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Ferro v. Boswell

Evidence that the plaintiff's post-surgical knee problems may have resulted from her failure to follow her doctor's instructions entitled the doctor to a comparative negligence charge.

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Onna Ferro appeals from a jury verdict in favor of Vincent E. Boswell, M.D. in her medical malpractice action against him. In this appeal, Ferro asserts the trial court erred by 1 failing to grant her motion for new trial because there was unrefuted evidence that Dr. Boswell violated the standard of care; 2 failing to charge the jury with regard to the statutory presumption that arises under OCGA § 24-2-22 when a party fails to produce evidence; and 3 charging the jury on comparative negligence when this charge was not supported by the evidence and this defense theory was not included in the pre-trial order. For reasons that follow, we affirm.

1. In her first and second related enumerations of error, Ferro asserts the trial court should have granted her motion for new trial because there was “unrefuted evidence that Dr. Boswell had violated the . . . standard of care, thereby causing Ms. Ferro’s damages.” In further support of this argument, Ferro contends the trial court abused its discretion because it failed to apply evidentiary presumptions when it ruled on the motion for new trial.

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