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Ferro v. Boswell3/8/2000
BLACKBURN, P. J, ELDRIDGE and BARNES, JJ.
Onna Ferro appeals from a jury verdict in favor of Vincent E. Boswell, M.D. in her medical malpractice action against him. In this appeal, Ferro asserts the trial court erred by (1) failing to grant her motion for new trial because there was unrefuted evidence that Dr. Boswell violated the standard of care; (2) failing to charge the jury with regard to the statutory presumption that arises under OCGA ยง 24-2-22 when a party fails to produce evidence; and (3) charging the jury on comparative negligence when this charge was not supported by the evidence and this defense theory was not included in the pre-trial order. For reasons that follow, we affirm.
1. In her first and second related enumerations of error, Ferro asserts the trial court should have granted her motion for new trial because there was "unrefuted evidence that Dr. Boswell had violated the . . . standard of care, thereby causing Ms. Ferro's damages." In further support of this argument, Ferro contends the trial court abused its discretion because it failed to apply evidentiary presumptions when it ruled on the motion for new trial.
In reviewing a verdict after the denial of a motion for new trial we follow well-established principles. Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after the judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of the motion for new trial will not be disturbed. (Citation and punctuation omitted.)
Crump v. McDonald, 239 Ga. App. 647, 650-51 (3) (520 SE2d 283)(1999).
The record in this cases shows that Dr. Boswell, an orthopedic surgeon, performed a high tibial osteotomy on Ferro's right knee in November of 1993. The purpose of this procedure is to realign a bone in the knee, shift where the patient bears weight, and relieve arthritis pain. This procedure failed to achieve these results with Ferro because the bone that was cut during the surgery did not grow back together. Physicians call this failure to grow together "non-union."
In May of 1994, another orthopedic surgeon, Dr. George Cierny performed a total right knee replacement on Ferro. One year later, in May of 1995, Dr. Cierney removed Ferro's right knee prosthesis because of infection in her knee. At the same time, he fused her knee. As a result of this fusion, Ferro can no longer bend her right knee.
During the trial, Ferro asserted Dr. Boswell committed malpractice in three different ways: (1) he should never have performed the high tibial osteotomy on Ferro because it was contraindicated for a patient like her; (2) a cut he made during the operation violated the standard of care because it was less than two centimeters long; and (3) he failed to diagnose and treat a post-operative infection of Ferro's right knee. She further claimed that Dr. Boswell's malpractice necessitated the surgeries performed by Dr. Cierney and deprived her of a functioning right knee.
In this appeal, Ferro contends unrefuted evidence during the trial showed that Dr. Boswell's cut during the high tibial osteotomy was less than two centimeters below a joint line and that such a cut violated the standard of care. Ferro also points to evidence showing that a cut that is less than two centimeters can result in non-uni
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