Shumate v. Ashford
Shumate v. Ashford
Opinion of the Court
This appeal follows a verdict and judgment in favor of the defendant physician in a medical malpractice action. The sole enumeration of error concerns the court’s failure to allow the plaintiff to introduce certain expert opinion testimony in rebuttal, after the defense had rested.
The gist of the plaintiff’s case was that in treating her for a frac
The plaintiff and several other witnesses testified that the plaintiff’s fingers were wrapped securely against the original wooden splint throughout her one-week hospitalization. The plaintiff’s expert testified by deposition that in his opinion the temporary splint should have been used only to transport the plaintiff to the hospital and that it should have been replaced by a plaster cast immediately upon her arrival at the emergency room, so as to permit “motion exercise” of the wrist and hand. He elaborated as follows on cross-examination: “[I]t is good medical practice to apply only half the cast or half of the splint, a plaster splint, allow the room for the swelling to go down, allow the joint of the hand to be . . . move[d] by the patient without pain.”
After introducing the above testimony, plaintiff’s counsel indicated to the court that, in the event the defendant subsequently testified that he had replaced the original wood splint with a shorter one upon the plaintiff’s arrival at the emergency room, he was prepared to offer additional expert testimony to the effect that this, too, would have constituted negligent treatment. However, because the defendant had not yet testified and because there was a possibility that such testimony by him might be excluded as being in conflict with his prior stipulation that the temporary splint had been “kept on” for an entire week, plaintiff’s counsel stated that it was his desire to wait and offer the additional expert testimony in question as rebuttal evidence, at the close of the defendant’s case. The court replied, “That appears to be the correct procedure. ... We will wait and do it as part of rebuttal.”
When the defendant took the stand, he did in fact testify that upon the plaintiff’s arrival at the emergency room he had removed the original splint, altered it so as to make it shorter and narrower, and then replaced it so as to provide “not too much, not too less (sic),
The original expert opinion testimony offered by the plaintiff was based on evidence previously introduced by her purporting to show that the defendant had made no alteration or adjustment to the wood splint until he finally replaced it with a plaster cast a week after the accident. It was not until the defendant subsequently testified that he had in fact removed and shortened the original splint that an evidentiary predicate was established for the hypothetical questions on which the rebuttal testimony was based. The testimony in question should consequently have been allowed as rebuttal evidence, and it was reversible error to exclude it. See generally Walker v. Walker, 14 Ga. 242 (5) (1853); Dept. of Transp. v. English, 135 Ga. App. 425 (5) (218 SE2d 134) (1975). Additionally, we believe plaintiff’s counsel was entitled to rely on the trial court’s earlier ruling that the evidence would be allowed in rebuttal.
Judgment reversed.
Reference
- Full Case Name
- SHUMATE v. ASHFORD
- Cited By
- 2 cases
- Status
- Published