Long v. Natarajan
Long v. Natarajan
Opinion of the Court
Sandra Long and her husband (“the Longs”) brought an action for battery, loss of consortium, and punitive damages against Dr. Radha Srinivasan Natarajan after Dr. Srinivasan
1. At the outset, we note that the Longs’ brief contains only one citation to the record and that none of their factual contentions is supported by reference to the record. The brief also cites Long’s deposition, which is not included in the record.
2. On appeal from a grant of summary judgment, we conduct a de novo review, “view[ing] the evidence and all reasonable inferences drawn from it in [a] light most favorable to the nonmovant.”
I acknowledge and understand that during the course of the procedure(s) . . . conditions may develop which may reasonably necessitate an extension of the original procedure(s) or the performance of procedure(s) which are unforeseen or not known to be needed at the time this consent is obtained. I therefore consent to and authorize [Dr. Srinivasan] to make the decisions concerning the performance of and to perform such procedure(s) as [she] may deem reasonably necessary or appropriate in the exercise of [her] professional judgment, including those procedures that may be unforeseen or not known to be needed at the time this consent is obtained. This consent shall also extend to the treatment of all conditions which may arise during the course of such procedures including those conditions which may be unknown or unforeseen at the time this consent is obtained.
During the surgery, Dr. Srinivasan noticed what she described as an abscess four centimeters in diameter on Long’s left buttock. She decided to remove the abscess after considering its size and location and the difficulty Long had experienced being intubated for surgery. Long contends that what Dr. Srinivasan described as an abscess was merely an insect bite and that its removal resulted in a painful wound.
Dr. Srinivasan moved for summary judgment on the basis that the excision was medically necessary and thus authorized by the
(a) The Longs contend that a genuine issue of material fact exists as to whether Long’s written consent to unforeseen but necessary additional procedures was valid. “As a general rule, no tort is committed against a person who consents to medical treatment unless that consent is not freely obtained or is obtained by fraud.”
The Longs then state that there is a “significant likelihood that medical records relevant to the case were altered by [Dr. Srinivasan] after the procedure was performed.” They argue that this alleged alteration of the records “produces an inference that [Dr. Srinivasan] knew she had committed a tort . . . and made efforts to conceal its commission.” Pretermitting whether there is any evidence in the record of alteration of certain medical records, evidence of malfeasance after surgery does not support a claim that Long was fraudulently induced to sign the consent form before surgery.
(b) The Longs also sought to establish a genuine issue of material fact by demonstrating that the excision was not medically necessary through the affidavit of Dr. Zakers. The Longs argue that the trial court erred in deciding that Dr. Zakers was not qualified to give an expert opinion. The trial court specified that it did not consider whether Dr. Zakers was qualified as an expert witness in a medical malpractice case under OCGA § 24-9-67.1 (c) because this is
A trial court has broad discretion in determining whether to admit expert testimony, and we will not reverse its ruling absent an abuse of discretion.
(1) [t]he testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial;
(2) [t]he testimony is the product of reliable principles and methods; and
(3) [t]he witness has applied the principles and methods reliably to the facts of the case.16
Here, Dr. Zakers’s affidavit was extremely brief — less than a page and a half long. He describes his medical practice as a “Family Practice” and makes no mention of any surgical training or expertise.
Judgment affirmed.
The appellee refers to herself in her brief and in her affidavit as Dr. Srinivasan.
See AdvanceMe, Inc. v. Finley, 275 Ga. App. 415, 416 (1) (620 SE2d 655) (2005) (“[I]t is the responsibility of the parties, not this [C]ourt, to ensure that all documents relevant to the disposition of an appeal are duly filed with the clerk of this [C]ourt before the issuance of our appellate decision.”).
See All Fleet Refinishing, Inc. v. West Ga. Nat. Bank, 280 Ga. App. 676, n. 5 (634 SE2d 802) (2006).
(Punctuation omitted.) Mabra v. Deutsche Bank & Trust Co. Americas, 277 Ga. App. 764, 766 (1) (627 SE2d 849) (2006).
See AdvanceMe, supra; All Fleet, supra at 681 (4) (a).
Wellstar Health Systems v. Green, 258 Ga. App. 86 (572 SE2d 731)(2002).
Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d 632) (1998); see OCGA § 31-9-6 (d).
See Wellstar, supra at 91 (4) (consent to medical treatment valid where no evidence that any fraudulent misrepresentation was made to induce patient to sign consent form); OCGA § 31-9-6 (written consent is presumed valid absent evidence of fraudulent misrepresentation).
See Bowling v. Foster, 254 Ga. App. 374, 379 (1) (a) (562 SE2d 776) (2002).
In her brief, Dr. Srinivasan “maintains that this is most certainly a medical malpractice action” and argues that OCGA § 24-9-67.1 (c) (2) is applicable. However, as Dr. Srinivasan conceded at the summary judgment hearing, the Longs’ complaint is not styled as one for medical malpractice and has no requisite affidavit attached to it. In Georgia, “a plaintiff may recover for a medical battery by establishing either: (i) that there was a lack of consent to the procedure performed; or (ii) that the treatment was at substantial variance with the consent granted.” (Citations and punctuation omitted.) Morton v. Wellstar Health System, 288 Ga. App. 301, 302 (1) (653 SE2d 756) (2007).
See Cotten v. Phillips, 280 Ga. App. 280, 283 (633 SE2d 655) (2006).
509 U. S. 579 (113 SC 2786, 125 LE2d 469) (1993). See OCGA § 24-9-67.1 (f) (in applying OCGA § 24-9-67.1, Georgia courts “may draw from the opinions of the United States Supreme Court” in Daubert; Gen. Elec. Co. v. Joiner, 522 U. S. 136 (118 SC 512, 139 LE2d 508) (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U. S. 137 (119 SC 1167, 143 LE2d 238) (1999), and other federal cases applying the standard announced in these cases).
See Cotten, supra at 286.
OCGA § 24-9-67.1 (b) (1)-(3).
Dr. Zakers’s resume, found elsewhere in the record, likewise does not indicate any surgical training or experience.
OCGA § 24-9-67.1 (b) (2), (3); see Moran v. Kia Motors America, 276 Ga. App. 96, 98 (1) (622 SE2d 439) (2005).
See Moran, supra.
See Smith v. Liberty Chrysler-Plymouth-Dodge, 285 Ga. App. 606, 609 (647 SE2d 315) (2007).
Concurring Opinion
concurring fully and specially.
I concur fully in the majority opinion. I write separately only to emphasize that I believe that the trial court erred to the extent it concluded that the procedure on Long’s buttock was authorized by the “plain language” of the signed consent, which expressly authorized the removal of lipomas from her neck and arm. The procedure on Long’s buttock was authorized under the terms of the consent if and only if it was “deem[ed] reasonably necessary,” an issue which required proof by extrinsic evidence. As noted in the majority opinion, the Longs failed to controvert Dr. Srinivasan’s proof of medical necessity with competent evidence. Therefore, summary judgment in favor of Dr. Srinivasan was properly granted.
Reference
- Full Case Name
- LONG Et Al. v. NATARAJAN
- Cited By
- 6 cases
- Status
- Published