Georgia Court of Appeals Reverses Defense Verdict For Exclusion of Nurse’s Testimony

The Court of Appeals has reversed a defense verdict in a Georgia medical malpractice case, Elliott v. Resurgens, P.C., 2016 3/4/16)LEXIS 119, A15A2275 (3/4/16), where the trial court excluded the testimony of a material witness, a nurse, who had not been specifically identified by name during discovery and not listed in the pre-trial order (PTO).  Elliott sued over allegedly negligent treatment that he received after undergoing spinal surgery (during which he became paralyzed from the waist down).

A critical issue in the case was when the doctor learned of Elliott’s decreased ability to move his legs.  Although the medical records indicated the doctor was at the patient’s bedside at 9:00 a.m., he denied that when called to testify for the purposes of cross-examination at the trial.  Plaintiff’s counsel asked the doctor only one question: Whether he was at Elliott’s bedside at 9:00 a.m. on December 21, 2009? When he responded that he was not, they attempted to call Nurse Sullivan as the next witness. Counsel stated that she was a nurse at the hospital, and that she would testify that she was indeed with the doctor at the patient’s bedside at 9:00 a.m. But, the trial court excluded her testimony, because her name was never disclosed during the lengthy discovery period.

The Court found that the judge had erred holding that exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission. In fact, that is true even when there is no excuse for a party’s failure to faithfully engage in discovery in compliance with an extended discovery deadline. Instead, if a trial court believes that a party has failed to properly comply with discovery, the only appropriate remedy is postponement of trial or a mistrial. When objection is made to the testimony of certain previously undisclosed witnesses, the proper procedure when they were called to testify was not to object to their testifying or to the admission of their testimony, but to move for a postponement of the trial for a sufficient length of time to enable the defendant to interview them, check the facts to which they would testify, and, if indicated, arrange to secure rebuttal evidence or to impeach them.

This case illustrates strong bias against exclusion of material evidence at trial, no matter what the circumstances.

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