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Walker v. Giles11/18/2005
ability; 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.) Coleman, 260 Ga. at 569.
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, intervening, act of someone other than the defendant, which was not foreseeable by defendant, was not triggered by defendant's acts, and which was sufficient of itself to cause the injury.
(Citations omitted.) Black v. Ga. Southern & Fla. R. Co., 202 Ga. App. 805, 807 (1) (415 SE2d 705) (1992). 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. Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690, 695 (1) (51 SE2d 705) (1949). See also Brown v. Starmed Staffing, L.P., 227 Ga. App. 749, 755 (3) (490 SE2d 503) (1997) (physical precedent only).
Here, the trial court granted appellees' directed verdict motion on proximate cause grounds after finding that the alleged medical negligence of Dr. Novak and Dr. Smith following Walker's second admission into the hospital constituted an intervening act that superceded and cut off any negligence committed by appellees as a matter of law. After reviewing the record in this case and the relevant case law, we disagree for several reasons.
Most significantly, resolution of the issue of intervening cause in this case is controlled by Schriever v. Maddox, 259 Ga. App. 558 (578 SE2d 210) (2003). In Schriever, the plaintiff suffered from a ruptured biceps tendon that an emergency room physician misdiagnosed and failed to treat. The next day, the plaintiff saw a different physician, who also misdiagnosed the plaintiff's condition. In addressing intervening cause, we held that the second physician's negligence actions "were not intervening but were very similar to [the first physician's] actions and therefore merely compounded (but did not cut off) the initial negligence" of the first physician. Id. at 561 (2) (b). See also Coleman v. Atlanta Obstetrics & Gynecology Group, P.A., 194 Ga. App. 508, 510- 511 (1) (390 SE2d 856), aff'd, 260 Ga. 569 (398 SE2d 16) (1990) (medical malpractice committed by physician that followed initial physician's malpractice did not constitute an intervening cause). The binding precedent of Schriever requires reversal of the trial court's finding that, as a matter of law, the alleged negligence of Dr. Smith and Dr. Novak served as an intervening cause cutting off all liability to appellees.
Likewise, previous 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. See Gilson, 131 Ga. App. at 331. See also Rossi v. Oxley, 269 Ga. 82, 83 (2) (495 SE2d 39) (1998) (noting that when a patient is treated by her own doctor but also by an on-call hospital doctor, the "patient may look to her own doctor for liability when the independent negligent acts of both doctors cause [the patient's] indivisible injury") (footnote omitted).
Furthermore, the trial court's finding was erroneous because the liability of a tortfeasor whose actions started the chain of events leading to the victim's injury is superceded and cut off only "if there intervened between the act and the injury
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