## Facts

- J.B. underwent a multi-phase dental procedure at Goldstein, Garber & Salama, LLC (GGS) in which a CRNA, Paul Serdula, administered anesthesia.
- J.B. was heavily sedated for roughly two hours between phases of the procedure.
- While J.B. was sedated and alone with Serdula for part of that time, Serdula sexually assaulted her and made video recordings of the assaults.
- The recordings were discovered after Serdula’s phone was found surreptitiously recording in the office; additional recordings showed assaults on other anesthetized patients.
- Serdula later pleaded guilty to criminal charges related to assaults on J.B. and others and received a life sentence.
- J.B. sued GGS and Serdula, but dismissed Serdula before trial; the jury was nevertheless asked to apportion fault between GGS and Serdula as a nonparty.
- At trial, J.B. presented expert testimony that GGS violated anesthesia-related statutory duties governing dental supervision of nurse anesthetists and breached professional standards for monitoring and supervising anesthetized patients.

## Issues

1. Whether the evidence required a directed verdict for GGS on negligence per se and professional negligence, including whether GGS’s conduct was a proximate cause of harm despite Serdula’s intervening criminal acts.
2. Whether the negligence per se claim failed because the anesthesia permitting/supervision statutes were not intended to prevent the type of harm suffered.
3. Whether the professional negligence claim failed on the theory that the alleged failures did not involve professional judgment and skill.
4. Whether the trial court abused its discretion in challenged evidentiary rulings.
5. Whether the verdict apportioning 100% fault to GGS and 0% to the nonparty assailant required a new trial.

## Decision

- The Court of Appeals affirmed the $3.7 million judgment for J.B.
- The court held the trial court properly denied GGS’s motion for directed verdict because there was evidence supporting negligence per se, professional negligence, and proximate cause.
- The court held the trial court did not abuse its discretion in the evidentiary rulings challenged on appeal.
- The court rejected GGS’s challenge to the 0% fault allocation to the nonparty assailant on waiver grounds and declined to disturb the verdict.

## Legal Principles

- On appeal from a jury verdict, the judgment is reviewed under an “any evidence” standard absent material legal error.
- Proximate cause in Georgia is generally a jury question assessed on the facts of each case; an intervening intentional criminal act does not necessarily break causation as a matter of law when foreseeability and duty support liability.
- Negligence per se may be submitted to the jury where there is evidence of statutory violation and evidence permitting a finding that the violation proximately caused the injury within the statute’s protective purpose.
- Professional negligence may be shown by expert testimony that monitoring and supervision decisions during anesthesia implicate professional judgment and that defendants deviated from the applicable standard of care.
- Alleged evidentiary errors are reviewed for abuse of discretion; reversal requires a showing that the trial court’s rulings were outside that discretion and harmful.
- Challenges to apportionment or verdict inconsistency must be preserved in the trial court; failure to preserve can waive appellate review.

## Conclusion

The Court of Appeals upheld the jury’s finding that GGS’s statutory and professional failures in supervising and monitoring an anesthetized patient could be found a proximate cause of the circumstances enabling a CRNA’s sexual assault, affirmed evidentiary rulings, and left intact a verdict assigning all fault to GGS due to waiver of the apportionment challenge.


Goldstein, Garber & Salama, LLC v. J.B., 335 Ga. App. 416, 779 S.E.2d 484 (Ga. Ct. App. 2015)