Improper Exclusion of Evidence Allows Injured Plaintiff to Get New Trial

An injured plaintiff got a break from the Georgia Court of Appeals in Robles v. Yugueros, 779 S.E.2d 139 (Ga. App. 2015).  The trial court had ruled that certain very important evidence favorable to Plaintiff could not be presented at trial.  The jury returned its verdict against Plaintiff and in favor of Defendants.

The Court of Appeals determined that the exclusion of this important evidence was improper.  The court ordered that Plaintiff was entitled both to a new trial and to present the evidence that had been excluded at the first trial.

The facts giving rise to this case began on Wednesday, June 24, 2009, when Dr. Patricia Yugueros performed several procedures on Plaintiff’s wife, Iselda Moreno, at Northside Hospital.  These procedures included liposuction, buttock augmentation and abdominoplasty surgery.  Ms. Moreno remained in the hospital overnight and was discharged the next day, on Thursday, June 25.

Two days later, on Saturday, June 27, Ms. Moreno complained of severe nausea, abdominal pain and vomiting.  At that time she went to the Emergency Room at Gwinnett Medical Center.  The ER physician prescribed anti-nausea and pain medication, and released her from the ER with instructions to return if her symptoms became worse.

Dr. James York, a radiologist at Gwinnett Medical Center, noticed that Ms. Moreno’s x-rays showed possible “free intreperitoneal air” in her abdomen.  Dr. York knew this could be normal, or it could be a sign of a far more serious condition.  He recommended a CT scan.  Although he placed this information in Ms. Moreno’s electronic medical record and faxed it to the Gwinnett ER, Ms. Moreno had already been discharged from Gwinnett Medical Center.

Three hours after being discharged from Gwinnett Medical Center on Saturday, June 27, Ms. Moreno was still experiencing severe abdominal pain.  She then went to the Northside Emergency Room at the urging of Dr. Yugueros.  Pain medication was ordered, but no x-rays or CT scan.  She stayed there overnight and into the next day, Sunday, June 28

Around 5:15 a.m. on Sunday, Ms. Moreno’s nurse called Dr. Yugueros to report that problems were persisting.  Dr. Yugueros ordered a different pain medication, IV fluids and medication to help with bowel movements.

At 2:40 p.m., Ms. Moreno’s legs had become numb.  Dr. Yugueros finally ordered an abdominal x-ray.  It showed evidence of abdominal free air.  The Northside Hospital on-call surgeon was contacted at 4:00 p.m.

After finishing with another emergency patient, the Northside surgeon began performing surgery on Iselda Moreno at 7:10 p.m.  It was still Sunday, June 28—four days after Dr. Yugueros performed the original procedures.

The surgeon discovered that Ms. Moreno’s stomach was basically torn open and that 95% of the tissue was dead.  Ms. Moreno died later that evening.

Rudy Robles, individually, as the surviving spouse of Iselda Moreno, and as the administrator of the estate of Iselda Moreno, filed suit against Patricia Yugueros, M.D., and her practice group, Artisan Plastic Surgery, LLC.  He alleged both medical malpractice and ordinary negligence during the post-operative care of his wife, Iselda Moreno.

During pre-trial discovery, Plaintiff sought to take the deposition of the Artisan Plastic Surgery, LLC, organization. Under Georgia Code section 9-11-30(b)(6), Plaintiff listed the matters on which he sought information.  Artisan designated Diane Z. Alexander, M.D., as the representative of Artisan who would testify at the deposition.  Dr. Alexander was the president of Artisan’s board and she owned half the practice.

During the deposition, Dr. Alexander testified that she thought Dr. Yugueros had ordered a CT scan.  Dr. Alexander further testified that if you do not know why the patient is continuing to have pain, it would be the standard of care to have a CT scan in order to get more information.

Dr. Yugueros never ordered a CT scan at any time.  She apparently had breached the standard of care established in her own practice by Dr. Alexander.

Unfortunately Dr. Alexander’s deposition testimony was excluded from being presented at trial.  The lower court’s ruling was based on the finding that an improper foundation had been laid by Plaintiff, and this statement by Dr. Alexander could not be admitted as expert medical testimony.

On appeal, Plaintiff argued that this was not expert medical testimony.  Instead, Plaintiff argued that this statement could be admitted into evidence as an admission against interest made by a party under Georgia Code section 9-11-32 (a)(2).  (An admission against interest is a statement by one party that tends to support or prove an important element of the other party’s case.)

The Georgia Court of Appeals agreed with Rudy Robles that the testimony was an admission against interest.  The court stated that it should have been admitted into evidence at trial, and to exclude it was prejudicial error.

Accordingly the Georgia Court of Appeals ordered a new trial.  This time around Plaintiff would be permitted to present Dr. Alexander’s statement that the proper standard of care would have been to order a CT scan.

Plaintiff would receive his day in court.