MOULTRIE -- In an unusual move, Superior Court Judge Frank Horkan directed a mistrial in the second day of a half-million dollar malpractice lawsuit against a Moultrie surgeon.

The plaintiffs' attorney, Hugh Gordon of Tifton, called the ruling an "abuse of discretion."

Plaintiff Kenneth Fletcher, of Omega, filed suit against Dr. Thomas Estes, 3004 Second St. S.E., alleging the surgeon was negligent in his failure to diagnose an abdominal injury that soon after turned septic and "almost killed Fletcher."

This case came to trial about nine months ago, also ending in a mistrial after a jury deadlocked in deliberations.

The defense moved for a mistrial after Fletcher's attorney asked his hired expert medical witness in a string of questions on direct who was the author of a certain text, was the text an authoritative one, what is the number one trauma unit in Georgia (the author is a top surgeon there) and was the witness' opinion consistent with that of the text's.

Estes' attorney Anthony Rowell of Hall, Booth, Smith and Slover in Tifton argued that the line of questioning was designed to inject hearsay testimony. Gordon protested to the court, saying he asked the same question in the last trial without objection. The attorney reasoned that the expert derived his opinion in part from that text.

During a barrage of objections from defense attorney, Gordon asked, to no avail, if defense would stipulate the text was authoritative.

In court, Horkan called the line of questioning "icing on the cake," referring to numerous sustained objections throughout the trial including quite a few leading questions.

Gordon said his client is "absolutely" not giving up.

"I think it's extremely inappropriate. It's been a very controversial and contested matter. It's really a shame," Gordon said, indicating that the amount of time and expense that has already been put into the case is enormous.

"This family has been really, really affected by this. It's very unfortunate. It will make it more difficult, but it will be tried," he added.

Defense attorneys Rowell and Jack Slover of the firm's Atlanta division, declined comment, saying that any discussion of the judge's ruling would be inappropriate.



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