Georgia Woman Granted New Malpractice Trial After Judge Allowed Hearsay Testimony

June 7, 2013

In a personal injury or medical malpractice case, it's crucial that trial judges only admit relevant evidence from credible witnesses. It's especially important that witnesses testify as to their personal knowledge of events rather than relate information they heard from other people. This is known as "hearsay," and while it's permissible in certain special circumstances, as a general rule it's not admissible as evidence in Georgia courts. courthouse.jpg

The improper admission of hearsay testimony recently prompted the Georgia Court of Appeals to grant a woman a new trial in her medical malpractice case against the Atlanta-based Emory Clinic. Her complaint arose from a 2002 surgery performed at the clinic to remove a benign brain tumor. The neurosurgeon allegedly failed to remove all of the cotton fibers from the surgical sponges used during the surgery, This caused inflammation, which was subsequently discovered when the woman sought treatment at a different facility.

The woman sued Emory Clinic. A jury later returned a verdict in favor of the defense. The woman asked the Court of Appeals to set aside the jury verdict on two grounds: First, the trial judge improperly admitted hearsay testimony; and second, the judge failed to dismiss a juror whose niece had ties to several witnesses in the case. The Court of Appeals never addressed the juror issue because it agreed with the woman that there was improper admission of hearsay evidence, which in and of itself justified a new trial.

When Hearsay Is Not Harmless Error
The hearsay testimony in question involved a neurosurgeon at the second facility that treated the woman. This neurosurgeon removed a lesion from the woman's brain caused by the inflammation arising from the first surgery. He testified during a deposition that one or more pathologists who reviewed the lesion removed from the woman's brain found no "foreign body material" in the sample.

This went to the heart of the woman's case against Emory Clinic. However, the pathologists never testified. The neurosurgeon testified as to what the pathologists told him. This is classic hearsay, which at the time of the trial was defined in Georgia as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Judge Christopher J. McFadden, writing for the Court of Appeals panel that reviewed the case, said the admission of the neurosurgeon's hearsay "was harmful" to the plaintiff. "In a civil jury trial," Judge McFadden wrote, "the plaintiff need only prove her case by a preponderance of the evidence, and adding the weight of the improper evidence could easily have tipped the scales in the defendant's favor." The jury may have improperly concluded from the neurosurgeon's secondhand account of the pathologists' report that if no foreign material visible was visible to them, then it would not have been visible to the surgeon accused of malpractice. That may have been enough, Judge McFadden said, to tip the scales in favor of Emory Clinic.

On May 1, 2013, Emory Clinic asked the Georgia Supreme Court to review Judge McFadden's decision. Should that appeal fail, the case will return to the DeKalb County Superior Court for a new trial.