State Supreme Court Reverses Defense Verdict in Medical Malpractice Lawsuit Because Trial Judge Excluded Potential Witness

In 2011, Sean Elliott filed a medical malpractice lawsuit against Resurgens P.C. and Dr. Tapan Daftaria. The lawsuit alleged that Elliott ended up with paralysis because treating physician Dr. Tapan Daftaria chose not to timely diagnose and treat an abscess in Elliott’s thoracic spine.

During the jury trial, he attempted to call Savannah Sullivan, a nurse. She was not identified as a potential witness in Elliott’s written discovery responses or in the parties’ pre-trial order.

The trial judge excluded Sullivan as a witness. After the jury returned a defense verdict for Resurgens and Dr. Daftaria, Elliott appealed to the court of appeals arguing that the trial judge’s exclusion of Sullivan was an error. The court of appeals in Georgia agreed, reversing the jury’s verdict and remanding the case for a new trial.

However, on appeal to the Georgia Supreme Court, the high court concluded that the court of appeals erred in its judgment and reversed the Georgia Court of Appeals.

The argument to allow Sullivan’s testimony was that her name appeared twice in the voluminous medical records produced during discovery although she was not listed as a potential witness in the pre-trial order. It was argued by Elliott and his attorney that this witness, Sullivan, was generally identified in the “catch all” categories of the pre-trial order, and she was a “treating medical provider and a person named in the medical records.” She was also being called as an impeachment witness to dispute a statement made by Dr. Daftaria at trial.

The State Supreme Court concluded that although there was no evasive discovery response made by Elliott, there was a deliberate suppression of the name of a material witness. In addition, the Supreme Court said there was no abuse of discretion in imposing the state’s procedural rule as a sanction for not disclosing the name of this potential witness.

The court stated that Elliott had deliberately concealed a name of a known material witness prior to trial despite the defendants’ discovery requests for persons with knowledge of the allegations in the Elliott complaint. Accordingly, the State Supreme Court reversed the court of appeals. The jury’s verdict in favor of the defendant physician and Resurgens stands.

Resurgens, P.C. v. Elliott, Supreme Court of Georgia, No. S16G1214, May 30, 2017.

Kreisman Law Offices has been handling medical malpractice jury trials, emergency room errors, medication and pharmaceutical errors, diagnosis of cancer cases, birth trauma injury cases, cerebral palsy injury cases and traumatic brain injury lawsuits for individuals, families and loved ones who have been injured, harmed or died as a result of the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas, including Elmwood Park, Elmhurst, Bensenville, Broadview, Buffalo Grove, Chicago Heights, Country Club Hills, Crete, Des Plaines, Dolton, Dixmoor, Evergreen Park, Evanston, Franklin Park, North Riverside, LaGrange Park, Riverdale, Richton Park, Streamwood, Thornton, Tinley Park, Western Springs, Chicago (Englewood, Bridgeport, Chinatown, West Town, Ukrainian Village, Humboldt Park, Midway, Mount Greenwood, Riverdale, Pullman, Burnside, Avalon Park, Grand Crossing, Woodlawn, South Chicago, Goose Island, Old Town), Melrose Park, Oakbrook Terrace and Lemont, Ill.

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