- Court
- Court of Appeals of Georgia
- Year
- 2026
- Case
- Johnson v. Everett
- Citation
- Case No. A26A0099, 2026 Ga. App. LEXIS 248
- Decided
- May 20, 2026
A trial court has discretion whether to let a jury consider the emergency-care gross-negligence standard of OCGA § 51-1-29.5 when no party raised that issue in the pretrial order; the statute's command that the court "shall instruct the jury" applies only once § 51-1-29.5 is shown to apply and does not strip the court of that threshold discretion. Because the trial court believed it had no choice but to submit the issue, it failed to exercise its discretion, requiring the defense verdict to be vacated and the case remanded.
The Court of Appeals vacated a defense verdict in John Johnson’s medical malpractice case against vascular surgeon Christopher B. Everett and University Surgical Associates of Athens, PC, and remanded for the trial court to do something it mistakenly thought it could not: decide for itself whether to let the jury apply the emergency-care gross-negligence standard. The court also addressed two evidentiary rulings likely to recur on remand and found no ground for reversal in either.
Because Johnson did not designate the full trial record on appeal, the panel drew the background from his complaint and cautioned that those “alleged facts may or may not have been supported by evidence at trial.” As alleged, Everett was the on-call vascular surgeon when Johnson came to the St. Mary’s Hospital emergency room in January 2017 with symptoms of arterial blockage in his left leg; Everett sent him home to follow up the next week, his symptoms worsened, and he was eventually transferred to Athens Regional Medical Center, where Everett operated. Johnson attributes a permanent left foot drop to the delay.
The pretrial-order issue (the holding)
The pretrial order listed negligence, causation, and damages, and identified only OCGA § 51-1-27 as the governing negligence statute. No one listed OCGA § 51-1-29.5, the emergency medical care statute, which raises the plaintiff’s burden to gross negligence proven by clear and convincing evidence for claims arising out of emergency care. Partway through trial — at the directed-verdict stage after Johnson rested — the defense invoked § 51-1-29.5 for the first time. The trial court remarked that it appeared the defense had “sandbagged” Johnson, but charged the jury on the gross-negligence standard anyway. The jury found that Everett had provided emergency medical care and returned a defense verdict.
When Johnson moved for a new trial, the trial court denied it on the ground that the statute’s language — “the court shall instruct the jury to consider” — left it no authority to keep the issue from the jury. The Court of Appeals disagreed. That compulsory language, the panel held, dictates specific charges only once § 51-1-29.5 is shown to apply; nothing in it required the court to amend the pretrial order to inject a threshold issue the parties had omitted. An issue left out of a pretrial order is generally waived, and whether to modify the order to allow it is committed to the trial court’s discretion. Because the trial court believed it had no choice, it never exercised that discretion — a “significant legal error” that is itself an abuse of discretion. The remedy is a vacate-and-remand so the trial court can make the discretionary call in the first instance. The panel was explicit that it was not deciding whether the gross-negligence charge should have gone to the jury; only that the decision belongs to the trial court, exercised as discretion rather than as a supposed command.
The expert-testimony and prior-complaint issues (affirmed)
Johnson also challenged the defense’s causation expert, Dr. William Garrett, a neurologist, who attributed Johnson’s gait and balance problems to longstanding causes — a prescribed antibiotic (gentamicin), degenerative lumbar disease, and chronic alcohol use — rather than anything Everett did. The panel held the opinion admissible: a defendant may offer expert testimony of alternative causes to rebut the plaintiff’s causation case, partial speculation goes to weight rather than admissibility, and cross-examination was the proper response. It also rejected Johnson’s challenge to the admission of a 1997 complaint he had filed in another action — alleging that gentamicin given by an out-of-state hospital caused him dizziness and imbalance — because the limited appellate record did not show he made a contemporaneous objection when the exhibit was tendered, and evidence of a plaintiff’s other injuries can be admissible to show the current injuries were not caused by the defendant.
Commentary
The opinion is a useful reminder that the emergency-care statute’s mandatory-sounding text is conditional. Section 51-1-29.5 tells a court what to charge if the statute applies; it does not tell the court it must let a defendant raise the statute for the first time mid-trial over a pretrial order that never mentioned it. For plaintiffs, the practical point is preservation in reverse: when a defendant springs § 51-1-29.5 after the pretrial order has closed, the pretrial order itself is the objection, and the trial court has discretion to hold the defense to it. The remand does not hand Johnson a new trial — it sends the question back to the judge, who now has to decide whether the late issue should have been allowed at all.
