White v. McGouirk

Facts

Amy McGouirk and her husband sued Tamica White, M.D. and her employer, WellStar Medical Group, LLC, alleging that Dr. White transected or “[c]ompletely cut through” Amy’s common bile duct during an October 2018 cholecystectomy (a surgery to remove the gallbladder). Amy was transferred to Emory University Hospital, where a different surgeon, Dr. Sarmiento, took over her care.

A couple of months later, Amy underwent a failed repair surgery. She then had to wait another year to undergo a successful repair surgery so that the organ could properly heal. Meanwhile, the wound from the attempted repair was left open so that it could heal from the inside out and when the wound dressing became saturated, Amy’s husband would have to change the packing, which he did for approximately six months. Amy also had to use a “bile bag” and feeding tube to refeed her bile up to seven times a day, a process she testified was painful and nauseating. On several occasions, Amy was hospitalized for sepsis resulting from infection of the wound as well as feeding tube and bile tube issues. Dr. Sarmiento repaired the bile duct in early October 2019, and three weeks later, all the drains and bags were removed. In July 2020, Amy underwent surgery for four ventral incisional hernias, related to the repair.

Amy’s expert testified the pain from incisional hernias can “be life-long” and patients who have had a bile duct injury have a decreased life expectancy. Amy is also at risk for stricture or a narrowing of the connection between the bile duct and intestine because of scarring, which can result in an infection inside the bile duct, requiring hospitalization. She also must be monitored yearly for the rest of her life for signs or symptoms of a biliary stricture or liver damage. Amy incurred medical expenses in excess of $900,000, and lost wages of $26,000 per year.

At trial against Dr. White and Wellstar Medical Group, the jury found in favor of the McGouirks and awarded $10,000,000 in general compensatory damages to Amy and $100,000 to her husband for loss of consortium. Defendants appealed.

Issues & Holdings

The issues in this case were:

1. Did the trial court err in denying the Defendants’ motion for mistrial and amended motion for new trial, which was based on allegedly improper remarks by the McGouirks’ counsel during his closing argument?
2. Did the trial court abuse its discretion in failing to set aside the verdict as excessive?

The court held:

1. No. No improper remarks were made and, even if the remarks were improper, they did not permeate the trial so as to warrant reversal.
2. No. The verdict was not flagrantly excessive in light of the evidence.

Reasoning

1. No Improper Remarks Were Made

The Court of Appeals rejected the Defendants’ argument that they were entitled to a new trial because the McGouirks’ counsel repeatedly and improperly implored the jury to “send a message” with their verdict. It agreed with the trial court that counsel’s statements “You decide what it takes to make Wellstar Medical Group and Dr. White take responsibility for ruining somebody’s life” and “we ask you to decide what it will take for the Defendants to take responsibility for ruining a good part of a good person, a good family’s life” did not improperly request the jury to award punitive damages.

1. First, contrary to Defendants’ argument, the word “responsibility” is not synonymous with “punitive”—a holding supported by counsel’s many statements to the jury that Plaintiffs sought only compensatory damages. The trial court had also charged the jury that it could award damages for compensation for Amy’s injury, her medical expenses and lost wages, and her past and future physical and mental pain and suffering, and for loss of consortium. As a result, the jury was not left with the impression that it could or should award damages to punish or send a message.
2. Second, even if these statements were improper, Defendants could not show that the improper arguments permeated the trial such that a new trial is required. Defendants cited only one other allegedly improper remark, and the statements—taken together—fell far short of the “extreme circumstances” required to reverse a jury verdict on this basis.
3. Third, the Court of Appeals rejected Defendants’ argument that they were entitled to a new trial if “the uncorrected improper argument could have affected the jury’s verdict.” See Steele v. Atlanta Material Fetal Medicine, P.C., 271 Ga. App. 622 (2005). Steele was inapplicable because the court had found the arguments were not improper under the law.

2. Verdict Not Flagrantly Excessive

The Court of Appeals also held the jury’s verdict was not excessive. It confirmed the well-established principle that damages is ordinarily one for the jury and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence.

The economic and non-economic damages in the case supported the jury’s verdict. Any experienced considerable pain, remains in pain, and incurred medical bills over $900,000. She suffered complications from the injury; was hospitalized numerous times to deal with those complications and repair the duct; and was required to wear a biliary bag and various other tubes for over a year as a result of the injury. She also continues to deal with issues related to the injury. According to Amy, she had difficulty being a mother to her then five-year-old son who was mostly cared for by his grandmother while Amy dealt with her injury, and her relationship with her son has suffered.

In light of this evidence, the verdict was not so flagrantly excessive as to shock the conscience, and would be affirmed.

Conclusion

The Court of Appeals will not disturb a jury verdict except under extreme circumstances. Nevertheless, if defense counsel repeatedly objects to argument as asking the jury to “send a message” or award punitive damages, plaintiff’s counsel should confirm to the jury that they are seeking only compensatory damages. Finally, a verdict will not be disturbed as “excessive” so long as evidence in the records tends to support the amount awarded.

Citation: White v. McGouirk, No. A23A1548 (Ga. Ct. App. January 11, 2024)