Hearsay Evidence Sinks Hospital’s Trial Win In Death Suit

By Y. Peter Kang

Law360 (March 13, 2019, 10:41 PM EDT) – A Georgia appeals court on Tuesday vacated a defense verdict in a suit accusing a hospital and two doctors of bungling pre-operative care for a bowel surgery patient who later died of lung failure, saying the jury was presented with inadmissible hearsay evidence.

A three-judge Court of Appeals panel ordered a new trial in a suit accusing WellStar Paulding Hospital and Drs. Vanchad Memark and Christopher Stowell of causing James Moore’s death from lung failure. The suit claims that the doctors failed to place a nasogastric tube in the 41- year-old patient before his anesthesia and surgery to remove a bowel obstruction, allowing stomach acid to enter his lungs and ultimately kill him.

On appeal, the patient’s widow, Tanya Moore, argued that the trial judge improperly allowed the health care providers to submit evidence that the American Society of Anesthesiologists had sanctioned one of its members for giving testimony similar to that of Moore’s expert anesthesiologist: that the standard of care requires a nasogastric tube to be placed before the administration of anesthesia.

The panel agreed, rejecting the health care providers’ argument that the ASA report was hearsay evidence allowed under Georgia’s “learned treatise” exception for published materials in the subjects of history, medicine or other science or art.

“Georgia’s ‘learned treatise’ exception does not expressly reference the type of document at issue here,” the panel said in a 24-page opinion. “Furthermore, the medical defendants have cited no authority illustrating that the [ASA report] nevertheless falls within the purview of that statutory provision; and we find none.”

The health care providers had cited the Second Circuit’s 2000 ruling in Costantino v. Herzog, which deemed admissible an instructional video published by the American College of Obstetricians and Gynecologists. But the panel said the video in Costantino was neutral in tone and had an educational focus.

“In contrast, the [ASA report] was written by the ASA about its own disciplinary proceedings against a particular anesthesiologist for a violation of specific ASA guidelines,” the panel said. “As numerous jurisdictions have held, the logic for admitting hearsay materials under the ‘learned treatise’ exception is undermined where an author has published the materials with a view toward litigation.”

The appeals court also turned aside the health care providers’ additional argument that even if the trial judge did err in allowing the evidence, such an error was harmless.

“The reasonable inference was that [Moore’s expert’s] testimony as to the standard-of-care was sanctionable by the ASA, and thus not worthy of belief in a court of law,” the panel said. Representatives for the parties did not immediately respond to requests for comment Wednesday.

Judges Anne Elizabeth Barnes, E. Trenton Brown III and Stephen S. Goss sat on the panel for the Court of Appeals.

Moore is represented by Roy E. Barnes and J. Cameron Tribble of Barnes Law Group.

The defendants are represented by John E. Hall Jr. and Ken Jones of Hall Booth Smith PC and Melissa P. Reading and Frederick N. Gleaton of Owen Gleaton Egan Jones & Sweeney LLP.

The case is Moore v. Wellstar Health System Inc. et al., case number A18A1810, in the Court of Appeals of Georgia, First Division.

–Editing by Haylee Pea