1996). While not expressly setting forth this premise, the Georgia appellate court decisions on expert "proximate cause" testimony in medical malpractice actions have applied it. The appellate decisions state that the expert testimony must provide a causal connection that is "more than mere chance or speculation" (Anthony v. Chambliss, 231 Ga. App. 657(1) ( 500 S.E.2d 402) (1998)); that it must provide more than a mere or bare possibility that the alleged negligence caused the plaintiff's injury.Bowling v. Foster, 254 Ga. App. 374 ( 562 S.E.2d 776) (2002); Maddox v. Houston County Hosp. Auth., 158 Ga. App. 283, 284 ( 279 S.E.2d 732) (1981). Expert testimony that it was "more likely that there was a possibility" that the injury could have been avoided does not provide the necessary basis for the expert's opinion on proximate cause.
"Georgia law recognizes a presumption that the medical care was performed in an ordinarily skillful manner, and the 'burden is upon the plaintiff to show a want of due care or skill' or diligence." Id. (quoting Bowling v. Foster, 254 Ga. App. 374, 377 (2002)). "It is insufficient to show that an expert witness 'would have done something differently.'"
See Howell v. Shumans, 281 Ga. App. 459, 460 ( 636 SE2d 182) (2006); Shuler, 280 Ga. App. at 741 (1) (b); Smith v. Morris, Manning Martin, LLP, 264 Ga. App. 24, 26-27 ( 589 SE2d 840) (2003); Johnson v. Rodier, 242 Ga. App. 496, 497 (1) ( 529 SE2d 442) (2000). See also Bowling v. Foster, 254 Ga. App. 374, 380-381 (1) (b) ( 562 SE2d 776) (2002); Boggs v. Bosley Med. Institute, 228 Ga. App. 598, 600 (1) (a) ( 492 SE2d 264) (1997). Fender clearly alleges intentional misconduct by Murrah.
As a starting point, Georgia law presumes "in medical malpractice cases that the physician performed in an ordinarily, skillful manner, so the burden is upon the plaintiff to show a want of due care or skill." Bowling v. Foster, 562 S.E.2d 776, 779 (Ga. Ct. App. 2002) (citation omitted). To overcome this presumption, "a plaintiff is usually required to 'offer expert medical testimony to the effect that the defendant-doctor failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances.'"
Therefore, a plaintiff is usually required to offer expert medical testimony to the effect that the Defendant-Doctor failed to exercise that degree of care and skill which would ordinarily have been employed by the medical profession generally under the circumstances." Bowling v. Foster, 254 Ga. App. 374, 377, 562 S.E. 2d 776, 779 (2002) (internal citations and quotations omitted; emphasis in original). "[T]here can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.
"A claim for battery arises from any unauthorized and unprivileged contact by a doctor with his patient in examination, treatment or surgery." Bowling v. Foster, 254 Ga. App. 374, 379 (1) (a), 562 S.E.2d 776 (2002) (citation and punctuation omitted)."A consent to surgical or medical treatment which discloses in general terms the treatment or course of treatment in connection with which it is given and which is duly evidenced in writing and signed by the patient or other person or persons authorized to consent pursuant to the terms of this chapter shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same."
And Dr. Smoger does not allege that Dr. Caldwell violated the standard of care by failing to properly arrange for aftercare for Dietzen during his absence. See Vaughan v. WellStar Health Sys. , 304 Ga. App. 596, 602 (4), 696 S.E.2d 506 (2010) (affirming the grant of summary judgment to defendant hospital because the plaintiff failed to establish that the nurses violated the standard of care); Collins v. Dickman , 295 Ga. App. 601, 606-607 (4), 672 S.E.2d 433 (2008) ; Bregman-Rodoski v. Rozas , 273 Ga. App. 835, 836-837, 616 S.E.2d 171 (2005) (affirming the grant of summary judgment to the defendant based on the lack of expert testimony that the defendant deviated from the requisite standard of care); Bowling v. Foster , 254 Ga. App. 374, 377 (1) (a), 562 S.E.2d 776 (2002) (affirming the grant of summary judgment to the defendant because the plaintiff failed to produce testimony from any doctor or expert that the defendant deviated from the standard of care).2.
Walker v. Wallis , 289 Ga. App. 676, 678, 658 S.E.2d 217 (2008). See Hobbs v. Great Expressions Dental Centers of Ga. , 337 Ga. App. 248, 249, 786 S.E.2d 897 (2016) (citing cases and pointing out that "our appellate courts have repeatedly held that it is unnecessary to file an expert affidavit with a complaint asserting claims for intentional misconduct or acts against a professional, including claims for fraud and misrepresentation"); Bowling v. Foster , 254 Ga. App. 374, 381 (1) (b), 562 S.E.2d 776 (2002) ("[N]o expert testimony is required to establish that it is improper for physicians to defraud their clients.") (citation and punctuation omitted). Here, as previously pointed out, Williams’s amended complaint included two fraud counts.
Dr. Palese opined initial positioning "more likely than not" caused the injury and Dr. Rosenfeld was uncertain whether it was the initial positioning, the length of surgery, or both caused the injury.With respect to repositioning, even if Plaintiffs had proven Defendants were negligent for failing to insist on repositioning, Plaintiffs were also required to show causation by more than a mere possibility that such insistence by Defendants would have avoided the injury. Bowling v. Foster, 254 Ga.App. 374, 378 (1) (a), 562 S.E.2d 776 (2002) ("Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from a want of care or skill." (citation and punctuation omitted)).
While the Cochran Firm argued below, and on appeal, that issues of fact exist with regard to a tortious interference with contract claim against the Tolson Firm, it never amended its complaint to assert this claim against the Tolson Firm. Accordingly, the only issue before us is whether its claim against Audrey Tolson survives summary judgment. See Bowling v. Foster , 254 Ga.App. 374, 379 (1) (b) n. 3, 562 S.E.2d 776 (2002). This Court is not bound by a party's concession on appeal. See Franklin v. Eaves , 337 Ga.App. 292, 787 S.E.2d 265 (2016).