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By: Shaun Daugherty
The Georgia appellate courts have addressed the issues between claims of ordinary and professional negligence in medical malpractice cases for a number of years. The standards for liability are distinctly different, but in certain factual scenarios there may be a fine line drawn between the two. The Georgia Supreme Court made a clear distinction on the issue last month in reversing a $22 million dollar compensatory verdict awarded in Southeastern Pain Specialists v. Brown. This was after the same verdict had been affirmed by the Court of Appeals that found no error in the trial court charging the jury on both ordinary and professional negligence.
The Georgia Supreme Court had some clear leanings regarding the quality of care that was provided in the underlying lawsuit according to the evidence presented at trial. The case involved an epidural steroid injection procedure where a pulse oximeter and blood pressure cuff were placed on the patient for monitoring while she was administered anesthesia face down. During the procedure, the evidence was that the pulse oximeter read 0% and the blood pressure cuff registered no reading for a significant amount of time. The evidence was that the defendant doctor, with knowledge of the readings, continued the procedure insisting that everything was fine. After the 18-minute procedure, the patient was repositioned on her back and did not recover as expected. She was taken to the local ER for further care and the defendant doctor indicated to the medical personnel that the patient was having complications from the anesthesia. He failed to provide any information regarding the intra-procedure pulse oximeter or blood pressure readings. The patient was found to have suffered brain damage and ultimately died from the same.
At trial, the court charged the jury on both ordinary negligence, over objection by the defense, and professional negligence. The plaintiff argued that the ordinary negligence charge was warranted due to the obvious obligation to save someone if they are not breathing and the misrepresentations made by the defendant doctor to the other healthcare providers. The court provided no guidance as to which facts and circumstances in the case may apply to which theory of negligence. Further, the plaintiff appears to have argued in closing that the ordinary negligence standard was to be applicable generally to the defendants.
The Georgia Supreme Court made it clear that even “a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice.” It was recognized that medical providers could be held to the ordinary negligence standard under the right circumstances, but primarily only in those cases where there was no need to exercise medical judgment. Multiple times in the Court’s reversing opinion, it was highlighted that the facts of the case involved medical data provided by medical equipment during a medical procedure and the proper response to the same. It was found that this required the exercise of medical judgment.
In cases involving claims of medical malpractice, the defendant is provided a presumption of due care which must be overcome by expert testimony by the plaintiff. In cases involving ordinary negligence, no such presumption is given. The Court found that the Court of Appeals erred in finding that a lay person would not need expert testimony to understand the meaning of the data provided from the medical machines and the proper method of response during the medical procedure. The “trust” of the plaintiff’s argument was that the defendant doctor failed to properly respond to the data that was being provided by the machines. This was information that required expert judgment and decision making which was outside the scope of ordinary negligence.
The Court determined that providing the jury with an ordinary negligence instruction, without clarification as to which facts and claims it may apply, invited them to decide the medical liability outside the boundaries for claims of professional negligence. Primarily the need for expert testimony to overcome the presumption of due care. This was compounded by the plaintiff’s counsel’s arguments in closing which made no distinction and appeared to encourage the ordinary negligence standard to all claims. The jury verdict in favor of the plaintiff was a general form and did not allow the Court to determine whether the verdict was based on the application of the appropriate standard. Because it was error to provide the ordinary negligence charge without further clarification or instruction, the Court reversed and remanded the matter to the Court of Appeals with a direction to send it back to the trial court for a full retrial as to the appealing parties, including the issue of punitive damages to which the plaintiff had previously been awarded $0.
So what does this opinion tell us? It tells us that ordinary and professional negligence claims can live in the same case, but it is essential that they be clearly defined for the jury. The trial court’s vague instruction, coupled with the plaintiff’s counsel’s closing argument, invited the reversal in this instance. As the Court indicated many times, medical data from medical machines during a medical procedure require the exercise of expert medical judgment in determining the proper response. The failure of the trial court and attorney to set this apart from any ordinary duty of care in defendant’s communications to other medical providers was harmful error which required the retrial.
If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].