed to the discretion of the trial court.”); Nathans, 282 Ga. at 806
(1), n. 8 (reciting that a trial court’s determination on the qualifications of an expert
witness will not be reversed absent a clear abuse of discretion).

                                           16
pancreatitis; and that if timely diagnosed, patient’s condition could have been treated

nonsurgically). Accord McDowell v. Brown, 392 F3d 1283, 1297 (III) (11th Cir. 2004)

(“The proffered physician need not be a specialist in the particular medical discipline

to render expert testimony relating to that discipline.”) (citation and punctuation

omitted); Mitchell v. United States, 141 F3d 8, 12-16 (I) (C) (1st Cir. 1998) (explaining

that although the putative expert must be “qualified by knowledge, skill, experience,

training, or education,” proffered expert physician need not be a specialist in a

particular medical discipline to render expert testimony relating to that discipline);

Holbrook v. Lykes Bros. S.S. Co., 80 F3d 777, 782 (I) (B) (3d Cir. 1996) (“[T]he

district court erred by finding that [internist] was not qualified to render a diagnosis or

to discuss the pathology report because he was not a pathologist, oncologist or expert

in ‘definitive cancer diagnosis.’”).

       (b) Another ground upon which Robles sought to exclude Dr. Krebs’s medical

opinions about Dr. Violette was premised upon certain statements made by Dr. Krebs

during his deposition that “I’m not an ER physician so I’m not really qualified to talk

about any of his standard of care treating the patient,” and “[a]gain, I can’t speak to

standard of care for an ER physician.” Robles urged below that Dr. Krebs was

                                            17
consequently unqualified under OCGA § 24-7-702 (c) to opine about the standard of

care. In making this argument, Robles cited further subsection (c) of Georgia’s ER

statute, OCGA § 51-1-29.5.12

       But when the flagged statements are viewed in the context of Dr. Krebs’s entire

deposition, it is readily apparent that Dr. Krebs was not referring to the specific

(alleged) negligence that the defense sought to attribute to Dr. Violette. While Dr.

Krebs repeatedly explained that his opinions would not encompass each and every

aspect of Dr. Violette’s practice of emergency medicine, Dr. Krebs maintained, “What

I am prepared to discuss is when [Dr. Violette] interprets radiographs that does cross

between what my area of expertise is.” The flagged statements, hence, did not render

Dr. Krebs unqualified under OCGA § 24-7-702 (c).

      In relevant part here, OCGA § 24-7-702 (c) provides for the admission of the

opinions of an expert “who is otherwise qualified as to the acceptable standard of

      12
         OCGA § 51-1-29.5 (c) (“In an action involving a health care liability claim
arising out of the provision of emergency medical care in a hospital emergency
department or obstetrical unit or in a surgical suite immediately following the
evaluation or treatment of a patient in a hospital emergency department, no physician
or health care provider shall be held liable unless it is proven by clear and convincing
evidence that the physician or health care provider’s actions showed gross
negligence.”) (emphasis supplied).

                                          18
conduct of the professional whose conduct is at issue.”13 That language contemplates

that the expert is “generally familiar with the standard of conduct of the medical

professional in question.” Nathans, 282 Ga. at 804, 807 (1). In light of Dr. Krebs’s

medical background and experience, the trial court was authorized to conclude that Dr.

Krebs was qualified to give expert testimony about the accepted standard of medical

care applicable to a physician interpreting the type of x-ray at issue here and to render

an opinion whether Dr. Violette’s interpretation of Robles’s wife’s KUB breached that

standard of care.14

      Although Robles relies further on the ER statute, nothing therein purports to

change the accepted standard of care for any medical professional. See Johnson v.

Omondi, 294 Ga. 74, 81 (1) (751 SE2d 288) (2013) (“By its enactment of OCGA § 51-

1-29.5, the General Assembly did not divorce the generally accepted standards of

medical care from the cases to which the statute applies.”) (Blackwell, Justice,

concurring specially, joined by Justice Nahmias). Rather, by enacting that statute, “the



      13
       See further OCGA § 24-7-702 (b) (denoting “a witness qualified as an expert
by knowledge, skill, experience, training, or education”) (emphasis supplied).
      14
           See Division 2 (a), supra.

                                           19
General Assembly . . . placed a higher evidentiary burden on [parties alleging certain

medical malpractice to show] that any departure from accepted standards of medical

care must be shown, by clear and convincing evidence, to be gross negligence.”

Johnson, 294 Ga. at 74.15 Thus, a party may present expert testimony that a physician’s

actions violated the accepted standard of medical care, and the jury may consider such

expert testimony, along with other evidence presented, in deciding whether there was

gross negligence. See, e.g., Johnson, 294 Ga. at 78-79 (discussing evidence that

plaintiff presented that created a jury issue over gross negligence, which evidence

included expert testimony that the physician’s actions “did not meet the standard of

care in the medical profession generally under like and similar circumstances”). Hence,



      15
         “Indeed, OCGA § 51-1-29.5 itself makes this point quite plainly, insofar as it
applies only with respect to ‘health care liability claim[s],’ OCGA § 51-1-29.5 (c), and
it expressly defines a ‘health care liability claim’ as ‘a cause of action against a health
care provider or physician for treatment, lack of treatment, or other claimed departure
from accepted standards of medical care . . . .’” Johnson, 294 Ga. at 81 (1) (Blackwell,
Justice, concurring specially, joined by Justice Nahmias). Additionally, “other
jurisdictions have recognized [that] [t]he medical standard of care is the same for
ordinary negligence and gross negligence, the difference being the extent to which the
physician breached the standard. To be grossly negligent, the defendant must breach
the ordinary standard of care to a greater degree.” (Citations and punctuation omitted.)
Johnson, 294 Ga. at 83 (1) (Blackwell, Justice, concurring specially, joined by Justice
Nahmias).

                                            20
contrary to Robles’s contention, the cited provision of the ER statute, together with the

flagged deposition statements made by Dr. Krebs, did not mandate the trial court to

conclude that Dr. Krebs was unqualified under OCGA § 24-7-702 (c) to give expert

testimony with respect to the accepted standard of medical care that applied to Dr.

Violette’s interpretation of Robles’s wife’s KUB.16 Nothing in Bonds, 322 Ga. App.

at 858 (3) – which Robles cites for the general principle that “an expert must be . . .

familiar with the standard of care” – required an evidentiary ruling in his favor.

      For all these reasons, this contention shows no abuse of discretion in the trial

court’s denial of Robles’s pretrial motions to exclude Dr. Krebs’s medical opinions.

      (c) Robles contends that the trial court erred in denying his pretrial motions to

preclude Dr. Krebs from giving expert testimony on whether GMC had been negligent

with respect to its policies and procedures that pertained to how radiologists’ findings

were communicated to treating physicians.

      16
          “[T]he heightened evidentiary burden imposed in cases falling under OCGA
§ 51-1-29.5 (c) must necessarily be considered [if raised, for instance] on a motion for
summary judgment. [And when] faced with such a heightened burden, a trial judge
must bear in mind the actual quantum and quality of proof necessary to support
liability.” Johnson, 294 Ga. at 77. At issue here, however, was whether the proffered
expert (Dr. Krebs) was qualified under OCGA § 24-7-702 (c) to opine about the
standard of medical care.

                                           21
       (i) Robles maintains that Dr. Krebs was not qualified under OCGA § 24-7-702

(c) to give the aforementioned opinions about GMC, asserting that the radiologist had

never developed any such policies or procedures for a hospital. Pretermitting whether

expert testimony was required,17 we find no abuse of discretion, given Dr. Krebs’s

background and experience, as previously discussed.18

       (ii) Robles contends that the trial court erred by allowing Dr. Krebs to testify

about GMC’s policies and procedures, asserting that the defense failed to supplement

their discovery responses to reflect their intent to present such evidence during the trial.

This contention is unavailing.

       The record shows that Robles’s counsel appeared at Dr. York’s deposition,

during which Dr. York detailed GMC’s policies and procedures in explaining why his

own findings of suspected free air, together with a recommendation for a CT scan, had


       17
         Robles relied upon Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010),
for the general principle, that while expert evidence is not typically required to prove
causation in a simple negligence case, “expert evidence is required where a ‘medical
question’ involving truly specialized medical knowledge (rather than the sort of
medical knowledge that is within common understanding and experience) is needed
to establish a causal link between the defendant’s conduct and the plaintiff’s injury.”
(Emphasis omitted.) Id.
       18
            See Division 2 (a).

                                            22
not been communicated immediately/directly to any physician. Additionally, the

pretrial order entered in this case, which Robles’s counsel signed, identified GMC’s

policies/procedures as possible trial exhibits. And at a subsequent pretrial hearing on

the parties’ motions to exclude the testimony of proffered experts (including Dr.

Krebs), Robles’s counsel reported to the trial court, “I have got the policies and

procedures if you would like them. They are in the record.”

         This contention presents no basis to disturb the judgment entered by the trial

court.

         3. Robles contends that the trial court erred by allowing the defense to place Dr.

Violette and GMC on the verdict form (for purposes of apportionment). Robles

maintains that there was no competent evidence that these nonparties were at fault for

the injuries alleged in this case.

         This contention hinges on Robles’s arguments that Dr. Krebs was not qualified

to render expert testimony, which arguments lack merit.19 Moreover, the jury found for




         19
              See Division 2, supra.

                                             23
the defendants as to liability, and thus did not reach the apportionment issues set forth

on the verdict form.20 This contention shows no reversible error.21

       4. Robles contends that the trial court erred by instructing the jury, sua sponte,

to disregard a certain portion of Dr. Krebs’s testimony.

       When Robles’s counsel was cross-examining Dr. Krebs, the following exchange

occurred:

       Q:     Now you would agree with me, Dr. Krebs, that it was not gross

       negligence for Dr. Violette to not appreciate the possibility of free air –

       [Counsel for Dr. Yugueros]: Objection.

       Q:     – on the KUB?



       20
         Part I 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 II regarding the damages award and the apportionment of fault among
the defendants and nonparties listed on the verdict form.
       21
         See generally U. S. Indus. v. Austin, 197 Ga App. 74, 75 (2) (397 SE2d 469)
(1990) (explaining that errors in “the giving of a charge or [in] the admission or
exclusion of evidence, which go only to the matters of damages or the measure of
damages, are harmless and afford no ground for reversal where a verdict was returned
in favor of the defendant”) (citations and punctuation omitted); Johnson v. Amerson,
179 Ga. App. 75, 76 (2) (345 SE2d 94) (1986) (same).

                                            24
      A:     I don’t think so.

      [Counsel for Dr. Yugueros]: This is calling for a legal conclusion.

      The Court: I’m going to overrule the objection.

      A:     I think it does borderline gross negligence not to see that.

      Later, just before re-direct examination began, the trial court gave the sua sponte

instruction that Robles now contests:

      There was an objection previously about the doctor testifying to a legal
      standard and I made the wrong call on that one. That is that should not –
      he is not qualified to testify as to a legal standard. He’s qualified to testify
      to the standard of care . . . a physician should utilize in an area relevant
      to whatever his testimony is but he is not entitled to testify about the legal
      standard. The court will provide you with the law at the end of the case
      and then you will apply the fact[s] as you find them to be to the law that
      the court will provide. So I want to instruct you to disregard that
      testimony and do not consider it in any way in your deliberations with
      regards to the doctor’s comments on the legal standard required of a[n]
      emergency room physician.


      Pretermitting whether Robles’s counsel waived the issue by neither countering

the objection when lodged, nor objecting to the court’s sua sponte ruling/instruction,

we find no reversible error. Questions of gross negligence are usually for the facfinder.



                                            25
Johnson, 294 Ga. at 78. Here, the cited ruling/instruction essentially struck from the

jury’s consideration Dr. Krebs’s explicit opinion that Dr. Violette’s misinterpretation

of the KUB constituted “borderline gross negligence.” Robles has provided no

explanation of how he was prejudiced by the striking of evidence that a nonparty

(someone other than the named defendants) was at fault; consequently, this contention

falls short of providing a basis to disturb the judgment.

      5. Robles contends that the trial court erred by truncating that part of his closing

argument that would have explained the monetary effects of apportionment.

      During closing arguments, Robles’s attorney said to the jury, “But when you go

back and talk about apportionment understand this: The Court is gonna instruct you

that anything you assign to these nonparties – we didn’t sue them –.” Opposing counsel

cut short this passage with an objection. Outside the jury’s presence, defense counsel

argued that it was improper to tell the jury that nonparties are not responsible to pay

any portion of a damages award. Agreeing, the trial court sustained the objection.

      Robles complains of that ruling on appeal, but has shown no error. Georgia’s

apportionment statute, OCGA § 51-12-33, “directs the trier of fact in certain cases to

‘consider the fault of all persons or entities who contributed to the alleged injury or

                                           26
damages’ . . . regardless of whether such tortfeasor would have actual liability in tort

to the plaintiff.” (Citation and punctuation omitted; emphasis supplied.) Walker v.

Tensor Machinery, 298 Ga. 297, 297 (779 SE2d 651) (2015), quoting OCGA § 51-12-

33 (c); Zaldivar v. Prickett, 297 Ga. 589, 600 (1) (774 SE2d 688) (2015) (same).

Because it was unnecessary for the jury to consider that the nonparties would have no

responsibility to pay any damages awarded, the trial court did not err in curtailing the

cited portion of the closing argument. See Cotton v. Cotton, 272 Ga. 276, 278 (3) (528

SE2d 255) (2000) (“[A] trial court is authorized to require counsel to eliminate from

argument a reference to matters which are unnecessary for the jury to consider.”).

Robles has demonstrated no basis for disturbing the judgment.

      Judgment affirmed. Ray, P.J., Andrews, Doyle, McMillian, Reese, Self, JJ.,

concur.




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