On November 19, 2014, 15-month-old Alex Clinkscales died after a button battery eroded through his esophagus. His parents, individually and as the administrators of his estate, filed their Georgia medical malpractice action against the boy’s pediatrician, Dr. Susan McWhirter, and her pediatric practice, Rivertown Pediatrics, P. C., alleging that Dr. McWhirter was negligent for failing to consider the possibility that Alex had ingested a foreign object when she examined him on November 6, 2014, and by failing to order a chest X-ray to rule out that possibility. The plaintiffs presented testimony from a pediatric emergency medicine physician who testified that, given Alex’s symptoms, the applicable standard of care required Dr. McWhirter to do those things.
The Georgia medical malpractice jury returned a plaintiffs’ verdict of $2,000,000 to Alex’s estate for pain and suffering and $2,000,000 to his parents for the value of his life. On appeal, the defendants argued that the trial court erred by admitting the testimony of one of the parents’ expert witnesses. The defendants further argued that the trial court erred by failing to apply a statutory cap on noneconomic wrongful death damages.
The Court of Appeals of Georgia stated in its September 29, 2025 decision: “After trial, the defendants moved to amend the judgment, arguing that OCGA § 51-13-1 required the damages award to be reduced to no more than $350,000. CGA § 51-13-1 imposes limits upon the recovery of noneconomic damages in medical malpractice actions and defines noneconomic damages to include damages for pain and suffering … On appeal, the defendants focus solely on OCGA § 51-13-1’s constitutionality … But we cannot consider that issue because the trial court did not clearly rule on it. Appellate courts do not “pass upon the constitutionality of an Act of the General Assembly unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed on by the trial judge” … The trial court did not distinctly rule on the constitutionality of OCGA § 51-13-1; in denying the defendants’ motion, the trial court could have agreed with the parents’ argument that the statute was unconstitutional as applied to this case, but the trial court also could have agreed with one of the parents’ other arguments that did not address the statute’s constitutionality. We deem abandoned any challenge the defendants might have to the trial court’s ruling on those other, nonconstitutional arguments, because they have not addressed them on appeal through argument or citation of authority. See Court of Appeals Rules 25 (d) (1) … Consequently, the defendants have not shown reversible error.”
McWhirter v. Clinkscales, A25A0766.
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