The Georgia Court of Appeals affirmed a verdict against a surgeon for $15 million, holding that the general pattern jury charge on pain and suffering was sufficient and that the verdict was not excessive as a matter of law. Plaintiff’s husband (80 years old with significant pre-existing health issues) underwent prostate surgery and the surgeon cut the bladder. The patient died 30 hours later but did not regain consciousness before death. Plaintiff alleged the surgeon should have performed a cystogram to diagnose the bladder leak, which the surgeon let drain instead of repairing. The case was tried to a jury, which returned a $15 million verdict.

On appeal, the surgeon argued that the trial court erred by failing to charge the jury that pre-death pain and suffering requires evidence of consciousness. The surgeon submitted a jury charge based on the line of cases involving near instantaneous death in automobile accident cases. In those cases, the appellate courts have required proof of “pre-impact consciousness” to support the award. The trial court declined to give the charge and the Court of Appeals affirmed, holding that the “pre-impact” charge does not apply to any type of case other than an automobile/trucking accident and that the concepts going into pre-death pain and suffering are covered by the pattern charge.

The Court also rejected the challenge to the size of the verdict, holding that the trial court did not abuse its discretion by denying a motion for remittitur because there was no evidence of jury bias, prejudice or corruption. Defendant argued that inflammatory statements in closing regarding athlete salaries and the implication that the surgeon should be punished added to the verdict, but the Court held that, in the absence of an objection at the time, there was nothing preserved for review.

Take-home: the appellate courts are courts of review, meaning there must be legal error shown.

The case is Geary v. Estate of Tapley, __ S.E.2d __, 2024 WL 4578853 (Oct. 25, 2024).