Kapsch v. Stowers

14 Citing cases

  1. Critser v. McFadden

    277 Ga. 653 (Ga. 2004)   Cited 7 times
    In Critser v. McFadden, 277 Ga. 653 (593 SE2d 330) (2004), the Supreme Court of Georgia reversed the judgment of this Court in Critser v. McFadden, 259 Ga. App. 546 (578 SE2d 222) (2003).

    But in reality, it is implicit in the majority approach that the fact that a plaintiff has had a less-than-satisfactory outcome following medical treatment establishes professional negligence. Even when the evidence portrays a "bad result," it must still be measured by the method shown by medical witnesses to be negligence. Kapsch v. Stowers, 209 Ga. App. 767, 769 ( 434 S.E.2d 539) (1993). "Res ipsa loquitur is not applicable in medical malpractice cases in Georgia.

  2. Rhoades v. McCormack

    353 Ga. App. 635 (Ga. Ct. App. 2020)   Cited 3 times

    (Citations and punctuation omitted.) Kapsch v. Stowers , 209 Ga. App. 767, 767 (1), 434 S.E.2d 539 (1993). (a) Rhoades first argues that her expert, Dr. Garabedian, testified that Dr. McCormack fell below the standard of care in his intraoperative treatment of Rhoades by failing to take preventative measures to prevent facial burns.

  3. Dillard v. Schilke

    352 Ga. App. 158 (Ga. Ct. App. 2019)

    While the divorce decree would be direct evidence of the dissolution of the marriage, any fact can be proven through circumstantial evidence. See, e.g., Southern Exposition Mgmt. Co. v. Genmar Indus. , 250 Ga. App. 702, 704, 551 S.E.2d 830 (2001) ("A claim of agency may be proved, as any other fact, by circumstantial evidence."); Kapsch v. Stowers , 209 Ga. App. 767, 769 (1), 434 S.E.2d 539 (1993) ("Negligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony.") (citation and punctuation omitted); Rollins v. Great Southwest Fire Ins. Co. , 162 Ga. App. 139, 140 (1), 290 S.E.2d 353 (1982) ("Although the evidence ... was circumstantial, such evidence can be used to prove any fact."). The standard for relying on circumstantial evidence is well settled:

  4. Betha v. Ebanks

    264 Ga. App. 4 (Ga. Ct. App. 2003)   Cited 3 times

    Id. at 840; Horton v. Eaton, 215 Ga. App. 803, 807 ( 452 S.E.2d 541) (1994). Compare Kapsch v. Stowers, 209 Ga. App. 767 ( 434 S.E.2d 539) (1993) (expert testimony was undisputed that trauma to brachial plexus occurred while plaintiff was on operating table and therefore hindsight charge was not warranted). In this case, what Dr. Ebanks knew or should have known while treating Betha was hotly disputed and there was conflicting expert testimony on this issue.

  5. Edwards v. State

    559 S.E.2d 506 (Ga. Ct. App. 2002)   Cited 10 times
    Granting summary judgment on bad faith claim where several pieces of evidence from different sources suggested that there was no coverage

    Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 32 (1) ( 479 S.E.2d 363) (1996). See Kapsch v. Stowers, 209 Ga. App. 767, 770(4)(b) ( 434 S.E.2d 539) (1993); Jackson v. State, 154 Ga. App. 411, 412(1) ( 268 S.E.2d 749) (1980). Second, a defendant may not complain of a trial court's failure to grant relief that was not requested. There is an exception to this rule in the case of plain error which is likely to result in a grave miscarriage of justice.

  6. Ketchup v. Howard

    247 Ga. App. 54 (Ga. Ct. App. 2000)   Cited 18 times
    In Ketchup, the time-honored principle of stare decisis and the correlative principle of legislative acquiescence were set aside where the courts' past construction of the statute "went beyond the legislative intent" of the statute, id. at 57; potentially implicated constitutional rights; and ran contrary to the approach of a majority of other states.

    Wilborn v. Blake, 242 Ga. App. 653, 655 (1)(a) ( 530 S.E.2d 778) (2000); Hailey v. Blalock, 209 Ga. App. 345, 346 (2) ( 433 S.E.2d 337) (1993).Harrell v. Lusk, 263 Ga. 895, 899 ( 439 S.E.2d 896) (1994) (special concurrence); Kapsch v. Stowers, 209 Ga. App. 767 ( 434 S.E.2d 539) (1993). As interpreted by this court in Young v. Yarn and its progeny, OCGA § 31-9-6 effectively substitutes the judgment of this court for that of the medical profession as to the standard of care on the issue of informed consent.

  7. Camp v. EMSA Ltd.

    518 S.E.2d 482 (Ga. Ct. App. 1999)   Cited 4 times

    (Punctuation omitted.) Kapsch v. Stowers, 209 Ga. App. 767, 769 (1) ( 434 S.E.2d 539) (1993). Here, the evidence at trial was in conflict as to whether Camp had an aneurysm and whether Dr. Ramirez's treatment complied with the applicable standard of care.

  8. Hardy v. Tanner Medical

    499 S.E.2d 121 (Ga. Ct. App. 1998)   Cited 10 times

    " The doctrine of res ipsa loquitur is as appropriate in medical malpractice cases as it is in any other tort action where the required factors are involved. Georgia courts, however, have determined that "[r]es ipsa loquitur is not applicable in medical malpractice cases in Georgia." Kapsch v. Stowers, 209 Ga. App. 767 (1) ( 434 S.E.2d 539) (1993). This simply goes too far.

  9. Brown v. DeKalb Med. Center

    482 S.E.2d 511 (Ga. Ct. App. 1997)   Cited 4 times

    See Jackson v.Gershon, 251 Ga. 577, 579 ( 308 S.E.2d 164) (1983); see also Messex v. Lynch, 255 Ga. 208 ( 336 S.E.2d 755) (1985). Riley's expert testified that patients with poor circulation such as Ms. Riley do not develop pressure sores if adequate nursing care is given. See Kapsch v. Stowers, 209 Ga. App. 767 (1) ( 434 S.E.2d 539) (1993) (opinion sufficient which stated a medical complication was preventable and should never occur). She stated she was familiar with the standard of care for nursing homes, and opined that based on the records she reviewed, which did not mention whether Ms. Riley's feet were examined for sores, DeKalb had breached its standard of care in preventing Ms. Riley from developing this problem.

  10. CSX Transportation, Inc. v. Snead

    465 S.E.2d 690 (Ga. Ct. App. 1995)   Cited 5 times

    "' [Cits]." Kapsch v. Stowers, 209 Ga. App. 767, 769 (1) ( 434 S.E.2d 539) (1993). In support of CSX's contention that there is no evidence CSX placed the improper, contaminated lubricant in the new wrench, it cites Hills' testimony that the tool's mechanism did not appear to have been previously opened when he made his post-incident inspection.