author: Ray, Judge. MILLER, Presiding Judge,

text:
    A12A1347.
    JOHNSON et al. v. OMONDI et al.
    (736 SE2d 129)
   Ray, Judge.

The parents of Shaquille Johnson sued Price Paul Omondi, M.D., and Southwest Emergency Physicians, P.C. (collectively “Omondi”), for professional malpractice after their son died following treatment by Omondi in the emergency department at Phoebe Putney Memorial Hospital. Sheldon Johnson and Thelma Johnson, individually as Shaquille’s surviving parents, and Thelma Johnson, as administratrix of his estate (collectively “the Johnsons”), appeal from the trial court’s grant of Omondi’s motion for summary judgment under OCGA § 51-1-29.5. For the reasons that follow, we affirm the entry of summary judgment to Omondi.

The standard for summary judgment is familiar and settled: “Summary judgment is warranted when any material fact is undisputed as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law.” So, as we have explained before,

[w]hen a defendant moves for summary judgment as to an element of the case for which the plaintiff. . . will bear the burden of proof at trial... the defendant may show that he is entitled to summary judgment either by affirmatively disproving that element of the case or by pointing to an absence of evidence in the record by which the plaintiff might carry the burden to prove that element.

We review an award of summary judgment de novo, viewing the evidence in the record, as well as all inferences that might reasonably be drawn from that evidence, in the light most favorable to the non-moving party.

Viewed in that light, the following facts are undisputed. Thelma Johnson took Shaquille to the emergency department at Phoebe Putney Memorial Hospital on December 29, 2007. Shaquille had undergone arthroscopic knee surgery, performed by Dr. James Mason, eight days earlier. Shaquille was complaining of pain on the left side of his chest that was worse in a recumbent position. Upon arrival at the emergency department, he was triaged by a nurse and taken to an exam room to be seen by Omondi, the emergency department physician. Omondi spent several minutes in the exam room with Shaquille and his mother, asked Shaquille’s mother why she had brought him to the emergency department, and told them he was ordering a chest x-ray and an electrocardiogram (EKG). These tests were performed while Shaquille was in the emergency department. Omondi testified during his deposition that he reviewed the triage nurse’s record and findings, inquired about past medical history and family history, including any past diagnoses of pulmonary embolism or pneumonia, and was aware of Shaquille’s recent knee surgery and chief complaint.

Although the parties disagree about some aspects of Omondi’s examination, it is undisputed that Omondi noted in the record that Shaquille’s presentation to the emergency department did not fit neatly into cardiac, pulmonary, or gastrointestinal etiologies and was difficult to categorize. The medical records reflect that a physical exam was conducted of Shaquille, as well as exams of Shaquille’s systems, including his pulmonary, cardiovascular, abdomen and flank, neurologic, dermatologic, lymphatic and vascular, psychiatric and mental status, and musculoskeletal conditions. After the chest x-ray was performed, Omondi interpreted it and found no evidence of an enlarged heart, pneumothorax, pneumonia, or skeletal injury. He also interpreted the EKG and determined it was normal, ruling out heart rhythm disturbances, heart attack, and pericarditis. Omondi specifically testified that the EKG was not suggestive of pulmonary embolism as the cause of the pain Shaquille experienced on the left side of his chest. Regarding pulmonary embolism, Omondi considered that Shaquille did not have shortness of breath, had normal vital signs, and had perfect pulse oximetry, which measures oxygenation of the blood. Omondi further considered that Shaquille responded positively to Toradol, a medication that was administered under Omondi’s orders. Because the Toradol completely resolved Shaquille’s pain, and because Toradol is an anti-inflammatory that would not treat pain from a pulmonary embolism, Omondi concluded that this was further evidence that there was no blood clot in Shaquille’s lungs.

Omondi concluded that Shaquille was suffering from pleurisy, and he prescribed Naprosyn, an anti-inflammatory medication for pain, and discharged Shaquille. The discharge nurse gave Shaquille’s mother discharge instructions, including a verbal instruction to return to the emergency room if symptoms continued. Shaquille’s mother testified by deposition that when Shaquille was discharged from the hospital, she was satisfied with the care he had received. Two weeks later, on January 13, 2008, Shaquille allegedly complained of chest pain and difficulty breathing, and he was transported by ambulance to Phoebe Putney Memorial Hospital, where he later died from a bilateral pulmonary-embolism.

This case really does not involve a dispute regarding the relevant facts. The Johnsons agree that Omondi examined, treated, and provided care to Shaquille. Essentially what is disputed in this case, by opinion evidence, is the appropriateness of the care and the treatment provided to Shaquille in the emergency department on December 29, 2007. The Johnsons claim Shaquille’s care and treatment deviated from the appropriate standard of care and was thus a proximate cause of Shaquille’s death. Taken from the Plaintiffs’ Statement of Material Facts as to Which Genuine Issues Exist for Trial, and viewing the disputed facts in the light most favorable to the Johnsons as the non-moving party, the Johnsons and their experts contend that the history taken by Omondi, the physical exam he conducted, and his interpretation of the chest x-ray and EKG were all deviations from the standard of care. Furthermore, the Johnsons contend that Omondi’s alleged failure to properly rule out a pulmonary embolism, order a chest CT scan, and order an ultrasound of Shaquille’s surgical leg constituted medical negligence and are issues for the jury to decide. Given the circumstances of this case, we must disagree.

This case is governedby OCGA § 51-1-29.5, the emergency medical care statute that was enacted in 2005. Under that statute,

[i]n an action involving a health care liability claim arising out of the provision of emergency medical care 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.

This statute clearly distinguishes the actions of emergency department physicians from other healthcare providers in negligence cases, including medical malpractice cases not involving emergency department care, by mandating (1) a higher evidentiary standard (clear and convincing evidence), and (2) a lower standard of care (gross negligence). The Supreme Court of Georgia has found this statute constitutional, specifically finding that

[promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes. Furthermore, it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings, and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals.

The Supreme Court of Georgia went on to define “gross negligence”:

[G]ross negligence is the absence of even slight diligence, and slight diligence is defined... as that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care, or lack of diligence that even careless men are accustomed to exercise.

That Court has also defined “clear and convincing evidence” as “an intermediate standard of proof, greater than ‘the preponderance of evidence,’ but less than the ‘beyond a reasonable doubt’ standard applicable in criminal cases....” It “requires a greater quantum and a high quality of proof in plaintiff’s favor” and is “substantially higher than that generally applicable to civil actions.” Accordingly, the Johnsons are bound by the evidentiary standard and standard of care dictated by the emergency medical care statute. In order to reach a jury trial, they must demonstrate that a genuine issue of material fact existed not as to whether Omondi exercised ordinary care (e.g., that degree of care and skill exercised by the medical profession generally), but, rather, they must show the existence of “clear and convincing” evidence that Omondi did not exercise even slight care.

There is a paucity of case law on this statute. In fact, there is only one case applicable to the facts of the instant action. In Pottinger, a patient filed a medical malpractice action against an emergency room physician, seeking to recover damages arising out of emergency medical care provided to him for a leg fracture incurred in a motorcycle accident. The physician moved for summary judgment, asserting she could not be held liable because there was no clear and convincing evidence that her actions in providing emergency medical care to the patient showed gross negligence, as required by OCGA § 51-1-29.5 (c). Specifically, the evidence showed that the physician ordered x-rays, then, relying on a radiologist’s finding that the x-rays did not show a serious fracture, she discharged the patient without ordering an orthopedic consultation. The patient subsequently saw an orthopedic surgeon who found that he had a serious leg fracture requiring surgery. The fracture was shown on the emergency room x-rays. The trial court denied summary judgment to the emergency room physician, but we reversed, interpreting the evidentiary standard and standard of care in OCGA § 51-1-29.5 (c), and concluding that “there [was] no evidence, and certainly no clear and convincing evidence, by which a jury could reasonably conclude that [the emergency room physician] failed to exercise even slight care and was therefore grossly negligent.” Because questions of negligence and diligence, even questions of gross negligence and slight diligence, may be resolved by the trial court in plain and indisputable cases, we found that the emergency room physician was entitled to summary judgment as a matter of law. The same is true in the present case, and, contrary to the Johnsons’ claim, the trial court did not err in interpreting and applying Pottinger to this case.

While the dissent argues that the circumstances in this case are similar to those found in Knight v. Roberts, the dissent acknowledges that the emergency medical care statute was neither raised nor discussed in that case. Furthermore, the treating physician in Knight admitted he never considered a thoracic aneurysm or an aortic dissection, from which the patient ultimately died. In this case, however, Omondi not only considered a pulmonary embolism, but concluded that this was not the cause of Shaquille’s pain based on a number of tests and factors previously discussed in this opinion.

Applying the facts and the law to this case, we find that the trial court properly entered summary judgment in favor of Omondi. Although the Johnsons’ loss of their young son is tragic, courts must follow the law as it applies to the case before them, regardless of the outcome. While the Johnsons have introduced expert testimony in an attempt to create a genuine issue of material fact, they have failed to focus on the applicable standards under OCGA § 51-1-29.5 (c). The Johnsons and the dissent both focus on what Omondi did wrong, rather than on what he did right and whether he provided a “slight degree of care,” which he clearly did in this case. Contrary to the Johnsons’ arguments, this case is appropriate for summary judgment because it is plain and indisputable that

[ejven assuming there was evidence sufficient to create a jury issue as to whether [Omondi’s] actions were negligent, there is no evidence, and certainly no clear and convincing evidence, by which a jury could reasonably conclude that [Omondi] failed to exercise even slight care and was therefore grossly negligent.

It is undisputed that Omondi was present in the exam room, inquired why Shaquille had been brought into the emergency department, spent several minutes with Shaquille and his mother, inquired about past medical history and family history, including any past diagnoses of pulmonary embolism or pneumonia, ordered a chest x-ray and EKG, personally interpreted the test results, and considered and discarded a number of medical diagnoses, including the possibility of a pulmonary embolism, based on a number of tests, symptoms, and Shaquille’s responses to the medication he received while in the emergency room. These facts do not indicate that Omondi was grossly negligent in his treatment of Shaquille. In fact, they show quite the opposite.

While the Johnsons’ experts criticized the care rendered to Shaquille, those experts never opined that Omondi failed to “exercise even a slight degree of care.” In addition, even if some of the Johnsons’ allegations of negligence could somehow be construed as approaching gross negligence, any such allegations fall far short of providing evidence that is “substantially higher” than a preponderance of the evidence. The facts in this case just are not sufficient to establish that Omondi acted with gross negligence. Because it is undisputable that the Johnsons cannot prove by clear and convincing evidence that Omondi failed to exercise even slight care in treating Shaquille, the trial court properly granted Omondi’s motion for summary judgment.

Judgment affirmed.

Andrews and Branch, JJ., concur. Doyle, P. J., and Boggs, J., concur in judgment only. Miller, P. J., and Phipps, P. J., dissent.

MILLER, Presiding Judge,

dissenting.

I dissent from the majority’s opinion because the record evidence presents a jury question as to whether the medical defendants were entitled to immunity under OCGA § 51-1-29.5 (c), and thus, the entry of summary judgment was erroneous.

OCGA § 51-1-29.5 (c) provides, in pertinent part, that

[i]n an action involving a health care liability claim arising out of the provision of emergency medical care 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.

(Punctuation omitted.)

Here, the evidence presents a question of fact as to whether Dr. Omondi’s actions showed gross negligence. Significantly, the John-sons presented competent medical expert affidavits and testimony from two experienced emergency room physicians, who had explicitly set forth facts supporting their opinions as to how Dr. Omondi’s actions failed to comport with the minimum standard of care that applied to emergency physicians under the circumstances; had opined that Dr. Omondi’s treatment of Shaquille constituted gross negligence as a result of those failures; and, had reflected that Dr. Omondi’s gross negligence and misdiagnosis were the proximate cause of Shaquille’s death. Specifically, the medical experts stated that:

(1) Dr. Omondi’s physical examination was incomplete and failed to integrate the key pieces of historical information that were available to him, which presented a classic case of pulmonary embolism incidental to post-operative deep vein thrombosis (“DVT”);

(2) Dr. Omondi erroneously interpreted the EKG results and failed to recognize the Q3 and T3 abnormalities in the EKG results, which evidenced a right ventricular hypertrophy and was a classic sign of pulmonary embolism;

(3) Dr. Omondi failed to order a CT scan of Shaquille’s lungs, which was the necessary test to detect the existence of a pulmonary embolism;

(4) Dr. Omondi failed to perform a lung scan, D-dimer, or ultrasound to rule out a thrombi in Shaquille’s lungs or in his surgical leg;

(5) Dr. Omondi failed to recognize the high risk history of Shaquille to develop DVT and pulmonary embolism conditions based upon his recent leg surgery and immobilization;

(6) Dr. Omondi erroneously interpreted the chest x-ray as being normal, despite the presence of an enlarged heart that rendered it abnormal;

(7) Dr. Omondi failed to recognize that Shaquille’s pleuritic chest pain was a classic symptom of pulmonary embolism;

(8) Dr. Omondi’s physical examination was grossly deficient, as evidenced by his erroneous notation that Shaquille’s gait, strength, tone, reflexes, and range of motion in his extremities were normal, which were impossible in light of Shaquille’s recent leg surgery; and

(9) The manner in which Dr. Omondi purported to rule out a diagnosis of pulmonary embolism was grossly improper, egregious, and contrary to well-known and fundamental medical principles.

The medical experts opined that Dr. Omondi’s failures amounted to gross deviations from the required standard of care and proximately caused Shaquille’s death. A medical expert further attested that but for Dr. Omondi’s misdiagnosis and mistreatment, Shaquille’s pulmonary embolism condition could have been treated through anticoagulant therapy that more than likely would have saved Shaquille’s life.

In addition to the evidence provided by the Johnsons’ medical experts, Dr. Omondi himself acknowledged that he misinterpreted the EKG by failing to note the Q3 abnormality and that the left ventricular hypertrophy shown in the EKG was a condition that could reflect a pulmonary embolism. Dr. Omondi further acknowledged that a pulmonary embolism cannot be identified on an x-ray, and that the best way to identify a pulmonary embolism is through a CT scan. Dr. Omondi testified that he could have ordered a CT scan, and that a CT scan is the only test that is needed to diagnose a patient who may have a pulmonary embolism. Dr. Omondi expressed no opinion as to whether Shaquille’s death would have been prevented if he had only ordered the CT scan, but he agreed that a pulmonary embolism can be fatal and would require admission to the hospital for treatment using anticoagulant therapy. The evidence showed, however, that Dr. Omondi discharged Shaquille from the emergency room with a final diagnosis of pleurisy, without performing a CT scan to detect a pulmonary embolism or to confirm whether a pulmonary embolism was the overall cause of the pleurisy symptom.

The foregoing evidence was certainly sufficient to present a jury question as to Dr. Omondi’s alleged gross negligence in the instant case. The trial court had previously ruled that the Johnson’s medical experts were qualified to give opinion testimony in this case, and thus, their testimony was admissible under OCGA § 24-9-67.1. The medical experts gave testimony regarding the standard of care based upon their knowledge of the customs and duties that apply to emergency room physicians under similar circumstances, and the medical experts further testified that Dr. Omondi’s actions amounted to gross negligence under those standards. In doing so, the medical experts referenced specific facts showing the manner in which Dr. Omondi’s actions departed from the standard of care. While it is recognized that “[a] mere conclusory expert opinion with respect to the existence of gross negligence does not create a jury issue,” see Morgan v. Horton, 308 Ga.App. 192, 198 (3) (a) (707 SE2d 144) (2011), the principle does not apply here since the medical experts’ opinions were based upon sufficient facts for a jury to find gross negligence.

[W]hen facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable people as to whether or not negligence can be inferred, and if so [,] whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury.

(Citation and punctuation omitted.) McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 758 (4) (603 SE2d 7) (2004).

Nevertheless, the trial court and the majority opinion have failed to give due consideration to the medical expert evidence and opinions in reaching their erroneous conclusion that no genuine issues of fact exist for jury determination. The failure to consider all of the admissible evidence of record is improper and contravenes the longstanding principles that must be consistently applied when ruling upon a motion for summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.

(Citations and punctuation omitted.) Montgomery v. Barrow, 286 Ga. 896, 898 (1) (692 SE2d 351) (2010). “Conflicts in the evidence are to be resolved by the jury.” (Citation omitted.) Aleman v. Sugarloaf Dialysis, LLC, 312 Ga. App. 658, 660 (1) (719 SE2d 551) (2011).

More importantly,

[s]ummary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). Although the majority opinion recites our mandatory standard of review, it is obvious that the majority opinion has failed to apply this standard in its analysis. Rather than conducting a de novo review of the evidence presented in the record as required, the majority opinion merely mimics the trial court’s recitations of the facts and analysis. As appellate judges, we cannot ignore conflicting evidence of record in order to reach a particular result. The majority opinion’s approach undermines the requirement that must be applied in summary judgment appeals to ensure that a party is not erroneously deprived of his right to a trial on the merits.

Notably, while both the trial court’s order and the majority opinion purport to set forth undisputed facts based upon the Defendants’ Statement of Material Facts and Plaintiffs’ Responses thereto, they have misinterpreted the plaintiffs’ responses and fail to acknowledge the material disputes raised by the evidence. For example, the majority opinion reflects that it is undisputed that Dr. Omondi “noted in the record that Shaquille’s presentation to the emergency department did not fit neatly into cardiac, pulmonary, or gastrointestinal etiologies and was difficult to categorize.” Although it is undisputed that Dr. Omondi noted his opinion in the medical record, Dr. Omondi’s note is not dispositive in resolving the issue in this case. Significantly, there was contrary medical expert testimony stating that Shaquille presented to the emergency department with severe chest pain that was worse upon inspiration, “which is a classic symptom of [pjulmonary [ejmbolism, particularly in a patient who had recently undergone knee surgery and had limited mobility” that would give rise to a suspicion of DVT leading to the development of a pulmonary embolism. (Emphasis supplied.) In light of the evidence reflecting that Shaquille’s symptoms and history presented a classic case of a pulmonary embolism, that Dr. Omondi had misinterpreted the results of the tests he had performed, and that Dr. Omondi had failed to perform the necessary CT scan to detect or rule out a pulmonary embolism, there was a genuine issue for jury determination as to whether Dr. Omondi had been grossly negligent in his treatment.

In addition, the trial court’s order and the majority opinion only briefly acknowledge that the facts regarding Dr. Omondi’s examination are disputed. Shaquille’s mother, who was present during the examination, stated that Dr. Omondi “never laid hands on [Shaquille]” and never asked Shaquille any questions. Shaquille’s mother claimed that Dr. Omondi had only communicated with her during their three-minute encounter in the ER. The medical experts pointed to Dr. Omondi’s limited examination as being grossly deficient, and they stated that his lack of attentiveness to Shaquille’s symptoms violated the standard of care and led to the misdiagnosis. This evidence is material to the consideration of the gross negligence claim and cannot be disregarded.

Likewise, I disagree with the majority opinion’s analysis, to the extent that it improperly expands the gross negligence standard under OCGA § 51-1-29.5 (c). In this regard, the suggestion that immunity applies as long as some care is provided is patently incorrect. In this context, the term “gross negligence” has the same meaning as the general definition provided under OCGA § 51-1-4. See Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (4) (694 SE2d 75) (2010).

Under OCGA § 51-1-4, gross negligence is the absence of even slight diligence, and slight diligence is defined in the Code section as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” In other words, gross negligence has been defined as “equivalent to the failure to exercise even a slight degree of care” or “lack of the diligence that even careless men are accustomed to exercise.”

(Citations and punctuation omitted.) Id., quoting Pottinger v. Smith, 293 Ga.App. 626, 628 (667 SE2d 659) (2008). This definition of gross negligence, however, does not require the entire absence of care or the provision of merely some degree of care. See Caskey v. Underwood, 89 Ga. App. 418, 422 (4) (79 SE2d 558) (1953); Hennon v. Hardin, 78 Ga.App. 81, 84 (50 SE2d 236) (1948). Indeed, this Court has previously ruled that “[i] t is... well settled that one may fail to exercise the whole degree of slight diligence and still be in the exercise of some care. Where this condition exists, gross negligence is present.” (Citation and punctuation omitted.) Caskey, supra, 89 Ga. App. at 422 (4). In other words, “one may be guilty of gross negligence and still be in the exercise of some degree of care.” (Emphasis in original.) Hennon, supra, 78 Ga. App. at 84.

Furthermore, applying the clear and convincing evidence standard does not mandate summary adjudication of the gross negligence issue. The Supreme Court of Georgia has ruled that “although OCGA § 51-1-29.5 (c) raises the burden of proof in certain cases, it does not deprive [plaintiffs] of the right to a jury trial or any other fundamental right.” (Citation and punctuation omitted.) Gliemmo, supra, 287 Ga. at 11 (3). In fact, the statute contemplates the right to a jury trial on the liability issue by expressly providing that “the court shall instruct the jury to consider, together with all other relevant matters,” certain designated considerations. (Emphasis supplied.) See OCGA § 51-1-29.5 (d). Contrary to the majority’s erroneous suggestion, I do not disagree with the standards set forth in OCGA § 51-1-29.5. Aproper resolution of this case does not require this Court to second guess the legislature. Notably, the legislature also enacted the provisions of subsection (d) of OCGA § 51-1-29.5, which provides direction for jury trials in cases where, as here, the evidence establishes a genuine dispute for trial. Although it is recognized that the court may solve the question of gross negligence as a matter of law in plain and indisputable cases, see Pottinger, supra, 293 Ga. App. at 629, the evidence in the instant case does not present a plain and indisputable case for summary resolution. Rather, as contemplated by OCGA § 51-1-29.5 (d), a jury must serve as the fact finder and resolve the evidentiary conflicts presented in this case.

Contrary to the majority’s view, the decision in Pottinger does not definitively support the entry of summary judgment in the instant case. A careful review of the facts and evidence cited in Pottinger show that the case is distinguishable. In Pottinger, the physician who provided emergency medical care to the patient for a leg fracture complied with the applicable duty of care by ordering the proper diagnostic x-rays. See Pottinger, supra, 293 Ga.App. at 626, 629. The x-rays were interpreted by a radiologist, and the physician relied upon the radiologist’s finding that the x-rays did not show a serious fracture. Id. at 629. The emergency room x-rays were later examined by an orthopedic surgeon, who observed a serious fracture that was not noted by the radiologist. Id. at 627. This Court held that under OCGA § 51-1-29.5, the physician was entitled to summary judgment in the medical malpractice lawsuit since there was no clear and convincing evidence by which a jury could reasonably conclude that the emergency room physician failed to exercise even slight care. Id. at 629.

Here, unlike in Pottinger, there is evidence indicating that Dr. Omondi failed to comply with the applicable duty of care since he did not order the proper diagnostic test, a CT scan, that was necessary to detect Shaquille’s condition. Dr. Omondi acknowledged that a pulmonary embolism cannot be identified on an x-ray, and that the best way to identify a pulmonary embolism is through a CT scan, which he did not order. Dr. Omondi testified that a CT scan was available to him, and that his failure to order a CT scan was not due to any time limitations. A CT scan was not ordered simply because Dr. Omondi did not believe that a pulmonary embolism condition was indicated, which the medical experts explained was based upon his failures to properly assess and recognize the classic symptoms of the condition. Moreover, unlike in Pottinger, Dr. Omondi did not rely upon a radiologist’s findings in his assessment; rather, he read and misinterpreted Shaquille’s x-ray and EKG results himself. Dr. Omondi acknowledged that he failed to note the abnormality shown in the EKG results, which could have reflected a pulmonary embolism condition.

Notably, the circumstances in this case are similar to those found in this Court’s recent decision of Knight v. Roberts, 316 Ga.App. 599, 604-607 (1) (730 SE2d 78) (2012), where we ruled that an emergency physician was not entitled to summary judgment in a malpractice lawsuit based upon evidence that he had failed to consider and obtain a CT scan to diagnose the patient’s aortic dissection condition. Although the emergency physician had obtained a chest x-ray as a part of his examination of the patient, medical experts explained that a chest x-ray was not the proper diagnostic test to be used in order to rule out the patient’s condition. Id. at 605 (1) (a). The experts further opined that the patient’s subsequent death could have been prevented if the emergency physician had properly complied with the standard of care during his examination of the patient in the emergency room. Id. at 606 (1) (a).

In sum, I do not believe that a physician who renders treatment in an emergency room is afforded immunity under OCGA § 51-1-29.5 (c) as long as he performs some acts that purport to provide care. A physician’s duty to comply with the standard of care governing the circumstances is not entirely eliminated simply because treatment is rendered in an emergency room. Patients who seek treatment in an emergency room setting are nonetheless entitled to receive competent medical care. In our review of the evidence in this case, we cannot simply disregard the medical experts’ affidavits and testimony which clearly set forth the standard of care and the manners in which Dr. Omondi’s treatment allegedly failed to meet the standard. Based upon this evidence, Dr. Omondi’s decision to discharge Shaquille from the emergency room, without performing the required diagnostic tests to identify the source of his complaints and to rule out the possibility of a life-threatening condition, could be considered as gross negligence. Ultimately, the issue of Dr. Omondi’s alleged gross negligence must be resolved by a jury after hearing the totality of the evidence and instructions to consider all relevant matters, including those designated under OCGA § 51-1-29.5 (d). In light of the record evidence in this case, summary judgment was not authorized.

Decided November 27, 2012

Thomas, Kennedy, Sampson & Tompkins, Edmond & Lindsay, Keith L. Lindsay, J. Darren Summerville, Sidney L. Moore, for appellants.

Huff, Powell & Bailey, Jeffrey D. Braintwain, Michael G. Frank-son, for appellees.

Allen, McCain & OMahoney, Hunter S. Allen, Jr., Simuel F. Dosier, Jr., amici curiae.

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

       (Citation omitted.) Strength v. Lovett, 311 Ga.App. 35, 39 (2) (714 SE2d 723) (2011).

       (Citation omitted.) Id.

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

       These facts are taken from the Plaintiffs’ Response to the Defendants’ Statement of Material Facts. Although the dissent admonishes us for “mimicking” the trial court’s recitation of the facts and analysis, it is clear that the trial court’s facts have also been taken from the Plaintiffs’ Response to the Defendants’ Statement of Material Facts, and these facts led both the trial court and this Court to the same conclusions based on the applicable law.

       While the Johnsons argued below that OCGA § 51-1-29.5 did not apply because Shaquille’s trip to the Emergency Department did not constitute an emergency, on appeal they have accepted the trial court’s ruling that the emergency medical care statute applies.

       OCGA § 51-1-29.5 (c).

       See Gliemmo v. Cousineau, 287 Ga. 7, 11-12 (3) (694 SE2d 75) (2010).

       (Citations and punctuation omitted.) Id. at 12-13 (4). See also OCGA § 51-1-4.

       (Citations omitted.) Clarke v. Cotton, 263 Ga. 861, 861 (440 SE2d 165) (1994).

       (Citations and punctuation omitted.) In re Estate of Burton, 265 Ga. 122, 123 (453 SE2d 16) (1995).

        Consolidated American Ins. Co. v. Spears, 218 Ga.App. 478, 480 (1) (462 SE2d 160) (1995).

       Compare Smith v. Finch, 285 Ga. 709, 710-711 (1) (681 SE2d 147) (2009).

        Pottinger v. Smith, 293 Ga. App. 626 (667 SE2d 659) (2008).

       Id. at 629.

         Id.; accord Heard v. City of Villa Rica, 306 Ga.App. 291, 295 (1) (701 SE2d 915) (2010) (finding that a coach was immune from liability because parents could not prove he was grossly negligent for a child’s injuries).

       316 Ga.App. 599 (730 SE2d 78) (2012).

       The Johnsons cite a 1913 case for the proposition that whether an emergency medical care provider is guilty of gross negligence “must be judged in relation to the degree of potential injury to the patient. O’Dowd v. Newnham, 13 Ga.App. 220 (80 SE 36) (1913). In O’Dowd, the Court held that a driver of an automobile is bound to use a degree of reasonable care proportionate to the danger of the instrumentality which he operates. Id. at 228. Not only is this case inapplicable to the present situation, but the emergency medical care statute fails to legislate such a distinction, and the law is clear that “the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. Nor can it support an inference of gross negligence.” (Citation and punctuation omitted.) Wolfe v. Carter, 314 Ga.App. 854, 859 (2) (b) (726 SE2d 122) (2012).

       Indeed, if an expert affidavit is all that is needed to preclude summary judgment, then OCGA § 51-1-29.5 would be rendered meaningless. To give the emergency medical care statute the meaning necessary to achieve its constitutionally valid purpose of “[pjromoting affordable liability insurance for health care providers and hospitals” and “the availability of quality health care services,” see Gliemmo, supra at 11 (3), the actual facts of the case (indicating whether slight care was provided) must be paramount in determining whether a claimant will reach a jury. As Emory Healthcare, Inc. correctly notes in its amicus curiae brief, in order to carry out the legislature’s intent, the gross negligence standard must preclude liability for emergency medical care where slight care is provided, even if such care arguably could be deemed negligent under the ordinary negligence standard.

       While it is obvious that the dissent does not agree with the General Assembly’s decision to mandate a lower standard of care and a higher evidentiary standard for emergency department physicians, it is not the duty of this Court to second guess the legislature.

        Pottinger, supra at 629.

       (Citation and punctuation omitted.) Id. at 628. The Fulton-DeKalb Hospital Authority correctly notes in its amicus brief that even if the Johnsons’ experts had used “the magic words” and opined that Omondi’s conduct was “grossly negligent” or that his conduct did not constitute even “slight” diligence, the trial court would have been compelled to determine whether such an opinion met the stringent requirements for admissibility set forth in OCGA § 24-9-67.1. See Morgan v. Horton, 308 Ga.App. 192, 198 (3) (a) (707 SE2d 144) (2011) (“[a] mere conclusory expert opinion with respect to the existence of gross negligence does not create a jury issue; rather, there must he facts sufficient for a jury to find gross negligence.”) (citation and punctuation omitted); accord Heard, supra at 294 (1).

       See Consolidated American Ins. Co., supra at 480 (1).

       The dissent criticizes us for incorporating language used hy the trial court in its ruling in this case, but if the trial court is correct, as we have so found, then the dissent’s criticism is misplaced. It is not the origin of the language used in conveying this Court’s ruling that is important, but the law and logic underlying the analysis. In this case, the trial court did an excellent job with its analysis, and we incorporated portions of the order that we found particularly compelling.

       Dr. Peter Rosen and Dr. Steven Gabaeff served as medical experts in this case. Dr. Rosen had been a licensed physician since 1962, and he was the author and editor of numerous textbooks on the subject of emergency medicine, including a text and reference book entitled, “Emergency Medicine: Concepts and Clinical Practice.” Dr. Rosen had maintained teaching faculty privileges at Harvard University Medical School’s teaching hospital; had maintained hospital staff privileges at several hospitals where he served as an emergency physician; had diagnosed the condition of pulmonary embolism hundreds, if not thousands, of times during his career as an emergency physician; and had taught medical students, interns, and residents how to properly consider, rule out, and diagnose the presence of a pulmonary embolism. Dr. Gabaeff had been an emergency physician for 35 years, and he had considered, ruled out, and diagnosed the condition of pulmonary embolism hundreds of times. Dr. Gabaeff had also been a faculty physician at the University of California Medical School in San Diego, and had taught medical students, interns, and residents on how to properly consider, rule out, and diagnose the pulmonary embolism condition. Based upon these qualifications, the trial court denied Dr. Omondi’s motion to exclude the medical expert’s testimony, and ruled that the medical experts were qualified to give expert opinion testimony in this case pursuant to OCGA § 24-9-67.1 (c).

      . According to OCGA § 51-1-29.5 (d),
      [i]n an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department. . . the court shall instruct the jury to consider, together with all other relevant matters:
      (1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;
      (2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;
      (3) The circumstances constituting the emergency; and
      (4) The circumstances surrounding the delivery of the emergency medical care.
      (Emphasis supplied.)

       I fully recognize that the element of causation was the primary issue presented and resolved in Knight, supra, 316 Ga.App. at 604-608 (1) (a), (b), and the parties did not raise the issue of immunity under OCGA § 51-1-29.5 (c). Nevertheless, Knight highlights that emergency physicians who provide medical treatment to patients in the ER are not exempt from complying with the applicable standard of care, and their duty to order proper tests for the patient’s diagnosis and treatment is crucial. Here, as in Knight, Dr. Omondi failed to order the required tests to diagnose Shaquille’s classic symptoms, which allegedly deprived Shaquille of the ability to receive treatment that could have prevented his death.


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A12A1426.
    WELLSTAR HEALTH SYSTEM, INC. v. SUTTON et al. BAUER et al. v. SUTTON et al.
    A12A1427.
    (734 SE2d 764)
   MCFADDEN, Judge.

These related appeals arise from a mistrial in a medical malpractice case. The defendant hospital challenges the trial court’s declaration of a mistrial and denial of its motion to set aside the mistrial and enter judgment in its favor. But the hospital acquiesced in the court’s decision to declare a mistrial. More fundamentally, there was no verdict upon which to enter such a judgment. The defendant doctor and his medical practice challenge a jury charge and the grant of a motion in limine. As to the jury charge, the case must be retried, and the Suttons acknowledge error; so we do not reach the issue. As to the motion in limine, there has been no showing of harmful error. We therefore affirm.

The record shows that Lori and Landon Sutton filed a medical malpractice action against Dr. Gregg Bauer, Marietta OB/GYN Affiliates, P.A., and WellStar Health System, Inc., alleging negligence during the birth of their son. The case was tried before a jury. On the second day of deliberations, the jury sent a note to the trial judge indicating that it had reached a decision as to WellStar, but was unable to reach a decision as to Bauer. The note did not indicate whether the decision was in favor of or against WellStar. The trial judge informed the parties of the note and suggested that an Allen charge as to the desirability of a verdict was appropriate. See Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896). Attorneys for all the parties agreed with the suggestion, and the court then gave the Allen charge to the jury.

Thereafter, the trial judge and the attorneys discussed the possibility of the jury being deadlocked as to one of the defendants. Expressing concerns about apportionment, the attorney for Bauer asserted that if there was a verdict for only one defendant and not the other, then a mistrial should be declared. When asked to comment, counsel for WellStar stated that he agreed with Bauer’s counsel that a verdict against one but not the other defendant would require a mistrial. Later, Bauer’s counsel reiterated the defense position that if there was either a verdict for or against only one defendant, and a disagreement as to the other, then a mistrial was mandated. And again, counsel for WellStar acquiesced in that position, stating, “I don’t have anything to add to what [Bauer’s counsel] said.”

After further deliberations, the jury continued to be deadlocked, and the trial court declared a mistrial. None of the parties objected and the jury was dispersed. WellStar subsequently filed a motion asking the court to set aside the mistrial and enter judgment in its favor, based on affidavits of three jurors claiming that the jury had reached a decision in favor of WellStar. The trial court denied the motion, but issued a certificate of immediate review. This court granted WellStar’s application for interlocutory review. In Case No. A12A1426, WellStar appeals; and in Case No. A12A1427, Bauer and Marietta OB/GYN cross-appeal.

Case No. A12A1426

1. Declaration of mistrial.

WellStar complains that the trial court erred in declaring a mistrial. However, even if there were any error, it was invited by WellStar. As recounted above, WellStar twice joined with co-defendant Bauer in arguing to the trial court that if the jury reached a verdict as to one defendant and remained deadlocked as to the other, then a mistrial was warranted. “It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing.” (Citations and punctuation omitted.) Wallace v. Swift Spinning Mills, 236 Ga.App. 613, 617 (2) (511 SE2d 904) (1999). See also Green v. Sommers, 254 Ga.App. 446, 446-447 (1) (562 SE2d 808) (2002) (induced error provides no basis for reversal on appeal). Furthermore, when the trial court declared a mistrial, WellStar acquiesced in the decision by failing to raise any objection to it. See Allen v. Santana, 303 Ga.App. 844, 847-848 (3) (695 SE2d 314) (2010) (failure to object and obtain ruling on objection results in waiver); Davis v. State, 203 Ga. App. 315, 318 (6) (416 SE2d 789) (1992) (party may not acquiesce in action of the trial court and later complain of the same on appeal). Accordingly, this issue was not preserved for appellate review.

2. Motion to set aside and enter judgment on verdict.

WellStar argues that the trial court erred in denying its motion to set aside the mistrial and enter judgment on the jury’s decision, which it contends amounted to a verdict, in favor of WellStar. The fundamental flaw in WellStar’s argument is that there was no verdict upon which to enter judgment.

“No legal verdict occurs until it is received and published in open court.” (Citations and punctuation omitted.) Cox v. State, 279 Ga. 223, 225 (4) (610 SE2d 521) (2005). “Where a jury agree on their verdict, write it out, have it signed by their foreman, and deliver it to the clerk, by the direction and in the presence of the judge, it is published.” (Citation and punctuation omitted.) Bell v. State, 163 Ga.App. 672, 674 (1) (295 SE2d 147) (1982). See also Haughton v. Judsen, 116 Ga. App. 308, 311 (2) (157 SE2d 297) (1967) (verdict published when it is received by clerk of court and, at direction of the judge, is read in open court). In this case, no verdict was received or published in open court. Although the jury sent a note to the judge indicating some unspecified decision as to WellStar, the jury did not write out a verdict, have it signed by the foreman, deliver it to the clerk, or have it read in open court. “Because no legal verdict occurs until it is received and published in open court, the unspecified [decision] reached by the jury, but not received or published by the trial court, was not a legal verdict in the case.” (Citation and punctuation omitted.) Brown v. State, 310 Ga.App. 285, 287 (2) (712 SE2d 521) (2011). See also State v. Lane, 218 Ga.App. 126, 127(460 SE2d 550) (1995) (note from jurors to judge indicating that they had acquitted defendant of murder was not a verdict because it was not received and published in open court); Green v. State, 208 Ga.App. 1, 2 (1) (429 SE2d 694) (1993) (although jury advised court that it had reached a verdict, there was no verdict at that point because it had not been received and published in open court). Since there was no verdict upon which to enter a judgment, the trial court did not err in denying WellStar’s motion.

Case No. A12A1427

3. Jury charge.

Bauer and Marietta OB/GYN contend that the trial court’s jury charge on alternative theories of causation was erroneous. At oral argument, counsel for the Suttons conceded that the charge contained certain erroneous language. Given that concession, if any jury charge on this matter is requested on retrial, it will certainly be materially different from the one given in the first trial and discussed in the appellate briefs. The propriety of any such potential jury charge would be a matter “for the court below to address on remand, and the issues presented in the [current] cross-appeal may well turn out to be moot.” An v. Active Pest Control South, 313 Ga.App. 110, 117 (720 SE2d 222) (2011). Under these circumstances, issuing an opinion as to the charge in question “would be, in essence, rendering an advisory opinion[.]” (Citation omitted.) Ambati v. Board of Regents &c., 313 Ga.App. 282, 283 (721 SE2d 148) (2011). However, “Georgia appellate courts are not authorized to render advisory opinions as to potential error. [Cits.]” Bibbins v. State, 280 Ga. 283, 284-285 (627 SE2d 29) (2006). Accordingly, we do not reach this issue.

4. Motion in limine.

Bauer and Marietta OB/GYN claim that the trial court erroneously granted the Suttons’ motion in limine to exclude all expressions of sympathy from them and their counsel at trial. But the trial court did no such thing.

At the motion in limine hearing, counsel for the appellants stated that he was not concerned about expressions of sympathy from the parties, but was concerned that the defense attorneys would not be allowed to say “something along the lines of... we’re personally sorry about what happened to [the Suttons’ son].” The court acknowledged “that there is a line where you can make sure the jury understands that you’re not cold-hearted as a lawyer for the doctor.” Counsel then responded, “That’s really what I’m worried about, Your Honor. . . . [W] e have to... be able to do what you’ve pointed out, which is at least give the jury some impression that we’re not just these... completely cold-hearted people who don’t care anything about it.” Thereafter, the court granted the motion in limine to exclude expressions of sympathy, sorrow and regret; but, the court also expressly ruled that “very limited statements can be made as to it being a sad situation or something of that nature. . .. [Tjhere are certain things you can say without crossing the line.”

Decided November 27, 2012

Hall, Booth, Smith & Slover, JohnE. Hall, Jr., W. Scott Henwood, Green & Sapp, David A. Sapp, Donald A. Gillis, for appellant (case no. A12A1426).

Huff, Powell & Bailey, Daniel J. Huff, Taylor C. Tribble, for appellant (case no. A12A1427).

Thomas W. Malone, Meri K. Benoit, J. Darren Summerville, for appellee.

Thus, contrary to the appellants’ claims, the trial court did not prevent them from expressing any sort of sympathy at trial. Rather, the trial court did exactly what counsel asked, which was to allow the defense attorneys to show the jury that they were not cold-hearted by making limited statements regarding the sad situation. As noted above, the appellants cannot complain about a ruling of the trial court which their own conduct helped induce. See Lampley v. State, 284 Ga. 37, 40 (4) (663 SE2d 184) (2008); Wallace, supra.

Furthermore, Bauer and Marietta OB/GYN have made no proffer of any specific expressions of sympathy from them or their counsel which the trial court did not allow. Absent such a proffer, they “cannot show that [they were] harmed by any of the trial court’s rulings. [Cit.]” Puckette v. John Bailey Pontiac-Buick-GMC Truck, 311 Ga. App. 138, 139-140 (1) (714 SE2d 750) (2011).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


author: Ray, Judge.

text:
    A12A1455.
    BERRY v. THE STATE.
    (734 SE2d 768)
   Ray, Judge.

After a jury trial, Terrence Berry was convicted of one count each of trafficking in cocaine, possession of cocaine with intent to distribute, possession of cocaine, possession of marijuana with intent to distribute, felony possession of marijuana, and possession of a firearm during the commission of a crime. In this out-of-time appeal from his convictions, Berry argues that the trial court erred when it denied his motion to suppress, that he received ineffective assistance of counsel, and that the evidence was insufficient to support his convictions. Finding no error, we affirm.

1. Berry contends that the trial court erred in denying his motion to suppress, arguing that the evidence supporting his conviction was obtained as a result of an unlawful search of Berry’s truck. We disagree.

When reviewing the denial of a motion to suppress, three rules apply:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by the reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

The evidence adduced at the motion to suppress hearing and at trial shows that while he was monitoring traffic at Jackson Road in Spalding County, Officer Gene Mathews received information that a red 2004 Chevrolet Silverado suspected of transporting a large quantity of drugs would be driving past him. He was instructed to pull the truck over if he found probable cause to do so. Upon noticing the Silverado, driven by Berry, Officer Mathews noted that the windows were illegally tinted and initiated a traffic stop. While Officer Mathews did not have a tint meter to measure the level of tint on the truck’s windows, the officer backing him up that night, Officer Heather Burbrink, did. She arrived at the scene a few seconds later and determined that the windows were illegally tinted.

When he approached the vehicle, Officer Mathews asked Berry for his license and insurance information and noticed that Berry appeared nervous and that “his hands were shaking real bad. He was breathing real heavy to the point where you’d almost see his heart beat through his shirt.” Officer Mathews then requested and received Berry’s consent to search the truck.

Officer Kelly Moss McKinney, who rode with Officer Mathews that day, began searching the passenger compartment of the truck and found a loaded revolver, a WD-40 can with a false bottom concealing a small bag of marijuana, and a CD holder containing a digital scale, all within a hidden compartment under the cup holder. In the bed of the truck, a large bag of marijuana was found inside an open bag of dry dog food, and a bag of cocaine was found between the bed liner and the side of the truck.

Berry does not dispute the validity of the original stop based upon the illegally tinted windows, and he does not dispute that he consented to the search of his vehicle. Instead, he argues that the search conducted by law enforcement officials exceeded the scope of his consent in searching the bed of the truck because it went beyond what a “typical, reasonable person” would have understood the scope of consent to include.

If a driver gives consent to a search of his vehicle while he is being lawfully detained during a traffic stop, his consent eliminates the need for probable cause or a search warrant. However, where, as here, law enforcement officials base their authority to search on a driver’s consent, “the scope of the consent must be measured by all of the circumstances and not only by what the person says in response to a request to search.” The type, duration, and intrusiveness of the search is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken. “The standard for measuring the scope of a suspect’s consent is that of objective reasonableness — what would a typical reasonable person have understood by the exchange between the officer and the suspect?”

In light of all circumstances in this case, a reasonable person would have understood Berry’s consent to include a search of the passenger compartment of his truck and the bed of the truck. Prior to requesting consent to search, Officer Mathews asked Berry if there was “anything in the vehicle [he] should be concerned with.” Given the foregoing statement, Berry would have understood that the officer was interested in discovering if Berry had any illegal or dangerous items within the truck, and that the scope of his consent extended to a search of even hidden compartments in the truck to find contraband. Further, although Berry suggests that the officers caused structural damage to the truck by “ripping out the bed liner of the truck,” the evidence adduced at trial showed that the bed liner was a “carpet” type liner along the side of the truck’s bed. The open space where the cocaine was found was accessible by simply lowering the tailgate, and no special tools were needed to access the cocaine. Accordingly, we find that the trial court did not abuse its discretion in denying Berry’s motion to suppress.

2. Berry next argues that his trial counsel was ineffective because counsel admitted a prejudicial police report into evidence and failed to seek a limiting instruction on its use.

During the motion to suppress and at trial, defense counsel’s theory was that the stop of Berry’s truck was pretextual and that the officers were not truthful when testifying as to why they stopped his truck. Believing that he had caught Officer John Andrew Jackson, Jr., an officer who arrived to the scene of the traffic stop after the drugs were found, in a lie about the extent to which he had communicated with Officer Mathews about Berry prior to the traffic stop, defense counsel tendered a report drafted by Officer Jackson into evidence. The report detailed communications between Officer Mathews and Officer Jackson prior to the stop, but also it described police surveillance, revealing weekly trips by Berry to deliver narcotics, activity indicative of a “drug trade” at Berry’s residence, and that a search warrant executed upon Berry’s residence revealed 13 ounces of cocaine, a small amount of marijuana, and a firearm. It appears from the transcript of the trial that the report was read in its entirety during the State’s closing argument. At the motion for new trial hearing, counsel testified that he intended to use the report to impeach Officer Jackson because he “felt it would be very powerful to have the officer read from his own report and discredit what he had said in his prior statements.” However, counsel admitted that he did not intend the entire report to be read to the jury, and that he “should have just let [Officer Jackson] read from [the report] and then take it back as an exhibit... [and that counsel] should not have tendered it.” Counsel further testified that he did not have a strategic purpose in failing to request a limiting instruction regarding the police report.

To prevail on his ineffective assistance claim, Berry “must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” In order to prove the prejudice prong, Berry must show a reasonable probability existed that the result of his trial would have been different, but for his defense counsel’s deficient performance. Additionally, Berry must overcome the strong presumption that the representation was effective. The question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

As a general matter, this Court is reluctant to reverse a case on the ground of ineffective assistance of counsel when complained-of conduct can reasonably be construed as involving defense counsel’s trial strategy. Here, defense counsel testified that he introduced the police report as an attempt to impeach Officer Jackson’s testimony. However, in admitting such evidence, defense counsel also presented the jury with evidence of Berry’s other drug-related crimes. Defense counsel failed to redact other damaging portions of the police report that were submitted into evidence and failed to request a limiting instruction from the trial court after it was read to the jury during the closing argument. We have held that defense counsel’s failure to redact bad character evidence from a defense exhibit constituted deficient performance, and we rejected the argument that such evidence had been introduced as part of a trial strategy to impeach a witness. Accordingly, we find that “trial counsel’s actions constituted deficient performance and that the trial court clearly erred in holding otherwise.”

Decided November 27, 2012.

Ashleigh B. Merchant, for appellant.

We turn next to the second prong of the ineffective assistance analysis — whether Berry was prejudiced by defense counsel’s mistake in that there was a reasonable probability that the outcome of the proceedings would have been different but for the mistake. We find that because the evidence that Berry was in possession of the contraband as discussed in Division 1, supra, is overwhelming and independent of the police report in question, there is no reasonable probability that the result of the trial would have been different had the police report not been entered into evidence.

3. Berry next contends that the evidence adduced at trial was insufficient to support his convictions. A driver is presumptively in possession of all items found within his vehicle. Based upon the evidence adduced at trial, as discussed in Division 1, the jury had sufficient evidence to find Berry guilty beyond a reasonable doubt on each of his convictions.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

       (Footnote and emphasis omitted.) Ware v. State, 309 Ga.App. 426 (710 SE2d 627) (2011).

       In reviewing a trial court’s decision on a motion to suppress, we consider all relevant evidence of record, including evidence introduced at the motion hearings and at trial. See Pittman v. State, 286 Ga.App. 415, 416 (650 SE2d 302) (2007).

       See Cuaresma v. State, 292 Ga. App. 43, 45-46 (1) (663 SE2d 396) (2008) (“[i]f an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer’s subjective intentions, and the officer has probable cause to make the stop”) (footnote omitted).

        McNeil v. State, 248 Ga. App. 70, 71 (545 SE2d 130) (2001).

       (Footnote omitted.) Id.

        Pincherli v. State, 295 Ga. App. 408, 412 (1) (c) (671 SE2d 891) (2008).

       (Punctuation and footnote omitted.) McNeil, supra; accord State v. Fulghum, 288 Ga. App. 746 (655 SE2d 321) (2007).

       This Court has held that the defendant’s knowledge of what the officer was looking for factored into the scope of the consent given. See Varriano v. State, 312 Ga.App. 266, 268 (718 SE2d 14) (2011) (because officer explicitly inquired about the presence of drugs and testified that he had consent to search the entire vehicle, the search of passenger’s book bag located in back seat of car did not exceed scope of driver’s consent to search); Davis v. State, 297 Ga.App. 319, 321 (677 SE2d 372) (2009) (since officer placed appellant on notice that he was looking for contraband, officer did not exceed scope of consent to “look in” vehicle by searching trunk of car). See also Stagg v. State, 297 Ga.App. 640, 642 (2) (678 SE2d 108) (2009) (defendant’s consent to a search of his person for weapons extended to a search of all the contents of his pockets when officer asked if he had any weapons or needles).

       Compare Pincherli, supra at 412-413 (2) (c) (officers did not exceed the scope of the defendant’s general consent to search the truck when, upon opening the hood and observing evidence of engine tampering that officers knew from experience had been used to conceal contraband, they asked for consent to do a more thorough search at a repair shop).

       Although the parties chose not to have the closing arguments transcribed, the trial transcript reflects a colloquy between the trial judge and counsel wherein the trial court granted the State permission to read the exhibit during the closing argument.

       (Footnote omitted.) Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988).

        Clarington v. State, 178 Ga.App. 663, 667 (5) (344 SE2d 485) (1986).

       (Footnote omitted.) Suggs, supra at 88 (4).

        Emilio v. State, 263 Ga.App. 604, 605 (588 SE2d 797) (2003).

       See id. (finding defense counsel’s failure to redact bad character evidence stating that defendant was “wanted in five states” from a defense exhibit was deficient performance and rejecting argument that it had been introduced as part of a trial strategy to impeach a witness); Whitaker v. State, 276 Ga.App. 226, 227 (622 SE2d 916) (2005) (finding that defense counsel’s introduction of an unredacted exhibit showing that defendant had previously been charged with an identical crime and two closely related crimes constituted ineffective assistance, even in light of defense counsel’s statement that the evidence was introduced to impeach the State’s witness).

       (Punctuation and footnote omitted.) Whitaker, supra at 227.

       See Mann v. State, 273 Ga. 366, 370-371 (2) (541 SE2d 645) (2001). Compare Emilio, supra at 606 (1) (trial counsel’s failure to redact bad character evidence that defendant was “wanted in five states” created a reasonable probability that the outcome of the trial would have been different if not for trial counsel’s deficient performance when the evidence against defendant was not overwhelming); Whitaker, supra at 229 (1) (because evidence against defendant was not overwhelming, there was a reasonable probability that the outcome would have been different but for trial counsel’s deficient performance in introducing evidence of defendant’s bad character).

       See Johnson v. State, 195 Ga.App. 577, 578 (394 SE2d 359) (1990).

       Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: RAY, Judge.

text:
    A12A0942.
    EWELL v. THE STATE.
    (734 SE2d 792)
   RAY, Judge.

A jury convicted Robert Leonard Ewell of seven counts of aggravated child molestation (Counts 1-7) based upon his sexual interactions with three young boys occurring between 2004 and 2009. Following Ewell’s amended motion for new trial, the trial court, for sentencing purposes, merged Count 2 into Count 1, and Count 5 into Count 4, but otherwise denied the motion. Ewell appeals, enumerating as error the trial court’s admission of similar transaction evidence; the trial court’s refusal to charge the jury regarding sodomy as a lesser included offense in the aggravated child molestation counts; and raising three sentencing-related errors. For the reasons that follow, we affirm in part, vacate in part, and remand for resentencing as to Counts 1 and 3.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence pertinent to this appeal shows that Ewell molested his wife’s younger brothers, J. L. and A. L., and their friend, N. S., variously, between 2004 and 2009.

When A. L. was seven years old, Ewell began talking with him almost daily about sex, showed him pornography, taught him to masturbate and masturbated with him. Ewell and A. L. performed oral and anal sex on one another once or twice a week until A. L. was approximately 15 years old. On at least one occasion, Ewell used a hidden camera to film the act.

When J. L. was about six years old, Ewell began talking with him about sex and showing him pornography. Over the next four or five years, Ewell and J. L. performed oral and anal sex with one another approximately once a week.

When N. S. was thirteen years old, Ewell began talking to him about sex. The two had oral sex about 20 times. Ewell also had J. L., at the age of nine or ten, perform anal sex on him while N. S. watched, and had anal sex with N. S. while J. L. watched.

Many of the acts involving the three boys occurred in a barn or a camper behind the home belonging to the family of A. L., J. L., and Ewell’s then-wife, where Ewell met with the boys under the guise of teaching them about computers, auto mechanics, and how to fix appliances.

1. Ewell contends that the trial court erred in admitting evidence of similar transactions, arguing that the prejudicial effect substantially outweighed the probative value. Specifically, Ewell argues that the similar conduct had “extremely limited relevance,” and involved the testimony of 12 of Ewell’s former child victims, not including the victims in the instant case, such that it “dwarfed” the evidence regarding the charged offenses.

We review a trial court’s determination regarding the admission of similar transaction evidence under an abuse of discretion standard.

The exception to the general rule that evidence of other crimes is not admissible has been most liberally extended in the area of sexual offenses: In crimes involving sexual offenses, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. There need only be evidence that the defendant was the perpetrator of both crimes and sufficient similarity or connection between the independent crime and the offenses charged.

Here, the State gave notice of its intent to admit similar transaction evidence. Ewell moved in limine and at trial sought to exclude the evidence, but the trial court found that it was admissible for the limited purpose of showing bent of mind and lustful disposition. The trial court also gave the jury a limiting instruction.

At trial, the State admitted similar transaction evidence including, without objection, Ewell’s 2001 guilty plea to four counts of enticing a child for indecent purposes and to one count of electronically furnishing obscene materials to a minor. All five child victims of those acts testified at trial. The victims testified that Ewell invited them to his trailer to have sex together, and then filmed two of them having sex. Three of those victims testified that Ewell showed them pornography. A police investigator and the fifth victim testified that while Ewell was a Boy Scout leader, Ewell sent the victim pornographic stories via e-mail.

Other victims, including A. L. and J. L.’s younger sister and Ewell’s ex-wife, with whom he began a sexual relationship when she was 15 years old and he was 31 years old, testified about their underage sexual experiences with Ewell. These experiences, variously, included being shown pornography, being encouraged to masturbate with Ewell or use a life-size blow-up doll, participating in oral or anal sex with Ewell, and being encouraged to have sex with other children, including their siblings, while Ewell watched. The testimony of these witnesses showed a basic pattern of Ewell’s, similar to his pattern with the victims in the instant case, of introducing children to sex by getting them to talk about it, showing them pornography, encouraging them to masturbate, introducing them to oral and anal sex and, in some instances, encouraging them to have sex with one another while he watched.

The State admitted this similar transaction evidence after two of the child victims in the instant case testified, and prior to the testimony of the final child victim in the instant case. In Norris v. State, a case involving charges related to the physical and mental abuse of an adult woman, the trial court allowed testimony from 11 similar transaction witnesses, and we found no error in its determination that relevance outweighed prejudicial effect where the testimony showed, as here, a basic pattern of conduct tending to show criminal intent. “The fact that the evidence might incidentally place appellant’s character in evidence does not destroy its admissibility as a similar transaction.”

It is well settled that when a defendant is being tried for some5 form of child sexual abuse, evidence of his sexual abuse of other children, regardless of the gender of the victims or the nomenclature or type of acts perpetrated upon them, is sufficiently similar to be admissible. Further, we have found

when considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question. This rule is most liberally extended in cases involving sexual offenses because such evidence tends to establish that a defendant has such bent of mind as to initiate or continue a sexual encounter without a person’s consent.

Given these guiding principles and the considerations discussed above, and based upon the record in this case, the trial court did not abuse its discretion in allowing evidence of past similar transactions because of the similarities to the instant crimes and the probative value showing Ewell’s unique bent of mind.

2. Ewell claims that the trial court erred in failing to charge the jury on sodomy as a lesser included offense of aggravated child molestation as to Counts 1-7, despite counsel’s written request. We find no error.

Where the State’s evidence shows evidence of all of the elements of an offense, which in the instant case is aggravated child molestation, and there is no evidence of the lesser offense, there is no error in failing to charge on the lesser offense.

The offense of aggravated child molestation required a showing that Ewell, with the intent to arouse or satisfy either his own sexual desires or those of a child under the age of 16, committed child molestation that physically injured the child or involved acts of sodomy. The offense of sodomy, by contrast, lacks any intent requirement, providing only that the offense is committed when a person “performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”

As charged in the indictment, Counts 1-7 all contain the necessary elements of sodomy. Nevertheless, there was no evidence presented at trial that warranted a charge on sodomy, because Ewell’s theory of the case, as evinced by his not guilty plea and his testimony at trial, was that while he admitted spending time alone with each of the three victims referenced in Counts 1-7, he had not touched any of them. The State’s evidence, by contrast, showed Ewell sodomized the three victims with the intent to gratify his own sexual desires, as discussed in Division 1, supporting a finding that Ewell was guilty of aggravated child molestation. Thus, because Ewell denied touching A. L., J. L., and N. S., the evidence presented at trial did not afford the jury the alternative of finding him guilty of sodomy in lieu of aggravated child molestation, and the evidence in the case showed either the commission of the indicted crimes of aggravated child molestation, with its attendant requirement of intent, or no crimes at all. We discern no error.

3. Ewell argues, and the State concedes, that the trial court erred when it imposed life sentences as to Counts 1 and 3 of aggravated child molestation, because those sentences were ex post facto in application. As Ewell was sentenced under a later version of the statute than the one in effect when the crimes were committed, we agree.

“A crime must be construed and punished according to the provisions of the law existing at the time of its commission.”

(a) Aggravated Child Molestation, Count 1. Ewell was charged in the indictment with aggravated child molestation pursuant to OCGA § 16-6-4 (c) against A. L. occurring between January 7, 2004, and January 7, 2006.

As such, the version of the statute in place when the charged conduct occurred provided that “[a] person convicted of the offense of aggravated child molestation shall be punished by imprisonment for not less than ten nor more than 30 years.”

However, Ewell received a life sentence for Count l pursuant to an amended version of the statute which provided in pertinent part that “a person convicted of the offense of aggravated child molestation shall be punished by imprisonment for life.” As this amended version of the statute was not effective until July 1, 2006, six months after the last charged date on which the conduct took place, Ewell’s sentence as to Count 1 is in error.

(b) Aggravated Child Molestation, Count 3. Ewell was charged with aggravated child molestation against A. L. occurring between January 7,2005, and January 7,2007. Although the date range in the indictment within which the crimes were committed spans both versions of OCGA § 16-6-4 (d), as discussed in Division 3 (a), Ewell was sentenced to life in prison pursuant to the version OCGA § 16-6-4 (d) that became effective July 1, 2006.

At trial, neither the evidence presented nor A. L.’s testimony identified a specific date or dates within the range listed in the indictment on which the crimes occurred. Also, the jury’s general verdict form does not identify whether Ewell was found, guilty of acts that he committed before or after the amendment took effect. Thus, given the prohibition against the ex post facto application of law, and the possibility that the offense occurred prior to the 2006 amendment, the life sentence for Count 3 was in error. “To fall within the ex post facto prohibition, a law must be retrospective — that is, it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it by ... increasing the punishment for the crime.” Further, because the crimes could have occurred either before or after the amendment’s effective date, the possibility that the jury convicted based on acts that occurred prior to the enactment of the life sentence provision in the statute is plain error.

Therefore, we vacate Ewell’s sentences as to Counts 1 and 3, and remand this matter to the trial court for resentencing.

4. Ewell contends that the trial court erred in sentencing him to life in prison for Counts 4 through 7 of aggravated child molestation. He argues that because the trial court instructed the jury that the dates of the indictment were not material, and that Ewell could be convicted of committing the charged offenses at any time during the applicable statute of limitation, which runs for seven years from the date the victims, in this case, J. L. (Counts 4 and 5), and N. S. (Counts 6 and 7) turned sixteen, the earlier version of OCGA § 16-6-4 applies. We disagree.

“In determining whether a statute is being applied in an ex post facto manner, the definitive time period to be considered is the date on which the criminal offense was committed.” It is clear that the testimony and evidence presented at trial supports a conclusion that the charged conduct as to these counts occurred only after the effective date of the July 1, 2006, amendment to OCGA § 16-6-4.

(a) Counts 4 and 5. The indictment charged that the merged Counts 4 and 5 of aggravated child molestation occurred, respectively, between February 17, 2007, and February 19, 2008, and between July 4, 2009, and August 6, 2009. The evidence adduced at trial showed that J. L., who was born February 19,1999, was nine or ten years old when he performed anal sex on Ewell at Ewell’s behest. This means the crimes would have occurred sometime during 2008 and/or 2009.

(b) Counts 6 and 7. The indictment charged that Count 6 of aggravated child molestation occurred between July 4, 2009, and August 6, 2009. The evidence adduced at trial shows that N. S., who was born on July 4, 1994, performed anal sex on Ewell at Ewell’s behest when N. S. was fourteen or fifteen years old, meaning that the crimes occurred sometime during 2008 and/or 2009.

The indictment charged that Count 7 of aggravated child molestation occurred between August 6,2007, and December 31, 2009. The evidence adduced at trial shows that Ewell performed oral sex on N. S. more than twenty times, beginning when N. S. was thirteen years old and that Ewell continued to engage in sexual activity with N. S. for approximately two years, meaning that the crimes occurred in 2007 or later.

As to all counts discussed above, the trial court charged the jury to render a verdict against the defendant only if the State’s evidence was “sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the crime charged.” The trial court also charged the jury as to its duty to “determine the facts of the case from all of the evidence presented.” The jury is presumed to follow the trial court’s instructions, and to employ common sense in its deliberations. Because a reasonable jury could only have concluded that the evidence supported a verdict that Ewell was guilty based upon the evidence presented, and because that evidence only supported a conclusion that the crimes occurred after the July 1, 2006, amendment to OCGA § 16-6-4 became effective, we find no error.

Decided November 28, 2012.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Miller, P. J., and Branch, J., concur.

       OCGA§ 16-6-4 (c). This statute was amended by Ga. L. 2006, p. 379, § 11/HB1059, which went into effect July 1, 2006, and again by Ga. L. 2009, p. 729, § 1, effective May 5, 2009, after many of the offenses occurred in this case. Thus, enumerations involving the aggravated child molestation counts are considered under the appropriate prior versions of the statute. See Ga. L. 1997, p. 1578, § 1. Ewell also was convicted of one count of child molestation, two counts of criminal attempt to suborn perjury and false swearing, and one count of criminal attempt to tamper with evidence, but those convictions are not before us on appeal.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        Ledford v. State, 313 Ga. App. 389, 390 (721 SE2d 585) (2011).

       (Citation omitted.) Id.

       See Norris v. State, 230 Ga.App. 492, 493 (1) (496 SE2d 781) (1998). But see Gilstrap v. State, 261 Ga. 798, 799 (2) (410 SE2d 423) (1991) (evidence from nine similar transaction witnesses who testified before the State offered any evidence related to the case at bar raised the possibility that the jury could have found defendant guilty based on the number of similar transactions).

       (Citation and punctuation omitted.) Norris, supra.

        Waters v. State, 303 Ga.App. 187, 188, 190 (2) (692 SE2d 802) (2010) (evidence of prior conviction for molesting three boys sufficiently similar to be admissible as similar transaction in case involving alleged touching of defendant’s granddaughter); Cannon v. State, 296 Ga.App. 687, 688 (2) (675 SE2d 560) (2009) (evidence of similar transaction admissible when used to show pattern of “grooming” a young boy by giving him presents and money, showing him pornography, photographing him in the nude, and later molesting him); Myrick v. State, 242 Ga. App. 892, 893-894 (1) (531 SE2d 766) (2000) (evidence of similar transactions against different victims admissible regardless of sex of victim or type of act is admissible).

       (Citation and punctuation omitted.) Pareja v. State, 286 Ga. 117, 121 (686 SE2d 232) (2009).

       Id.

        Linto v. State, 292 Ga.App. 482, 486 (4) (664 SE2d 856) (2008). Accord Roman v. State, 185 Ga.App. 32, 34-35 (3) (363 SE2d 329) (1987) (no error when court denied request to charge on aggravated child molestation as lesser included offense of aggravated anal sodomy where defendant repudiated confessions and denied molestation).

       OCGA§ 16-6-4.

       OCGA § 16-6-2 (a). Earlier versions of this statute were in effect when the criminal acts at issue occurred. See Ga. L. 2000, p. 1346, § 1 and Ga. L. 2006, p. 379, § 9/HB 1059. These earlier versions, like the current version, also omit any intent requirement for sodomy.

       See Walker v. State, 279 Ga.App. 749, 751-752 (3) (a) (632 SE2d 482) (2006) (finding that although evidence of intentional touching of the child’s intimate parts without the intent necessary to prove child molestation would require an instruction on the lesser included offense of sexual battery, the charge was not necessary when the prosecution presented evidence of intent to arouse and satisfy defendant’s sexual desires as required for child molestation, and the defense contended that the victim fabricated the event thus presenting no evidence of sexual battery).

       (Citation omitted.) Riley v. State, 243 Ga.App. 697, 698 (534 SE2d 437) (2000). Accord Searcy v. State, 162 Ga.App. 695, 697 (2) (291 SE2d 557) (1982) (where the indictment and evidence show the date upon which the crime was committed, a defendant must he sentenced under the law in effect on that date).

       (Emphasis supplied.) OCGA § 16-6-4 (d) (1) (2005) (Ga. L. 1997, p. 1578, § 1).

       Following Ewell’s motion for a new trial, Counts 1 and 2 (aggravated child molestation) were merged.

       OCGA § 16-6-4 (d) (1) (2007) (Ga. L. 2006, p. 379, § 11/HB 1059).

       (Citations, punctuation and emphasis omitted.) Forde v. State, 289 Ga. App. 805, 810-812 (2) (658 SE2d 410) (2008) (where victim testified that crimes occurred both before and after the date of a statutory amendment, and in the absence of a special jury verdict form identifying the dates on which the crimes occurred, ex post facto clause required this Court to vacate sentence and remand matter for resentencing).

       Id. at 811 (2).

       The trial court merged Counts 4 and 5 in its amended sentencing order.

       (Citation and punctuation omitted.) Frazier v. State, 284 Ga. 638, 639 (1) (668 SE2d 646) (2008); see also Forde, supra at 811 (2) (ex post facto violations occur only where there is a possibility that the jury convicted defendant based on acts that occurred prior to the enactment of the statutory change).

       See generally Gentry v. State, 212 Ga. App. 79, 83 (4) (441 SE2d 249) (1994); Hendry v. State, 177 Ga. App. 439, 441 (339 SE2d 650) (1986) (Beasley, J., concurring specially).

       We note that OCGA § 16-6-4 was again amended, effective May 5, 2009, and thus the amendment would apply to Counts 5-7. However, as this amendment in pertinent part merely reinstates the sentence for life imprisonment at OCGA § 16-6-4 (d) (1) that was in effect under the version of OCGA § 16-6-4 (d) (1) (2007) (Ga. L. 2006, p. 379, § 11/HB 1059), supra, under which Ewell was sentenced, no ex post facto issues arise. See Frazier, supra at 639 (1) (a penal statute is retrospective only if it alters the consequences for crimes committed prior to its enactment).