Originally published here.

May 11, 2017

A $2 million judgment against a doctor for a baby’s death survived scrutiny by the Georgia Court of Appeals, which turned back the doctor’s challenge to being cross-examined about his patient notes.

Judge Anne Elizabeth Barnes. Photo: John Disney/ALM

In an opinion issued Wednesday, Presiding Judge Anne Barnes ruled the cross-examination valid because it addressed claims of the doctor’s untruthfulness. The doctor noted an examination in a hospital room which the patient and her husband did not remember having. In another note, the doctor recorded a more extensive examination than the couple remembered.

Barnes, along with Judges Carla McMillian and Amanda Mercier, upheld the decisions of Bibb County State Court Judge William Adams surrounding a seven-day trial that ended with a $4 million verdict. The jury apportioned half the judgment to Dr. Henry Davis and his obstetrics and gynecology practice group, Central Georgia Women’s Health Center in Macon. The doctor and his practice group appealed and lost with this opinion.

The story goes back to 2007 when Katherine Dean became a patient with the group. She was 33 and six weeks pregnant.

“She had two prior miscarriages and had previously undergone a loop electrosurgical excision procedure (“LEEP”) to remove abnormal tissue from her cervix,” Barnes explained. “Undergoing a LEEP procedure can place a woman at risk for a medical condition known as an ‘incompetent’ or ‘insufficient’ cervix in which the cervix is too weak, without medical intervention, to support a pregnancy to term.” Barnes went on to say that the known treatments at the time included progesterone and a surgical procedure called a “cerclage,” in which the cervix is sewn closed during pregnancy.

Dean and her husband alleged that those treatments could have saved their baby, according to Barnes. Instead, they said Davis did not do those things and did not come to the hospital to see her when she came in with the start of premature labor. Her baby was born at 23 weeks and four days, weighing only 1 pound 4 ounces, and soon died.

Two years later, in 2009, the Deans had a healthy baby after their new doctor provided those treatments they alleged could have saved their first baby, Barnes wrote.

“We conclude that the plaintiffs presented evidence from which a jury could find that, if Dr. Davis had followed the standard of care on July 31, 2007, by having a cerclage performed on Mrs. Dean or administering progesterone, there was a reasonable medical probability that it would have postponed the birth of Mrs. Dean’s baby to a point in time when the baby would have survived,” Barnes said.

“We conclude that the trial court acted within its broad discretion in finding that the August 2 Physician Note was probative of Dr. Davis’s character for untruthfulness,” Barnes wrote.

The doctor’s legal team included: Laura Strong and Theodore Pound of Owen, Gleaton, Egan, Jones & Sweeney in Atlanta and W. Earl McCall of McCall, Williams, Wilmot & Powell in Albany. Pound said he could not comment without clearing it with his client.

The Deans’ attorneys included: J. Christopher Clark and Michael Smith of Clark & Smith in Macon and Tracey Dellacona of Dellacona Law Firm in Macon. They couldn’t immediately be reached.

“The Deans are very appreciative that the Court of Appeals agreed with a 12-member jury that Dr. Davis was negligent and caused the death of their child,” Dellacona said. “Of course they wish they had never had to suffer the loss of their child.”

“The Deans are just wonderful clients and they’re tremendously appreciative of the jury,” Clark said. “The jury system is one of the greatest attributes we have in our democracy. It worked for the Deans.”

Contact Katheryn Hayes Tucker at ktucker@alm.com. On Twitter: @KatherynHTucker