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Atlanta—The Georgia Supreme Court this week threw out a nearly $22 million verdict for the family of a woman who suffered fatal brain damage after the high court found the case’s jury instructions faulty.
In an opinion authored by Justice Nels Peterson, the state's supreme court concluded instructions on general negligence were improperly given along with instructions on medical malpractice at trial over the brain damage Gwendolyn Brown suffered during a 2008 epidural procedure.
At trial, recorded gavel-to-gavel by CVN, jurors awarded Brown’s husband $21.98 million after finding Dr. Dennis Doherty, Southeastern Pain Specialists, and Southeastern Ambulatory Service Center liable for oxygen deprivation that left Brown bed-ridden and unable to communicate, before later dying from damage-related complications.
Although the verdict was affirmed by a divided Court of Appeals, the Georgia Supreme Court sided with appellants in holding the trial court’s instructions on general negligence lacked support.
“The plaintiffs’ case of medical malpractice was very strong,” Peterson wrote. “But a very strong case of case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice.”
Georgia law allows recovery against a health care provider under ordinary negligence theories if the provider breached a duty that does not require the exercise of medical judgment.
Brown’s attorneys had argued ordinary negligence was appropriate, claiming Doherty and medical staff failed to properly monitor Brown’s pulse oximeter, which provided data on her oxygen levels.
“Plaintiffs imply that lay persons know how to use pulse oximeters because they may be purchased without a prescription at common drug stores,” Peterson wrote, in an opinion joined by all justices except Justice Michael Boggs, who was not part of the review. “But you can buy a lot of things at drug stores; the ability of the public to purchase a medical device is not evidence of general lay knowledge regarding how to interpret and act upon readings provided by that device, much less in the middle of a medical procedure.”
The Court detailed the complexity of Brown’s epidural procedure, which involved inserting five-inch needles into her back while she was under sedation, and using a pulse oximeter and other data to monitor her condition. “Whether or not the information provided by these medical devices indicated even to lay persons that Mrs. Brown was experiencing some respiratory distress, it does not follow that lay persons would know the proper response to that information in the midst of a complex medical procedure,” the Court reasoned.
The error warranted a retrial, the Court concluded, because the jury’s general verdict gave no indication of whether it was based on medical malpractice or the general negligence claim.
However, in ordering a retrial, the high court agreed with Brown’s attorneys that the new trial should consider all claims for damages, including a punitive claim that jurors in the first trial declined to award. “We recognize that where the correct and erroneous portions of a judgment can be separated cleanly, we should set aside only that part that is erroneous,” the Court acknowledged. "But here the jury’s decisions on punitive damages are too related to the questions of liability and compensatory damages. Whether punitive damages are available at all depends on whether liability is established, now an open question to be resolved anew on retrial.”
In an email to CVN, the Brown family's attorney, Slappey & Sadd's Jay Sadd, said a retrial provides a strong opportunity to secure a larger verdict. "The decision is quite favorable to our client," Sadd said. "It was perplexing that the jury decided that punitive damages should be awarded at trial, but then awarded zero. So the [Georgia Supreme Court's] decision gives us an opportunity to correct this inconsistency."
CVN will update this article with additional statements from the attorneys involved as they are available.
Email Arlin Crisco at acrisco@cvn.com.
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