On the morning of November 16, 2016, James Tapley underwent prostate surgery performed by Brian T. Geary, M.D. During the surgery, Tapley’s bladder was perforated, causing fluid to leak and his abdomen to swell. Because of Tapley’s comorbidities, Geary chose to try to drain the fluid instead of taking steps to repair the perforation. Tapley was moved to the intensive care unit where he died about 30 hours later. His Estate filed a Georgia medical malpractice wrongful death lawsuit alleging that Geary was negligent for failing to perform a cystogram, an imaging procedure that would have revealed the size and nature of Tapley’s bladder perforation, and for failing to repair the perforation. The case was tried before a jury, which returned a verdict in favor of the plaintiff in the amount of $15 million.
Geary appealed, arguing that the trial court erred by refusing to instruct the jury regarding the role of consciousness in evaluating Tapley’s pain and suffering, where Tapley was not responsive for most, if not all, of the period during and after Dr. Geary’s alleged negligence. Geary’s requested jury instruction included reference to consciousness of imminent death.
The Court of Appeals of Georgia stated in its October 25, 2024 decision: “Geary has not cited and we are not aware of any authority for the proposition that consciousness of imminent death is a prerequisite to an award of damages for pain and suffering in any other type of case … Geary has not cited any case in which such a charge was given when the decedent lived for more than 30 hours after the alleged negligence. Geary’s “requested charge [was] not tailored to the law and facts. Therefore, because the requested charge was a statement of the law that did not apply to the evidence at trial, the trial court’s refusal to give the charge was not error.””
The Georgia appellate court further stated: “To the extent that Geary’s enumeration of error concerns a broader concept than that encompassed in the charge he actually requested, we also find no reversible error. Geary argues that a plaintiff may not recover damages for pain and suffering where there is no evidence that the decedent was conscious and thus able to experience pain. And, he argues, there was some evidence that Tapley remained unconscious after the procedure until his death. So, according to Geary, the trial court was required to charge the jury regarding the role of consciousness in evaluating Tapley’s pain and suffering. Geary has not shown that he requested such a charge, and he failed to argue this point when he objected after the trial court had charged the jury.”
The Georgia appellate court continued: “the plaintiff alleged negligence, not for Geary’s perforating Tapley’s bladder, but for his failing to perform a cystogram that would have revealed the size and nature of the perforation and for his failing to repair the perforation. The plaintiff presented evidence to support those allegations. So the charge that the plaintiff could recover damages to the extent that Geary’s alleged malpractice, in failing to perform a cystogram and in failing to repair the perforation, worsened Tapley’s preexisting condition, the bladder perforation, was apt … The portion of the charge instructing the jury that Geary took Tapley as he found him also was apt. The evidence presented at trial showed that Tapley had congestive heart failure, severe emphysema, severe heart disease, and chronic pulmonary obstructive disease. He was 80 years old, had a pacemaker, and was a long-time smoker.”
With regard to Geary’s argument that the verdict was excessive, specifically that the jury’s $2.5 million award for pain and suffering was not grounded in the evidence, which showed that Tapley was unresponsive during the time between Geary’s alleged negligence and Tapley’s death, and that the jury’s $12.5 million award for wrongful death was not grounded in the evidence, given that Tapley was 80 years old and had significant health problems at the time of his death, the Georgia appellate court held that “the trial court did not abuse her discretion in rejecting these arguments.”
Source Geary v. Estate of James S. Tapley, Docket Number: A24A0978.
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