 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bhansali v. Moncada8/4/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
In this medical malpractice action, defendants Dr. Bhansali and Atlanta Ear, Nose & Throat Associates, P.C. in Case No. A05A1448, and Dr. Dagi and Peachtree Neurosurgery, P.C. in Case No. A05A1449 (the defendants in both cases are collectively referred to as the "physicians"), appeal the grant of plaintiff's motion for new trial following a defense verdict rendered by a jury. The physicians argue in both cases that the evidence demanded a verdict in their favor and that therefore the trial court abused its discretion in granting the new trial. Dr. Bhansali and his employer also argue in their appeal that the trial court erred in failing to dismiss the plaintiff's claim which was based on a lack of informed consent. Discerning no reversible error, we affirm.
The undisputed facts show that in 1997, Drs. Dagi and Bhansali performed acoustic neuroma surgery on Paulette Moncada to remove a small tumor near her brain. During the surgery, a tear occurred in Moncada's sigmoid sinus. Following the surgery, Moncada developed complications as a result of the tear, including hydrocephalus or swelling of the brain. She claims that such caused her permanent brain damage, including short- term memory loss.
Moncada sued Drs. Dagi and Bhansali and their employers for medical malpractice. Following a lengthy trial involving numerous medical experts, the jury quickly rendered a verdict in favor of the defendants, and judgment was entered accordingly. Moncada moved for a new trial on the ground that the verdict was contrary to the evidence. The court granted the motion "on the general grounds pursuant to OCGA § 5-5-20, as this Court finds that the verdict of the jury was contrary to the evidence and the principles of justice." Within a few days, the trial judge recused herself, and the new judge timely granted a certificate of immediate review, leading to these appeals.
1. In both cases, the physicians argue that the trial judge abused her discretion in granting the motion for new trial. The standard of review of the first grant of a new trial by a trial court greatly limits this Court's authority to reverse such holding.
OCGA § 5-5-20 provides: "In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury." OCGA § 5-5- 50 further provides: "The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge."
Commenting on the breadth of the discretion allowed a trial judge by these long-established principles, Holton v. Jones held:
n this state the trial judge is vested with the strongest of discretions to review the case and to set the verdict aside if he is not satisfied with it. Indeed the trial judge oftentimes is spoken of as being the thirteenth juror. Until his approval is given the verdict is not binding. This is nothing more than the recognition of a rule of law of this state that the first grant of a new trial to either party is not to be reversed by an appellate court unless the verdict set aside by the trial court was absolutely demanded. This judicial pronouncement has been codified by our legislature in OCGA § 5-5-50.
(Citations omitted.) See Gibson v. Carter.
Thus, we will reverse the first grant of a new trial only if the evidence of record absolutely demanded the verdict as rendered. Holton, supra at 655-656. See, e.g., Builders Transport v. Hall. In making
Page 1 2 3 4 5 Georgia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|