Terri Franklin began taking Benicar to treat her high blood pressure in February 2009. She learned that she was pregnant with Kendyl in August of 2010, and a friend recommended Alvin Sermons, M.D. as an obstetrician.
Franklin testified that at her first appointment with Sermons, on September 13, 2010, she told Sermons that she was taking Benicar and Sermons said, “well, that’s not normally a medicine that you could take while being pregnant, but [I will] switch you later.” Sermons did not tell Franklin that Benicar could harm her baby, nor did he instruct her to stop taking Benicar. Franklin subsequently refilled her Benicar prescription the same day.
At Franklin’s following appointment with Sermons, they did not discuss Franklin’s Benicar prescription. However, at her October 28, 2010 appointment, Komarta Gorman, the other parent of Kendyl, asked Sermons when Sermons was going to change Franklin’s blood pressure medicine, and Sermons responded, “I’ll switch it later.”
Franklin and Sermons did not discuss Benicar at any of Franklin’s ensuing doctor’s appointments, until her March 3, 2011 appointment, when Franklin again mentioned that she was taking Benicar. Sermons did not tell Franklin to stop taking Benicar, and she was scheduled for another appointment with Sermons for March 17, 2011. However, after Franklin left Sermons’ office on March 3, Sermons called her and told her to go to a maternal fetal specialist the next morning.
The following morning at approximately 7:00 a.m., Sermons called Franklin again and told her to go straight to the hospital and that he would meet her there. When Franklin arrived at the hospital, she was admitted, and the treating physicians immediately took her off of Benicar and prescribed her a different blood pressure medicine.
Five days later, Kendyl was born premature, at 32 weeks, with brain damage, chronic kidney disease, and under-developed intestines. Franklin was diagnosed with oligohydramnios, where there is not enough amniotic fluid around the baby, which is associated with pre-term labor.
The plaintiffs filed their Georgia medical malpractice lawsuit in October 2012. At trial, the plaintiffs’ expert testified that Sermons breached his duty of care by failing to tell Franklin to stop taking Benicar immediately. The defendants admitted that if Sermons had failed to tell Franklin to stop taking Benicar, it would have been a violation of the standard of care. Sermons testified, however, that he told Franklin at her first visit to stop taking Benicar, but she continued to do so. The jury resolved the dispute in the plaintiffs’ favor, finding in favor of the plaintiffs, and awarding them twelve million dollars. However, the jury also found Franklin 46% responsible, and the trial court subsequently reduced the award by 46% and entered a judgment for the plaintiffs of over six million dollars. The defendants appealed the judgment, alleging that the jury verdict was void because it was “fatally inconsistent,” among other claims of error.
The Court of Appeals of Georgia stated in its opinion dated March 8, 2022: “We are, of course, not privy to the reasons the jury found Franklin 46% at fault. Perhaps the jury believed that Sermons breached his duty of care by failing to tell Franklin of the dangers of Benicar but that she should have conducted her own research or listened to Gorman when he expressed reservations about Benicar. As there were facts by which the jury could allocate Franklin 46% of the fault, “[w]e will not substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses.””
Source Dunwoody Obstetrics and Gynecology, P. C. v. Franklin, A21A1691.
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