Doherty v. Brown, 818 S.E.2d 259, 347 Ga. App. 187 (2018)

Aug. 15, 2018 · Court of Appeals of Georgia · A16A0763; A16A0765; A16A0766

818 S.E.2d 259, 347 Ga. App. 187

DOHERTY
v.
BROWN et al.

Southeastern Pain Ambulatory Surgery Center LLC.
v.
Brown et al.

Southeastern Pain Specialists, P. C.
v.
Brown et al.

A16A0763
A16A0765
A16A0766

Court of Appeals of Georgia.

August 15, 2018

John E. Hall Jr., Nichole Lee Hair, Atlanta, Nathan Alexander Gaffney, for Appellant in A16A0763.

William Curtis Anderson, Marietta, Edward M. Wynn, David Frank Root, James Nicholas Sadd, Atlanta, Neil Thomas Edwards, Daniel Marshall Epstein, Frank Mitchell Lowrey IV, Atlanta, for Appellee in A16A0763.

David Frank Root, Atlanta, Neil Thomas Edwards, Frank Mitchell Lowrey IV, Robert L. Ashe III, Atlanta, for Appellant in A16A0765.

William Curtis Anderson, Judith Ashe Blackwell, Marietta, John E. Hall Jr., Nichole Lee Hair, Edward M. Wynn, James Nicholas Sadd, Atlanta, Michael James Walker, Daniel Marshall Epstein, Atlanta, for Appellee in A16A0765.

William Curtis Anderson, Marietta, for Appellant in A16A0766.

John E. Hall Jr., Nichole Lee Hair, Edward M. Wynn, David Frank Root, James Nicholas Sadd, Atlanta, Neil Thomas Edwards, Daniel Marshall Epstein, Frank Mitchell Lowrey IV, Robert L. Ashe III, Atlanta, for Appellee in A16A0766.

Barnes, Presiding Judge.

In Doherty v. Brown , 339 Ga. App. 567, 794 S.E.2d 217 (2016) this Court affirmed the jury's verdict in favor of the plaintiffs. However, in Southeastern Pain Specialists, P. C. v. Brown , 303 Ga. 265, 811 S.E.2d 360 (2018), the Supreme Court of Georgia reversed this Court's opinion upon finding that because the evidence did not support the claim, the trial court had erred in giving an instruction on ordinary negligence. Id. at 272-273 (2) (b), 811 S.E.2d 360. The Court instructed that this Court "on remand order a full retrial as to the appellants." Id. at 266, 811 S.E.2d 360.¹

Thus, we vacate our opinion in these cases and adopt the opinion of our Supreme Court as our own. In accordance with the directive of the Supreme Court, the jury's verdict must be reversed and the case remanded for a new trial. Judgment reversed.

Rickman and Goss, JJ., concur.

1 The plaintiff-appellants in Case No. A16A0764, Brown et al. v. Southeastern Pain Specialists , et al. , did not file a separate petition challenging this Court's affirmance of the trial court's exclusion of certain evidence and denial of their motion for a mistrial. Thus, as to the evidentiary issues ruled on and asserted in that appeal, the Supreme Court held that the issues were "beyond the scope of [its] grant of certiorari" but, "the trial court remains free to revisit its ruling as it considers the admissibility of evidence on retrial." Southeastern Pain Specialists at 303 Ga. at 274-275 (2) (c), 811 S.E.2d 360.