FIFTH DIVISION

MERCIER, C. J.,

MCFADDEN, P. J., and RICKMAN, J.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

June 17, 2024

In the Court of Appeals of Georgia

A24A0556. LAWHORNE et al. v. DOUGLAS.

MCFADDEN, Presiding Judge.

Thomas Lawhorne III and Optim Orthopedics, LLC (together, “Lawhorne”)

appeal the judgment entered on the $4.5 million jury verdict in favor of Amy E.

Douglasin thismedical malpractice action. Lawhorne argues that the trial court erred

by instructing the jurorsthat the presence or absence of insurance benefits should not

enter their deliberations in deciding the issues of liability and damages. Lawhorne

arguesthat no evidence of insurance had been admitted, so the trial court had no basis

to give the instruction, which injected the issue of insurance into the jurors’

consideration.
We hold that the trial court did not err. In voir dire, a potential juror stated

before the panel that, contrary to the belief that awarding large verdicts in medical

malpractice cases “doesn’t hurt anybody,” such awards “come[ ]from the insurance

company.” Additionally, one of Douglas’s doctors testified about his assisting her in

obtaining“disability,”which could refer to disability insurance benefits.Sowe affirm.

1. Background

Douglas sued Lawhorne, alleging that he had improperly implanted a spinal

cord stimulator, causing her injury. The case proceeded to trial.

During voir dire, Douglas’s attorney asked the potential jurors whether any of

them had a problem awarding as damages the amount of Douglas’s medical bills,

which, he said, were almost $1 million. Lawhorne’s attorney objected to the question

on the ground that it asked the jury to prejudge the case. The trial court rephrased the

question, asking whether the potential jurors had any compunction about awarding

monetary damages if they believed the evidence supported an award. One of the

potential jurors responded:

I just feel the need to offer something. That my career was in the

insurance/reinsurance industry. I was involved with books of medical

malpractice insurance. I sometimes have a bias when people say, oh,

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well, let’s give them a lot of money because it doesn’t hurt anybody. It

comes from the insurance company. So I just offer that up for what it’s

worth.

Neither party objected or raised any issue with the trial court about the potential

juror’s comment.

During the presentation of evidence, Douglas introduced the video recorded

deposition of her pain management doctor, which was played for the jury. On direct

examination,the doctor testifiedthat atone of Douglas’s appointments with him, they

discussed her pain and “just kind of helping her with any disability issue.” Counsel

for Lawhorne did not object.

On cross-examination, counsel for Lawhorne asked the doctor questions about

the disability issue. Counsel observed that, “[I]n your notes there’s a note that your

office completed disability papers for Ms. Douglas.” The doctor responded

affirmatively. Counsel then asked,“Do you know or do you recall why disability

papers were being complete[d] for her?” The doctor responded that

if the pain issevere enough we have no problems helping somebody just

as a temporizing measure get disability or if it’s something that’s

historically a factwhere they’ve already been disabled then we try to help

maintain it; or, if it’s somebody who basically might need disability, then

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we obviously try to move forward in a direction that might help them be

evaluated for that option. So any of those possible scenarios could exist

then.

Neither party objected.

Lawhorne’s attorney then asked the doctor, “As of March 22nd, 2017[, before

the implantation of the spinal cord stimulator,] based upon her presentation andwhat

was going on with her medical care you felt that Ms. Douglas was an eligible patient

for disability assistance?” The doctor responded, “I think it’s — for me it’s arrogant

to assume that somebody’s not disabled, but I certainly would want to objectively get

some information to see if they are disabled.”

Lawhorne’s attorney later asked the doctorthe reason for ordering a functional

capacity examination of Douglas, and he explained that he orders them to obtain

objective data “versus some subjective understanding of what might be their

disability.” The attorney then stated that Douglas’s examination “showed that she

could not tolerate sedentary work.” The doctor responded, “Okay.”

At the charge conference, the trial court informed counsel that he would give

what he called “an anti-collateral source charge,” and read aloud the charge he

intended to give. See generally Denton v.Con-Way SouthernExpress, 261 Ga. 41, 42-43

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(402 SE2d 269) (1991), overruled on other grounds by Grissom v. Gleason, 262 Ga.

374, 376 (2) (418 SE2d 27) (1992). Counsel for Lawhorne objected, arguing that the

charge was not based on the evidence presented during the trial and that it would

cause the jurors to start thinking about insurance. The court denied the objection.

After closing arguments, the court charged the jury and included the following

charge:

In assessing the damages of the Plaintiff, the presence or absence of any

insurance or other benefits of any type, for either the Plaintiff or the

Defendants, as well as the financial circumstances of any person listedon

the verdict form, shall not be considered by you in deciding the issue of

liability or damages. The existence or lack of insurance or benefits shall

not enter into your discussions or deliberations in any way in deciding

the issues in this case. You must instead decide this case solely on the

basis of the testimony and evidence presented in the courtroom, as well

as the other instructions given to you by the Court.

Lawhorne renewed his objection.

The jury returned a verdict in favor of Douglas for $4.5 million, the trial court

entered judgment on the verdict, and Lawhorne filed this appeal. (The judgment was

subjectto direct appeal even though Douglas’s motion for attorney fees under OCGA

§ 9-11-68 remained pending at the time of the filing of the notice of appeal. See

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O’Leary v. Whitehall Constr., 288 Ga. 790, 791 (1) (708 SE2d 353) (2011) (motion for

fees under OCGA §§ 9-11-68 and 9-15-14 did not toll the time for filing a notice of

appeal).) 

2. Analysis

Lawhorne argues that the trial court erred in giving the anti-collateral source

charge because no evidence supported it. He also argues that the timing of the charge

and its content require reversal. We disagree.

It is not reversible error for a trial court “to give the jury a cautionary charge

couched in appropriate language.” Johnson v. State, 128 Ga. 102, 104 (57 SE 353)

(1907). “It is a fixed rule that the determination of whether a cautionary instruction

is to be given generally addresses itself to the sound discretion of the trial judge.”

Beasley v. State, 198 Ga. App. 418 (401 SE2d 610) (1991) (citation and punctuation

omitted). And a trial court may give proper cautionary instructions to eradicate the

adverse effect of placing the issue of collateral sources before the jury. See Park v.

Nichols, 307 Ga. App. 841, 843 (1) (706 SE2d 698) (2011). “The determination as to

whether these harmful factors are present in a case necessarily rests in the discretion

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of the trial judge.” Dubose v. Ross, 222 Ga. App. 99, 100 (473 SE2d 179) (1996)

(citations and punctuation omitted).

Lawhorne argues that the potential juror’s comment that insurers pay medical

malpractice awards was not evidence, and so did notsupportthe anti-collateralsource

charge. But the trial court has the discretion to give a cautionary instruction not only

because of improper evidence, but also if “any improper circumstance was injected

into the case.” Emory Univ. v. Lee, 97 Ga. App. 680, 698 (4) (104 SE2d 234) (1958)

(citation and punctuation omitted).It was within the trial court’s discretionto give the

anti-collateral source charge because of the juror’s comment which squarely placed

before the other potential jurors the issue of medical malpractice insurance.

Lawhorne arguesthatthe testimony ofDouglas’spain doctor about“disability”

refers to government benefits, not insurance, and so did not support the charge.

Whetherthedoctor was referring to government benefits, private disability insurance,

Social Security Disability Insurance benefits, or something else was not made clear.

What was clear was that the doctor’s testimony about “disability” related to

Douglas’s efforts to obtain some kind offinancial benefit. So this testimony supported

the trial court’s decision to instruct the jury to disregard “the presence or absence of

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any insurance or other benefits of any type.” See Candler Hosp. v. Dent, 228 Ga.App.

421 (491 SE2d 868) (1997) (collateral source evidence includes disability income).

Lawhorne argues that, in any event, the testimony about disability concerned

events that occurred before the surgery at issue, so the testimony could not have

suggested collateral source payments related to the injury that was the subject of the

action. See Goforth v. Wigley, 178 Ga. App. 558, 560 (2) (343 SE2d 788) (1986)

(evidence of plaintiff’s compensation for a prior vehicle collision was not excludable

under the collateral source rule because it was not evidence of receipt of other

compensation for vehicle collision being tried). Although the testimony about

disability benefits may not have directly violated the collateral source rule given the

timing, it was within the trial court’s discretion to give a cautionary instruction

because of the testimony’s “likelihood to interject the issue of third-party payments

or other irrelevant matters to the jury.” Vol Repairs II v. Knighten, 322 Ga. App. 416,

420-421 (3) (745 SE2d 673) (2013).

Lawhorne argues that by waiting until the end of trial to give the anti-collateral

source charge, instead of giving any kind of instruction at the time of the potential

juror’s comment and the pain doctor’s testimony, the court improperly resurrected

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the issue. “[A] trial court does not err by giving a curative instruction in its closing

jury charge rather than contemporaneous with the introduction of the improper

testimony,when there was no requestfor such an instruction at the time the testimony

was elicited.” Birdsong v. State, 312 Ga. App. 345, 349 (718 SE2d 549) (2011). No

party contemporaneously objected to or requested an instruction because of the

juror’s comment or the pain doctor’stestimony, so the timing of the instruction does

not amount to an abuse of discretion.

Lawhorne also challenges the content of the instruction. He argues that the

instruction improperly connected insurance to liability for the first time during the

trial. We disagree. “The prejudice [from references to collateral sources] lies in the

infectious nature of collateral source evidence, contaminating as it does the issue of

loss with the issues of injury and liability. Such evidence is prejudicial because by its

nature [its] effect is not self-limiting, but it laps over into other considerations. “

Collins v. Davis, 186 Ga. App. 192, 193 (1) (366 SE2d 769) (1988) (citation omitted;

emphasisin original).See alsoDenton, 261Ga. at43 (“[E]vidence of collateral sources

isinherently prejudicial because its infectious nature tendsto contaminate the entire

trial.”).

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Finally, Lawhorne seems to argue that the trial court erred because, regardless

ofwhether or not circumstances existed to support the charge to disregard insurance,

the trial court did not rely on those circumstances and instead gave the instruction in

an effort to preempt the jury from asking about insurance. Regardless of the trial

court’sreasonfor giving the cautionary instruction, we affirm under the right-for-anyreason rule. See Reynolds v. State, 299 Ga. 781, 785 (2) (792 SE2d 393) (2016) (even

if trial court gave an erroneous reason for its decision, “pursuant to the right for any

reason rule, we sustain the trial court’s decision not to charge on [defendant’s

requested jury instruction]”).

Judgment affirmed. Mercier, C. J., and Rickman, J., concur.

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