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Ferro v. Boswell3/8/2000
on and bone death. Based on this evidence, Ferro argues, the trial court should have granted her motion for new trial because no evidentiary basis existed for the jury's verdict in favor of Dr. Boswell.
We disagree. The record in this case shows that Dr. Boswell presented evidence that a cut between 1.5 centimeters and 2.0 centimeters falls within the standard of care, and there was evidence that the cut he made was 1.5 centimeters, as well as 2.0 centimeters. He also presented evidence that the non-union of Ferro's right knee could have resulted from her non-compliance with instructions to keep her knee joint immobile after the November 1993 surgery. Finally, he presented evidence that non-union is a known complication of a high tibial osteotomy that can occur with no malpractice on the part of the surgeon. Based on this evidence, the trial court did not abuse its discretion when it denied Ferro's motion for new trial. See Harris v. Leader, 231 Ga. App. 709, 713 (2) (499 SE2d 374) (1998).
2. In her third enumeration of error, Ferro asserts the trial court erred when it failed to charge the jury about the statutory presumption found in OCGA § 24-4-22. We find no merit in this enumeration because Ferro failed to request this charge or except to the trial court's failure to give this charge. See OCGA § 5-5-24 (a); Evans Toyota, Inc. v. Cronic, 233 Ga. App. 318, 322 (3) (a) (503 SE2d 358) (1998). Furthermore, this alleged error was not harmful as a matter of law. See OCGA § 5-5-24 (c).
3. In her remaining enumeration of error, Ferro contends the trial court erred when it charged the jury on comparative negligence because (a) the evidence did not support such a charge and (b) Dr. Boswell waived this defense by failing to assert it in the pre-trial order. We disagree. As outlined above, Dr. Boswell presented evidence that Ferro's non-compliance with his instructions to keep the knee joint immobile after the surgery could have caused the non-union. Thus, the trial court properly charged the jury on comparative negligence. McMullen v, Vaughan, 138 Ga. App. 718, 720-21 (2) (227 SE2d 440) (1976).
Since evidence of Ferro's non-compliance was presented without objection during the trial, the omission of the defense of comparative negligence from the pre-trial order did not preclude the trial court from charging the jury on this defense. See Cooper v. Rosser, 232 Ga. 597, 599 (207 SE2d 513) (1974) (" pre-trial order will be deemed modified to conform to evidence admitted without objection.").
Judgment affirmed. Blackburn, P. J., and Eldridge, J, concur.
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