DAVIS v.

GLAZE
Feb 20 1987 | Deen, J. | Appeal | M12 Borrow Servant Doctrine
PETITIONER: Davis et al
RESPONDENT: Glaze, Medical Plastics, Inc., Clayton County Hospital Authority

SUMMARY: Kory A. Glaze, infant son of Kirby and Deborah Glaze, was severely
burned as the result of the malfunction of an electrocautery grounding pad during the
course of a tonsillectomy-adenoidectomy performed by appellant M. Edwin Davis,
M.D., P.C., in facilities owned and operated by appellant Clayton County Hospital
Authority. Kory brought a malpractice action against Davis and the hospital
authority, and an action for negligence and products liability against M.P.I. Expert
testimony was introduced regarding the cause and manner of the malfunction of the
pad and regarding possibly negligent acts or omissions by Davis in allegedly failing
to examine the pad or to order it replaced, and by hospital staff in allegedly failing to
adequately examine or properly position the pad or to replace it when there were
indications of malfunction. Jury and SC ruled in favor of Kory.

and the hospital authority cross-claimed against M.P.I. for indemnity on the theory of
active-passive negligence.
4.

Expert testimony was introduced regarding the cause and manner of the malfunction of
the pad and regarding possibly negligent acts or omissions by Davis in allegedly failing
to examine the pad or to order it replaced, and by hospital staff in allegedly failing to
adequately examine or properly position the pad or to replace it when there were
indications of malfunction.

5.

A Clayton County jury found for plaintiff/appellees against all 3 defendants, the court
having overruled the defendants' motions for mistrial, directed verdict, and judgment
notwithstanding the verdict. Kory A. Glaze was awarded $225K; Kirby Glaze was
awarded $35K, which the court ordered reduced to $5,205.15, the amount of special
damages which he had sought. On the cross-claim a verdict was entered in favor of Davis
and Clayton County Hospital Authority, M.P.I. being ordered to indemnify the codefendants.

6.

All 3 defendants appealed from the judgments in favor of the Glazes, and M.P.I. also
appealed from the judgments in favor of Davis and the hospital on the cross-claim. Davis
enumerates as error (1) the trial court's denial of his motion for judgment notwithstanding
the verdict; (2) the denial of his motion for mistrial on the basis of plaintiff's counsel's
allegedly prejudicial remarks during closing argument; (3) the giving of a certain jury
charge requested by the hospital authority; and (4) the court's response to the jury's
question regarding apportionment of the verdict.

7.

The hospital assigns error to the trial court's denial of its motions for mistrial (4, 5),
directed verdict (1), judgment notwithstanding the verdict (1), and new trial (2); the
court's permitting a nurse in the hospital's employ at the time of the Glaze surgery to give
deposition testimony without having hypothetical questions propounded to her (3) and,
after allegedly commenting on this evidence, refusing to order a mistrial or give curative
instructions (4); and (6), the court's giving the jury an allegedly erroneous instruction
regarding apportionment of damages.

8.

M.P.I. enumerates as error the trial court's denial of its motions for mistrial on the basis of
the same closing remarks assigned as error by appellant Davis, supra (2); the denial of its
motions for partial directed verdict on the negligence and strict liability issues (3), for
directed verdict on the cross-claim (9), and for new trial on the ground of an allegedly
excessive verdict (8); the court's improperly admitting into evidence allegedly extraneous
material for impeachment purposes (1) and an allegedly inflammatory photograph (4);
and the failure to give three requested jury instructions (5, 6, 7).

DOCTRINE: The "borrowed servant" doctrine provides that, once the surgeon
enters the operating room and takes charge of the proceedings, the acts or omissions
of operating room personnel, and any negligence associated with such acts or
omissions, are imputable to the surgeon.
FACTS:
1.

Kory A. Glaze, infant son of Kirby and Deborah Glaze, was severely burned as the result
of the malfunction of an electrocautery grounding pad during the course of a
tonsillectomy-adenoidectomy performed by appellant M. Edwin Davis, M.D., P.C., in
facilities owned and operated by appellant Clayton County Hospital Authority.

2.

The evidence showed that the pad, manufactured by appellant Medical Plastics, Inc.
("M.P.J."), was placed on the child's thigh for the purpose of grounding the electrical
current used in the operation; that it underwent a chemical reaction which caused it to fail
to perform its designated function properly; that the malfunction was due to a defect in
the product; and that the malfunction of the grounding pad, allegedly in combination with
negligent acts or omissions on the part of Davis or the hospital or its agents, was the
proximate cause of the injury. The child's burns extended to subcutaneous tissue as well
as to the skin immediately adjacent to the pad, necessitating surgery. He has a large,
disfiguring scar which remains painfully dry and tender, and further surgery will be
required as he grows and the tissue is stretched.

3.

Kory, by his parents as next friends, brought a malpractice action against Davis and the
hospital authority, and an action for negligence and products liability against M.P.I. Davis

ISSUE: WoN the defendants are guilty of malpractice (Davis and hospital) and

negligence and products liability (MPJ) YES

instant case. The "borrowed servant" doctrine provides that, once the surgeon enters the
operating room and takes charge of the proceedings, the acts or omissions of operating
room personnel, and any negligence associated with such acts or omissions, are
imputable to the surgeon.

RULING: Judgment affirmed.

First addressing Dr. Davis' enumerations of error, we find that the trial court correctly
denied Davis' motion for judgment notwithstanding the verdict. Under OCGA 9-11-50
(b), such a motion can properly be granted only when the evidence demands a verdict
contrary to that returned by the jury. In the instant case, however; there was competent
evidence in the form of deposition testimony of an expert witness, an experienced
surgeon and medical school faculty member, on the issue of whether Davis exercised that
degree of care and skill required of a physician. The testimony included specific
statements as to the education, training, and relevant experience of the dependent; details
of the surgery under review; and an account of the documentary evidence on which the
deponent's expert opinion was based. On motion for judgment n.o.v., the evidence is to be
construed most favorably to the non-movant: here, the Glazes.

2.

As to Dr. Davis' contention that the expert testimony was inadmissible because the
deponent's opinion was not elicited through the use of hypothetical questions, this court
has held otherwise. Moreover, OCGA 9-11-32 (d) requires that objection to the form of
questions asked on deposition be made at the time of the deposition.

3.

The allegedly objectionable remarks made by plaintiffs' counsel during closing argument
alluded to the fact that the pediatrician who cared for Kory's burns had been born in
Korea and had received his training in that country rather than in the US, and that as a
consequence he suffered some disadvantage in communicating with native speakers of
English. Appellant Davis contends that such remarks were racially biased and therefore
improper in that they were calculated to enlist the sympathy of a fellow Asiatic, a woman
of Japanese origin who was serving as a juror.

4.

Examination of the record reveals no evidence that there was any connection between the
alleged appeal to a purported pan-Asian sentiment and the jury's verdict and that even
if, arguendo, there had existed such a connection, it would have been so tenuous as to
make it "`highly probable that the [alleged] error did not contribute to the judgment.'"
Moreover, appellant overlooks the historical fact that relations between Japan and Korea
have for the most part been so hostile that any appeal to a national of one country for
sympathetic treatment of a national of the other country would likely have just the
opposite effect from that alleged by appellant. While gratuitous, the challenged remarks
could hardly have been harmful to appellant.

5.

The jury instruction requested by appellant hospital and challenged in Dr. Davis' third
enumeration of error is a correct statement of relevant law as adjusted to the facts of the

6.

The trial transcript reveals that the jury, in the course of its deliberations, submitted the
following written question: "May the award be apportioned in this suit, in an unequal
manner[,] or must this be decided in the cross suit?" In reply, the court gave the following
instruction: "[T]he only thing you have before you at this stage of the proceedings is the
issue of total damages, if any. Your job now is ... to see if you find any [damages], what
the total damages are, if any, to find out also which of these defendants are liable, if any.
The issue of the cross-complaint will be taken up after you decide those two issues. The
only two things you are concerned about right now are which defendants are liable, if
any, under the instructions that I gave you, and what the total amount of damages
are [sic]. Then we will decide and come back to the issue on the cross complaint, the
other issues. Does that answer your question, do you think?" The foreperson replied,
"Yes, sir," and the jurors returned to the jury room. We find nothing improper or
prejudicial in the trial court's reply to the jurors' question.

7.

The hospital authority assigns error to the trial court's denial of its motion for mistrial
when, in response to a question as to whether he had paid for the testimony of expert
witnesses, Kirby Glaze volunteered the amount he had paid. Scrutiny of the transcript
reveals that when this occurred, the trial court admonished the witness and issued
appropriate curative instructions to the jury, thereby obviating any reason for declaring a
mistrial. The transcript further reveals that at various times during the trial all three of the
appellants elicited from witnesses information about the payment of witnesses' fees.
"Where evidence of a certain fact is admitted without objection, it is harmless error if
incompetent or inadmissible evidence of the same fact is also admitted."

8.

We turn now to consideration of the enumerations of appellant M.P.I. This appellant first
assigns error to the trial court's permitting plaintiffs' counsel, during cross-examination of
M.P.I.'s representative, to introduce allegedly irrelevant matters for the purpose of
impeachment. Specifically, appellant challenges on several grounds the manufacturer's
representative's being cross-examined with regard to a warning issued by the Emergency
Care Research Institute concerning a hazard associated with a M.P.I. manufactured pregelled pad similar to that used during the Glaze surgery. Our examination of pertinent
portions of the record constrains us to reiterate that "`[q]uestions of relevancy of
evidence, which includes the issue of materiality, are for the [trial] court, and in the
absence of an abuse of judicial discretion, this court will not interfere ... (B)road
discretion is reposed in the trial court[,] whose decision will not be disturbed except in
cases demonstrating a clear abuse of that discretion.'"

9.

In its penultimate enumeration of error, M.P.I. asserts that the verdict was excessive as a
matter of law. As a general rule, the size of the award for damages in a case such as this is
left to the enlightened conscience of impartial jurors, subject to approval of the trial
court. The appellate court will not disturb the award "`absent an award so excessive or
inadequate as to shock the judicial conscience.'" Before the verdict will be set aside on
the ground that it is excessive, ... the amount thereof, when considered in connection with
all the facts, must shock the moral sense ... It must carry its death warrant upon its face."

10. Despite appellant's assertions that Kory's injury was of relatively minor consequence and
that the trial was permeated with prejudicial remarks and inferences, our examination of
the record persuades us that, "when considered in connection with all the facts," the jury
award was not such as to "shock the moral sense."