Dillard, Presiding Judge. Allen Turner died due to complications from a surgery to remove a polyp from his intestines. Following his death, his daughter—Norkesia Turner—sued Dr. William Thompson; Dr. Heather Nolan; and their employer, the Medical Center of Central Georgia, for medical malpractice and wrongful death.[1] The case then proceeded to trial, after which the jury rendered a verdict in Turner’s favor, awarding her approximately $9,200,000 in damages—$7,200,000 of which were noneconomic damages for wrongful death. In challenging the jury verdict and denial of several post-trial motions,[2] the appellants argue (1) the judgment should be reversed because Turner failed to present sufficient evidence of causation; and (2) the jury’s award of $7,200,000 in noneconomic damages for wrongful death improperly exceeded the statutory limits on such damages in violation of OCGA § 51-13-1. For the following reasons, we affirm.[3] Viewing the evidence in the light most favorable to the jury’s verdict,[4] the record shows that in 2017, when he was 69 years old, Allen was referred to Dr. Thompson by another physician for surgery to excise a “polyp in the very distal duodenum.” Prior to surgery, Allen underwent an endoscopy, a colonoscopy, and a “small [bowel] follow through series”;[5] but neither a CT scan nor any other type of imaging was conducted on Allen. On March 31, 2017, Drs. Thompson and Nolan performed the operation, during which they unexpectedly discovered a cancerous mass approximately 25 percent larger than a golf ball. As a result, the doctors determined they needed to remove the mass, as well as the polyp. The area of operation, then, became “much larger” with “much higher risk.” And according to Thompson, it was not an option to remove only the polyp and leave the cancerous mass to be excised in a subsequent procedure. As they continued the operation, Drs. Thompson and Nolan also encountered a “large pulsing vessel near the aorta[,]” which was later determined to be the superior mesentery artery (the “SMA”)—the primary vessel supplying blood to the intestines. But at the time, the surgeons did not believe the large blood vessel was the SMA because they were operating “far left” of where it is normally located. As it turned out, Allen’s SMA was distorted and “in an abnormal place.” Additionally, swelling in Allen’s lymph nodes “affected [the surgeons'] ability to see things, which further complicated [the] surgery.” And at some point during surgery, one of the doctors clamped the SMA on both sides and cut it in half.[6] After that, the “vascular team” aided the surgeons in attempting to repair Allen’s SMA. Ultimately, Drs. Thompson and Nolan were able to remove the polyp, the cancerous mass, associated lymph nodes, and everything they would need in order for the cancer to be evaluated. And while Allen survived the initial surgery, over the next few weeks, he underwent numerous additional surgeries due to the severance of his SMA. Tragically, despite the additional surgeries, Allen died after suffering “multi-system failure.” Thereafter, Turner sued MCCG, Dr. Thompson, and Dr. Nolan, asserting claims of medical malpractice and wrongful death. Specifically, Turner alleged that Thompson and Nolan’s negligence in treating Allen—which fell beneath their professional standard of care—caused and contributed to his injuries and death. Turner also claimed, inter alia, that a pre-surgery CT scan or MRI of Allen’s abdomen would have revealed the cancerous mass and whether the SMA was in “the zone of their surgery.” According to Turner, the proper standard of care required the doctors to identify and protect the SMA. And as required by law, Turner attached an affidavit from a medical expert, Dr. Marvin Evans, to her complaint in support of the allegations.[7] The appellants filed a joint answer to Turner’s complaint, denying many of its allegations and asserting several affirmative defenses. Discovery then ensued, and the case ultimately proceeded to a jury trial. Following trial, the jury rendered a verdict in favor of Turner, awarding her (1) $618,853.59 for medical and funeral expenses; (2) $1,443,300 for Allen’s pain and suffering; and (3) $7,216,500 in noneconomic damages for wrongful death. The trial court subsequently entered judgment on the verdict, adding $216.00 in favor of Turner for court costs. The appellants then filed a motion and amended motion for a new trial and judgment notwithstanding the verdict. They also filed a motion “to remit and amend the judgment,” arguing that—as to her wrongful-death claim—the approximately $7,200,000 awarded for noneconomic damages exceeded the $350,000 cap on such damages in OCGA § 51-13-1. Following Turner’s responses and a hearing on the motions, the trial court denied them all in separate orders. This appeal follows. When a jury returns a verdict, it must be affirmed on appeal “if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict.”[8] Put another way, a jury verdict, “after approval by the trial court, and the judgment thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law.”[9] And we review a denial of a motion for a new trial “according to this same standard.”[10] With this deferential standard of review in mind, we turn to the appellants’ specific claims of error. 1. The appellants first argue the jury’s verdict should be reversed because Turner failed to prove their allegedly negligent failure to perform a pre-surgery CT scan caused Allen’s injuries and death. We disagree. As our Supreme Court has explained, a person “professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill.”[11] Indeed, any injury resulting from “a want of such care and skill shall be a tort for which a recovery may be had.”[12] Importantly, three essential elements to establish liability in a medical-malpractice action have emerged from OCGA § 51-1-27: “(1) the duty inherent in the doctorpatient relationship; (2) the breach of that duty by failing to exercise the requisite degree of skill and care; and (3) that this failure be the proximate cause of the injury sustained.”[13] And because medical malpractice is a civil cause of action, a plaintiff “must prove liability (i.e., duty, negligence, proximate cause) by a preponderance of the evidence.”[14] In this respect, the Supreme Court of Georgia has explained that “[p]roof by a preponderance simply requires that the evidence show that something is more likely true than not.”[15] Similarly, many federal courts—including the Supreme Court of the United States and the Eleventh Circuit—have “explained that the burden of showing something by a ‘preponderance of the evidence’ simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence.”[16] Additionally, we have held that to recover in a medicalmalpractice case based on wrongful death, a plaintiff “must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained.”[17] And significantly, to satisfy this burden, the plaintiff must “use expert testimony because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of the average layperson.”[18] But questions regarding causation are “peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.”[19] Particularly relevant here, in Georgia, medical causation must “be proved to a reasonable degree of medical certainty and cannot be based on mere speculation, and the evidence must provide more than a mere or bare possibility that the alleged negligence caused the plaintiff’s injury.”[20] So, the expert’s testimony “must show as an evidentiary threshold that [his or her] opinion regarding causation is based, at the least, on the determination that there was a reasonable probability that the negligence caused the injury.”[21] But a reasonable degree of medical certainty, “while an acceptable means by which an expert may express the confidence he or she has in the conclusion formed and the probability that it is accurate, is not the required standard.”[22] To the contrary, Georgia law requires only that “an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.”[23] Put another way, in providing an opinion in a medicalmalpractice case, an expert “need not use the magic words reasonable degree of medical certainty, but the facts in the record must be sufficient to meet the legal standard embodied in those ‘magic words.’”[24] Indeed, in presenting an opinion on causation, the expert is “required to express some basis for both the confidence with which his conclusion is formed, and the probability that his conclusion is accurate.”[25] There must be, then, a “realistic assessment of the likelihood that the alleged negligence caused the injury or death.”[26] And as we have previously explained, “perhaps nothing in medicine is absolutely certain, but the law intends that if the plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.”[27] Turning to the instant case, the appellants argue Turner failed to present sufficient evidence that the surgeons’ failure to conduct a pre-surgery CT scan caused the doctors to sever Allen’s SMA, which resulted in his death. This claim is belied by the record. As an initial matter, Turner’s expert—Dr. Evans—testified that Allen “died as a result of the division of the [SMA] and all of the consequences that occurred after that.” And the appellants’ expert, Dr. George Fuhrman, agreed that “the fact that the SMA was severed and the lack of blood flow to the bowel [that] occurred . . . was what ultimately led to [Allen's] death . . . .” Evans also testified that it is outside the applicable standard of care to cut and divide a blood vessel without identifying it. So, it is undisputed that severance of Allen’s SMA during surgery caused his death. Nevertheless, the issue before us is whether it is more likely than not that Drs. Thompson and Nolan’s failure to conduct a CT scan prior to surgery would have revealed the unusual location of the SMA, so the doctors could have avoided cutting it. In this regard, Dr. Evans testified that, in his professional opinion, “[h]ad one done a CT scan with the proper technique looking at blood vessels, then you would be able to see the [SMA] in its course[ ] and whether it’s distorted or not, you would know that by use of a [CT] scan.” Further, when asked whether he could say “within a reasonable medical probability” that a CT scan would likely have prevented the SMA from being cut in two, Evans testified that, even though it cannot be guarantied, the chance of it happening would be “ a lot less.“[28] In other words, Evans testified that if a CT scan or any other imaging scan such as an MRI had been performed, “you would have know[n] that the anatomy is distorted and . . . you could avoid the trap of cutting the blood vessel.” Given the foregoing, Evans’s expert testimony provided ample evidence to establish that there was more than a “mere possibility” that Thompson and Nolan’s failure to order a pre-surgery CT scan resulted in the severance of Allen’s SMA, which caused his death. Indeed, Evans testified there was a medical probability it did cause Allen’s death, which is certainly enough here.[29] Importantly, Turner was not required to present expert testimony that the expert was absolutely certain a CT scan would have prevented the doctors from severing Allen’s SMA.[30] As a result, to the extent there was conflicting testimony “regarding causation, it is the province of the jury to decide which testimony is most believable.”[31] And here, the jury evidently believed Dr. Evans’s testimony that a pre-surgery CT scan would likely—i.e., more likely than not—have prevented the doctors from severing Allen’s SMA. Under such circumstances, Turner presented sufficient evidence to prove causation by a preponderance of the evidence.[32] 2. Next, the appellants argue the jury’s award of approximately $7,200,000 for noneconomic damages as to the wrongful-death claim must be remitted and amended because it exceeded the $350,000 cap on noneconomic damages imposed by OCGA § 51-13-1. But this argument is foreclosed by binding Supreme Court of Georgia precedent.[33] The jury rendered a verdict in Turner’s favor, awarding her, in relevant part, $7,216,500 in noneconomic damages for her wrongful-death claim only.[34] Thereafter, appellants filed a motion “to remit and amend the judgment,” arguing these noneconomic damages improperly exceeded the $350,000 limit on such damages under OCGA § 51-13-1. And in denying the motion, the trial court ruled that, in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt,[35] our Supreme Court held the caps on noneconomic damages in OCGA § 51-13-1 violated the constitutional right to a jury trial.[36] Further, the Nestlehutt Court noted that “[t]he general rule is that an unconstitutional statute is wholly void and of no force and effect from the date it was enacted[,]“[37] and as to OCGA § 51-13-1, it found no reason to deviate from this general rule.[38] Relevant here, OCGA § 51-13-1 provides as follows: In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000.00, regardless of the number of defendant health care providers against whom the claim is asserted or the number of separate causes of action on which the claim is based.[39] And in Nestlehutt, the Supreme Court of Georgia unambiguously held—without any qualifications or exceptions—that “the noneconomic damages caps in OCGA § 51–13–1 violate the right to a jury trial as guaranteed under the Georgia Constitution.”[40] Those caps expressly include wrongful-death claims in the context of a medical-malpractice action.[41] Nevertheless, appellants argue the $350,000 cap on noneconomic damages in OCGA § 51-13-1 applies to Turner’s wrongful-death claim because Nestlehutt involved only a medical-malpractice claim. Specifically, they contend the Nestlehutt Court would not have ruled that statutory caps on noneconomic damages in wrongful-death cases are unconstitutional because that issue was not before it. But in our view, appellants read Nestlehutt far too narrowly. As the Supreme Court of Georgia has explained, Georgia’s constitutional jury trial right “protects only those rights to a jury trial that existed in Georgia in 1798 [the time at which our state adopted the Constitution of 1798].”[42] And although Nestlehutt did not involve a claim specifically characterized as one for wrongful death, our Supreme Court described the legal right available in 1798 as claims involving the negligence of a health care provider.[43] Suffice it to say, the wrongful-death claim in this case involves negligence by a health care provider.[44] And again, the Nestlehutt Court expressly ruled the damages caps in OCGA § 51-13-1 are unconstitutional as applied to medical malpractice, which—by the explicit terms of the statute—includes wrongful death.[45] Significantly, our Supreme Court did not exclude wrongful-death claims involving medical malpractice in finding this aspect of the statute unconstitutional. Simply put, setting aside wrongful-death claims unrelated to medical malpractice,[46] the Nestlehutt Court held that causes of action involving medical malpractice existed in 1798, and as a result, the caps on noneconomic damages in OCGA § 51-13-1 are unconstitutional. And here, Turner’s wrongful-death claim unquestionably involves medical malpractice, so the statutory cap on damages as to that claim violates her inviolate right to a jury trial under the Georgia Constitution.[47] For all these reasons, we affirm the jury’s verdict in favor of Turner. Judgment affirmed. Brown and Padgett, JJ., concur.
