author: Miller, Judge.

text:
    A12A0740. A12A0741. A12A0770.
    KNIGHT et al. v. ROBERTS. CONE v. KNIGHT et al. THE MEDICAL CENTER, INC. v. KNIGHT et al.
    (730 SE2d 78)
   Miller, Judge.

Arthur F. Knight, Jr., individually and as executor of the estate of Barbara P. Knight (collectively “Knight”), brought the instant medical malpractice action against Dr. Fred T. Roberts, Dr. Terry A. Cone, and The Medical Center, Inc. d/b/a Columbus Regional Medical Center (“TMC”), alleging that the doctors and nursing staff had failed to timely diagnose Mrs. Knight’s aortic dissection heart condition, which led to her death. Dr. Roberts, Dr. Cone, and TMC each filed motions for summary judgment, contending that Knight had failed to present evidence that their acts or omissions caused or contributed to Mrs. Knight’s death. TMC also filed a motion to exclude the testimony of Knight’s expert nurse, Cathleen A. Provins Chubock, challenging her qualifications as an expert in emergency room nursing procedures. The trial court granted Dr. Roberts’s motion for summary judgment, but denied Dr. Cone’s and TMC’s motions for summary judgment. The trial court further denied TMC’s motion to exclude the testimony of Knight’s expert nurse.

We granted Dr. Cone’s and TMC’s applications for interlocutory appeal for review of the trial court’s denial of their motions for summary judgment. Knight cross-appeals the trial court’s order granting summary judgment for Dr. Roberts. Since these appeals involve the same set of facts and legal principles, we consolidated them for review. We conclude that the evidence presents a genuine issue of material fact as to whether the negligence of Dr. Roberts, Dr. Cone, and the nursing staff proximately caused Mrs. Knight’s death; therefore, we reverse the trial court’s grant of summary judgment in favor of Dr. Roberts in Case No. A12A0740. We affirm the trial court’s decisions denying summary judgment to Dr. Cone and TMC in Case Nos. A12A0741 andA12A0770. We also affirm the trial court’s denial of TMC’s motion to exclude the expert nurse’s testimony in Case No. A12A0770.

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. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.
When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Punctuation and footnotes omitted.) Beasley v. Northside Hosp., 289 Ga. App. 685, 685-686 (658 SE2d 233) (2008).

So viewed, the record shows that on the afternoon of February 17, 2001, Mrs. Knight was bathing her dog when she suddenly began experiencing a pain in her chest. Later that evening, Mrs. Knight went to TMC’s Emergency Department (“ER”), arriving at approximately 8:00 p.m. Mrs. Knight registered into the ER at approximately 8:14 p.m. and saw a nurse for an initial assessment at 8:20 p.m. Mrs. Knight reported that she was 61 years old, had a history of smoking and hypertension, and was then experiencing severe chest pain that radiated down her arm, back, and neck. She stated that her pain level was a “10,” which was the highest level. Her blood pressure was elevated to 228/104. The nurse placed Mrs. Knight into the triage category of “urgent,” rather than “emergent.”

Dr. Roberts was the attending physician in the ER that evening, and he saw Mrs. Knight at 8:35 p.m., approximately 15 minutes after her initial assessment. Dr. Roberts reviewed the nurse’s notes describing Mrs. Knight’s symptoms and history, and he performed a physical examination. Upon his examination at 8:35 p.m., he ordered a CCU panel, chest x-ray, placement on a monitor, sublingual nitroglycerine, and a GI cocktail. The nurses, however, did not begin to carry out the orders immediately; instead, Mrs. Knight was not placed on a monitor until 9:20 p.m., and her medications were not given until 9:30 p.m., almost an hour after the orders were given.

At 10:25 p.m., the results of the diagnostic testing were entered, and Dr. Roberts noted that Mrs. Knight’s vital signs appeared to be normal and that diagnostic testing indicated that her cardiac enzymes were normal, her chest x-ray was negative, and an EKG did not show any acute ischemic changes. The record shows that although Mrs. Knight’s blood pressure had decreased to 154/88, it remained elevated throughout her treatment in the ER. Based upon his examination, Dr. Roberts made a differential diagnosis of angina, myocardial infarction, pleurisy, costochondritis, esophageal reflux, and chest wall pain. He never considered thoracic aneurysm or an aortic dissection.

At approximately 11:45 p.m., Dr. Roberts contacted Dr. Cone, who was providing on-call coverage for Mrs. Knight’s family physician, and advised that Mrs. Knight was in the ER. Dr. Cone ordered that Mrs. Knight be admitted to the hospital for further observation and testing. Dr. Cone also ordered that Mrs. Knight be given Lovenox, a blood thinner. Dr. Roberts stated that after treatment, and by his reassessment at 11:45 p.m., Mrs. Knight’s symptoms were completely relieved. Notes in the medical record, however, indicate that Mrs. Knight had continued to complain of pain symptoms, and that Dr. Roberts gave a verbal order to give her morphine for pain in her back at 12:48 a.m.

On the following day, February 18 at 1:53 p.m., while Mrs. Knight remained hospitalized at TMC, Dr. Cone examined Mrs. Knight and reviewed her hospital chart. Dr. Cone indicated that Mrs. Knight’s blood pressure had decreased to 142/76, and that she did not appear to be in distress. Dr. Cone noted that the diagnosis was chest pain and that there was a need to rule out ischemic heart disease. Dr. Cone did not consider a differential diagnosis of aortic dissection. He ordered that Mrs. Knight undergo a stress test, which was scheduled for the next morning.

Mrs. Knight continued to receive morphine for pain and a nitroglycerine drip. She complained that she was feeling weak and had a headache. She was given aspirin and Darvocet to relieve the headache. At approximately 11:00 p.m. on February 18, the second day of Mrs. Knight’s hospital stay, another EKG was performed and a different attending physician diagnosed an acute inferior wall myocardial infarction. Mrs. Knight was immediately transferred to TMC’s intensive care unit, and a cardiologist at St. Francis Hospital was consulted. TMC did not have the capability of rendering non-medical treatment or performing heart surgery, and therefore, Mrs. Knight was transferred to St. Francis Hospital for a catheterization at approximately 1:00 a.m. on February 19, 2001.

The catheterization performed on February 19 revealed that Mrs. Knight had an aortic dissection, a tear in the ascending aorta above her heart, which required emergency surgery. She was immediately transferred to Emory Hospital for the emergency surgery at approximately 3:45 a.m. on February 19.

Mrs. Knight arrived at Emory Hospital on February 19 at approximately 6:00 a.m. and was in the operating room at 7:00 a.m. Dr. Robert A. Guyton, the cardiothoracic surgeon, testified that upon opening Mrs. Knight’s chest for the surgery, he observed a large hemorrhage and a hematoma, amounting to excessive bleeding into the tissue around her right coronary artery and in the right ventricle. Dr. Guyton opined that the surgery would have been difficult since she had been given blood thinners at TMC, which increased the risk of bleeding and the risk of mortality. Based upon his observations, the surgeons determined that if they operated on Mrs. Knight, she had less than a 1% chance of surviving the surgery. As such, the surgeons decided not to proceed with the operation.

Thereafter, Mrs. Knight experienced a progressive deterioration of multiple organ systems since the heart was not able to pump enough blood to keep the rest of the body functioning. Mrs. Knight passed away less than a week later on February 27, 2001.

Case No. A12A0740

1. Knight contends that the trial court erred in granting summary judgment in favor of Dr. Roberts on the basis of causation. He argues that evidence shows that Dr. Roberts’s negligent misdiagnosis delayed Mrs. Knight’s treatment, which precluded immediate surgical intervention and repair and caused her death.

To recover in a medical malpractice case, a plaintiff must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained. In other words, a plaintiff must prove that the defendants’ negligence was both the cause in fact and the proximate cause of his injury.

(Citations omitted.) Walker v. Giles, 276 Ga. App. 632, 638 (624 SE2d 191) (2005). See also Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (three essential elements to establish liability in a medical malpractice action under OCGA § 51-1-27 are “(1) the duty inherent in the doctor-patient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained”) (citations and punctuation omitted).

Medical malpractice being a civil cause of action, a plaintiff must prove liability (i.e., duty, negligence, proximate cause) by a preponderance of the evidence. OCGA § 24-4-3. “Preponderance of the evidence” is statutorily defined as “that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” OCGA § 24-1-1 (5). The standard requires only that the finder of fact be inclined by the evidence toward one side or the other.

(Citation and punctuation omitted.) Zwiren, supra, 276 Ga. at 499.

The parties’ arguments in this case focus upon the causation element of the medical malpractice claim.

(a) Cause-In-Fact. “Medical causation must be proved to a reasonable degree of medical certainty and cannot be based on mere speculation. Abare possibility of causing the injury complained of is not sufficient proof of causation as a matter of law.” (Citation and punctuation omitted.) Walker, supra, 276 Ga. App. at 638 (1). In a medical misdiagnosis case, the plaintiff must show “to any reasonable degree of medical certainty that the injury could have been avoided, had the physician complied with the applicable standard of care.” (Citation and punctuation omitted.) Id. The element of causation must be established through expert testimony

because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of the average layperson. Using the specialized knowledge and training of his field, the expert’s role is to present to the jury a realistic assessment of the likelihood that the defendant’s alleged negligence caused the plaintiff’s injury.

(Citations and punctuation omitted.) Zwiren, supra, 276 Ga. at 500-501. “Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.” Id. at 503. “Questions regarding causation are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.” (Citations and punctuation omitted.) Walker, supra, 276 Ga. App. at 639 (1).

Applying the foregoing standards, the expert testimony in this case presented a genuine issue of material fact as to whether Mrs. Knight’s death could have been avoided if Dr. Roberts had properly diagnosed her condition in compliance with the applicable standard of care. The expert testimony bearing upon the causation issue in this case was given by Dr. Guyton, a cardiothoracic surgeon who had operated on between 100 and 150 ascending aortic dissections over the course of 30 years; Dr. Phillip L. Coule, who was an assistant professor of emergency medicine at the Medical College of Georgia and a physician with expertise in emergency medicine and prior experience in treating aortic dissections; and Dr. Lawrence L. Golusin-ski, Jr., who was a family practice physician with prior experience in diagnosing and treating aortic dissections. Each of the experts opined that Mrs. Knight’s aortic dissection began to occur in the early afternoon of February 17 when she started having chest pain while she was washing her dog at home. Based upon their testimony, Mrs. Knight’s aortic dissection condition existed at the time when she initially presented to the ER.

Dr. Coule and Dr. Golusinski both explained that the typical symptoms of aortic dissection include sudden, continuous chest pain, back pain, and hypertension. They further testified that when Mrs. Knight presented to the ER with those symptoms, along with her history of being a 61-year-old smoker, Dr. Roberts was required to consider and take steps to consider dissection as a diagnosis. Although Dr. Roberts had obtained a chest x-ray as a part of his examination of Mrs. Knight, Dr. Coule and Dr. Golusinski further explained that simply obtaining a chest x-ray was not a diagnostic test that could be used to rule out an aortic dissection since chest x-rays do not reveal the existence of aortic dissections. The expert physicians also stated that a CT scan was required to be performed to look for and diagnose the presence of an aortic dissection. Dr. Golusinski stated that if a CT scan had been performed immediately, it would have confirmed the existence of a dissection. Dr. Coule and Dr. Golusinski both opined that Dr. Roberts deviated from the standard of care when he failed to consider and obtain a CT scan imaging of the aorta to make the diagnosis of an aortic dissection. Dr. Coule further testified that an emergency physician’s duty under the standard of care is to make the diagnosis of an aortic dissection, attempt to stop the dissection from progressing by controlling the blood pressure aggressively, and then to immediately transfer the patient to a facility for emergency surgical intervention. The evidence does not reflect that Dr. Roberts took any of these steps required to comply with the standard of care. Dr. Coule’s testimony also reflected that as a result of Dr. Roberts’s failure to properly diagnose Mrs. Knight’s aortic dissection, the dissection continued to exist and progress over the course of her hospitalization at TMC.

Dr. Coule also testified that the diagnosis of an aortic dissection is a true emergency in which time is of the essence. Dr. Guyton similarly testified that since aortic dissections can either rupture or progress at any time, they must be treated on an emergent basis. The expert testimony indicated that the sooner the diagnosis could have been made and aggressive treatment instituted, the better Mrs. Knight’s chances of survival. Significantly, Dr. Guyton opined that if the diagnosis of an aortic dissection had been made timely and Mrs. Knight had been at Emory for the surgery, it could have been successfully repaired any time up until she had her infarction at 11:00 p.m. on February 18. According to Dr. Guyton, Mrs. Knight’s chances of survival prior to the myocardial infarction were likely in the 70% to 80% range, but her chances of survival diminished to 3% or less after the infarction occurred. Dr. Coule testified that the harm that resulted from the deviation of the standard of care was based upon a continuum that extended from Dr. Roberts’s failure to timely diagnose and treat Mrs. Knight’s aortic dissection in the ER. According to Dr. Coule, the longer that Mrs. Knight remained without appropriate diagnosis and treatment, the worse her condition progressed and her chances of survival diminished. Dr. Guyton testified that Mrs. Knight’s death was the downstream result of the dissection.

Based on this combined expert testimony, we conclude that Knight presented evidence creating a genuine issue of material fact over whether the myocardial infarction, reflecting the rupture of Mrs. Knight’s aortic dissection, would have been prevented if Dr. Roberts had properly complied with the standard of care during Mrs. Knight’s examination in the ER. See Naik v. Booker, 303 Ga. App. 282, 286-287 (692 SE2d 855) (2010) (affirming the denial of summary judgment to a physician who had failed to timely identify and stop the patient’s hemorrhage, which contributed to the patient’s ultimate death); MCG Health v. Barton, 285 Ga. App. 577, 583-584 (2), (3) (647 SE2d 81) (2007) (affirming the denial of the Board of Regents’s motion for summary judgment since a jury question regarding causation existed based upon expert testimony that the physician’s delay in diagnosing the patient’s torsion condition prevented emergency surgery to salvage the patient’s testicle); Walker, supra, 276 Ga. App. at 641-642 (1) (concluding that a jury issue as to causation was presented in the patient’s medical malpractice action based upon combined expert testimony that the rupture of the patient’s appendix could have been avoided if she had not been misdiagnosed upon her first admission into the hospital). Since there was expert testimony reflecting that Dr. Roberts’s misdiagnosis contributed to Mrs. Knight’s death, the trial court erred in granting summary judgment in Dr. Roberts’s favor.

Dr. Roberts nevertheless argues that there was no expert testimony suggesting that Mrs. Knight required immediate surgical intervention after he evaluated her. His argument, however, is without merit. As stated above, Dr. Guyton, the cardiothoracic surgeon, testified that since aortic dissections can either rupture or progress at any time, they must be treated on an emergent basis. Dr. Coule testified that Dr. Roberts had a duty to make the diagnosis and immediate transfer to a facility for emergency surgical intervention. Notably, Dr. Roberts himself acknowledged that “[t]he quicker that the thoracic surgeon [gets] . . . the patient with an aortic dissection, the better.” To the extent that the delay caused by Dr. Roberts’s misdiagnosis contributed to the delay in Mrs. Knight’s ability to receive timely treatment and surgical intervention, a jury question as to the element of causation existed. See MCG Health, supra, 285 Ga. App. at 583-584 (3) (jury question regarding causation existed where the delayed diagnosis led to the loss of the patient’s testicle; the fact that the medical expert could not identify the exact point in time in which the condition became unsalvageable did not render the testimony speculative); see also Walker, supra, 276 Ga. App. at 641-642 (1).

To the extent that Dr. Roberts points to conflicting evidence that Mrs. Knight appeared to have been stabilized after he evaluated her such that emergency surgery may not have been performed, the evidentiary conflicts did not authorize summary adjudication in his favor. “Causation may be established by linking the testimony of several different experts. Furthermore, whether or not a genuine issue of fact has been created with regard to causation must be determined in light of the evidentiary record as whole.” (Citations omitted.) Walker, supra, 276 Ga. App. at 642 (1). Based upon the evidentiary record in this case, a genuine question of fact as to the cause-in-fact element existed, and summary judgment was precluded.

(b) Proximate Cause. “The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, e.g., intervening act, the defendant’s conduct and the plaintiff’s injury are too remote for the law to countenance recovery.” (Citation and punctuation omitted.) Walker, supra, 276 Ga. App. at 643 (2).

It is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent act (or omission) of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant’s act and which was sufficient of itself to cause the injury. However, it is equally well settled that [proximate cause is generally an issue for the jury, and] there may be more than one proximate cause of an injury in cases involving the concurrent negligence of several actors.

(Citations and punctuation omitted; emphasis supplied.) MCG Health, supra, 285 Ga. App. at 584-585 (4); Walker, supra, 276 Ga. App. at 643 (2).

[P]revious Georgia cases permitting joint and several liability of two or more physicians who independently treat a patient at different times but together cause an indivisible injury to the plaintiff implicitly reject the notion that a first-treating physician is absolved of legal responsibility as a matter of law.

(Citations and punctuation omitted.) Walker, supra, 276 Ga. App. at 644 (2). Moreover, “the liability of a tortfeasor whose actions started the chain of events leading to the victim’s injury is superseded and cut off only if there intervened between the act and the injury a distinct, successive, unrelated, efficient cause of the injury.” (Citation, punctuation and emphasis omitted.) Id.

Here, Knight’s medical expert, Dr. Coule, testified that the longer that Mrs. Knight remained without appropriate diagnosis and treatment, the worse her condition progressed and her chances of survival diminished. Dr. Coule concluded that Dr. Roberts’s failure to timely diagnose Mrs. Knight’s aortic dissection in the ER was a contributing cause leading to Mrs. Knight’s ultimate death and amounted to a link in the continuum that culminated in her death. Dr. Roberts’s argument that he turned Mrs. Knight’s care over to Dr. Cone and was not involved in Dr. Cone’s evaluation and treatment is unavailing. Here, Dr. Cone’s alleged misdiagnosis and mistreatment of Mrs. Knight during her ongoing hospitalization at TMC was not unrelated to Dr. Roberts’s previous alleged failure to properly diagnose and treat Mrs. Knight. In light of evidence that Dr. Roberts’s negligence was “a link in the chain of incorrect decisions made with regard to [Mrs. Knight’s] treatment^” a jury question of proximate cause existed. See MCG Health, supra, 285 Ga. App. at 585 (4); Walker, supra, 276 Ga. App. at 644-645 (2); see also Schriever v. Maddox, 259 Ga. App. 558, 561 (2) (b) (578 SE2d 210) (2003) (concluding that the subsequent treating physician’s alleged negligent actions were not intervening, but were very similar to the initial physician’s negligence, and therefore, merely compounded the initial physician’s negligence). It thus follows that the trial court erred in granting summary judgment in Dr. Roberts’s favor.

Case No. A12A0741

2. Dr. Cone contends that the trial court erred in denying his motion for summary judgment. Specifically, he argues that there was no evidence that his acts or omissions proximately caused or contributed to Mrs. Knight’s death.

Significantly, Knight’s medical malpractice claim against Dr. Cone is substantially the same as his claim against Dr. Roberts. Knight’s claim alleges that Dr. Cone likewise misdiagnosed and mistreated Mrs. Knight’s aortic dissection condition when she was under his care. The evidence shows that Dr. Cone had consulted with Dr. Roberts while Mrs. Knight was in the ER, he was aware of her symptoms, and that he reviewed her hospitalization chart and examined her on the afternoon of February 18. Notably, the evidence further reflects that Dr. Cone also failed to obtain a CT scan and to diagnose Mrs. Knight’s aortic dissection. There was evidence that under Dr. Cone’s care, Mrs. Knight’s condition continued to exist and progress to the point of a myocardial infarction at 11:00 p.m. on February 18.

As discussed in Division 1 above with respect to the claims and evidence against Dr. Roberts, the evidence likewise showed that Dr. Cone deviated from the standard of care when he failed to take the necessary steps to confirm the existence of Mrs. Knight’s aortic dissection. The evidence further showed that Dr. Cone’s misdiagnosis delayed the necessary surgical intervention and contributed to Mrs. Knight’s demise. See MCG Health, supra, 285 Ga. App. at 583-584 (3); Walker, supra, 276 Ga. App. at 641-642 (1). Based upon the same standards and principles set forth in Division 1 above, summary judgment in favor of Dr. Cone was not authorized. The trial court therefore did not err in denying Dr. Cone’s motion.

Case No. A12A0770

3. TMC challenges the trial court’s denial of its motion for summary judgment, contending that there was no evidence that the nurses’ alleged negligence caused or contributed to Mrs. Knight’s death. Again, we discern no error.

Knight alleged that the nurses negligently failed to triage Mrs. Knight in the emergent patient status, which contributed to the delay in her treatment and her death. Knight’s experts, Dr. Coule and nurse Cathleen Provins Churbock, both attested that Mrs. Knight’s symptoms and condition required her to be triaged under the status of emergent pursuant to the standard of care, and that the emergency room nurses’ decision to instead designate her as urgent was erroneous. Nurse Churbock further stated that as a result of the mis-triage, Mrs. Knight was not given the immediate attention and treatment that was required. Mrs. Knight’s hospital records reflected that the nurses did not immediately carry out Dr. Roberts’s orders for Mrs. Knight’s medications and treatment until almost an hour after the orders were given. Dr. Coule testified that the required medications and treatment would have controlled Mrs. Knight’s blood pressure and the flow of blood going between the sections of her aorta. He attested that the delay in the administration of the medication contributed to Mrs. Knight’s ultimate death. Dr. Coule’s opinion, as stated above, was that the harm resulting from the deviation from the standard of care was based upon a continuum. Similar to the physicians’ negligent delay, the nurses’ negligent delay and failure to intervene contributed to the worsening of Mrs. Knight’s condition and ultimate death. As such, summary adjudication of Knight’s claims in this regard was precluded. See, e.g., Renz v. Northside Hosp., 285 Ga. App. 882, 883-886 (1) (648 SE2d 186) (2007); MCG Health, supra, 285 Ga. App. at 583-584 (3); Walker, supra, 276 Ga.App. at 641-642 (1). Simply, the legal analysis set forth in Division 1 above applies equally to the ER nurses.

Nurse Churbock further testified that TMC deviated from the standard of care by allowing a student nurse to assist in Mrs. Knight’s care. TMC argues that the trial court erred in finding that a question of fact existed as to whether allowing the student nurse to participate in Mrs. Knight’s care was a deviation from the standard of care, and in failing to find that such act did not proximately cause Mrs. Knight’s death. To the extent that the student nurse was not sufficiently supervised, which contributed to the delayed treatment, as discussed above, we discern no error in the trial court’s decision denying summary judgment on this issue.

4. Lastly, TMC contends that the trial court erred in finding that Nurse Churbock was qualified to serve as an expert under OCGA § 24-9-67.1 when the statements of her affidavit regarding her qualifications conflicted with her deposition testimony. Again, no error has been shown.

OCGA § 24-9-67.1 (b) provides, in pertinent part that

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action 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 [.]

Subsection (c) of the statute further pertinently provides as follows:

[I]n professional malpractice actions, the 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:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, 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:
(A) The 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; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
(C) ... (i) Is a member of the same profession [.]

(Punctuation omitted.)

Nurse Churbock submitted a curriculum vitae that set forth her nursing education, licensure in Georgia, and work experience. Nurse Churbock also gave deposition testimony reflecting she was currently employed as an acute care nurse practitioner with WellStar Hospital in Cardiovascular Medicine in the ER and ICU departments. Immediately prior thereto, she had worked for seven years with Grady Health System as a critical care clinical nurse specialist, director of nursing for the burn unit, director of nursing for the surgical ICU, and education coordinator for the critical care program. Since 1990, she has taught critical care and ER nurses on a part-time basis. She previously worked full-time in the ICU at Emory, and worked as a practicing registered nurse as a bedside nurse. She stated that she last performed clinical work as a bedside registered nurse in December 2009, seven months prior to her deposition. Nurse Churbock further testified that although she had not diagnosed or treated a dissection within the five years preceding 2001, she had been involved in taking care of patients who had dissections.

Following her deposition, Nurse Churbock submitted an affidavit, which further attested that she had relevant work experience in a hospital emergency room within the five-year period prior to the incident on February 17, 2001. The affidavit reflected that from 1996 to 1997, she worked at two local hospitals in the ICU and ER departments. From 1997 through 2001, Nurse Churbock had worked full-time in various local hospital emergency rooms, triaged patients in emergency rooms to determine their status, taught emergency room nurses, and maintained her Georgia nursing license and national emergency room nursing certifications. Nurse Churbock concluded that based upon her experience and training, she was familiar with the standard of care required of ER nurses at the time of the incident.

Decided July 3, 2012.

Katherine L. McArthur, Richard T. Tebeau III, Caleb F. Walker, for Knight.

Car lock, Copeland & Stair, Broderick W. Harrell, for Roberts.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., for Cone.

While Nurse Churbock’s deposition testimony generally described her nursing experience, her affidavit supplemented the testimony with greater detail as to the dates of her experience. The full evidence reflected that Nurse Churbock had actual professional knowledge and experience in the relevant areas of nursing as a result of having been regularly engaged in the active practice of critical care and ER nursing for three of the five years preceding February 2001. The trial court was therefore authorized to conclude that she was qualified to serve as an expert in this case. See, e.g., Allen v. Family Medical Center, 287 Ga. App. 522, 525-526 (2) (652 SE2d 173) (2007).

The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion. Under Daubert [a. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993)], disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility. Accordingly, we find no abuse of discretion.

(Citation omitted.) Gottschalk v. Gottschalk, 311 Ga. App. 304, 310 (2) (715 SE2d 715) (2011).

Judgment reversed in Case No. A12A0740. Judgments affirmed in Case Nos. A12A0741 and A12A0770.

Mikell, P. J., and Blackwell, J., concur.

Hall, Booth, Smith & Slover, Mark W. Wortham, for The Medical Center, Inc.

       TMC’s motion also sought to exclude the testimony of Knight’s expert nurse, Janice L. Singleton Rodgers. The motion noted that Ms. Rodgers died after providing her deposition testimony. The trial court granted TMC’s motion to exclude Ms. Rodgers’s testimony on the ground that her testimony was not going to he offered into evidence. The exclusion of Ms. Rodgers’s testimony is not the subject of these appeals.

       Dr. Roberts testified that ER physicians generally make a diagnosis by exclusion. He further stated that TMC’s ER computer has a template system that generates the differential diagnosis required for insurance billing purposes.

       Each of the experts testified that dissections are rare. Dr. Guyton and Dr. Golusinski testified that dissections are more common in men.

       Dr. Roberts acknowledged that he could have gotten a CT scan on demand in the ER. He further acknowledged that symptoms of aortic dissection include chest pain that can radiate to the shoulders, back, and arms, along with hypertension. Dr. Roberts nevertheless conceded that he never considered the diagnosis of an aortic dissection or a thoracic aneurysm.

       While Dr. Roberts asserts that Mrs. Knight was stable when he treated her and released her to Dr. Cone for further care, there was evidence contradicting his assertion. Notably, there was evidence that Mrs. Knight remained hypertensive, albeit at a lower level. The evidence also reflected that Mrs. Knight had continued to complain of pain symptoms and continued to receive morphine for pain.

       We note that “[t]he practice of nursing is recognized as a profession subject to its own general standards of care and qualifications. OCGA §§ 9-11-9.1 (g) (12); 43-26-1 et seq. (registered nurses) [.]” (Citation and punctuation omitted.) Grady Gen. Hosp. v. King, 288 Ga. App. 101, 102 (653 SE2d 367) (2007). TMC was alleged to be liable for the acts of negligence of its employee nurses under the doctrine of respondeat superior. See, e.g., Thomas v. Medical Center of Central Ga., 286 Ga. App. 147, 148 (648 SE2d 409) (2007) (ruling that a hospital’s vicarious liability was entirely derivative of the nurses’ alleged professional malpractice).

       TMC challenges Dr. Coule’s opinion based upon its contention that Mrs. Knight was not hypertensive and had a reasonable blood pressure when she was in the ER. TMC’s contention is without merit. There was evidence establishing that Mrs. Knight was indeed hypertensive when she arrived at the ER, having a blood pressure of 228/104, and that she remained hypertensive throughout the time that she was in the ER.

       We note that there appears to be an unexplained conflict in Dr. Coule’s deposition testimony regarding whether the delay in administering the nitroglycerine contributed to Mrs. Knight’s death. At one point, Dr. Coule testified that he could not say that Mrs. Knight would not have died if she had received the nitroglycerine earlier in her treatment. He further opined, however, that the delay in administering the medication worsened Mrs. Knight’s condition and allowed the dissection to progress. Significantly, Dr. Coule also testified that the delay in administering the nitroglycerine had contributed to Mrs. Knight’s ultimate death. Notwithstanding the apparent conflict, however, “the self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., [256 Ga. 27 (343 SE2d 680) (1986)], does not apply to the testimony of a non-party expert witness.” (Punctuation omitted.) Thompson v. Ezor, 272 Ga. 849, 853 (2) (536 SE2d 749) (2000). The trial court properly concluded that Dr. Coule’s testimony that the delay in administering the nitroglycerine had contributed to Mrs. Knight’s death supported Knight’s claims and created a jury question on the proximate causation issue.


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A0242.
    WARBINGTON v. THE STATE.
    (730 SE2d 90)
   PHIPPS, Presiding Judge.

Richard Warbington appeals his judgment of conviction, challenging a pretrial ruling that one of his prior felony convictions constituted admissible impeachment evidence. For reasons explained below, Warbington has failed to demonstrate reversible error. We affirm.

Warbington was indicted on multiple charges stemming from his physical and verbal attacks upon his girlfriend, her family members, her friend, and her neighbor. Before his March 2011 jury trial began, Warbington moved to preclude the state from using his numerous prior convictions to impeach him if he testified. Warbington made no commitment that he would testify if his motion were granted, nor did Warbington proffer to the court what his testimony would be. The trial court ruled in Warbington’s favor, except in regard to two felony convictions, which the court determined fell within the category of permissible impeachment evidence under OCGA § 24-9-84.1. More specifically, the court ruled that a 2009 drug conviction was permissible under subsection (a) (2) and that a 2000 aggravated assault conviction was permissible under subsection (b) of OCGA § 24-9-84.1. Warbington did not testify, however, and the two convictions were not introduced in evidence at trial. The jury returned guilty verdicts.

In this appeal, Warbington challenges the pretrial ruling solely with respect to the older conviction. The governing provision, OCGA § 24-9-84.1 (b), “applies to prior felony convictions that are more than ten years old”; the subsection excludes evidence thereof “unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.” Warbington maintains on appeal that the trial court erred in reaching the contested ruling, because the court improperly balanced probative value and prejudicial effect. Warbington asserts that the ruling contributed to his decision not to testify and effectively deprived him of his constitutional right to testify.

This appeal presents, as a threshold matter, an issue of first impression: whether, by choosing not to testify at trial, a defendant renders the record inadequate for meaningful review of a preliminary ruling that his prior conviction constitutes impeachment evidence under OCGA § 24-9-84.1 (b).

Recognizing that the language of OCGA § 24-9-84.1 (b) mirrors that of Rule 609 (b) of the Federal Rules of Evidence and the statutes based on Rule 609 (b) that have been enacted by several other states, [the Supreme Court of Georgia has repeatedly] held that it is proper to look for guidance to the judicial decisions of the federal courts construing Rule 609 (b) and the courts of our sister states construing their statutes modeled on Rule 609 (b) in interpreting that provision.

Accordingly, we turn to Luce v. United States and its progeny. In Luce, the district court had ruled upon the defendant’s motion in limine that the prosecution would be allowed to introduce evidence of the defendant’s prior conviction for purposes of impeachment if the defendant later testified. The defendant declined to take the stand. The court of appeals refused to consider whether the district court had abused its discretion in denying the motion in limine, determining that the defendant’s failure to testify had waived the issue. Acting on the defendant’s petition for certiorari, the Supreme Court of the United States agreed, holding that “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” The Court thus concluded that the court of appeals did not err by refusing to review the district court’s (preliminary) ruling.

In reaching that conclusion, the Luce Court gave a litany of reasons. First, to balance a prior conviction’s probative value against its prejudicial effect to the defendant, “the court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify.” “Requiring a defendant to make a proffer of testimony is no answer” because the defendant’s trial testimony could, for any number of reasons, differ from his proffer. Second, any possible harm flowing from an in limine ruling permitting impeachment by a prior conviction is “wholly speculative” because a trial court “is free, in the exercise of sound judicial discretion, to alter” such ruling as the case unfolds — particularly if the defendant’s actual testimony differs from what was contained in the proffer. Third, absent the defendant’s actual testimony, a reviewing court has “no way of knowing whether the Government would have sought to impeach with the prior conviction.” If, for example, the Government’s case is strong, and the defendant is subject to impeachment by other means, a prosecutor might elect to forgo using an arguably inadmissible prior conviction. Fourth, because a defendant’s decision whether to testify seldom turns on a single factor, the reviewing court cannot assume that the adverse ruling was the motivation for his decision not to take the stand. Even if, in support of his motion, a defendant commits to testify if his motion is granted, such a commitment is virtually risk free because of the difficulty of enforcing it. Fifth, even assuming that these difficulties could be overcome, the reviewing court would be unable to conduct a “harmless error” analysis if it determined that evidence of the prior convictions had been improperly admitted, because “the appellate court could not logically term ‘harmless’ an error that presumptively kept the defendant from testifying.” Thus, “almost any error would result in the windfall of automatic reversal.” On the other hand, requiring that a defendant testify in order to preserve his objection enables the reviewing court to determine the impact any erroneous impeachment may have had “in light of the record as a whole; it will also tend to discourage making such motions solely to ‘plant’ reversible error in the event of conviction.”

Not only have federal courts thus followed Luce, but a majority of the appellate courts of our sister states construing their statutes modeled on Federal Rule of Evidence 609 have found Luce's rationale persuasive and therefore hold that, unless a defendant has testified at trial, he cannot challenge on appeal a ruling allowing his prior conviction to be admitted for impeachment purposes. Furthermore, although Luce involved impeachment with evidence of a conviction deemed admissible under Federal Rule of Evidence 609 (a) (l), both federal courts and state courts have concluded that, with respect to the particular issue at hand here, there is no reason to distinguish Rule 609 (b) cases from Rule 609 (a) cases.

As stated above, Georgia has not yet considered whether a defendant, who has chosen not to testify, may nevertheless prevail on his challenge to the trial court’s preliminary ruling that a prior conviction constituted admissible impeachment evidence under OCGA § 24-9-84.1. And we take into account that, in Georgia, where (as here) a direct appeal is taken, “any other ruling that will affect the case below... may potentially be considered by an appellate court —” Notwithstanding, it remains axiomatic that a conclusion that reversible error occurred requires a showing of error and harm and that “[a]n appellant has the burden of proving trial court error by the appellate record.”

We are guided by Linares v. State (albeit decided prior to the enactment of OCGA § 24-9-84.1), wherein the Supreme Court of Georgia cited Luce precisely for its holding that “[a] defendant must testify to obtain review of [a] trial court’s in limine ruling on the admissibility of a prior conviction for impeachment under Fed. R. Evid. 609.” Similar to the ruling contested here, the ruling at issue in Linares was the trial court’s decision that the state could use for impeachment purposes the defendant’s involuntary police statement, if he took the stand. Like the circumstances here, the defendant in Linares did not take the stand and the state did not introduce the “impeachment” evidence. And, like the argument posited in this case, the contention in Linares was that the trial court’s evidentiary ruling had effectively deprived him of his constitutional right to testify. The Linares Court cited the Luce holding in declining to reach the merits because, given the state of the record, “any review of his constitutional claim would be speculative.”

We conclude that the rationale underlying Luce and Linares controls here, where Warbington did not testify. The record consequently is not amenable to meaningful appellate review. Because Warbington declined to testify, we will not speculate on the substantive merits of his contention that the trial court’s pretrial ruling was prejudicial error.

Decided July 5, 2012.

Wystan B. Getz, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       Two counts were merged for sentencing purposes, and Warbington was convicted on counts of aggravated assault committed against his girlfriend; cruelty to children committed against her children; battery and terroristic threats committed against his girlfriend’s friend; and terroristic threats against his girlfriend’s neighbor.

        Clay v. State, 290 Ga. 822, 837 (3) (B) (725 SE2d 260) (2012).

       See generally id. at 835-838 (3) (B) (providing guidance concerning the proper balancing under OCGA§ 24-9-84.1 (b)).

        Clay, supra at 833 (3) (A) (citations and punctuation omitted); see Allen v. State, 286 Ga. 392, 395 (2) (687 SE2d 799) (2010); Hinton v. State, 280 Ga. 811, 819 (7) (631 SE2d 365) (2006).

       469 U. S. 38 (105 SC 460, 83 LE2d 443) (1984).

       Id. at 39-40 (I).

       Id. at 40 (I).

       Id. at 40 (II), citing United States v. Luce, 713 F2d 1236 (6th Cir. 1983).

        Luce, 469 U. S. at 43 (III).

       Id.

       Id. at 41 (III) (footnote omitted).

       Id. at 41 (III), n. 5.

       Id. at 41-42 (III).

       Id. at 42 (III).

       Id.

       Id.

       Id.

       Id.

       Id.

       Id.

       See, e.g., State v. Allie, 710 P2d 430, 437 (III) (Ariz. 1985) (holding that the rule in Arizona remains that a defendant must have taken the stand before he can challenge an adverse pretrial ruling allowing prior convictions to be admitted for impeachment purposes, and noting that such holding is similar to that in Luce); State v. Hunt, 475 SE2d 722, 727 (N.C. 1996) (citing Luce and holding that, in order to preserve for appeal rulings made under North Carolina Rule of Evidence 609 (b), a defendant must testify at trial); State v. Silvia, 898 A2d 707, 718-720 (III) (R.I. 2006) (adopting the practice established for the federal courts in Luce, that to raise and preserve for review the claim of improper impeachment with a prior conviction under Rhode Island’s Rule 609, a defendant must testify at trial); Morgan v. State, 891 SW2d 733, 735 (Tex. App. 1994) (citing Luce in holding that a defendant must testify in order to preserve a claim of improper impeachment through prior convictions); State v. Gentry, 747 P2d 1032, 1036 (III) (Utah 1987) (persuaded by Luce’s rationale and therefore holding that to preserve for appellate review a claim of improper impeachment with a prior conviction, a defendant must testify); Vaupel v. State, 708 P2d 1248, 1250 (Wyo. 1985) (citing Luce in holding that, if an accused does not testify, he does not preserve for appeal the issue of the propriety of a ruling on his motion in limine). See further State v. Derby, 800 NW2d 52, 58-59 (II) (C) (Iowa 2011) (collecting and analyzing state court cases that discuss or decide whether, or under what circumstances, an accused who does not testify is entitled to review of a trial court’s ruling that evidence of prior convictions would be admissible to impeach the accused should he testify; noting further that a “strong majority of courts” have reached the conclusion reached in Luce).

       See Luce, 469 U. S. at 41 (III) (noting, for example, that Rule 609 (a) (1) directs the court to weigh the probative value of a prior conviction against the prejudicial effect to the defendant).

       See, e.g., United States v. Fallon, 348 F3d 248, 254 (II) (C) (7th Cir. 2003) (the Luce rule, which deals with prior convictions admitted under Fed. R. Evid. 609 (a), applies with equal force to convictions admitted under Rule 609 (b)); Vaupel, supra (determining that the justification for the rule of Luce applied even more strongly in a case arising under state’s version of Fed. R. Evid. 609 (b)). Accord United States v. Weichert, 783 F2d 23, 25 (2) (2d Cir. 1986) (finding no reason to distinguish Rule 608 (b) cases from Rule 609 (a) cases because, under either rule, the trial court is required to balance probative value against prejudice, which balancing is dependent upon the specific factual context of the case); United States v. Dimatteo, 759 F2d 831, 832-833 (11th Cir. 1985) (the rationale underlying Luce’s requirement with regard to Rule 609 (a) covers similar appeals from in limine rulings under Rule 608 (b)).

        Jenkins v. State, 284 Ga. 642, 643 (1) (670 SE2d 425) (2008) (explaining OCGA§ 5-6-34). See OCGA § 5-6-34 (d), which pertinently provides:
      Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. . ..

        Shadron v. State, 275 Ga. 767, 771 (5) (573 SE2d 73) (2002); Prather v. State, 275 Ga. 268, 271 (3) (564 SE2d 447) (2002).

        Finley v. State, 286 Ga. 47, 50 (6) (685 SE2d 258) (2009) (punctuation omitted).

       266 Ga. 812 (471 SE2d 208) (1996).

       Ga. L. 2005, p. 20, § 16.

        Linares, supra at 815 (3), n. 16.

       Id. at 815 (3).

       Id. at 814 (3).

       Id.

       Id. at 814-815 (3).

       See Luce, supra; Linares, supra.

       See Weichert, supra (holding that because appellant did not testify, the correctness of the pretrial ruling on the admissibility of impeachment evidence under Fed. R. Evid. 608 (b) was not raised and preserved for review); Fallon, supra (because the defendant chose not to testify at trial, he waived his right to claim that the district court improperly balanced the probative value of a prior conviction against the prejudicial effect to the defendant); Dimatteo, supra at 833 (holding that “under Luce ... a defendant’s decision not to present a witness whose credibility would have formed the basis of an evidentiary objection under Rule 608 (b) forecloses [the circuit court’s] ability to review the claim that the district court might have erroneously allowed extrinsic evidence to impeach that witness in violation of Rule 608(b)”); see further cases set forth in n. 21, supra; accord Linares, supra.


author: MlKELL, Presiding Judge.

text:
    A12A0252.
    THE STATE v. MOJICA.
    (730 SE2d 94)
   MlKELL, Presiding Judge.

Norberto Mojica was indicted on the charges of kidnapping with bodily injury, robbery by force, aggravated assault, and two counts of aggravated battery for the workplace assault of Dana Raissian. After three mistrials, the trial court granted Mojica’s third motion to reconsider the denial of his motion to suppress identification on constitutional grounds and suppressed the identification. Pursuant to OCGA § 5-7-1 (a) (4), the state appeals. Finding no error, we affirm.

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 a 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 motions hearings and the three trials shows that Raissian was working after hours in her office when she noticed Mojica, an employee of the office building’s cleaning service, walk through her office to reach a filing area behind that office. Later that evening, as Raissian walked down the hall from her office to the printer, she was startled to see the same man in her peripheral vision, but then calmed down once she recognized him as a cleaner. As she turned to look back, the man told her “I need you to cooperate with me” and dragged her into a dark office where she was choked until she passed out.

When she regained consciousness, Raissian was back in her own office. She had been badly beaten: her left scapula was broken, her jaw was broken in two places, teeth were missing, her ear was ripped, and she had a subarachnoid hemorrhage in her brain.

Office building Security Officers Phillip Walker, Brent Reid and Antonio Berrian were the first to reach the victim and began to question her about the attack. Raissian described her attacker as a tall, Hispanic male with a moustache and broad shoulders, wearing an apron. She indicated that it was the same person who cleaned her floors earlier that evening.

Atlanta Police Department Officer Drew Behry then arrived on the scene. The building cleaning crew supervisor, Gloria Pascoe, was present when Officer Behry questioned Raissian. Pascoe did not hear all of Raissian’s description, but after hearing that the attacker was cleaning near Raissian’s office, she went downstairs to retrieve Mojica’s worker identification badge and gave it to Officer Behry. Raissian was placed on a gurney by EMT personnel, and, as she was waiting by the elevators to leave, Officer Behry showed the identification badge to Raissian and asked her if she recognized the person as her attacker. Raissian said it was and that she recognized him as the man who cleaned her floor earlier.

Pascoe ordered all Hispanic male cleaners to remain at work for questioning that evening, but Mojica left with his girlfriend, who testified at trial that he made her leave with him and their young child and go to Chicago that evening to avoid arrest.

There have been three jury trials in this case, each resulting in a mistrial. Before the first jury trial, the first trial judge, in the Fulton County Superior Court, denied a motion to suppress Raissian’s identification of Mojica’s identification badge. The first judge presided over the first two mistrials. Before the third trial, the first judge denied reconsideration of the motion to suppress and another judge was brought in to preside over the third trial of the case, which also resulted in a mistrial. A second motion to reconsider the denial of the motion to suppress was denied by the second judge prior to the third jury trial. After the third trial, the first judge, now acting in senior status, granted Mojica’s third motion to reconsider the denial of the motion to suppress, holding that additional evidence presented during the three trials convinced her that the identification was imper-missibly suggestive.

1. In its second enumeration of error, the state argues that the trial court erred in finding that Raissian’s identification of Mojica by only looking at his worker identification badge was impermissibly suggestive and in granting Mojica’s third motion for reconsideration. We disagree.

Assuming that Raissian’s identification of Mojica’s worker identification badge was impermissibly suggestive, the issue is whether, under “the totality of the circumstances, there was a substantial likelihood of irreparable misidentification.” To evaluate that likelihood, we consider the following factors: “(1) the witness’ opportunity to view the criminal during the crime; (2) the witness’ degree of attention; (3) the accuracy of any prior description given by the witness; and (4) the length of time between the crime and the showup confrontation.” Further, as stated above, “in evaluating these factors, the trial court is the trier of fact and must judge the credibility of the witnesses and the weight and conflict in the evidence. Where evidence supports the trial court’s ruling, we will not disturb that ruling.”

Because Raissian’s testimony that she had the opportunity to see her attacker in the lighted hallway prior to her attack conflicts with testimony from responding officers who interviewed her directly after the attack when she said that she had been grabbed from behind; because Raissian did not have the opportunity to see her attacker during the assault since they were in a darkened office and her attention was focused on her own survival; because the ER physician who treated Raissian testified that the injury to her brain could have caused memory loss; and because several cleaners working at the building that evening fit Raissian’s description of a tall, broad-shouldered Hispanic male, we cannot conclude that the trial court erred in ruling that there was a substantial likelihood of misidenti-fication. Accordingly, we conclude that the trial court did not err in granting the motion to suppress.

2. In its first enumeration of error, the state argues that the trial court erred in considering Mojica’s third motion for reconsideration because it was untimely filed and out of term.

(a) The state does not contest that Mojica’s original motion to suppress was timely filed, arguing instead that the trial court erred in considering Mojica’s second and third motions for reconsideration because they were filed outside the time period proscribed by OCGA § 17-7-110. OCGA § 17-7-110 requires that “[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.” Mojica filed his second motion for reconsideration prior to the third jury trial, which ultimately ended in a mistrial, and his third motion for reconsideration prior to the fourth trial. The trial court granted the third motion for reconsideration.

Whether Mojica was to be afforded an opportunity to file for reconsideration of the original motion to suppress outside the time proscribed by OCGA § 17-7-110 was at the discretion of the trial court. “This discretion will not be disturbed on appeal absent abuse.” Because “a court retains broad discretion over interlocutory evidentiary rulings which may be modified at any time until entry of final judgmentf,]” we find that the trial court did not abuse its discretion in considering Mojica’s second and third motions to reconsider.

(b) The state next contends that the trial court did not have the authority to revoke the denial of the motion to suppress after the court term had expired. Generally, in criminal cases, “a trial court’s inherent power to revoke interlocutory rulings... ceases with the end of the term.” However, an exception to this rule is when the evidentiary posture of the issue has changed.

Where a case remains pending in the trial court across terms, although there are certainly interests in not reliti-gating the same issues between the same parties or undermining vested interests in initial rulings, those interests are weakened where the trial court realizes, on motion for reconsideration, . . . that it has made an error.

In the present case, the evidentiary posture changed during the three trials which preceded the grant of the motion for reconsideration. When the motion to suppress was initially heard on November 26, 2008, the only witnesses who testified were Raissian, Officer Behry, and Gloria Pascoe. In its orders granting the motion to reconsider, the trial court noted that it was convinced by additional evidence presented during the course of the three jury trials that its denial of Mojica’s motion to suppress was in error. This evidence includes testimony from an expert witness during the third trial that Raissian’s injuries could have caused memory and vision loss, conflicting statements made by Raissian regarding the circumstances of her attack, and testimony from Investigator Burton during the third trial that she did not use a later photo lineup because she was concerned the victim might not pick the right suspect.

Decided July 5, 2012.

PaulL. Howard, Jr., District Attorney, Bettieanne C. Hart, Marc A. Mallon, Assistant District Attorneys, for appellant.

Jennifer Lubinsky, for appellee.

Because the evidentiary posture has changed, we find that the trial court did not err in considering Mojica’s second and third motions for reconsideration out of term.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       (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 motions hearings and at trial. See Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007).

       This Court has held that showing suspects singly to a witness for identification purposes, as was done in this case, is inherently suggestive. See Anderson v. State, 265 Ga. App. 428, 431 (3) (A) (594 SE2d 669) (2004).

       (Footnote omitted.) Jones v. State, 273 Ga. 213, 216 (2) (539 SE2d 143) (2000).

       (Citation and punctuation omitted.) Leeks v. State, 309 Ga. App. 724, 727 (2) (710 SE2d 908) (2011). Accord Neil v. Biggers, 409 U. S. 188, 199-200 (III) (93 SC 375, 34 LE2d 401) (1972). Contrary to appellant’s argument, the totality of the circumstances analysis applies to the circumstances surrounding the victim’s identification of defendant, and does not refer to other evidence which may tend to indicate that the accused is the perpetrator of the offense. See Neil, supra.

       (Punctuation and footnote omitted.) Jones, supra at 216 (2).

       Compare Jackson v. State, 260 Ga. App. 848, 850-851 (3) (581 SE2d 382) (2003) (evidence of one-on-one showup was admissible where the five factors of Neil v. Biggers were amply demonstrated).

       Uniform Superior CourtRule31. lis in conflict with OCGA § 17-7-110 regarding whether the trial court must issue a written extension of time to file. Rule 31.1 provides the time to file motions may not be extended unless a written extension of time is given by the trial court before trial, while OCGA § 17-7-110 does not have a writing requirement. Nevertheless, because Uniform Superior Court Rule 1 states that the Superior Court Rules “shall yield to substantive law” in case of conflict, we will treat OCGA § 17-7-110 as controlling authority.

        Davis v. State, 203 Ga. App. 315, 316 (3) (416 SE2d 789) (1992).

       (Citation omitted.) Id. at 317 (3).

       (Citation omitted.) Ritter v. State, 272 Ga. 551, 553 (2) (532 SE2d 692) (2000).

       (Citations omitted.) Moon v. State, 287 Ga. 304 (696 SE2d 55) (2010). Accord Chastain v. State, 158 Ga. App. 654, 655 (281 SE2d 627) (1981) (trial court had authority to set aside its original motion to suppress order upon motion for reconsideration, hut only “so long as the order is vacated within the term”).

       See Moon, supra at 309 (2) (Nahmias, J., concurring); Tucker v. State, 231 Ga. App. 210, 213 (1) (b) (498 SE2d 774) (1998) (trial court had authority to reconsider its previous ruling in response to a renewed suppression motion based upon additional evidence).

        Moon, supra at 306 (Nahmias, J., concurring).


text:
    A12A0414.
    CAPITAL CITY DEVELOPERS, LLC et al. v. BANK OF NORTH GEORGIA.
    (730 SE2d 99)
   MlKELL, Presiding Judge.

The Bank of North Georgia (the “Bank”) sued borrowers Capital City Developers, LLC; Anderson Avenue Partners, LLC; Giles Properties, LP; and Benjamin Michael Giles, along with guarantors Benjamin J. Giles, Jr.; Harold T. Pounders; and Keith D. Kantor (collectively, “Appellants”) to collect money owed, alleging that Appellants had defaulted on 24 promissory notes and related guaranties. The trial court granted summary judgment in favor of the Bank and entered a final judgment against all Appellants in the total amount of $3,288,969.08 in principal, interest, and attorney fees. On appeal, Appellants asserted that the trial court erred because: (1) their affirmative defense of estoppel precludes a grant of summary judgment in the Bank’s favor; and (2) the Bank failed to establish the amounts owed through proper tendering of evidence into the record. We affirm as to the first issue; as to the second issue, we affirm the judgment as to liability, but reverse the amount of damages and remand for further proceedings consistent with this opinion.

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. “On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact.” On appeal from the grant or denial of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to Appellants as the nonmoving parties.

So viewed, the evidence shows that Appellants began acquiring real estate for the purpose of constructing single-family dwellings. In early- through mid-2009, they obtained acquisition and construction loans from a predecessor-in-interest to the Bank. For each acquisition of real estate, one of the borrowers executed a promissory note secured by the real estate purchased, and a subset of one or more guarantors executed related guaranties. In October 2009, the Bank issued notices of default and demanded payment, and later sued for recovery on breach of the notes and guaranties. Appellants answered, denying that they owed the debt. The trial court, without holding a hearing, granted the Bank’s motion for summary judgment as to liability only. The trial court then entered a final judgment, from which this appeal arises, setting forth the amounts awarded to the Bank under the notes.

1. As a threshold matter, we note that the Bank provided the authenticated loan and guaranty documents evincing a debt, and Appellants did not dispute their authenticity. A plaintiff suing on promissory notes establishes a prima facie right to judgment as a matter of law by producing the notes and showing they were executed, and the trial court found that the Bank had met this burden. Appellants do not challenge the trial court’s finding of a prima facie case. Rather, “[t]heir argument goes to the issue of the amount of money owed, not to liability vel non.” They contend that the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to establish the amounts owed under the notes with admissible evidence. We agree.

“Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally.” “Atrial court’s decision to admit evidence as an exception to the hearsay rule will not be disturbed absent an abuse of discretion.”

With its motion for summary judgment, the Bank submitted the affidavit of its vice president, David O’Rear, the custodian of the Bank’s business records related to claims and loans at issue. In his affidavit, O’Rear averred that he was personally familiar with the Bank’s routine practice for maintaining those business records and calculating amounts owed; that the loan documents and records were made and kept in the ordinary course of business; and that it was the Bank’s routine practice to record payments and changes in amounts owed at or near the time the relevant events occurred. His affidavit was accompanied by what appear to be computer printouts listing the current balance, daily interest charges, late charges, and other fees. He testified that the printouts are bank records reflecting current amounts owed.

Appellants contend that the printouts are “summaries” unaccompanied by the underlying business records on which they are based, and that as such, they are inadmissible hearsay evidence. The documents at issue are accompanied by the relevant guaranty or guaranties, the original loan documents, and default letters from the Bank.

OCGA § 24-3-14 (b) defines the type of writings admissible as a hearsay exception under the business records exception as follows:

Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

These printouts are not such records; they are summaries of such records. They were not made at or near the time of the transactions at issue. They were generated and printed between January 27 and February 4, 2011, yet they purportedly represent amounts owed on loans whose terms commenced between July 9, 2008, at the earliest and June 5, 2009, at the latest.

“[Although a summary prepared in support of a demand for payment may not qualify as a business record under OCGA § 24-3-14, . . . summarized statements of what records show are admissible if the records themselves are accessible to the court and the parties.” Here, the Bank’s summaries were accompanied by some business records, but a search of the record reveals that crucial underlying business records related to fees and interest were not available to this Court or to Appellants.

Most of the summaries list “late charges,” but are unaccompanied by business records showing from what relevant dates and on what underlying amounts the late charges accrued. Some summaries list “other fees” that are not explained, and the Bank has pointed us to no supporting business records. Neither the Bank’s briefing nor O’Rear’s affidavit identifies any provision in the notes or guaranties obligating Appellants to pay the “other fees.” Additionally, all the summaries list “interest” charges and indicate the daily rate of accrual. The notes, however, provide that interest is variable based upon “Lender’s Prime” plus one percent prior to maturity, and a fixed rate after maturity. The summaries are unaccompanied by business records showing pre-maturity interest calculations and rate variations.

“[W]here, as in this case, such [documents] are neither introduced in evidence nor accounted for, it is erroneous to admit in evidence such summarized statement^] .” Absent evidence to establish a variable interest rate, judgment as to amount in favor of the lender would be improper in the face of a denial by the debtors as to the amount sought. Further, where business records do not adequately show a requirement to pay fees, the amount of damages has not been established.

We find that the trial court abused its discretion by considering these summaries in its determination of the amounts awarded. We affirm judgment as to liability, but reverse the award of damages and remand for further proceedings consistent with this opinion.

2. Appellants argue that because they tendered into the record facts supporting the affirmative defense of estoppel, the trial court erred in granting summary judgment to the Bank. We disagree.

Summary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and, while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.

Appellants contend that when they could not keep up their loan payments, Pounders, a guarantor, spoke with O’Rear and his superior, Terence Lewis. Pounders deposed that Lewis and O’Rear agreed to accept offers from third-party buyers of $70,000 “per house” regardless of the amount owed. The record shows that Appellants had found third-party buyers for three of the notes. Pounders deposed that O’Rear told him the Bank had accepted the offer from the third-party buyers, but the Bank later reneged on the deal. Invoking both the doctrines of equitable estoppel and promissory estoppel, Appellants argue that they were prejudiced by the Bank’s refusal to sell the notes because the potential third-party buyers of the three notes also were planning to buy the remaining loan portfolio for $70,000 per completed house. Appellants further allege that both the Bank and the third-party buyers had agreed not to pursue Appellants for any deficiency. The Bank denies agreeing to sell the notes and denies any agreement not to pursue Appellants for a deficiency.

“In order for equitable estoppel to arise, there must generally be some intended deception in the conduct or declarations of the party to be estopped, or such gross negligence as to amount to constructive fraud, by which another has been misled to his injury.” Appellants have pointed us to no portion of the record showing, nor have they made any argument, that the Bank, Lewis, or O’Rear “made the alleged representation with knowledge that a sale would not occur or intention that a sale would not be finalized. Bare conclusions and contentions unsupported by an evidentiary basis in fact are insufficient to oppose a motion for summary judgment.” Appellants have nowhere in their briefs addressed this requirement.

A party asserting equitable estoppel also must show, among other things, that it changed its position prejudicially and justifiably relied to its detriment upon the representations at issue. A party asserting promissory estoppel must show reasonable reliance on the promise. Here, the affirmative defenses fail as a matter of law because Appellants could neither reasonably nor justifiably rely on what they allege were the Bank’s representations. The promissory notes specifically provide that “no modification of this agreement may be made without [the lender’s] express written consent.” The guaranties provide, “this guaranty may not be waived, modified, amended, terminated, released or otherwise changed except by a writing signed by the Undersigned and Lender.”

Appellants have presented no evidence of the Bank’s written consent to any of the note sales, nor have they alleged that the Bank consented in writing. Although Pounders deposed that a broker helped Appellants find buyers who executed a promissory note purchase agreement for three of the properties, that agreement contains a number of blank spaces and never was signed by the Bank. Appellants could not reasonably rely on the alleged oral promises of Bank officials to sell the notes. Given the language in the notes and guaranties, those

Decided July 5, 2012.

Schreeder, Wheeler & Flint, Jared W. Heald, Robert H. Snyder, Jr., John A. Christy, Hunton & Williams, Brooke F. Voelzke, for appellants.

Coles Barton, Thomas M. Barton, Aaron R M. Tady, for appellee.

clear and unambiguous provision [s] served to place [Appellants] on due notice that [they] could not thereafter reasonably rely upon any words or other course of dealing to [their] inducement, other than a modification agreement actually reduced to writing____Likewise, in view of this provision [the Bank] could not reasonably expect that [its] particular conduct, even when such conduct is viewed in the light most favorable to [Appellants], would induce the asserted action or forbearance.

The trial court did not err in granting summary judgment to the Bank on Appellants’ estoppel claim.

Judgment affirmed in part and reversed in part, and case remanded.

Miller and Blackwell, JJ., concur.

       OCGA§ 9-11-56 (c).

       (Footnote omitted.) Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310 (724 SE2d 33) (2012).

        Jenkins v. Wachovia Bank, NA., 309 Ga. App. 562 (711 SE2d 80) (2011).

       In a deposition, one of the guarantors, Pounders, acknowledged that Capital City did not fully pay its loans.

        Alexander v. Wachovia Bank, N.A., 305 Ga. App. 641, 642 (700 SE2d 640) (2010).

       (Emphasis in original.) Shropshire, supra at 315 (3).

       (Citation and punctuation omitted.) Albertson v. City of Jesup, 312 Ga. App. 246, 251 (2), n. 18 (718 SE2d 4) (2011).

       (Footnote omitted.) Walter R. Thomas Assocs. v. Media Dynamite, 284 Ga. App. 413, 416 (1) (643 SE2d 883) (2007).

       (Emphasis supplied.)

       See Patterson v. Bennett Street Properties, 314 Ga. App. 896, 903 (4) (726 SE2d 147) (2012).

       (Citations omitted.) Morris v. Nat. Western Life Ins. Co., 208 Ga. App. 443, 444 (1) (c) (430 SE2d 813) (1993).

        Camp v. State, 31 Ga. App. 737,740 (6) (a) (122 SE 249) (1924); Patterson, supra. See also Walter R. Thomas Assocs., supra at 416-417 (1) (b) (where summary lists fee but no supporting business records are presented, “that entry is hearsay and cannot be considered in determining the amount owed”) (footnote omitted).

       See also Shropshire, supra at 314 (2) (b). See Garrett v. Atlantic Bank & Trust Co., 157 Ga. App. 103-104 (1) (276 SE2d 152) (198Í) (fact issue remained where bank introduced no evidence establishing interest rates during life of loan based on bank’s prime rate and debtor denied liability).

       See Aniebue v. Jaguar Credit Corp., 308 Ga. App. 1, 6 (2) (708 SE2d 4) (2011).

       (Citation and punctuation omitted.) Hendricks v. Enterprise Financial Corp., 199 Ga. App. 577, 581 (4) (405 SE2d 566) (1991).

       OCGA § 24-4-27. Accord Medders v. Smith, 245 Ga. App. 323, 324 (1) (537 SE2d 153) (2000) (party asserting estoppel must establish, inter alia, “conduct amounting to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert”). See also Fundus America (Atlanta) Ltd. Partnership v. RHOC Consolidation, 313 Ga. App. 118, 121 (1) (a), n. 9 (720 SE2d 176) (2011) (party claiming equitable estoppel must prove it is free from fraud in the transaction, and must have acted in good faith and with reasonable diligence).

       (Citation and punctuation omitted; emphasis supplied.) Griffin v. State Bank of Cochran, 312 Ga. App. 87, 91 (1) (a) (718 SE2d 35) (2011).

        Medders, supra at 324-325 (1).

        State Farm Mut. Automobile Ins. Co. v. Penrow, 142 Ga. App. 463, 466 (4) (236 SE2d 275) (1977).

        Fidelity & Deposit Co. &c. v. West Point Constr. Co., 178 Ga. App. 578, 580 (1) (344 SE2d 268) (1986).

        Griffin, supra at 95 (2) (a) (no reasonable reliance on oral representations for sale of bank where note and guaranty contained integration clauses providing that those documents constituted the entire agreement of the parties).

       (Citations and punctuation omitted.) Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 536 (2) (502 SE2d 352) (1998) (reliance on oral agreement not reasonable where contract provides only for written modification). Accord OCGA § 13-3-44 (a). See, e.g., Dukes v. Bd. of Trustees &c., 280 Ga. 550, 553 (629 SE2d 240) (2006) (detrimental reliance, as an essential element of equitable estoppel, is not a factor where estoppel cannot be applied as a matter of law).