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Whelan v. Moore3/16/2000
JOHNSON, C. J., McMURRAY, P. J., PHIPPS, J.
Following a vehicular collision, Deborah Moone was diagnosed with a fractured radius and ligamentous injuries to the distal radioulnar joint in her left forearm. Dr. E. J. Whelan, an orthopedist, provided treatment. Moone brought this medical malpractice action against Whelan, claiming that he negligently caused severe and permanent injuries to her left arm, wrist, and hand. Moone's husband also sued for loss of consortium. The jury found in favor of Whelan against Moone's husband but awarded Moone $350,000. Whelan appeals judgment on the verdict and denial of his motion for new trial. He enumerates several claims of error which are itemized below. We find no error and affirm.
Moone's expert witnesses charged Whelan with negligence in numerous respects. They testified that in treating Moone, Whelan misinterpreted multiple radiographic films of her left forearm by failing to recognize the progressive collapse of her fractured radius and dislocation of her distal radioulnar joint. They also testified that Whelan was negligent in applying a short-arm splint and then a short-arm cast to the fractured radius, prematurely removing the cast prior to complete healing of the fracture, and failing to timely recommend and schedule necessary surgical procedures. According to Moone's experts, timely application of a long-arm cast would have immobilized the fracture and probably would have resulted in an essentially full recovery.
In his defense, Whelan asserted that in treating Moone he met the applicable standard of care. He claimed that complications in her recovery were caused by her own negligence in not following his advice. He presented experts who testified that the actions taken by him during the course of his treatment of Moone were "completely appropriate" and "certainly reasonable," and that Moone's recovery would have been satisfactory if she had followed Whelan's final recommendation to undergo corrective osteotomy surgery.
1. Whelan charges the trial court with abusing its discretion by admitting testimony concerning Moone's financial inability to pay for surgery and her lack of health insurance coverage.
Although as a general rule evidence relating to the wealth of the parties and the existence of insurance coverage is inadmissible, an exception exists where issues concerning those matters have been made relevant by the parties. Where, as here, the defendant asserts that the plaintiff's damages could have been avoided if she had followed his recommendation to have surgery, evidence that she could not afford surgery becomes admissible.
2. Whelan contends that the court abused its discretion by refusing to submit a special verdict form to the jury, and by refusing to give a jury instruction that would have required the jury to assign percentages to the fault or negligence chargeable to Moone and Whelan. Whelan maintains that the special verdict form and jury instruction were needed to assist the jury in determining whether Moone's negligence outweighed his, thus precluding or reducing her recovery.
The court charged the jury that if it found that Whelan was negligent and that Moone was also guilty of negligence which contributed to her injuries, she could not recover if her negligence was "equal to or greater than" that of Whelan.
This "equal to or greater than" bar is one aspect of Georgia's comparative-negligence rule. This rule is codified in OCGA ยง 51-11-7, which provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not rel
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